Prosecution's missteps lead to dismissal of rape charges
Selebi-Phikwe Chief Magistrate, Wanani Ngebani has acquitted Boikanyo Motlhomamisi of rape charges, citing insufficient evidence presented by the prosecution.
The case, registered in 2022, revolved around allegations that Motlhomamisi had engaged in non-consensual sexual intercourse with Precious (surname withheld) between July and August 2021 in Rasetimela ward, Bobonong.
According to what Precious told court, on the day she was ‘raped,’ she had gone to church at Assemblies of God in Bobonong.
After church, she went to Mmakesego’s place and whilst there, the accused person, who is a neighbour, invited her to his living room where he proceeded to undress and rape her. Once he was done, she left. Precious never told anyone about that ordeal until months later, when her family suspected that she was pregnant. She was interrogated and after telling all, the matter was reported to the police.
A psychiatric assessment was done on her and the report stated that the complainant was of unsound mind, that she suffers from a mild degree of mental retardation. The psychiatrist further advised against termination of pregnancy. Nonetheless, the parents went against this advice and the investigating officer was called by the medical doctor handling the process to come and collect a sample extracted from the foetus. The prosecution’s case was built upon testimonies from eight witnesses and the submission of three key documents: a psychiatric report, a medical report and a forensic scientist’s affidavit.
Despite these efforts, the defence, led by Attorney Oarabile Molefe submitted a “no case to answer” motion under Section 180(3) of the Criminal Procedure and Evidence Act (Cap 08:02). This section allows for an acquittal if the court deems there is no evidence upon which a reasonable person might convict the accused. The prosecution alleged that Precious became pregnant because of the alleged rape and that Motlhomamisi was the father. However, the defence challenged the reliability of the forensic evidence.
They said the investigating officer admitted to not being present during the collection of the foetal sample and was unaware of the identities of the medical personnel involved. This raised questions about the authenticity and integrity of the samples used for DNA analysis. They further revealed that no consent was obtained from Motlhomamisi for the extraction of his blood sample, a requirement under the Forensic Procedure Act.
Given the questionable chain of custody and procedural lapses, the defense argued that the DNA results linking Motlhomamisi to the foetus were inherently unreliable. Furthermore, the defence highlighted the absence of direct evidence indicating that the sexual intercourse was non-consensual. The defense argued that the complainant did not testify to a lack of consent, nor was there evidence of force or coercion.
Her delayed reporting of the incident, only after discovering her pregnancy months later, further complicated the prosecution’s case.
After meticulously examining the evidence and the arguments presented, the court underscored the prosecution’s failure to establish a prima facie case, particularly noting that the court found the DNA evidence unreliable due to the compromised chain of custody and procedural irregularities in sample collection.
Further, the prosecution did not provide sufficient evidence to demonstrate that the sexual act was non-consensual, a crucial element in proving rape under Section 141 of the Penal Code.
Given these shortcomings, the court concluded that there was no legal basis to require Motlhomamisi to present a defense. Consequently, he was acquitted and discharged of the rape charge.