IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA HELD AT LOBATSE CLCLB In the matter between: CHRISTOPHER KETLWAELETSWE And THE STATE

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1 IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA HELD AT LOBATSE CLCLB In the matter between: CHRISTOPHER KETLWAELETSWE And THE STATE APPELLANT RESPONDENT Mr. Attorney P.A. Kgalemang for the Appellant Mr. Attorney F. Mpopang for the State JUDGMENT Coram: N.W. Zietzman J.A. P.H. Tebbutt J.P. F.H. Grosskopf J.A. ZIETSMAN J.A. The appellant was found guilty in the Magistrates Court of raping a 10 year old girl. He was sentenced to 10 years imprisonment. The appellant noted an appeal to the High Court. The matter came before Walia J. Before dealing with the merits of the appeal Walia J, in terms of section 15 of the Court of Appeal Act, reserved for consideration by this Court the following question of law:

2 "where a man has sexual intercourse with a young girl deemed incapable of consenting to the act, is the proper charge rape or defilement?" In considering this question Walia J. found that there were conflicting decisions of the High Court on this point and he decided therefore that the matter should be referred to this Court for a final decision. Rape is defined in section 141 of the Penal Code (Cap.08:01) as follows: "141 Any person who has unlawful carnal knowledge of another person, or who causes the penetration of a sexual organ or instrument, of whatever nature, into the person of another for the purposes of sexual gratification, or who causes the penetration of another person's sexual organ into his or her person, without the consent of such other person, or with such person's consent if the consent is obtained by force or means of threats or intimidation of any kind, by fear of bodily harm, or by means of false pretences as to the nature of the act, or, in the case of a married person, by personating that person's spouse is guilty of the offence termed rape." 2

3 The definition of defilement in section 147(1) of the Penal Code is the following: "147(1) Any person who unlawfully and carnally knows any person under the age o It is quite clear from the definition of rape in section 141 of the Penal Code that the essential element of the offence is a lack of consent on the part of the victim. Lack of consent is not such an element in the definition of defilement. It follows therefore that where a girl under the age of 16 years is the complainant, the offence is rape if it is proved that she did not consent to the sexual intercourse. If she did consent thereto the offence is defilement. Section 192 of the Criminal Procedure and Evidence Act (Cap.08:02) provides, inter alia, that a person on a charge of rape can, if the rape is not proved, be found guilty of defilement of a girl under 16 years of age. This situation would apply if an accused person is proved to have had unlawful carnal knowledge of a girl under the age of 16 years, but the State has failed to prove that the intercourse took place without the consent of the girl.

4 The question to be determined is whether the offence is rape if the complainant is a girl who, because of her young age, is deemed incapable of consenting to the sexual intercourse. In such a case is it necessary for the State, in order to obtain a conviction of rape, to prove that she in fact did not consent to the sexual intercourse? In the case of Sethunthwane Keidilwe (Criminal Appeal No. 181/2000) Nganunu C.J. stated the following: "The offence of rape includes the ingredient of a lack of consent on the part of the victim of that offence. Where the victim is not capable of giving or withholding the consent under the law then the ingredient of consent cannot be constituted. The offence thus committed by a sexual act with a girl under age cannot be rape." The learned Chief Justice held that because a girl who is under age cannot give her consent to sexual intercourse the correct charge should be defilement and not rape. The contrary view was taken by Chinhengo J. in the case of Boitumelo v. The State 2005(1) BLR 317. His conclusion was that where a man ravishes a girl who is unable to give consent there has been sexual 4

5 intercourse without consent and the crime committed is rape. In my opinion this conclusion reached by Chinhengo J is correct. In his judgment in the Boitumelo Case Chinhengo J deals with three different age categories. Where the victim is a girl under the age of 8 years he concludes that because she is doli incapax she is incapable of consenting to sexual intercourse. Any man who has sexual intercourse with such a girl is accordingly guilty of rape. Where the victim is a girl between the ages of 8 years and 14 years the offence is rape unless it is proved that the girl gave her consent. If such consent is proved the offence is defilement. Where the victim is a girl between the ages of 14 and 16 the offence is rape if her failure to consent to the sexual intercourse is proved. If no such proof is forthcoming the offence is defilement. This analysis of the situation by Chinhengo J is however not, in my opinion, correct. It is correct that a child under a certain age is conclusively presumed to be doli incapax, i.e. incapable of criminal conduct. (As far as I am aware the age is 7 years and not 8 years as stated by Chinhengo J. A child between 7 and 14 years is also presumed to be doli incapax but in that case the presumption is rebuttable. It does not follow however that a girl who is doli incapax is for that reason also incapable of consenting to sexual intercourse. 5

6 The answer to the question whether, and if so when, a girl is to be considered incapable of consenting to sexual intercourse is, in my opinion, to be found in the Roman-Dutch law which is the common law of this country. Roman-Dutch law is also the common law applied in South Africa. In the South African case of Socout Ally v R 1907 T.S. 336 the court had to deal with the question whether consent by a girl under the age of 12 years was a defence to a charge of indecent assault upon her. It was held that her consent was no defence to the charge. Innes C.J. stated the following (at page 338): "It seems clear that in regard to charges of rape upon children, the common practice in South African courts, both here and at the Cape, has been to adopt the rule laid down by Carpzovius, that a child under the age of twelve years is conclusively presumed not to be able to consent to the commission of the crime of rape upon her. After all, rape is only the most aggravated form of indecent assault; and I can see no ground of principle upon which we should draw any distinction, so far as the consent of a child under the age of 6

