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Monyatsi v The State (Criminal Appeal No. 46/2000) [2001] BWCA 10 (31 January 2001)
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.RTF of original document
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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
COURT OF APPEAL CRIMINAL APPEAL NO. 46/2000 HIGH COURT CRIMINAL COMMITTAL NO: 17/2000
In the matter between:
GODFREY MONYATSI
Appellant
and
THE STATE
Respondent
Mr. U. Mack for the Appellant
Mr. P. Acheampong for the Respondent
JUDGMENT
CORAM: KORSAH J. A. KUMLEBEN J.A BLOFELD J. A.
KORSAH J. A.
The Appellant was, on 4 June 2000, tried and convicted by the Magistrate's court in Gaborone of one count of rape contrary to Section 140 as read with Section 142 of the Penal Code as amended by Section 3 of Act No. 5 of 1998.
On 4 July 2000, he was committed to the High Court for sentencing in terms of Section 295 of the Criminal Procedure and Evidence Act (Cap 08:01) of the Laws of Botswana. On 19 October 2000, having inquired
into the matter and
satisfied himself of the guilt of the appellant Kirby J. sentenced the Appellant to the mandatory minimum sentence of 10 years' imprisonment.
Two grounds of appeal were advanced before this court as to why the conviction of the appellant should be set aside. They are:
(a)
that the failure by either the Magistrate's court or the High Court to assess the entire evidence on record before reaching a conclusion constituted an irregularity; and
(b)
that the Magistrate's court erred by coming to the conclusion that sexual intercourse was not consensual without adverting its mind to the fact that the appellant gave evidence to the contrary, and to the possibility of falsely being implicated.
In this matter, though the act of sexual intercourse with the complainant is common cause, the issue that it was without the complainant's consent is vehemently denied by the appellant. It is therefore necessary to
state and analyse the circumstances in which the act of intercourse occurred in order to establish whether or not it was consensual.
According to the complainant, on 22 July 1999, she had closed a shebeen at Ledumang in Gaborone at about 22:00 hours and was covered with a blanket while sitting near a fire outside with a lot of people, who were still drinking. Among
3
those present were :a lady called Tsolofelo Molefe (P.W.2) and another lady by name Tshegofatso. Also present were the appellant and his friend. While seated near the fire P.W.2 asked the complainant to accompany her to the toilet. On their way to the toilet the two ladies were followed by the appellant and Wabo. When they got near the toilet the appellant called the complainant saying he wanted to ask her about something. The complainant went to him. As the complainant was standing with the appellant a lady by name Matshidiso approached the complainant and warned her that the appellant was her man and that they had not parted. The appellant then left with Matshidiso and the two went to Matshidiso's room which was in the same yard as the shebeen.
The appellant later emerged from Matshidiso's room to find the complainant still waiting behind the toilet for her friend Tsolofelo (P.W. 2). The appellant informed the complainant that he was going to beat the complainant because she had caused his girl fried to insult him. At this time PW2 was still around, but later left the complainant and appellant and returned to the
fire. Eventually, the appellant asked the complainant to see him off. When the complainant refused, the appellant throttled her and pulled her away so that she could not scream. He pulled the complainant to the other side of Ledumang Senior Secondary School grounds.
The complainant said at these grounds, the appellant ordered her to sleep with him. When the complainant refused to do so, the appellant
broke a stick from a tree and beat the complainant with it. As a result of which the complainant screamed. She
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said while the appellant was beating her into submission they heard the voices of people talking and so the appellant throttled her again to stop her from screaming. When the people passed, the appellant continued to beat the complainant who commenced screaming again and pulled her further behind Ledumang Senior Secondary School.
While pulling the complainant further behind the school, the complainant alleged that the appellant produced something which looked like a small gun and pointed it at her. The appellant then pulled off her tights but left the loose shorts, which were wide in the legs, that she was wearing. He also pulled apart the panties she was wearing and had sexual intercourse with her against her will.
