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IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA
HELD AT LOBATSE
COURT OF APPEAL CRIMINAL APPEAL NO. CLCLB-012-10
HIGH COURT CRIMINAL NO. CLHFT 000026-07
In the matter between:
KUDZANI MASHANGO
APPELLANT
and
THE STATE
RESPONDENT
Appellant in person
Ms Attorney Ncube for the Respondent
JUDGMENT
_____________________________________________________________
CORAM
: McNALLY, AJP.
MOORE,
JA.
FOXCROFT, JA.
McNALLY AJP.
1.
The Appellant Kudzani Mashango, was living in a stormy relationship with one
Matilda Munamati in Matsiloje Village in 2004.
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2.
On 4 April she came home from work at about 8 pm. She was sitting on the
bed when the appellant came into the room without knocking. He saw another
man there, who, she said, had come to collect some money for firewood he
had earlier delivered to her. He, the appellant began to slap her and then went
outside to fetch a brick. He hit her on the head with it, causing injury which
later needed stitching.
3.
She was given a form by the hospital when she went there on 6 April but
when she came out the appellant had followed her. He took the form away
from her. They later met with their parents in an attempted reconciliation.
They then returned to Tati mine camp. Instead of going to bed he led her by
the hand into the bush and said he was going to kill her. He beat her and
strangled her. When she awoke from the strangling “he had sex with me
without my consent.”
4.
He then told her he was going to take her home and kill her there. On the
way she refused to go further. So he hit her again and she fell down and he
had sex with her again without her consent. Again he strangled her and she
fainted. When she awoke he was sleeping next to her on the ground. She ran
away and found some security guards. They phoned the police who came to
fetch her.
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5.
On this evidence, corroborated by the security guards, he was convicted by
the Magistrate, both of Rape and of Assault with intent to cause grievous
bodily harm. He was sentenced to 10 years imprisonment for Rape and to 1
year on the Assault charge, both sentences to run concurrently.
6.
Worse was to follow when he appealed to the High Court. The learned Judge
pointed out that the rape had been “attended by violence resulting in injury to
the victim”.
Therefore, and in terms of s142(2) of the Penal Code, he
increased the 10 years sentence to 15 years.
7. The appellant was granted leave to appeal to this Court against sentence only.
8.
It seems to us that the learned Judge has fallen into error on two aspects of
this sentence. In the first place, in April 2008 this court had handed down the
judgment in Baliki v. DPP later reported in [2008]1 BLR 353 where in
precisely the same circumstances we had decided to set aside the increase as
procedurally unfair. On that ground alone the extra 5 years of the sentence
must be removed.
9.
There is also a second reason. The assault in the present case was not related
to the rape in the usual way.
It seems to have been occasioned by the
appellant’s suspicion that the victim had been “unfaithful” to him.
That,
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presumably, was why the state decided to charge the assault seperately from
the rape. By attempting to deal with the rape under s.142(2) of the Penal
Code, the state would be guilty of a splitting of charges, seeking to punish
him twice for the same offence of assault.
8.
For both these reasons, the extra 5 years added to the sentence for rape
cannot be allowed to stand. The appeal is allowed and the appellant’s sentence
is altered to read:-
COUNT I
-
One year imprisonment, to run concurrently with
the sentence on COUNT II.
COUNT II
-
Ten years imprisonment.
DELIVERED IN OPEN COURT AT LOBATSE ON THE 29TH DAY OF JULY
2010.
___________________
N. J. McNALLY
ACTING JUDGE PRESIDENT
I AGREE
------------------------------S. MOORE
JUDGE OF APPEAL
I AGREE
--------------------------------J. G. FOXCROFT
JUDGE OF APPEAL
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