Moruisi v S (CLCGB-003-13) [2013] BWCA 6 (26 February 2013)




26 FEBRUARY 2013

In the matter

MORUISI ……………………………………………APPLICANT



Applicant in

Ms Attorney T.
Thebe for the Respondent



1. This is an
application for leave to appeal further to this court, following the
applicant’s conviction on a charge of defilement,
and his
unsuccessful appeal to the High Court against that conviction and his
resultant sentence of ten years imprisonment. Phumaphi
J. also
refused leave to appeal further, hence this application.

2. In the case of
BOSCH vs THE STATE [2001] BWCA 4; (2001) 1 BLR 71 CA at 106, Nganunu CJ. remarked

“… our law is
that on an appeal the Court of Appeal must do real and substantial
justice in the case. Technicalities should
not be allowed to obscure
real and substantial justice. This is an important principle in any
legal system. And the point to be
made is that at the end of the
whole case, a Court of Appeal must decide whether actual justice has
been done with respect to any
particular case or whether a
miscarriage of justice has ensued.”

3. There are some
cases where the facts of the case are so plain, and the guilt of the
accused person is so glaringly obvious that
it will be almost
impossible for any technical defect in the proceedings to come to his
aid. This is one such case.

4. The applicant,
who was then a young man in his twenties and unemployed, was taken in
by his elder sister and her husband. Their
home was modest, and so he
had to share a room with his eleven year old niece Moratwe and her
cousin. The girls shared a bed, while
he slept on the couch. On 20th
November 2007 Moratwe’s mother had to go away on a trip. The
applicant took advantage of his sister’s
absence. He cooked porridge
for her husband as usual, but after the husband had left for work,
the applicant crept into Moratwe’s
blankets and had sexual
intercourse with the child. He repeated this abuse on each of the
next few mornings, until, one subsequent
morning, the cousin awoke
and asked what was going on. According to Moratwe, the applicant
threatened to stab the girls if they
revealed what he had done.

5. The account above
is that given by Moratwe in court a year later. Although a young
girl, she understood the nature of the oath
and gave her evidence
well. The Magistrate believed her, and, more importantly, her
evidence was corroborated in the most material
respects. The
Magistrate, after properly cautioning herself against the dangers
inherent in the evidence of young witnesses, and
particularly of
complaints in sexual cases, found her to be a credible witness, and
an appeal court will not lightly interfere
with such a finding.

6. As to
corroboration, the fact that Moratwe had been violated was proved by
the subsequent discovery that she was pregnant. This
was in April of
the following year, and was confirmed by medical evidence, although
she subsequently miscarried. When challenged
as to the perpetrator,
she told both the mother and her grandmother what had happened, and
that her uncle, the applicant, was responsible.
As to the identity of
her violator, it was common cause that the applicant had slept in the
same room as the child at the time
when she became pregnant. To her
mother he first denied his misconduct then admitted that he had
indeed slept with Moratwe. The
mother was not cross-examined on this,
the applicant suggesting instead that Moratwe had once slept in the
car, so it was possible
someone else was responsible for the
pregnancy. It is also so, that when the charge was put to him, the
applicant told the court

“I agreed to
the sexual intercourse with Moratwe and they agreed to go and do an
abortion on the child so that she continues
with her school.”

7. Giving evidence
in his defence, the applicant denied sleeping with Moratwe at all. He
was an unsatisfactory witness, and could
not explain why the State
witnesses should tell untruths about him. The Magistrate disbelieved
him, and there is no reason for
this court to disturb that adverse
finding on credibility.

