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Kenewang and Another v The State (Criminal Appeal No 11 of 1981 ) [1981] BWCA 13 (8 December 1981)

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one being a fracture of the right parietal bone and the other a fracture of the occipital bone. There was also a clotted subdural haemorrhage Just below the cranium above the brain. In addition there were four fractured ribs 01 the right side and four fractured ribs on the left. Eaci lung was lacerated due to the fractured ends of the ribs and the lung cavities contained blood. In the doctor*a opinion death was due to shock caused by internal bleeding in the cranium and in the chest. The injuries found, he said, were consistent with the deceased having been subjected to a beating with a blunt weapon such as a knobkerrie or sticks.
Each of the appellants made a statement to a judicial officer admitting that he had beaten the deceased. The trial Judge properly admitted each statement only as against its maker. Apart from these statements there was an 070 witness, one Tanjoro Moloi, whose evidence, according to the Judge, accorded in basic structure with the account given by each of the appellants in his statement. Tanjoro Moloi was taken by the Judge to be an accomplice of the appellants and his evidence was treated as such. The Judge recognized that Tanjoro would want to minimize his role in the assault. But he found Tanjoro otherwise truthful; his evidence as to the vehemence of the assault being borne out by the doctor's findings. And generally the Judge found corroboration of much of what Tanjoro said in the statements of the respective appellants.
After a careful and detailed examination of the evidence, the learned trial Judge found the appellants

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guilty of murder In that acting in concert with a common purpose they Inflicted injuries en the deceased from which he died. It was not proved that the appellants had an intention to kill. But the Judge accepted that they did intend to cause grievous harm, and as he rightly pointed out by the definition of malice aforethought, which i3 the required intention in murder, in section 209 of the Penal Code, such intention may be constituted by proof, amongst others, of "an intention to cause the death of or do grievous harm to any person". According to the Judge, no question of self defence, provocation, accident or intoxication was raised by the evidence.
In sentencing the appellants, the Judge took into account the fact that the appellants genuinely believed that the deceased was a goat thief and that stock theft in their area was regarded as a most serious matter. He also took into account the ages of the appellants, which were 18 and 20 respectively, and their previous good character. Against these was balanced the fact that their assault on the deceased was a savage one; binding his hands and beating him mercilessly, and when they had rendered him senseless they displayed a callous indifference to his well-being by leaving him tethered to a tree on a cold night as if he were an animal. The Judge imposed a sentence of twelve (12) years imprisonment, commencing from the 31st of May 198C on each of the appellants.

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That was on the 11th of September, 198C. The appellants had six weeks from that date within which to appeal. They did not do so within that time. By applications dated the 2nd of June 1981, the appellants sought leave to appeal out of time against conviction and sentence* The applications were headed "In the Botswana Court of Appeal" but the supporting affidavits were addressed to "The Registrar and Master, High Court, Lobatse". Such applications to the Court of Appeal are by virtue of rule 8(3) of the Court of Appeal Rules dealt with by a single Judge of this Court, In this case it vas dealt with by Corduff J who is not only a Judge of the High Court but by virtue of section 99(2)(c) of the Constitution, an ex-officio Judge of the Court of Appeal as well, Corduff J was therefore competent to sit as a single judge of this court to dispose of the applications. The resultant order made and signed by the Registrar ani Master was headed "In the High Court of the Republic of Botswana", But the Registrar of that court is also Registrar of the Court of Appeal. HeYing regard to the fact that the affidavits supporting the applications hai been addressed to him as the Registrar of the High Court it is understandable how the error in the heading of th order came to be made. But we take it that the order was given by a Judge competent to give it and drawn up by an officer of this Court competent to do so. To hold in such circumstances that the proceedings before Corduff J were null and void would be adopting a highly technical and artificial view which might lead to unnecessary delays*