The complainant said that at the time of this incident, she was in her menstrual period. She said while the appellant was having sexual intercourse with her she bled profusely. Some of her blood got smeared onto
a white T-shirt which the appellant was wearing. She said after the appellant had satisfied himself he got off her and said they should start a love affair. The complainant rejected the offer. She followed the appellant to the yard whence they
had come. The appellant went past the yard without entering it. The complainant said as she entered the yard she saw military vehicles parked thereat and the SSG. She told the police that the appellant had raped her. She, accompanied by Tsholofelo and Tshegofatso, went with the police to the Glenn Valley army barracks to look for the appellant, but the appellant was not there. She told the police
that she had just returned,
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from the place where she was raped, with the appellant. On their way back from the barracks they saw the appellant at a Ledumang Combi
Stop. The police took the appellant to the police station. The appellant was still wearing the clothes he had on when he allegedly raped her. The blood on the T-shirt was still visible.
The police took her to hospital the same night. She was examined by a doctor and given some pills to take. The following day, the police took her and the appellant for blood test at a clinic in Gaborone. She, at
the trial identified the stick with which she alleged the appellant beat her. She also identified the object that seemed to her then like a small gun and with which the appellant threatened her. It was found in the appellant's pocket when they were taken
for the blood test. She likewise identified a white short-sleeved T-shirt with a hole on the side as the T-shirt the appellant wore on the night of the alleged rape. It had on the lower front what looked like a dark blood stain.
Under cross-examination, the appellant did not put it to the complainant that the complainant had consented to having sex with him. She agreed that she had a blanket with her which fell down near where the appellant raped her. She said when she met the police at the yard she was told by
them that someone had reported hearing screaming coming from the direction of Ledumang Senior Secondary School and she told the police that she was the one from whom the screams had emanated.
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Tsholofelo Molefe (PW2) testified that on 22 July 1999, she was with the complainant (PW1) in the yard where PW1 worked as a domestic
servant. They were at the time staying together in the yard. She said while she was in the toilet she heard PW1 talking to somebody. When she came out of the toilet she found PW1 talking to the appellant, whom she already knew as Monyatsi, but did not know the name of the appellant's friend. She went and stood near PW1, and the appellant asked her (PW2) what she was waiting for. She moved away, but she said she heard PW1 and the appellant having a misunderstanding although she did not pay much attention to what they were saying. Later on, she heard them talking amicably to each other and so she left them to go and join the others by the fire.
She testified that after about ten minutes, she heard someone shouting. She listened carefully and recognized the voice as that of Dipuo (PW1). She expressed her concern to the people around the fire that she had left PW1 with the appellant and that she has heard PW1 screaming. She said the screaming was coming from the bush in the direction of Motswedi C]SS within Ledumang. She and others went to look for PW1, but could not find her. After that she went to a public phone and called the police. Hence the presence of the police in the yard when the complainant eventually returned to the yard.
Investigations regarding this allegation of rape were assigned to Detective Sergeant Ranka (PW3) on 22 ]uly 1999. As the appellant had already been arrested and
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was at Broadhurst Police Cells, he took the appellant and the complainant to the alleged scene of the crime for indications to be made.
The scene of the offence was, according to this witness, in the bush on the western side of Motswedi CJSS. At the scene, they found a stick which the complainant claimed was the one the appellant assaulted her with. The witness collected it as an exhibit and was produced in court and identified by the complainant. The witness also testified that he found the foot-marks of the
complainant and the appellant at the scene. He said they looked in vain for something which the complainant alleged looked like a gun with which the appellant threatened her into submission. She said it was contained in a black pouch. Upon their return to the office, the witness collected the appellant's property which was taken from him by the police upon his arrest and detention. That was when the object described by the complainant as a small gun was found - it was a blue plastic container with a lid, in a black pouch on which was written "National". It was labelled and identified later in court by the complainant as the thing that she believed to be a small gun. This witness also took possession of a white T-shirt which the appellant was wearing at the time of the alleged rape. At the front bottom of the said T-shirt
were blood stains which the complainant claimed was her blood as she was menstruating at the time she was raped by the appellant. A clinical analysis by the Forensic Laboratory of the blood samples of the complainant and the appellant compared
to the blood stains on the shirt revealed that the blood stains on the shirt were of the same blood group as that of the complainant and not that of the appellant.
Under cross examination this witness said the appellant did not inform him that he had a relationship with the complainant, nor did
the witness come across anyone who knew of such a relationship.
