Rapist appeals conviction

Tebogo Kgalemang
Correspondent | Tuesday June 1, 2010 00:00

Balopi who was represented by his attorney Tshekiso Tshekiso argued that the conviction be set aside on the basis that the trial court failed to find credibility in the complainant's evidence. He further argued that the complainant was not a credible witness because the statements she made before the police contradict her testimony in court.

The trial record states that the complainant asked for a lift from Balopi, from Dukwi nightclub after the other two parties she had come with left her behind.  The complainant stated that they arrived at Sowa at five in the morning, and as she thanked Balopi she was shocked when he suddenly grabbed her and dragged her to the servant's quarters where he beat her up before raping her twice.

She said she only managed to get away when he left to fetch her some water.

Tshekiso argued that the complainant's evidence on how she gained her freedom is contradictory to the statement she made to the police, where she stated that Balopi unlocked the door for her.

He further argued that Balopi had sexual intercourse with the complainant before the violence, which only started when the two parties woke up and Balopi realised the complainant had stolen his cellphone.

Tshekiso went on to state that the complainant complained about pain to her womanhood which lasted a week, a statement that is missing from the medical report admitted in evidence.

'The doctor also clarified that the reports showed something had happened with the complainant's mind during examinations on the same day. In my submission it means there must be abnormality with her mind either as a result of alcohol which had resulted in her not knowing how she came to be in contact with Balopi,' Tshekiso pointed out. He maintained that the complainant was not a credible witness.

However the chief prosecution counsel Nomsa Sinki Moatswi argued against the defence's allegations.  'The manner in which the magistrate analysed the complainant's evidence and compared it with other witnesses evidence showed she made findings to the complainant evidence,' she stated.

Moatswi also dismissed allegations that the complainant might have been drunk adding that none of the other witnesses including the doctor made any such reference. She added: 'Both witnesses Thabiso Mokibe and Bashi Tlhabanelo did not mention anything about a stolen phone. They were not even cross-examined on the cellphone issue. The fact is that when they asked Balopi why he assaulted the complainant he didn't even answer. At least answering them could have answered why he assaulted the complainant,' Moatswi argued.

'The assault was done in order to force complainant to have sexual intercourse,' Moatswi added and further submitted that the doctors findings that there was something wrong with the complainant's mind meant that the complainant was deprived during the time of examination not that she was insane or maybe drunk.

She further said her belief is that the appellant was properly convicted.

The judge questioned why Balopi was not sentenced to 15 years as the rape was attended by violence. The ruling was reserved.