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The only situation under the Court of Appeal Act (Cap. 04:01) which would have disqualified Ccrduff J from exercising the powers of a single judge of this Court in this case is given in section 8 of the Act, which states that :
"It shall not be competent for any judge to sit as a single judge of the Court of Appeal or take part in any proceedings on appeal -
(a)      from any judgment given by himself, or any Judgment given by any court of which he was sitting as a member;
(b)      against a conviction or sentence if he was the judge by or before whom the appellant was convicted".
Corduff J did not try this case and therefore, was not disqualified from dealing with it in his office as a
*
Judgfe of this Court,
This point is given some prominence because it may be questioned whether Corduff J had the right to make the order that he did. The grounds of appeal set out in the affidavits of the appellants as the grounds they Intended to argue, if given leave, were identical and in the following terms :-

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(a)      that I i.-. H first offender;
(b)      that there were extenuating circumstances•
Neither application nor supporting affidavit stated whether the intended appeal was against sentence only or against conviction and sentence. Ground 1 is certainly one without merit as a ground against the conviction anc ground 3 is obviously a ground in support of an appeal i.ot against conviction but against sentence. However, it ii not clear whether ground 2 was intended as a ground against conviction or sentence or both. The groi ds do not appear to have been drafted by a lawyer. And it is, ther<lore, unlikely that the term "provocation" therein used was intended to convey the narrow meaning of thn word recognised by the law as reducing the offeree of murder to manslaughter. Nevertheless, mention of the word provocation in the grounds of appeal is bound to make a court give serious consideration to that issue in a case of murder.
The order of Corduff J granting leave to the appellants to appeal out of time limited the apoeal to en appeal against sentence only. It ;a l th - following fcrrc:
"The applications for leave to appeal out of tire be granted and that the appellants be granted leave to appeal against sentence".
Was Corduff J right to so limit the appellants' appeal
once he had decided to extend the time within which to
appeal? The appellants had askei fc leave tc appeal ott
of time against a judgement on grounds whic*- appear to

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Include a challenge to the conviction as well as to sentence* Was the learned Judge entitled* once he had decided to extend time, to Unit the extent of the appeal? Was not the Judge's duty then confined to allowing the appeal to proceed on all the grounds raised by the appellants? A person who asks the court's leave in order to do any act does so only because he cannot do that act as of right. He asks the court to exercise its discretion in his favour. The Court so invited could grant the application as a whole or refuse it as a whole. If it could do either, why should it not have ti.e power or liberty to grant or refuse the application partially? We see no reason why it should not* A denial of the Court's capacity to do so would in our view be an unwarranted llnitatlon placed on the exercise of Its discretionary powers.
In an Application for leave to appeal out of time* we think that the applicant has got not only to explain satisfactorily to the Court why he had not exercised his right to appeal within the time allowed him by law but also to persuade the court that he has a case which prima facie can be argued before the appellate Court* And although there is no record of the proceedings before Corduff J, before us we believe that this was the approach he adopted on this application* Having heard the appellants, we have* no doubt that Corduff J was right in limiting this appeal to an appeal against sentence only.

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It is true that the appellants¹ grounds of appeal included a ground which could possibly be taken as raising the legal issue of provocation and therefore going to the root of the conviction for murder* As defined by section 211(1) of the Penal Code (Cap. 08:01) :
"211(1) The term "provocation" means and Includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when 4one or offered to an ordinary person to another person who is under his immediate care, or to whom he stands in conjugal, parental, filial or fraternal relation, or in the relation of master and servant, to deprive him of the power of self-control and to Induce him to assault the person by whom the act or insult is done or offered".
It would appear from the account of events given by the appellants that the only evidence which could be taksn as supporting a defence of provocation was evidence about * knife which the deceased had allegedly drawn on them while he was under arrest by the appellants. This knife story appears in the statement of the first appellant admitted in evidence in this manner t
"I have come here because X arrested a person. I arrested him and took him away. We tied his hands to the back. As we walked with him he said we were hurting him. We untied his hands. I held one of his hands. I saw him put his hand in the pocket and drawing a knife. After he drew a knife we tied .both of his hands to the back again. We held him and beat him* After we beat him with a stick we told him to stand up and go with us. He refused and said he was no longer going. We tied him unto a tree and left him there and went to sleep. The following morning we went to him and found him dead. That is all".
It also appears in the statement of the second appellant as follows :