7 twelve years is concerned, between a charge of rape and a charge of indecent assault." Solomon J and Curlewis J. concurred in the judgment of Innes C.J. In a separate, but concurring judgment, Solomon J stated the following: "I agree that the question reserved in this case should be answered in favour of the Crown. I understand from Mr. De Korte's argument that if the charge in this case had been one of rape he would not have been disposed to raise the point which he has now raised, because it is admitted that there is authority under the Roman-Dutch law for holding that if a man has connection with a girl under the age of twelve years he commits a punishable offence. Carpzovius, in the passage referred to in the course of the argument, is clear upon this point. That authority has, undoubtedly, been acted upon in all the South African courts as far as I am aware; and the universal practice has been to lay down that if a man has connection with a girl under the age of twelve years he commits the crime of rape, on the ground, as I understand, that a girl under the age of twelve years is deemed to be incapable of giving her consent to such an act as that of carnal connection. It has never been the practice 7

8 to inquire whether the girl really understood the nature of the act, and therefore whether she was capable of giving her consent, because it has been held as conclusive that she is incapable of giving her consent. of rape - and I understand If that is the law in the case that that law is not now questioned - then I cannot understand how there can be any distinction between the case of rape and the case of indecent assault." This question was again dealt with by the Appellant Division in South Africa in the case of R v Z 1960(1) S.A. 739 (A). The main judgment in that case is written in Afrikaans, but the relevant part of the head-note, as translated into English, reads as follows: "A girl under the age of 12 years cannot legally consent to sexual intercourse. Should she consent then such sexual intercourse amounts to rape. Where an accused is charged with having had sexual intercourse with a girl under the age of 12 years it is necessary for the Crown, in order to prove intent, to prove that the accused actually knew that the complainant was under the age of 12 or at least that he had realized that 8

9 possibility, and not heeded it, but had proceeded with the commission of the offence." In his judgment van Blerk J.A. refers to the Socout Ally case and to the fact that for more than half a century it had been accepted that sexual intercourse with a girl under the age of 12 years falls within the definition of rape. Ramsbottom J.A (who gave his judgment in English) refers to the following question reserved by the judge in the court a quo namely; "Was the trial Court correct in holding (1) that the mere fact that complainant was under 12, precluded her, in law, from giving an effective consent so as to negative rape?" Ramsbottom J.A. then agrees with Van Blerk J.A. that the question must be answered in the affirmative. Ramsbottom J.A. then goes on to deal with the question of mens rea. He states that rape is a crime in which intention is an element. The State must prove an intention to have unlawful carnal connection with a woman without her consent. The State must prove that the accused knew that the woman had not consented. It is however sufficient if the State proves that the accused was aware of the possibility of non-consent 9

10 and was reckless whether the woman had consented or not. In a case where non-consent is proved by showing that the girl was under the age of 12 years, the State must prove that the accused knew that the girl was under the age of 12 years, or that he was aware of the possibility that she might be under the age of 12 years and nevertheless proceeded recklessly to have sexual intercourse with her. In The Law of South Africa, 2 n d Ed; Vol 6, para 273 the following is stated: "Finally there is an arbitrary age limit below which a girl is irrebuttably presumed to be incapable of consenting to sexual intercourse. This limit is the completion of the girl's twelfth year. Intercourse with a girl below the age of twelve is therefore rape, even if she has consented." It has been accepted in South Africa that the statement by Carpzovius, a leading writer on the Roman-Dutch law, correctly sets out the position. I am not aware of any statute in Botswana that affects this principle of the common law which has been recognized in South Africa for a century and was affirmed again almost 50 years ago in the case of R v. Z, and my conclusion is that what is stated in the case of R v Z is the law as it should be applied in this country. 10

11 The answer to the query raised by Walia J is that where a man has sexual intercourse with a young girl deemed incapable of consenting to the act the proper charge is rape. A fortiori, where a man has sexual intercourse with such a young girl, and there is proof that in fact she did not consent to the act, he is guilty of rape. Walia J did not deal with the merits of the appellant's appeal before referring the matter to this Court, and the case is therefore referred back to him for finalization of the appeal. DELIVERED IN OPEN COURT AT LOBATSE ON THIS 24 DAY OF JULY 2007 N.W. ZIETSMAN [JUDGE OF APPEAL] I agree P.H. TEBBUTT [JUDGE PRESIDENT] I agree F.H. GROSSKOPF [JUDGE OF APPEAL] 11

IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA HELD AT LOBATSE

IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA HELD AT LOBATSE COURT OF APPEAL CRIMINAL APPEAL NO. CLCLB-009-08 HIGH COURT CRIMINAL APPEAL NO. 55-05 In the matter between: RAPULA MOLEFE Appellant And