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Boikanyo v The State (Criminal Appeal No. 10 of 1983) [1983] BWCA 13 (7 December 1983)

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Corduff J. in dealing with the question of granting the appellant leave to appeal to this Court said that autrefois acquit could not be raised on appeal for the first time. In addition he had received a letter from the Attorney General's Chambers which had been addressed to the Attorney General on the 16th April 1982 by the Station Commander of Letlhakane. The matter then came before Hannah J. for leave to .appeal. I should mention that it is clear that Corduff J., was influenced by the contents of the letter to the Attorney General to which I have referred. When the matter came before Hannah J. he drew attention to the fact that apparently Corduff J. had over-looked the decision of this Court in Busang v State Criminal Appeal No, 5 of 1981. According to that judgment a plea of autrefois acquit may properly be raised for the first time on appeal. In addition one may make reference to the decision in the case of State v Malejane 1974 (4) SALR 304. Hannah J. felt that Corduff J should not have decided the issue of autrefois acquit on the contents of the Station Commander's letter to the Attorney General to which I have already referred. Consequently Hannah J gave the appellant leave to appeal to this Court.
We have today ascertained from the appellant upon what ground he claims to have been acquitted by the Customary Court and he has given us a version which may or may not be true* We deliberately express no opinion whatsoever on the plea of autrefois acquit in the absence of evidence on oath.

Mr. Makhwade, for the State, originally submitted that the matter should be remitted to the High Court for trial on the issue of autrefois acquit. Upon re-consideration and after discussion he agreed that the proper forum to determine this issue was the forum which heard the case of the appellant i.e. the Magistrates' Court where he was originally tried.
In the result, therefore, the order of this Court is that the matter is remitted to the Magistrates' Court at Orapa to enter a plea autrefois acquit on the part of the
*
appellant and for this issue to be tried out. The appellant will remain in custody.
I wish to add that in view of the fact that the appellant was tried in 1981 and convicted in August of that year, it is essential that the trial in the Magistrates' Court should be held forthwith.
I. A. MAISELS JUDGE PRESIDENT
A. AGUDA JUDGE OF APPEAL

LOBATSE
7th December 1983
I agree;
A.N.E. AMISSAH JUDGE OF APPEAL