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"We held him and tied him and took him away. On the way he said he was feeling pains on his hands because we had tied him too tightly. We untied one of his hands and left the strap on one hand. As we walked with him he drew a knife from his pocket. We took the knife from him and beat him. He sat down and refused to move. Tanjoro suggested that we should tie him onto a tree and leave him. We tied him to a tree and left him there".
The appellants at their trial did not give evidence on
oath. They made unsworn statements. The learned Judge
carefully considered this knife story and came to the
conclusion that it was untrue.
On this he said t
"In each of their statements, the accused mentioned the deceased drawing a knife after his hands had been untied. Although they go on to say that they beat him after the knife had been removed and therefore rule out any question of self defence it is material to consider this alleged knife incident on the question of the general honesty of the accused when making their statements. According to P.W.5 fchat is TanjorcJ. The only person he saw that night holding a tcnlfe was the first accused. He said that the first accused told him that the knife came from Moditsane ^another prosecution witness/. This fact was corroborated by Modltsane who said in evidence that when the accused left him earlier that day they took with them, amongst other things, his knife. Inspector Kwati (P.W.2) said that when he saw the accused on 31st May, the first accused handed him a knife (Exhibit 6) which he claimed belonged to the deceased and with which, he alleged, the deceased had wanted to stab him. However, the knife (Exhibit 6) was identified by Moditsane as being his knife. From this I am led to the conclusion that the claim made by each accused that the deceased produced a knife is false".
If that be so, then there is no fact on which the defence of provocation as known to the law could be based.

10.
There is not that sudden act which the law recognises as giving rise to a heat of passion and a temporary loss of control during which the homicidal act is committed. Provocation in the appellants' grounds for appeal, thus, appears to us to be a general claim on their part in ordinary language of the deceased doing some wrongful act which caused the appellants to retaliate by beating him up. It will be recalled that the Judge had found that the appellants genuinely believed that the deceased was guilty of stock theft, a very serious matter amongst the appellants' people. And in that case the appellants' complaint would seem to be that the Judge did not fully take into account the deceased's act which moved them to so conduct themselves in determining sentence. In other words, properly construed, ground 2 is also a ground of appeal, not against conviction, but, against sentence.
Before us the appellants stated that they were appealing against conviction and sentence. We asked each of the appellants what it was that he complained about in the Judgment. Each of them said that his complaint was firstly that there was a third person, obviously Tanjoro, who participated in the crime and should have been charged with them but was not. They clearly felt aggrieved that Tanjoro who was with them and who being the older person, probably was their leader, should have been used as a prosecution witness against them. Their second complaint was that the Judge was not, in the circumstances, lenient enough with them. None of them raised the

11.

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of murder and that the Judge also had to look, and did
properly look, at the manner in which the death of the
deceased was caused.
In the circumstances we do not feel ourselves able to
disturb the sentence imposed by him.
We accordingly dismiss the appeal of each appellant.
A. N. E. AMISSAH JUDGE OF APPEAL
I agree
T. A. AGUDA JUDGE OF APPEAL
DENDY-YOUNG. P
This matter comes before this Court from the Judgment of the High Court (Hannah J.) delivered on the 11th of Septeaper, 1980. The two appellants, (as I shall call them) youths of 18 and 20 respectively, were charged wLth murder of one Kejesitswe Jumane contrary to Section 207 of the Penal Code.
The trial was taken directly to the High Court under Section 95 of the Criminal Procedure and Evidence Act (Cap 08:02). The appellants were duly provided with a list of the witnesses whom the State proposed to call ------ with a summary of the evidence of each witness.

