S v Seguma (117 of 2003) [2008] BWCA 30 (24 April 2008)

This is an appeal from the judgment of Newman J. sitting at the High Court Lobatse, dated 19^th December 2006. By it, he dismissed the appellant’s appeal against his conviction and sentence by a Grade 1 Magistrate who had convicted him of the offence of rape contrary to Section 141 as read with Section 142 (1) of the Penal Code (Cap 08:01). The particulars of the offence were that on 6^th September 2000, the appellant had unlawful carnal knowledge of one Matsetse Tlhabaki without her consent.

The Prosecution’s case was that the complainant was walking on a bush path from her place to Mogoditshane when she was surprised by a man who came from behind her and demanded that she should give him money. When the complainant could not find her money to give to him, the appellant forced her to go with him to the bush where he raped her. She explained that her resistance was overborne by the fact that her assailant carried an axe and she was gravely terrified and fearful for her life. Later she reported the attack and rape to the police. The complainant had carefully observed her assailant even as he raped her.

She was able to give a detailed and accurate description of him to the police. As luck would have it, her assailant was involved in another case of robbery, attempted rape and assaulting a police officer and had been brought to the same police station where she had reported her ordeal. An astute policeman who had heard the complainant’s description of her assailant thought that this man resembled the person who had raped the complainant. He reported his suspicions to his superior officer who decided that an identification parade should be held to clear the matter. At the identification parade, the complainant easily identified and pointed out the appellant as the person who had raped her. After the parade, the police confronted this person with the complainant and upon further investigations, he was charged with the offence of rape.

On 6^th April 2005, the appellant filed an appeal against his conviction and sentence in the High Court, Lobatse. This appeal was heard by Newman J who in a Judgment dated 19^th December 2006, summarily dismissed the appeal against conviction. He also set aside the sentence imposed upon him by the trial magistrate on the ground that he exceeded his jurisdiction. However, he ordered that the appellant should serve a term of 10 years imprisonment “ effective from the date of his conviction unless he was already a serving prisoner, in which case his sentence would commence upon the expiration of the one then being served.”

Subsequent to this, the applicant applied to the High Court for leave to appeal to the Court of Appeal against both his conviction and sentence. This application also came before Newman J. who decided that the applicant failed to show that he had an arguable case which might persuade this Court to reach a different conclusion as to his guilt. He therefore refused him leave to appeal to the Court on his conviction.

At this hearing, Newman J. conceded that in his judgment on the appeal from the Magistrate’s Court to the High Court dated 19^th December 2006, he erred by not giving the appellant the opportunity to address him in extenuation, as he put it “ for the purpose of assessing whether there are exceptional extenuating circumstance justifying, by reference to Section 27 (4) of the Penal Code, the imposition of a lesser penalty than laid down in Section 142 (1) (ii) of the Code.”

In the circumstances, he took the view that justice would be better served by granting the applicant leave to appeal to this Court only against sentence. In the result the application for leave to appeal to this Court against conviction was refused but allowed as to sentence.

On 3^rd December 2007 the Appellant filed his grounds of appeal to this Court. Contrary to leave granted him, the appellant’s grounds covered both conviction and sentence. The appellant's Heads of Arguments repeated this error. The Respondent filed a Notice of opposition to the appeal as well as Heads of Arguments. In the Heads the Respondent argued that even though Section 27 (4) of the Penal Code was intended to a large extent to ensure that the courts retained their discretion (when imposing sentences) to weigh and balance individual factors, which might constitute exceptional extenuating circumstances (emphasis added) rendering the statutory minimum sentence totally inappropriate in casu, she did not think this court should exercise its undoubted discretion to impose a lesser sentence than the statutory minimum of 10 years imprisonment. She submitted that rape was a traumatic experience for the complainant – a 51 year old woman. Further, she argued that the appellant callously searched the complainant’s handbag and retrieved the little money she had in it. Finally, she submitted that the appellant did not use a condom and might have condemned the complainant to certain death apart from the trauma of rape. For these reasons, she submitted that the appellant deserved the statutory minimum sentence already imposed upon him.

For his part, the appellant began by arguing his grounds of appeal which were in elaboration of his complainant against his conviction. Of course, he had not been given leave to appeal against his conviction and he was therefore directed to channel his submissions towards the issue of sentence. He pleaded with the court to reduce his sentence for him. Once again, it was explained to the appellant that under the law, the sentence of 10 years imprisonment was the minimum that any court could give him for the offence of rape. The Court, however, told him that not- withstanding that provision, the law itself has provided that if there were exceptional extenuating circumstances in the case making it in- appropriate for the court to impose the statutory minimum sentence, then that court could impose a lesser sentence. The appellant was therefore invited by the Court to address it by pointing out to it any exceptional extenuating circumstances that attended his case. He was not able to do so.

During the hearing the Court learned from the appellant that he had a previous conviction for robbery for which he was sentenced to 10 years imprisonment. He was also serving another term of 4 years for unlawful assault and grievous bodily harm. This means that for those two offences he was serving 14 years. He explained that those sentences were imposed in 1997. If these facts are true then it means that the appellant has been in prison custody for 10 years and that 4 years of those two sentences remain to be served by him. The appellant is clearly not a first offender.

Arguably in 1997 these prison terms were appropriate. But considering the sentence of the Magistrate Grade 1 as confirmed by Newman J, it would mean that the appellant will serve some 24 continuous years in prison. This would be inordinately long and oppressive. I am however, convinced that Newman J. felt that his hands were tied by virtue of the provisions of Section 142 (5) of the Penal Code which provides that “any person convicted and sentenced for the offence of rape shall not have the sentence imposed run con-currently with any other sentence whether the other sentence be for the offence of rape or any other offence”.

Since the Judgment of Newman J. this Court has considered the constitutionality of Section 142 (5) of the Penal Code in the case of BASHI MATLHO VS THE STATE CLCLB 019-07. It held that Section 142 (5) aforesaid was in violation of Section 7 (1) of the Constitution of Botswana and struck it down. The result is that all courts are no longer bound to apply the provisions of Section 142 (5) of the Penal Code. Courts now have discretion in the orders they may make regarding how earlier and subsequent sentences imposed upon a convict may be coupled, i.e. either consecutively or concurrently. The main thrust of this court’s judgment in the MATLHO case was to ensure that punishments did not produce inhuman or degrading effects on convicts. The discretion was to ensure that substantial justice was achieved.

Botswana: Court of Appeal

S v Seguma (117 of 2003) [2008] BWCA 30 (24 April 2008)