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Mahatlhane v The State (Criminal Application No. 23 of 201) [2002] BWCA 8 (11 January 2002)
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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
Criminal Application No. 23 of 2001
In the matter between:
SAMUEL MAHATLHANE
Applicant
and
THE STATE
Applicant in person
Mrs. S. Mangori for the Respondent
JUDGMENT
Coram: P. H. Tebbutt, Ag. ].P.:
TEBBUTT, AG. ].P.:
The appellant was convicted by the Magistrate at Kanye of rape, contrary to
Section 141 of the Penal Code and sentenced to 10 years imprisonment and 4
strokes. He appealed to the High Court against his conviction and sentence.
Gittings, ]., who heard the appeal, in his written judgment said this:
"The appellant entered Notice of Appeal against both conviction and sentence but when his appeal was heard on 19 May 1999 his
learned counsel Mr Makgabenyana informed the Court that the appellant intended to appeal only against sentence and withdrew his appeal
against conviction. I consider that that decision by the appellant obviously having taken advise (sic) from his learned counsel Mr.
Makgabenyana was a very sensible decision as I consider that the appellant was convicted on
2
overwhelming evidence." The learned judge then proceeded to set out fully and in detail the arguments advanced on the appellant's
behalf as to sentence, and having carefully considered them, reduced the appellant's sentence to one of 8 years imprisonment. The
strokes remained. An application to appeal to this court was dismissed by Gittings, J. The appellant now seeks leave from this court
to appeal to it.
In a letter dated 5th June 2001, the appellant set out his reasons for seeking such leave. They deal solely with his sentence, although in a previous undated
letter in December 2000 he also referred to his conviction.
Before this court, the appellant said he also wished to appeal against his conviction. It was pointed out to him that he had abandoned
that appeal in the High Court and that his letter of 5th June 2001 also does not allude to it. Nevertheless, appellant was given the opportunity of stating why the conviction should not
stand. His sole point, which was one he also raised in his letter of December 2000, was that the complainant's evidence was unreliable
in that she had said that at the time of the assault on her prior to her being raped she had been punched in the face but that the
doctor who had later examined her had noted no injuries to her face. It must, however, be recorded that in his report the doctor
noted the following "states she was punched with a clenched fist on the face". Whatever the position may be as to her being
punched, the rest of the
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evidence against the appellant was as Gittings, J. stated, "overwhelming" I agree entirely with him. No other court would
come to any different conclusion.
On the question of sentence, the points raised by the appellant were considered by Gittings, J when he reduced the sentence. I, too,
carefully considered them and am of the view there is no reasonable prospect that another court would interfere with the sentence
of the court a quo.
For the aforegoing reasons, I refused the appellant's application for leave to appeal.
Given at Lobatse this 11th day of January 2002.
P. H. TEBBUTT AG. JUDGE PRESIDENT
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