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Busang v The State (Criminal Application No. 45 of 202) [2003] BWCA 15 (15 January 2003)
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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Court of Appeal Criminal Application No. 45 of 2002 High Court Criminal Appeal No. F19 of 1999
In the matter between:
MOSEKI BUSANG
Appellant
and
THE STATE
Respondent
The Appellant in Person
Mrs S. Mangori for the Respondent
JUDGMENT
CORAM: P. H. TEBBUTT, J.P. A. M. AKIWUMI, J.A. J. M. NGANUNU CJ (J.A.)
TEBBUTT, J.P.
The appellant was convicted by a magistrate of rape and, having tested HIV
positive, was sentenced to 15 years imprisonment. It is to be noted that he
was arrested for the offence on the 2nd May 1998. The sentence was not
backdated to the date of arrest. The appellant has been given leave to
appeal to this Court and he now appeals both against his conviction and
sentence.
On the conviction, he has submitted that the evidence given by the complainant was not credible. He averred that at one point in her
evidence she had said she had never, previous to the alleged rape, had intercourse
with the appellant while at another point she said she had done so once before. A careful reading of the record, however, establishes
that she consistently denied that she ever had intercourse with the appellant. But even if she had had intercourse previously with
him, this does not mean that she had consented to doing so on the occasion in question at the trial.
In her evidence she was emphatic that she gave no consent to having intercourse with the appellant. The appellant gave no evidence
at the trial in his defence to dispute her allegations. In my view the evidence against him is overwhelming and he was correctly
convicted by the magistrate. His appeal against conviction is therefore dismissed.
On the question of the sentence it is conceded by the State that the sentence of 15 years was inappropriate. The correct sentence
in terms of the 1998 amendment of the Penal Code was one of 10 years imprisonment and therefore it was the sentence which the trial
court was obliged to impose. The sentence therefore will have to be corrected and will be reduced from 15 years to one of 10 years
imprisonment. Furthermore, his sentence is backdated to the date of his arrest on 2nd May 1998
DELIVERED IN OPEN COURT AT LOBATSE ON THE 15™ DAY OF JANUARY 2003.
P. H. TEBBUTT JUDGE PRESIDENT
2
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I agree,
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J-crt A. M. AKIWUMI
JUDGE OF APPEAL
I agree,
J. M. NpANUNU CHIEF JUSTICE (JUDGE OF APPEAL)
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