Court halts rape case over 11-year delay
Pini Bothoko | Wednesday October 29, 2025 06:00
Delivering judgment recently, Justice Masilo Mathaka ruled that the 11-year delay in bringing Kabelo Kingsly Thadia to trial was unjustified and prejudicial, saying it amounted to a violation of the fair trial guarantees enshrined in Section 10(11) of the Constitution of Botswana.
The accused, charged with rape, was alleged to have committed the offence in December 2012. However, he only made his first appearance before the Mahalapye Magistrate’s Court on March 14, 2023, which was more than a decade later.
In his application, Thadia sought a permanent stay of proceedings, arguing that the excessive delay had caused him severe mental anguish and compromised his ability to mount a proper defence. He cited the fading memories of witnesses, the possible unavailability of some of them, and his own difficulty recalling events that took place over a decade ago.
Justice Mathaka agreed that the delay was both excessive and unjustified. “After taking into account all the factors that one has to consider in deciding whether or not there has been an unconscionable delay, I find that the period of the delay exceeded a reasonable threshold,” Justice Mathaka said.
He noted that whilst the seriousness of the offence was not in dispute, there was no evidence to suggest that the delay was linked to the complexity of the case or any legitimate logistical obstacles.
“It seems to me that the matter simply fell through the cracks after its initial investigator was dismissed. Again, after the investigations were completed, there was no sense of urgency to make up for the delay,” he said.
According to court records, the case was first reported to police on December 23, 2012, and assigned to a one Constable Modutwane, who was later dismissed from the service. In 2019, the case was reallocated to another officer, Constable Setshosa, who completed the investigations and forwarded the docket to the Directorate of Public Prosecutions (DPP) in March 2020.
The prosecutor handling the matter, Kuda Mbonini, told the court that she was assigned the file in March 2021 during the COVID-19 pandemic, which disrupted court operations and police tracing efforts. She said the accused could not be located until February 2023.
However, the judge dismissed this explanation, noting that it was not supported by evidence from either the station commander or the investigating officer. He also stated that Thadia’s claim that he had been living in his home village of Makwate throughout the period went unchallenged.
“The delay in the region of more than nine years, to be modest, has not been explained, and where an attempt was made to explain it, the explanation was not at all satisfactory,” Judge Mathaka said.
He further emphasised that the constitutional right to be tried within a reasonable time protects not only against trial prejudice but also against the anxiety, stigma, and emotional toll of prolonged uncertainty. Citing earlier judgments, the judge said unreasonable delays undermine public confidence in the justice system and erode the credibility of prosecutions.
“The continuation of proceedings in this matter will do very little, if at all, to enhance public confidence in our criminal justice system that crimes are investigated and timely prosecuted,” he observed.
Although the state argued that the commencement of the trial in 2023 meant the case should proceed, the judge held that this factor alone could not outweigh the prejudice suffered by the accused over the years.
In the end, Justice Mathaka concluded that the only appropriate remedy was to permanently stay the prosecution.
“The prosecution of the applicant for the crime of rape contrary to Section 141 as read with 142 of the Penal Code (Cap. 08:01) is permanently stayed,” he ordered.