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The appellants were therefore, fully apprised of the case which the prosecution proposed to Make against thee. That case was that on the 30th of May 1980 and at or near Thakalabea Cattle Post in the North-East Administrative District, the two appellants together with one Tanjoro Moloi (an older nan who turned State witness) violently assaulted the deceased with sticks thereby giving hie severe Injuries from which he died during that night.
The postmortem findings of the Doctor were that death was caused by shock due to intra-cranial and Intrathoracic bleeding. The body revealed multiple bruising all over. The skull and contents showed a fracture on the right parietal and occipital bones with sub-dural hemorrhage. On the right, the 4th, 5th, 6th and 7th ribs showed anterior fracture with laceration of the lung. On the left, there was a fracture on the 5th, 6th, 7th and 8th ribs with blood in the chest cavity. The deceased was about 40 years old*
Zn summary the prosecution case was that the two appellants together with Tanjoro Moloi went in search of the deceased who, they believed, had, together with another man (already arrested and handed over to the Police) stolen and slaughtered a goat, the property of the family of appellant No. 2. The two appellants each carried a knobkerrie and they also had a riem. The party arrived at the deceased's village at about sun-set.

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His statement continued:- "We held him and tied him and took him away. On the way he said he was feeling pains on his hands because we had tied him tightly. We untied one of his hands and left the strap on one hand. As we walked with him he drew a knife from his pocket. We took the knife from him and beat him. He sat down and refused to move. Tanjoro suggested that we should tie him onto a tree and leave him. We tied him to atree and left him there.ⁿ See also paragraph 2 of his grounds of appeal.
In his judgment Hannah J. found that a common purpose to assault the deceased had been proved but he negatived intent to kill. However,' he held that by the nature of the assault the case was within Section 209 of the Code and that Malice aforethought must be presumed. Incidentally the learned Judge did not think that Tanjoro Moloi was entirely candid as to the part he played in the assault upon the deceased.
Hannah J. found extenuating circumstances to exist and he sentenced each appellant to imprisonment for 12 years.
By notices dated the 2nd June 1981, each appellant applied to the Court of Appeal for the extension of time within which to note an appeal. The applications were in terms of Rule 8 of the Court of Appeal Rules. The grounds of appeal were stated in substantially identical affidavits filed in support of the applications. I recite in full the affidavit of the first appellant:-

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Reformatory Centre. P% 0. Box 10021, Gaborone.
IN THE BOTSWANA  ^{2nd Jun} ? ¹⁹⁸¹
COURT OF APPEAL
The Registrar and Master. High Court_y Lobatse, Private Bag 1. Lobatse.
NOTICE OP APPLICATION FOR EXTENSION TO APPEAL OUT OF TIME WITHIN WHICH TO APPEAL. CRIMINAL CASE NO.37 OF 1980
OLEFETSE KENEWANC GROUNDS OF APPEAL
Dear Sir.
My grounds of appeal are as follows:
1* There has been unfairness by the Court in making Mr. Tanjoro Molol a State witness when in fact we together committed the crime.
2* The Court did not consider the facts of provocation on me by the deceased which resulted in the fight that caused loss of life of the deceased.
3. The Court did not consider having any leniency on me on the following grounds:
(a)      that I am a first offender.
(b)      that there were extinuating circumstances.
REASONS TO APPEAL OUT OF TIME
As a first offender I was only told the right to appeal when I got to Prison and that I was required to have appeal fee which I have been waiting for but in vain. I am coming from Tutume which is distant from my place of Incarceration and I have no doubt is one of the reasons why my parents cannot come in contact with me. I am therefore, with the above reasons asking that the fees be waived.

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I remain₉
Yours obediently,

IT IS ORDERED THAT:
Tha applications for leave to appeal out of time be granted and{the appellants be granted leave to appaal against sentence,
BY THE COURT
J.R. OLIVER REGISTRAR a MASTER
It will be observed that Corduff J, Purpoted to lifliit an appeal to sentence only* The ordar is on tha faca of it bad. The High Court had no jurisdiction in tha attar* It was one for the Court of Appeal*
However, it Is very probable that the form of the order was dua to an arror on the part of the Registrar who framed it. By Section 99 (l)(c) of the Constitution, Corduff J* is e officio a member of the Court of Appeal* Further, by Section 9(4) of the Court of Appeal Action interlocutory matters a single judge of the Court of Appeal may exercise such powers of that Court as may be prescribed in the Rules made under Section 16•* Rules have been made under Section 16 and these include:-"8 (1) The Court may extend the time prescribed for the doing of anything to which these rules apply, or may direct a departure from these rules in any other way in the interest of justice*

