FRANCISTOWN: Justice Zibani Makhwade has acquitted Ontheeditse Keitumetse of rape after the police miserably failed to investigate the case further.
While acquitting the accused the court observed, “It is clear that at the material time to the occurrence of the alleged rape, the complainant had taken alcohol. It is not clear from the record of proceedings her state of intoxication.
What is clear however is that the evidence that she gave during the trial was self-contradictory”.
It is not clear as to whether it is because of the consumption of alcohol, Makhwade noted, nor she could not remember the events of that night, nor for some other reason, the record of proceedings does not clearly state so. “In her examination in chief, the complainant gave evidence about the events leading to her losing consciousness and regaining it at the hospital.
She stated in her evidence in chief that she did not know who undressed her and who penetrated her. It appears that there were several people at the scene prior to her losing consciousness…,” said the judge.
While the complainant stated that she did not see who undressed and penetrated her in her evidence in chief, when being cross-examined by the applicant, she stated that she saw the applicant raping her.
“It is common cause that the complainant was found near the place where alcohol was consumed that night.
There was no evidence that linked the applicant with the rape. In her evidence, the complainant testified that her husband was present when she was raped. The husband said he didn’t witness the rape,” Makhwade noted.
“It is my considered view,” Makhwade stated, “that the concession made by the prosecution was in order (decision not to appeal the case because it had high prospects of success).
“The magistrate clearly didn’t consider the major contradictions in the evidence of the complainant.
He added: “This was a clearly bad case. The fact that the case was an unpleasant one did not reduce the responsibility of the prosecution to prove the case beyond reasonable doubt.
Because of the horrific nature of the case, the investigations should have been thorough.
There is no explanation from the record of proceedings why no further forensic tests were done to link the alleged perpetrator with the commission of the offence”.
In the circumstances of this case, the conviction was clearly unsafe.
“Leave to appeal is therefore granted and the appeal with respect to rape is successful. The conviction and sentence of rape is hereby set aside,” Makhwade concluded.
Keitumetse was convicted at the magistrates’ court in 2016 on a count of rape.
He did not file his appeal within 14 days as provided for by the rules.
He subsequently filed an application for condonation of late filing of the appeal, said the judgement.
He explained that his failure to appeal on time was because he did not know how to do so but a fellow prisoner subsequently assisted him.
“The application was filed just over a year after the conviction. The explanation by the applicant is not a satisfactory one.
The prosecution, taking into account the prospects of success on the merits, does however not oppose the application. It is my considered view that the application should be allowed,” Makhwade said.
The applicant appeared in person while Moffat Dick from the Directorate of Public Prosecutions (DPP) represented the state.