Dr. Sikena Sikena who examined the complainant after the allegation of rape on 23 ]uly 1999, testified that he examined the genital area and found the whole area covered with soil. He said:
"There was blood in that area as well. There was a break in the skin, which we call ulcers, which was bleeding, indicating that it was recent. The other ulcer was in the Labia majora, one of the internal parts of the vagina, it looked odd in that it was not of recent origin. The other
ulcers were new and they were in the labia minora. These were the ones which were bleeding.... The bleeding ulcers are what I called trauma. The trauma was clearly an injury. I had noted that the patient was menstruating. But the bleeding was clearly from the ulcer not from the menstruation.
I ensured this because when I blocked the menstruation flow from the uterus, I still found that the bleeding was coming from outside the vagina."
The doctor concluded from his examination that the complainant could be a victim of rape. The trial court found the complainant to be a credible witness and called on the appellant to offer a defence to the charge.
As mentioned earlier the appellant admitted having sexual intercourse with the complainant, but alleged
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that such intercourse was consensual. He alleged that he and the complainant were having a secret love affair which, when Matshidiso found out scolded and jilted him. He said the complainant left him where he was standing to go and fetch a blanket from the house so they could go and sleep at the camp. But the complainant said she had covered herself with a blanket to shield her from the cold while sitting by the fire. And according to PW2 when she left PWl standing with the appellant behind the toilet, PWl did not come back into the yard.
In any case none of this was put to either PWl or PW2.
The appellant again said the complainant went willingly with him to go and sleep at the camp, and that it was when they got to the bus stop that she changed her mind, saying that the owner of the yard would discover that she was not at home and so they should go towards Motswedi C]SS. So it was, he ssaid, that they found themselves at the scene in the bush. He testified that it was when they got to the scene in the bush that the complainant informed him that she was in her menstrual cycle.
I ask myself, if the complainant had reservations about sleeping with a man while she was menstruating, why did she agree to go with him to sleep at the camp? it is a most unlikely story, but then we are not to disbelieve him on that account, because the test is whether his account can be reasonably possibly be true.
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But then his version of events gets curiouser and curiouser. He testified that the complainant spread a blanket on which they lay and he caressed the complainant until he had consensual intercourse with the complainant. He then saw her off from where they had had sexual intercourse , to where the complainant stayed; that was at the yard, where the police had assembled in wait for the complainant. He said the complainant never screamed the whole time that
she was with him. This flies in the teeth of the evidence of the complainant that she screamed when she was beaten by the appellant and the corroborative evidence
of PW2 that she heard the complainant scream and alerted those who were sitting with her around the fire. It also flies in the face of the presence of the police at the yard after receiving a report that PWl was missing and screaming in a bush area in the direction of Motswedi CJSS. Had PW2 not made a report of screaming,
was it the clairvoyance of the police which made them go to that yard at that time of the night? That PWl screamed is corroborated by the testimony of PW2 as a attested to by the police who rushed to the yard upon a summons by phone by PW2. Then the gun-like object with which the appellant is alleged to have threatened PWl was produced in evidence. Its use was attested to by PWl before it was discovered by the police as part of the property taken from the appellant.
The appellant said PWl spread the blanket which she lay on and upon which he fondled PWl until they had intercourse. This is contrary to the version of PWl that her blanket, which she had on to protect her from
the cold, fell off her when she was being beaten and throttled by the appellant and that sexual intercourse did
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not take place on that blanket. Had sexual intercourse taken place on the blanket as alleged by the appellant, would the doctor have found so much soil in the private parts of the complainant?
Her evidence seems to be supported by the medical evidence that there was a lot of soil in the labia minora which suggests that the intercourse that occurred was not consensual.
No sane and honest person can , in the face of such evidence, hold that the appellant's version of events can be reasonably and possibly true.
The judge to whom the matter was remitted for sentencing inquired into all aspects
of the case. And after satisfying himself that the conviction of the appellant was
supported by the evidence on record, imposed the minimum sentence mandated
by law.
There is no reason extant for reversing the appellant's conviction or altering the
sentence imposed.
Accordingly the appeal is dismissed in its entirety.
DELIVERED IN OPEN COURT THIS 31st DAY OF January 2001.
K. R.A. KORSAH JUDGE OF APPEAL
I AGREE
I AGREE
M. KUMLEBEN JUDGE OF APPEAL
J. BLOFELD
JUDGE OF APPEAL
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