Rape cases cannot be withdrawn-Judge

PATRICIA EDWIN
Staff Writer | Tuesday May 7, 2013 00:00

Makhwade said that the applicant, Lazarus Itemogeng, who was convicted of raping a woman on July 8, 2008, had no reasonable prospects of success at appeal. Itemogeng and another accused person were sentenced to 10 years in prison by the magistrate court.

'The applicant's position is that the evidence by the complainant did not indicate that the applicant and the complainant were known to each other before the date of the commission of offence and therefore that there was no truth in saying the two were cousins,' he said. The applicant's position was also that the complainant had wanted to drop charges of rape against him and that she was pregnant by the applicant.

'The magistrate refused to drop the charges to allow withdrawal of the case on the basis that cases of this nature are not only serious but very prevalent in his jurisdiction.At the conclusion of the judgment the magistrate reverted to the issue and explained why such cases should not be withdrawn,' said Makhwade.

He further said  rape is a serious offence and courts should not encourage such cases to be withdrawn. He said that it is clearly not in the interest of society that serious offences such as rape should be swept under the carpet under the guise of reconciliation.'In my view, considering the circumstances of this case, it is also likely that she lied in order to allow the withdrawal of the case. It is clear in the evidence that the complainant did not know the applicant until the date of the commission of this offence,' he said.

He said that the credibility of the complainant was also attacked for the reason that it was incomprehensible that after having been raped by the first accused she would later have a relationship with him to the extent that at the time of trial she was expecting the first accused's child.

While this is not usual, it is clearly not impossible. This however cannot be used to nullify the evidence of the complainant and for her to be labelled as a witness of untruth,' she said. Makhwade also said that the complainant had indicated that she knew the appellant before the day of the incident even though she did not know his name by then.

He said that the complainant testified that the applicant and his companion were with her from 11pm until 5am and that they raped her during the course of the night. 'She also testified that there was moonlight and that the applicant was referred to by his name during the course of the night and in the light of that evidence and on the basis that the magistrate found the complainant to be a truthful witness there is no basis upon which her evidence on the identification of the applicant could be regarded as unreliable,' said the judge.He also said that the applicant spent a lot of time with the two accused people before they raped her.