Bame Piet
17 April 2008
Lobatse — A former employee of the Department of Customs and Excise Mmolotsi Tlhowe told the Court of Appeal yesterday that he should be discharged and acquitted because his incarceration has interrupted his accounting studies.
Tlhowe is appealing his conviction and sentence for raping a 16-year old girl in Maun in March 2002. He was sentenced to 10 years imprisonment in March 2004.
He said that he is unable to study properly because there is too much noise and congestion in prison. He said he is not allowed to go to the library to do research for his studies. He appealed to the court to order that he should be reinstated as a civil servant.
Tlhowe said the High Court ignored his appeal although the state witnesses gave contradictory evidence at the magistrate's court. He said that his incarceration has affected his two children whom he wants to take care of. Even his family members are affected because he was the sole breadwinner. He argued that there was insufficient evidence against him saying that the complainant was not a credible witness. He denied raping the girl insisting that it was consensual sex.
Tlhowe contended that there was no struggle between the two of them and she did not scream for help during the encounter. He said she suggested that he should use a condom. He accused the magistrate of favouring the state in the matter. But this did not go down well with the panel of three judges - Neville Zietsman, Patrick Tebbutt and Seth Twum - who were visibly growing impatient with the endless and misguided arguments by the appellant. Tlhowe suggested that the charge should be changed to defilement because in the charge sheet the girl said that she was 16 at the time of the rape and she had changed to say that she was 17 when she testified.
Tebbutt cut him short to say that it was obvious the girl had grown older from 2002 when she was raped to 2004 when she gave evidence in court. He advised Tlhowe that if he has exhausted his points, he should say so. The judge said that Tlhowe had probably been misguided by his colleagues at prison on some of the points he had raised.
State counsel Thabisa Otukile who had waited for over two hours dismissed the appeal as a form of mitigation. She said that if the appellant was seeking mercy from the court, he should show remorse and stop denying the charge. She requested the court to uphold the conviction and sentence stating that the minimum sentence for rape is 10 years in prison. Otukile said that Tlhowe had failed to present any exceptional extenuating circumstances to the court.
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