8. As to whether the
applicant could have had reason to believe and to actually have
believed, that Moratwe was of or above the
age of sixteen years, the
evidence was conclusive. Her mother produced her birth certificate
and testified that she was a child
of eleven. The applicant was her
own blood uncle and would have known her from birth. She was a
schoolgirl, leaving daily for primary
school from the very house
where he was staying, and he admitted to the Investigating Officer
that (as she too had told the court)
he had known her from birth. So,
in his case, there was no room whatsoever for the defence of mistaken

9. That, then, was
the evidence against the applicant, and it was overwhelming.

10. About a year
after his conviction and sentencing, the applicant lodged an
application for leave to appeal out of time, on three

(1) That the
evidence was insufficient to ground a verdict of guilty;

(2) The complainant
was not a credible witness; and

(3) That although it
was proved that the complainant was pregnant, the date she became
pregnant was not established.

11. It is apparent
that at that time the applicant was not concerned by any of the
technical matters raised subsequently before
the High Court, and now
before this court.

12. After the record
was produced, however, and no doubt after receiving advice in prison,
the applicant raised a number of technical
misdirections which
occurred in his trial, to bolster his appeal. There is no doubt that
these were afterthoughts, but they did
occur, and must be weighed in
the balance. They are that:

(1) The wrong name
for the complainant was included in error in the charge sheet, and
when this was corrected (after the close of
the State case), he was
not called upon to plead afresh;

(2) That the import
and purpose of cross-examination was not explained to him and he was
prejudiced thereby, as a layman;

(3) That the special
defence available in terms of section 147(5) of the Penal Code was
not explained to him, and he was prejudiced

(4) That he was
denied the opportunity to address the court at the close of the case;

(5) That certain of
the witnesses were not sworn rendering their evidence inadmissible.

13. Of these the
fourth and fifth grounds may be discounted, as the record shows that
firstly, the Magistrate called for submissions
and the applicant’s
response was that he had nothing to say; and secondly, the witnesses
were in fact sworn, as the record shows.
The shorthand s/s
(sworn/states) appears next to the name of each of these.

14. It is true that
an error was made in the charge sheet by inserting the applicant’s
sister’s name as the complainant, rather
than his niece. This was,
however, corrected before judgment by the Magistrate as she was
entitled to do in terms of section 149(1)
of the Criminal Procedure
and Evidence Act Cap 08:02. I agree with the Magistrate and with the
Judge a quo, that the applicant
was not prejudiced by this amendment.
The whole case was conducted on the basis that Moratwe was the
complainant, and it is on
that basis that the applicant defended
himself, his cross-examination being directed towards showing that
she was a liar, and that
he did not abuse her at all. In those
circumstances there was no need for him to plead afresh to the
corrected charge sheet.

15. It is also true
that the importance of cross-examination was not explained to him,
and in this the Magistrate was in error.
But it is equally true that
he put his defence (denial of sleeping with Moratwe) to the
witnesses. He also put up the same defence
when he gave evidence. The
evidence against him was, however, overwhelming, such that even the
most skilled of

was unlikely to have assisted him. He was thus not materially
prejudiced by that misdirection.

16. Finally, the
Magistrate was also duty bound to explain to him the special defence
available to him under section 147(5) of the
Penal Code, namely that
it was a complete defence to the charge of defilement if he had
reason to believe, and did in fact believe,
that Moratwe was of or
over the age of sixteen at the time he slept with her. In this too he
was not prejudiced. First, it was
common cause that she was his
sister’s child, so he would have known her all her short life.
Second, it was his defence that he
did not sleep with her at all, so
that her age was irrelevant for that purpose.

17. So while there
were indeed misdirections, which the applicant has belatedly raised
in order to advance his appeal, these were
not fatal to the
conviction. See CASTRO MOTHOEMANG vs THE STATE CLCLB-042-10 (CA)
(unreported). Rather they come within the purview
of section 13(3) of
the Court of

Appeal Act Cap 04:01
which provides that even where the court is of the opinion that a
point raised in an appeal may be decided
in favour of the appellant,
it may dismiss the appeal where no substantial miscarriage of justice
has resulted therefrom.

18. I am satisfied
that substantial justice was done in this case, both at trial and in
the appeal. I see no prospects of success
in a further appeal.


The application for
leave to appeal further is dismissed.



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