FRANCISTOWN: While Godfrey Ofentse could not let sleeping dogs lie following a 12-year sentence for rape little did he know he was courting deep trouble.
Ofentse was looking to overturn his conviction of rape of his neighbour that he committed on June 2, 2012 that was meted out by a Mahalapye Magistrate.
Before Ofentse committed the offence, he broke into his neighbour’s home through a window, stealing her mobile phone and groceries after he violently raped her in front of her four children who had been sleeping in the same room. Amongst other reasons of his grounds of appeal, Ofentse told Justice Matlhogonolo Phuthego that the sentence he was given by the lower court was excessive since it exceeded the minimum mandatory sentence of 10 years.Ofentse also said the magistrate erred in not taking into account that the DNA evidence that was extracted from him and the complainant did not link him to the rape.
Fortunately for the interest of justice and that of the public, Ofentse opened a Pandora’s Box after Justice Phuthego said that the lower court erred in not sentencing him for the offence of breaking into a dwelling house and another for stealing from its occupants. At the end of Ofentse’s futile appeal application, Phuthego subsequently corrected the lower court’s erroneous sentence against Ofentse, adding a seven-year jail term for breaking into a house and another seven years for stealing from the dwelling.
Phuthego then made an order that all the sentences should run concurrently adding that he found no reason to tamper with the 12-year sentence that was imposed by the Magistrate.
This, however, means that Ofentse will effectively still spend 12 years in jail since the other sentences that Phuthego imposed will be subsumed under the 12-year rape sentence.Just like other judges and magistrates, Phuthego cried out about cases of gender-based violence (GBV) in Botswana
The judge added that there was nothing wrong with his decision to sentence Ofentse for the two offences that the magistrate forgot to rule on, since it was clear from the record of proceedings that the appellant also committed them.“The High Court Act gives me the powers to review decisions of the Magistrate’s Courts and Customary Courts of Appeal,” Phuthego explained. Although DNA evidence did not link Ofentse to the commission of rape, the judge quoted a number of authorities that say that in rape cases, a person can be found guilty of the offence by inference if other evidence overwhelmingly points to him as the perpetrator of the offence(s).
In Ofentse’s case, Phuthego explained, it was clear that he was the one who raped, broke into and stole a phone and some groceries from his neighbour’s house since the phone and some food items were found inside his bedroom. Phuthego said that Ofentse’s alibi that he got the phone from one Lesole Ditsheko to charge it for him could not be sustained because the same Ditsheko also denied that assertion when Ofentse called him to court to testify as his defence witness.
Instead, Phuthego clarified, Ditsheko told the court that Ofentse wanted to sell him the phone but he refused telling Ofentse that he only buys phones from licenced business premises. The judge added that the serial number of the Nokia 1100 that was retrieved from Ofentse’s bedroom under the mattress bears the same number as the one that the complainant wrote in her diary. The diary was also produced and marked in court as part of evidence.