Court frees Patlakwe

BAME PIET
Staff Writer | Friday November 26, 2010 00:00

 

A magistrates court in Gaborone discharged and acquitted Patlakwe on a single count of rape in May last year and the DPP appeal to the High Court, was heard in June this year. The rape allegedly took place in Mogoditshane in June 2007 and the prosecution called in nine witnesses during the trial.

The DPP based their appeal on four grounds: the magistrate misdirected herself on a point of law as to the standard proof required by law in criminal matters; argued that the magistrate misdirected herself on a point of law by failing to apply statutory provision as provided for in section 239 of the Criminal Procedure and Evidence Act; that the magistrate failed to correctly apply the cautionary rule and that she incorrectly applied the admissibility of the doctor's medical report therefore misdirecting herself to come to a wrong conclusion.

In response, Basimane Bogopa, attorney representing Patlakwe, argued that the DPP's right to appeal is limited to appeal against points of law and that there is no right of appeal against findings of fact. Justice Tshosa confirmed that the DPP has the right to appeal regulated by the High Court Act.

'However, unlike other litigants the right of appeal by the Directorate of Public Prosecutions to the High Court is restricted to a matter of law against a finding or acquittal.

He can only appeal against the decision of a lower court on a finding of fact and not of law,' he said. He said that in other countries the State has no right of appeal on factual findings by an inferior court and the only way they can do it is by way of reservation of question of law. The State abandoned the first ground of appeal along the way.

The DPP also argued that the trial magistrate said the complainant was a credible and competent witness hence should have convicted Patlakwe.

The defence on the other hand said the magistrate only said in her judgment that she was impressed with the complainant's evidence.

'The magistrate only said that the complainant impressed her during her evidence in-chief as truthful witness. She further noted that there were some contradictions between her evidence in chief and her record statement.

However, the magistrate fell short of saying the complainant was a credible witness,' the judge conceded.

Justice Tshosa concluded that none of the grounds raised by the DPP were sufficient to overturn the judgment of the trial magistrate. He also dismissed the application for costs as requested by the DPP.