Judge dismisses ‘April Fool’ rape conviction


FRANCISTOWN: Justice Lot Moroka has set aside conviction in a case in which a shepherd from Lechana cattlepost in the Central District was found guilty of rape.

The state alleged that Kealeboga Gaesenngwe committed the offence at Lechana on April 1, 2011. He was subsequently sentenced to 10 years in jail by a magistrate in Palapye.

Yesterday, Gaesenngwe appeared before Moroka to appeal on grounds that the prosecution failed to link him with the offence. He argued that the prosecution failed to prove its case against him beyond reasonable doubt and omitted key evidence that was going to exonerate him for the offence.

Passing judgement, Moroka said the offence happened on April 1, 2011, a day commonly known as April Fool’s day when people play pranks on others.  Moroka said the foolishness of the offence was clearly depicted when the matter was brought for trial in court.  He said that the state called four witnesses to prove its case against the appellant.

The judge said the complainant who was the first prosecution witness said that she was with her grandmother, another person and Gaesenngwe at their compound.

“She said that her grandmother asked her and another person who was not named to go with Gaesenngwe to the kraal to milk cattle. She testified that after they reached the kraal, the appellant told her that he had found a mysterious condom in his pocket which he did not know how he had come to possess,” said Moroka.

Moroka said the complainant added that Gaesenngwe told her that he was a virgin but wanted to have sex with her.

“She said that she refused but he throttled her and took her panty off. She said he then took the condom and instructed her to hold the poles of the kraal before proceeding to have unlawful carnal knowledge with her from her bottom. She said one Mma Oteng passed by and she screamed for help,” said Moroka. Justice Moroka said surprisingly, the prosecution never called Mma Oteng to testify in court. Moroka added that the complainant’s grandmother said that she heard the complainant screaming for help while she was at her homestead.

“The complainant’s grandmother said after the accused completed raping her granddaughter, she went home and told her what had happened, before police were involved in the matter, but she (grandmother) did not witness the incident,” said Moroka.

Moroka said that the doctor who examined the complainant stated that he did not find that she was penetrated nor did he find any injuries.  He also stated that the investigating officer’s evidence is fundamentally the same as other witnesses who testified before him.

Moroka said for reasons unknown, Gaesenngwe was told to prove his case against that of the prosecution beyond reasonable doubt; a decision he (Moroka) said was contrary to the law.

“After carefully evaluating the judgement of the trial magistrate, I found that the complainant said that the accused never penetrated her from her female reproductive organ. She said that he penetrated her from her bottom. What is not clear is whether the accused had anal sex with the complainant or not,” said Moroka.

He added that the doctor who examined the complainant said that she could have been penetrated from her bottom but it is difficult to prove that because the anal opening is normally used to discharge faeces from the body.

“In my view the magistrate made a finding without carefully evaluating the evidence of the complainant…The magistrate said it was the onus of the accused to prove that he did not penetrate the complainant. The magistrate made a fundamental error of law by shifting the onus of proving the case beyond reasonable doubt on the shoulders of the accused. The accused’s conviction cannot be allowed to stand and his appeal succeeds,” said Moroka. Attorney Kgololesego Segabo represented the appellant whilst Gape Macheng from the Directorate of Public Prosecutions represented the state.

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