FRANCISTOWN: A former miner who was convicted of rape in September 2014 and subsequently sentenced to 10 years in jail has been denied leave to appeal at the Court of Appeal (CoA).
The convict, Selebogo Morwaagole, an ex-stores officer at Tati Nickel Mining Company (TNMC), had approached the High Court on Wednesday on an application to appeal his case at the CoA.
Morwaagole was found guilty of raping the cousin of his daughter at his TNMC allotted Molapo Estates home on December 13, 2009.
The incident occurred when the cousin of Morwaagole’s daughter had visited them during the school holidays.
Justice Barnabas Nyamadzabo dismissed Morwaagole’s application ruling that the convict had no prospects of success at the CoA.
Justice Nyamadzabo said that the applicant should show reasonable grounds of prospects of success at the apex court in order for his application to succeed.
Amongst Morwaagole’s grounds of appeal was that the State witnesses who testified against him contradicted each other but the court ruled in favour of the state saying that it found that the testimonies of the witnesses were consistent.
Morwaagole also wanted the court to rule in his favour saying that the medical form that was produced in court as part of evidence showed that the victim was not bleeding from her private parts which was contrary to what she said in her evidence-in-chief.
Nyamadzabo said: “From all the four points you raised as the basis to being given leave to appeal at the CoA, this court finds that you have no prospects of success at the CoA”.
However, all is not lost for Morwaagole as Nyamadzabo advised him that he still has a right to approach the CoA directly if he was not satisfied with the decision of the High Court.
When convicting Morwaagole at the lower court, the then magistrate Sijabuliso Siziba said there was overwhelming evidence that Morwaagole indeed committed the offence as opposed to what he said in his defence.
The matter was then referred to the High Court for sentencing because Siziba had no powers to sentence Morwaagole beyond the minimum mandatory sentence of 10 years.
When sentencing Morwaagole, Justice Nyamadzabo said Morwaagole has two previous counts of common assault, which he committed in 1988.
The previous offences, Nyamadzabo said, are relevant to the current case because rape is an assault of a grievous nature on the person of the complainant.
“The convict has been convicted of a serious offence in the Penal Code, which in itself is an aggravating factor as evidenced by the amount of punishment the legislature in its wisdom has prescribed including a minimum sentence,” said Nyamadzabo.
Nyamadzabo said another aggravating factor that works against the interests of the convict is that there seemed to be no doubt that the convict also breached the trust which both his daughter and the complainant who is an age-mate of his daughter had on him.
“Both the convict’s daughter and her cousin looked up to him as a father who would provide parental guidance to them but he instead broke that trust,” said Nyamadzabo.
Conversely, Nyamadzabo said the Court notes that the offence was not accompanied by any threats and violence, which to an extent reduce the convict’s moral blameworthiness.
“The Court having set out all these factors (aggravating and mitigating) and on a proper assessment, it cannot be said that the mitigating factors in anyway outweigh aggravating factors because of their obvious limited weight,” said Nyamadzabo.
The result is that the convict is sentenced to the minimum mandatory sentence of 10 years.
The sentence, Nyamadzabo added, shall include any period Morwaagole spent in custody before trial.