Debene Natale fails to secure appeal

Isaiah Morewagae | Thursday March 6, 2014 16:56

The ruling effectively means that Tshipa will have to complete the 10-year jail term imposed on him by a Molepolole magistrate in 2009.

However, he was given a reprieve when Kirby allowed his appeal to backdate his sentence. 

Kirby found that the 16 days Tshipa spent in jail before trial from December 1 to 17, 2007 were not deducted from the period of imprisonment during sentencing.

Tshipa, affectionally known in the music industry as Debene Natale, became popular after the 2008 release of his borankana album titled Jaro, which had hits like Sebodu.

Tshipa sought the permission of the CoA to allow for late filing of a notice of appeal.

However, it was not to be so as Kirby saw no prospects of success for Tshipa.

In the ruling Kirby said the judgment of the High Court was delivered on April 6, 2011.  

“The notice of appeal was filed on October, 2011. That is nearly seven months later, but the appeal should have been made within six weeks from the date of judgment,” said the CoA Judge President.

Kirby said Tshipa allegedly made his application for leave to appeal to the CoA.  He said that the Registrars did not advise him to route it through the High Court until he enquired when it was already late.

“His allegation has not been confirmed but being unrepresented the court is prepared to give him the benefit of the doubt. But the question is whether he has reasonable prospects of success on appeal,” Kirby said.

Kirby added that the medical report did not say intercourse did not take place but that it probably did. Therefore, Kirby said the medical evidence did not vindicate Tshipa’s denial.

“The complainant’s emphatic evidence is that she was raped, that is, penetrated by Tshipa and his companion.

Tshipa did not deal with that evidence in the cross examination of the complainant because he preferred to deny he was there,” Kirby said.

Kirby noted that taking into account the totality of the evidence, especially of the complainant together with that of other witnesses, it seems that this is a case where the inconclusiveness of the medical evidence cannot prevent a guilty finding.

He also found no merit in Tshipa’s ground alleging that the medical report was not on record. 

“The court record and clearly Tshipa’s copy had the medical reports but evidence also relied on the report. This ground of appeal is unmeritorious,” Kirby said.