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Nkhwa v The State (Criminal Appeal No. 42 of 1980) [1982] BWCA 4 (21 May 1982)
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IN THE HIGH COURT OF
THE REPUBLIC OF BOTSWANA
Criminal Appeal No. 42 of 1980
In the matter between:
NLEBELEKI NKHWA
Appellant
and
THE STATE
Respondent
M. C. Motsercme for the Appellant P. T. C. Skeletrani for the State
J D G M E N T
I
HANNAH. J.
This is an application for leave to appeal out of tlae against an order of the High Court Made on 14th August, 1980 diMissing the
applicant** appeal against his conviction by the Francis town Chief Magistrate of "stealing stock" but reducing his sentence
froa oner of nine years imprison -sent to one of five years imprisonment.
The applicant's attorney has realistically ard sensibly abandoned that part of the application which seeks leave to appeal againat
the> conviction but she argues, and this is the only point advanced, that both the sentence 1opened both by the learned chief
sagrlstrate and subsequently that inposed by the learned judfre waa incompetent, flfce submits that the nnxinun sentence for which
the applicant was liable, having regard to the nanner in which the char#E> was drafted, was three years imprisonment.
I
2
The charge against the applicant read as follow*i
STATEMENT OF OFFENCE Stealing stock contrary to section. 276 of the Penal Gad* (Cap 8t01).
PARTICULARS OF OFFENCE The accused on or about the 26th September, 1079, at or near Diana Ranch Rarm, in the North East Administrative District stole 49
herd of cattle valued at P8 000.00 being the property of Andries Jacobs Rocs.
The practice followed in drafting charges of theft haa been to refer in the Statement of Offence,not only to section 276 of the Penal
Code* which creates the substantire offence, but also to the section which increases the maximum sentence rlilch may be Imposed where
the offence la committed by a particular category of persons or in relation to a parti*" cular tiling, (see precedents 7 and
22 in the Third' Schedule to the Criminal Procedure and Evidence Act), And so to conform to this practice It would have been necessary,
in the case of the charge under consideration, to refer to section 279, which provides that if the thlnir
k
stolen is. Inter alia, a cow or ox. the maximum sentence is f<
year*, as well as to section 276;
i
contrary to section 276. I find tence was imposed the applicant I
2 find it unnecessary in this Judgment to pass any comment m> to whether the absence of a reference to section 279 would limit the Court's sen* ^tenda* Jurisdiction to that which It possesses for a case of emmsrsi
tbaft
it unnecessary, because when the sen-* id two previous convictions for theft,
and section 286 providest
"If the offender, before committing the theft, had been
a
convicted of a theft punishable under any of section* 276 to 288, he is liable to imprisonment for seven years."
This Is a perfectly plain provision, the effect of which Is that a sentence of five years imprisonment Cor common theft In the present
case
mis perfectly competent.
The applicant** attorney hn
referred me to a number of South African cases which deal with the general llmlta placed on a Magistrate** Courti*c sentencing Jurisdiction
In that country. However, 1 do not find that these cases assist as they are not in point. The Jurisdiction of a Chief Magistrate or Senior KagisIrate in Botswana is very much wider.
The applicant's attorney concedes that a sentence of five years luipyl—n sent, in the circuastances of the [resent case, was not unreasonable and relies solely on the point I have dealt with. In ny opinion,
this point, for the reasons I have given, has no prospect of succeeding before a full Court and I therefore dismiss this application*
H. N. HANNAH JUDGE OF APPEAL
Given at the High Court, Lobatse, this 2lst day of May, 1982.
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