It was rape, not defilement - judge

OARABILE MOSIKARE
Correspondent | Friday February 22, 2008 00:00

Gakologelwang was earlier charged and subsequently convicted of the offence of defilement by the Magistrates' Court. Gakologelwang was sentenced to 12-years imprisonment plus strokes.

The said Gakologelwang had noted an appeal against conviction and sentence on the original offence.

'Due to the issue that arises, which the court is called upon to determine immediately, and to which I will advert shortly, I found it unnecessary to consider and enumerate his grounds of appeal.

'The issue for determination presently is one which the appellant understandably did not raise but which has a great and decisive bearing on the propriety of the conviction returned and the sentence subsequently handed down,' said Justice Masuku.

He also lamented that the courts in this country have for some time laboured erroneously under the mistaken understanding that whenever a girl below the age of 16 had been carnally known, the proper offence to charge the suspect with was defilement and this would be done in oblivion of the fact that the circumstances of the commission of the offence, together with the evidence adduced may have all the hallmarks of the offence of rape.

'So entrenched was this practice that if an accused appealed against a rape conviction, this court would, at the appeal hearing, in many cases, set aside the conviction for rape and hold that the proper verdict should have been of guilty to defilement, reasoning that the complainant was below the age of 16'.

He also noted that it is a fact that there are still, coming before this court, many matters on appeal which were decided by Magistrates' Courts in line with the previous erroneous practice and the instant appeal was an example as he would endeavour to show. In this case, the judge said the appellant was charged with the defilement of the complainant who was, as proved by admissible evidence, below the age of 16 at the material time.

He said the court was satisfied that there were no reasonable grounds for the appellant to have believed that she was 16 and above. Although there was no evidence whatsoever that the complainant had consented to the coitus, and the court in its judgement made no such finding, he said the appellant was found guilty of the offence of defilement for no reason other than that the complainant was below the age of 16, thereby suggesting that because she was below 16, she could not be raped.

'In light of what I have stated above, it becomes clear that in the absence of the all-important element of consent, the certitude of guilty returned by the court a quo in the instant matter in which the appellant had been charged with defilement, cannot be upheld.

'The evidence, as I have said, points inexorably to the direction of offence of rape and it would be quite odious for this court to endorse the conviction and sentence in the absence of the requisite evidence, more so in the face of failure by the state to prove all the constituent ingredients of the offence in question and of which consent to the intercourse is one,' the judge said.

He remarked that the fact there was at the material time in operation, the practice stated above, does not serve to justify a conviction and sentence passed contrary to the law and against the weight of the evidence. In the premises, he said he was of the view that the proper order to return in the circumstances, is the following:

'The conviction of Ponalo Gakologelwang for the offence of defilement is hereby quashed and the sentence imposed upon him in relation thereto be and is hereby set aside. The state is hereby granted leave to prefer new and appropriate charges against the above-named appellant if it is so minded'.

Justice Masuku ordered that in the event that new and appropriate charges are preferred against the appellant, the appellant's trial should be given priority and should a conviction follow, the period he will have served in custody in relation to the defilement conviction and sentence shall, unless there is sufficient cause stated in the judgement, be discounted in his favour accordingly.