Court revokes bail of defilement convict

OARABILE MOSIKARE
Correspondent | Thursday March 5, 2009 00:00

Kitso Kgamelo who has been out on bail pending the outcome of the appeal of his conviction was sent back to jail to wait for judgment on June 12 by Justice Modiri Letsididi who intimated that he found no prospects for the success of the case.

The then magistrate Walter Chikanda convicted Kgamelo for the defilement of a girl under 16 years on July 26, 2003 at Morolong ward in Karakubis. He was sentenced to 10 years for the crime but was granted bail pending appeal by Justice Mpaphi Phumaphi on February 3, 2006 after serving eight months in prison.

In his appeal Kgamelo said he was convicted on the basis of insufficient evidence produced by the investigation officer. He said Chikanda violated Section 10 of the Constitution when he ordered the amendment of the charge from rape to defilement. 'As far as I am concerned, the learned magistrate acted as both the prosecutor and presiding officer,' submitted Kgamelo prompting Letsididi to ask him what was wrong with the magistrate's decision.

Kgamelo was adamant that only the prosecutor can apply for the amendment of the charge sheet not the magistrate. 'But you are wrong. I know the charge sheet can be amended particularly in this case when the evidence was not led,' said the judge.

Kgamelo said the court reached the conclusion to amend the charge sheet by looking at the physical appearance of the complainant rather than any document.

Here Justice Letsididi reminded him that the birth certificate of the complainant was produced during the course of trial. Kgamelo charged that he was not afforded a fair hearing and was prejudiced. Justice Letsidi retorted: 'How could you be prejudiced if you said 'I did not have sexual intercourse with this woman or girl?' Your defence was one.

Defilement and rape are the same thing but the difference is the issue of consent'.

Kgamelo submitted that he was a first offender and was not afforded adequate time and facilities for his defence.

'I was being denied my constitutional right and was not told my rights as an accused person. The judgment does not have complete contents as the date was omitted,' said Kgamelo. The prosecutor, Reneetswe Rabosotho submitted that Kgamelo was properly convicted. Rabosotho said the evidence that was adduced was sufficient to secure a conviction of defilement.

He addressed the court on the issue of special defence. He said the magistrate's failure to advice Kgamelo during the commencement of the trial on its own cannot be a defence for the Appeal Court to acquit him. 'The appellant demonstrated that he appreciated the difference between rape and defilement,' said Rabosotho.