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It seems to M abundantly claar that tha affact of S.9(4) of tha Act is that tha single kjudge can make only an interlocutory order. Tha ordar made by Corduff J. cannot, to ay mind, be interlocutory* It perenpts finally and for all time any appeal against conviction* There is no opportunity nor machinery for correcting any injustice which might result* It is as if tha Court of Appeal had haard the appaal against conviction and dismissed the appeal. There can be no doubt whatsoever that Corduff J.'s order was final and not interlucutory* The order was/nullity and can be set aside summarily ex debito Justiclae.
The same result can be reached via another route. The material which Corduff J. had before him included presumably what is before us. namely*' the summary of the evidence of the State witnesses under S* 95 of the Criminal Procedure and Evidence Act. the preedings and the judgment of Hannah J* Nothing else* The evidence was not available. Corduff J. must have come to the conclusion that appellants had no arguable case on the conviction* solely on the summary of evidence and the jmdgment of Hannah J. The learned judge must have accepted the findings of fact and of law by Hannah J* But these findings were precisely what the appellants wanted to bring on appeal* On appellants' version of the incident as it emerges from the police statements (we do not know how far their unsworn statements at tha trial took the matter) some of the injuries to deceased seem to have been inflicted in a fight

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which developed when deceased, anted with a knife, tried to escape and was overpowered by TanJoro Koloi and the appellants. They were in law entitled to use force to prevent the escape. On the face of it the use of force was to some extent for the purpose of preventing the escape. It may not have all been for the purpose of an unlawful assault. Even if in the hea of the mowent there was excessive force employed₉ that could imply manslaughter only, not murder. It is not clear, moreover, that the appellants would be criminally responsible for the part played by Tanjoro Holoi. The common purpose may not have extended beyond a purpose to prevent escape. Zt is true that Hannah J. rejected the appellants* claim that deceased had produced a knife* But Corduff J. was certainly, in my view, not entitled to rely upon contested findings by Hannah J. against appellants. Zt was for the testing of those findings that appellants wanted to appeal to the Court of Appeal. Zn my view, there was undoubtedly serious misdirection on the part of Corduff J. and a failure to observe the principles of natural justice. Audi alteram partem. An order made contrary to the principles of natural justice is a nullity.
Zf the order made by Corduff J. is to stand, appellants have to my mind, no redress save as to sentence, and then only on the basis of the findings of fact and law made by Hannah J. They have in effect been deprived of their right of appeal on both conviction and of their

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basis on sentence. In my judgment the decision is not in accordance with justice in Botswana, Z am firmly of opinion that the order made by Corduff J* was not made in an interlucutory matter within the meaning of S. 9(4) and that his order is a nullity.
But it is said that specific authority for Corduff J's order is contained in rule 8(3). That is ostensibly so. But, of course, if the rule cannot be reconciled with the statute under which it was made, the rule is pro tanto ultra vires and invalid. We have not heard argument as to the extent to which the rule conflicts with the Act. It is quite conceivable that Interlocutory orders can be made on an application to note an appeal out of time, e.g. an order perhaps, granting leave as prayed, or for an adjournment, or for the filing of further affidavits, or proper grounds of appeal. But surely not an order which in effect finally determines any aspect of the relief to be claimed in the proposed appeal. Such an order would not, in my judgment,' be interlocutory. I have not overlooked a possible construction of S. 9(4) which, if correct would bestow on a refusal by a single judge to grant leave to note an appeal out of time, the character of an interlocutory matters provided a provision could be read into the act giving an appellant the right to renew the application before the full Court.

