Defilement case remitted to Magistrate's Court
Lebogang Mosikare | Tuesday December 13, 2022 17:32
This follows an application by Zibuse Nxabile who is alleged to have defiled a girl under the age of 16 sometime between December 2018 and January 2019 in Ditladi village. Nxabile is also accused of having entered Botswana illegally during an unknown date at or near Ramokgwebana village. The accused had made an application saying that the charge sheet concerning the offence of defilement was defective because it was never read to him and that his plea was never taken.
He further said another person implicated in the matter whose blood was taken for forensic analysis was left off the hook and that his blood was not extracted. Nxabile also indicated that the complainant’s blood was not extracted as well after she fell pregnant amongst other reasons. Even though his defilement trial was yet to commence before the Francistown Magistrate's Court, Nxabile prayed with the High Court to dismiss the defilement matter. When dismissing the urgent chamber application, Justice Tshegofatso Mogomotsi said that the issues raised by the applicant for his acquittal should be dealt with by the lower court where he has the opportunity to cross-examine state witnesses. “Only the trial court can determine this matter after having carefully analysed all evidence brought before it.
This court cannot determine your matter before trial in the matter that has even commenced. This court cannot prejudge matters that are before the Magistrate's Court. Since you say that the charge sheet that has been used to charge you is defective, you should have made an application to correct that anomaly at the lower court,” Mogomotsi said. In the premises, Mogomotsi clarified, she found that Nxabile’s application is not only incompetent but also improper before the High Court. “This court cannot make a determination on a matter that is yet to undergo trial at the Magistrate's Court.
This matter should be remitted to the Magistrate's Court for trial. This application is an abuse of the criminal justice process and it is therefore dismissed and struck off the roll,” Mogomotsi said.