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Masilonyane v The State (Criminal Appeal No. 41 of 1983 ) [1983] BWCA 14 (7 December 1983)

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However this is not to be taken as a precedent and we would ask the Registrar to ensure that any further appeals are not enrolled in cases where leave is required unless leave has been duly given or is sought from this court on a proper application.
The facts of the case are well summarised in the Judgment of Hannah J and I could do no better than quote from his judgment. He said, and I quote from the judgment:
"It was not in issue at the appellant's trial that on the 5th or 6th August 1982 a house in Kanye was broken

into and a locked wardrobe forced open. Nothing was in fact stolen* The sole issue was whether the person responsible was the appellant. In an unsworn statement, he denied any knowledge of the matter. As against that, however, there was evidence that on 6th August his palm prints were found on a mirror attached to the front of the damaged wardrobe. There was also evidence from the owner of the house that the appellant had never been in there, at least lawfully." Before Mr. Justice Hannah, as in this court, the appellant challenged the evidence of the finger-print expert who was called by the prosecution. I have studied the record
and I am satisfied that the finger-print expert was duly qualified and that he proved beyond reasonable doubt that

3 the palm-print on the mirror in the house which was broken into was that of the appellant. In the face of the evidence that the appellant could not have been lawfully in that house and in the absence of any reasonable explanation the magistrate was, in my view, fully justified in finding that the guilt of the appellant had been proved.
However, the appellant both before Mr. Justice Hannah and in this Court has raised another point. In the course of his trial, he sought and obtained an adjournment in order to go to Molepolole to find a witness who would have testified that at the time of the House Breaking he was not in Kanye. The magistrate adjourned the trial and the police accompanied the appellant to Molepolole. However, the witness could not be found, although the appellant when the trial resumed asked for permission to seek the witness unaccompanied by the police, he gave no good reason why a second search should be any more successful than the first one. The magistrate accordingly treated the proposed witness as untraceable and continued with the trial. At the resumed trial no further evidence was given and the appellant was found guilty. It seems to me that the magistrate acted perfectly reasonable in treating the proposed witness as untraceable.
The appellant has yet another ground for appealing against his conviction. It is a ground which he has explained more fully before this court when he appeared before us this morning.

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It is that on the resumed hearing of his trial after the search for the witness, the public prosecutor who was apparently a member of the police acted as interpreter. There is no doubt that it is undesirable for the prosecutar to act as interpreter. One may refer to Mokwena v. The State BLR page 94. Further it is not suggested that there was my evidence which was interpreted by the prosecutor. All that took place on the resumption was a discussion of the question whether the appellant should be allowed to search again for his witness and after that the question of previous convictions and sentence came before the court.
The appellant was given the opportunity in this court to state what took place and it does not seem to me that the version on the record in any way differs from the version which he gave to this court this morning. Althougi one repeats that it is undesirable for the prosecutor to interpret, it is plain that there was no failure of Justice as a result. Consequently, I will propose that the appeal against conviction be dismissed.
There remains the question of sentence imposed on the
appellant. After he had been convicted the public
prosecutor produced the recor i of his previous convictions.
The document handed in recorded a number of convictions beginning in 1972 including a conviction for theft, a
conviction for stealing stock, a conviction in 1978 for
Burglarly and Theft and a conviction on the 5th December 1930
for house breaking and theft. On the last occasion the
sentence given by the Traditional court in Jwaneng was

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Two Years' Imprisonment. When this list was put to the appellant in the Magistrates' court he said ⁿI admit all my previous convictions except CRB 138/82." The magistrate then stated that he would ignore that conviction. If one looks at the record it is clear that the conviction recorded as CRB 138/80 is the one which the magistrate had in mind, that was the offence of Escaping from lawful custody. However, in court this morning, the appellant told us that the offence which he didn't admit was the offence of house breaking and"theft of which he was convicted in the traditional court on the 5th December, 1980. The reason he didn't admit it is that the magistrate's court on appeal had set aside that conviction. The manner in which such an error could have occurred is plain, on the form there is no CRB number against house breaking and theft conviction. The number 138/80 although it refers to the conviction for Escaping from lawful custody appears immediately above the words "House Breaking and Theft". The appellant probably thought that that number applied to the house breaking and theft conviction. The magistrate in his reasons for sentence took into account that the appellant had four convictions for offences of dishonesty, two of them involving house breaking and theft, consequently he did take into account the conviction at Jwaneng on the 5th December, 1980.
In view of the very real possibility that this was erroneous, we asked Mr. Alidi who appears for the State, to investigate. However, he has only been able to ascertain that the case didn't come to the High Court.

The reason for the suspension is to give the appellant the opportunity to change his ways and to try to live an honest life and he must understand that if he commits any offence involving dishonesty the twelve months' sentence which will be suspended is likely to come into effect.
Consequently, what I propose is that the conviction be confirmed. The sentence be altered to Two and Half Years Imprisonment, twelve months of which is suspended for three years on condition that the appellant is not, during that time, convicted of an offence involving dishonesty.
Dated at the Court of Appeal, Lobatse this 7th day of December, 1983.

S. w. KENTRIDGE JUDGE OF APPEAL
J. R. DENDY-YOUNG JUDGE OF APPEAL
I agree

I agree




A.L.S. BARON
JUDGE OF APPEAL