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On that basis it could be argued that the decision of the single judge is not final as it can be altered or corrected by the full court. The order night well be interlocutory for the purposes of S. 9(4). Take the position in England under the Criminal Appeal Act, 1968. There a single judge mey exercise certain powers of the full court. See S.31. The powers are listed. They include the power to extend the time within which notice of appeal must be given. See S.31(2)(b). However, there is special provision in the Act entitling an appellant who has had his application refused by a single judge to renew his application before the full court, see S.3KD and Halsbury 4th Ed. Vol. 14 para 632. There is no comparable provision in the Court of Appeal Act. Can one be Implied? I do not think so. It can be safely affirmed that the draftsman of the Court of Appeal Act had in front of him the English Criminal Appeal Act, 1968. There are many similarities. Yet there is this marked difference in structure in regard to the circumstances in which a single judge may exercise the powers of the full court. Zn the English Act the powers are listed} and apparentely edtend beyond interlocutory matters. In our Act the powers are as prescribed but limited to Interlocutory m atters. A provision enabling an appellant to renew his application before the full court is conspicuous by its absence.

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By the interpretation of "Court of Appeal" in S.2 of the Act that expression shall, where permissible under the Act, include a single member of the Court* Surely if the intention of the act was to permit a procedure in the nature of an appeal from a decision of a single judge to the full court, there would, as in England, have been special provision to that effect. On the other hand, provided the powers conferred on a single judge are limited to interlocutory matters proper there appears to be no need for such a procedure, I would not imply one.
If I am wrong in this conclusion and a right does exist in an appellant to renew, before the full court, any interlocutory application refused by the single judge, then it follows that we have now before this Court appeals against sentence in terms of the order granted by Corduff J. and renewed applications by appellants to note an appeal against conviction out of time. I would unhesitatingly grant the applications for the reasons I have stated earlier, namely, that, on analysis of Hannah J*s judgment, there is much that requires further consideration on the law and the facts relevant to convictions and sentences. for that purpose the evidence is required. Turning to the appeal against sentence. Rule 41 of the Court of Appeal Rules reads:
"Where an appeal is lodged against sentence only, following upon conviction after trial,

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the record to be placed before the Court on the hearing of the appeal shall consist of a record of the charges. pleas_v judgment and all proceedings after judgment, inclusive of any representations by or on behalf of the convicted person or the State, and where there is a private prosecutor, by on on behalf of the prosecution.
Provided that other parts of the original record may be transcribed if so required by the Registrar or by the Court."
Presumably the record in its present form is before us in terms of Rule 41. Now, in the first place. I doubt that the appeals against sentence here are within the spirit of the rule, even if strictly within the letter. Zt is true that appellants obtained leave to note an appeal against sentence only. But they had applied for leave in respect of conviction as well. It seems to me that Rule 41 should only be applied where the appellant is satisfied with the conviction. Here the appellants wishe to challenge the trial court's findings generally. True it is that they were by Corduff J's order limited to sentence only, but that was against their will. They did not accept the facts found. In the second place, this Is, I think, eminently a case where the proviso should be applied and the evidence called for.

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I have read the judgment of Anisnah J.A., concurred in by Aguda_f J.A. about to be delivered* In view of my approach to the case, I an unable to agree with the order he proposes. As I read his judgment, it tacitly accepts a right in an appellant to renew any inter-locutory application dealt with by a single judge, before the full court. Amissah J.A. reaches the same conclusion as did Corduff J. on the prospects of an appeal against conviction and he refuses to grant the appellants leave to note an appeal out of time. With respect, I do not agree with Amissah J.A.'s analysis of the contentions of the appellants (who arekyouths are unrepresented before us). In my view, the considerations which I have Mentioned earlier all emerged from what the appellants x/ere trying to tell us.
Amissah J.A. agrees with Hannah J* on sentence: If Hannah J*s findings on fact and on law are accepted then I would concur. But I am unable as presently advised (that is, without the evidence) to accept Hannah J*s findings and I thinly it weuld be wrong in principle so to do.
The order I could propose is that Corduff JIs order be set asidet that a transcript of the evidence be included in the record and that the applications for leave to note appeals out of time against both conviction and sentence, be adjourned to the next

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session of this Court.
However, as the majority of this Court take a different view, the order of this Court will be in the terms proposed by Aomlsah J.A.
J.R. DENDY-YOUNG JUSTICE OF APPEAL
Lobatse
8th December, 1981.