HIV+ Pastor And Masseur Loses Appeal

Goitsemodimo Kaelo | Monday August 6, 2018 12:31

 

This follows after the Court of Appeal (CoA) dismissed his appeal against his prior conviction last Friday.

The incident took place on May 30, 2012 when the five months pregnant girl had gone to the masseur for her daily routine massage.

It is said that on that day, after the complainant had undressed for a massage as usual, the appellant lowered his trousers and proceeded to have unlawful carnal knowledge of her without her consent. 

Ntshwarisang was convicted in 2016 by the Letlhakane Magistrate’s Court, but was committed to the High Court for sentencing.

The High Court, after reviewing the representations from both parties found that the conviction was well founded and proceeded to sentence him to the minimum mandatory 20 years’ imprisonment.

In the course of the proceedings, the appellant’s attorney had presented some medical records, which showed that the appellant was HIV positive at the time of the commission of the offence, and that he had been aware of his status for some time prior to the offence.

Ntshwarisang later appealed his conviction and sentence on the grounds that all ingredients or elements of offence were not covered in the evidence that was used to convict him.

He claimed the sexual intercourse between him and the complainant was consensual and that the credibility of the complainant was not assessed properly by the trial court. In relation to the sentence, he argued that the sentence meted out by the trial court induced a sense of shock and that the HIV test was done five years after the alleged offence, but was used by the sentencing court to pass a harsh sentence. At the hearing, the appellant’s attorney abandoned altogether the appeal against sentence.

However, Justice Singh Walia dismissed his appeal against conviction on Friday saying that it lacked merit.

Walia said that the appellant did not fare well under cross-examination.

 “The complainant had testified that prior to May 30, her visits to the appellant had been in the afternoon.

“The May 30 visit was, at his instance, in the morning when he and she were alone. In his evidence, he said, first that there were seven patients but later changed that to 10. 

“He could not, however, recall any names. It’s quite inconceivable that a therapist would not, even after four years, recall a single patient’s name,” Walia said in his judgement.

Walia said that the biggest failing in the appellant’s case was his failure to put his version of events to any of the State witnesses.

“It is well established that failure by an accused to put his version to the State witnesses brings his truthfulness into question,” reasoned Walia.

The appellant had challenged the evidence of both the doctor and forensic scientist, saying that the chain of custody between obtaining the samples and their testing was broken.

He also argued that the sexual intercourse had not been proven as the doctor’s evidence on the matter did not prove that the white discharge he saw was semen.

However, Justice Walia said that the court a quo was right in finding that the samples were properly taken and hence dismissed the appeal.