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Masie v The State (Criminal Appeal No. 39 of 1983) [1983] BWCA 2; [1983] B.L.R. 200 (CA) (1 January 1983)

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"The accused person Masie Masie on or about the 12th day of June, 1982, at or along Maruapula Road, Gaborone, in the Gaborone Administrative District, drove a motor vehicle, registration No. BX 6735, while the content of alcohol in his blood was 140 mg per 100 ml blood, the prescribed permissible limit being 80 mg per 100 ml blood."
The accused pleaded guilty and was found guilty as charged and the Magistrate imposed a fine upon him. The Magistrate thought that Section 52 of the Road Traffic Act did not apply to a conviction under Section 47(11) and that he was not obliged to disqualify the accused from driving. He therefore did not do so. In due course this case came up on review to the Chief Justice, the Hon. Mr Justice O'Brien Quinn. In his judgment on review the learned Chief Justice considered the relationship of Section 47(11) of the Road Traffic Act to Section 46(1). He came to the conclusion that although the offence had been charged as the contravention of Section 47(11), as read with the provisions of Section 46(1), the charge was in effect a charge under Section 46(1), as Section 47(11) imports a reference to Section 46(1). Consequently, the accused had in fact been convicted under Section 46(1), and the provisions of Section 52 applied. Accordingly, he altered the sentence imposed by the Chief Magistrate and imposed a mandatory disqualification from drivina which.

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"drink or drugs, in any proceedings for an offence by him under section 4 6 or for an offence by him under section 49(c) in connection with a motor vehicle."
Section 52 of the Statute relates to disqualification. It provides that where a person is convicted of an offence under section 46(1), the court convicting him will make order that he be disqualified from driving for two years.
It will be observed that sub-section (2) of section 52
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refers to section 46(1) and not to section 47(11). This enabled Mr Newman, who appeared for the Appellant, to put forward a logical and attractive argument to the effect that all that was imported into section 47(11) was the penalty provision found in section 46(1) itself. It was his submission that one could not further read into section 47(11) the provision for disqualification, nor could one read into section 52 a reference to a conviction under section 47(11). Mr Newman's argument was essentially founded on certain remarks which I made in giving the majority judgment in the case of Attorney-General of Botswana v. Odendaal, CA No. 37/79. In the course of the judgment in that case I dealt with the nature of section 47(11) and, among other things, said -
"... driving with alcohol in one's blood in
excess of the prescribed limit- is in effect

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should be clearly stated in the charge sheet.
Regrettably it appears that these passages in my judgment have led prosecutors in this country, when they wish to rely on section 47(11), to charge the accused with a contravention of that section, as read with section 46(1). It is unfortunate, although understandable, that the words I chose to use have had this result.
In considering the case of Attorney-General of Botswana v. Odendaal, one must bear in mind what the contentions were in that case, and what the context was in which my words, quoted above, appeared. For present purposes it may be said that the nub of that case was the constitutionality of section 47(11). It had been contended that if it created an irrebuttable presumption, it would run counter to the provisions of section 10 of the Constitution of Botswana. However, the majority of the Court held that, notwithstanding that section 47(11) in its terms created*—immmtGmmk-,- an irie-buttable presumption, the Legislature was/creating a substantive offence of driving while one's blood alcohol was above the permitted limit. This was within the powerB of the Legislature under the Constitution of Botswana. That the Legislature chose to create a substantive offence in this way does not, however, mean that one is entitled to ignore the manner in which this has been done. The way in which the Legislature chose to create that offence was to provide that in any prosecution under section 46(1), the

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accused should be deemed unfit to drive if it were found that his blood alcohol exceeded the limit laid down by the Minister.
Accordingly, while the case of Attorney-General of Botswana v. Odendaal holds that the offence created by section 47(11) may be regarded as substantive, the proper way in which to invoke section 47(11) is to charge the accused under section 46(1), read with section 47(11). In fact, in Attorney-General of Botswana v. Odendaal itself, the charge sheet only referred to section 46(1) and not to section 47(11). It was in this context that I said that when section 47(11) is relied on by the State, this should be stated in the charge sheet.
Accordingly, I would respectfully agree with the learned Chief Justice when he stated that "in view of the provisions of section 52, the better and the more proper course would be to charge the offence as being contrary to section 46(1), as read with section 47(11)". If the present charge were laid under section 46(1), as read with section 47(11), there would be no doubt that the provisions of section 52 would apply. Mr Newman submitted that the prosecutor in fact chose to charge the Appellant under section 47(11). However, it is necessary to refer to the Rules of Court promulgated in Statutory Instrument No. 66 of 19 82. Rule 3 provides, notwithstanding that the High Court finds that there has been an irregularity in the proceedings of

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a lower court, the verdict of the lower court should not be altered unless a failure of justice has in fact resulted therefrom. The manner in which the charge was formulated in the charge sheet was certainly no more than an irregularity and it is impossible to say that any failure of justice in fact resulted therefrom. The facts were not in dispute before the Magistrate, and there has been no suggestion that the Appellant was in any way misled by the form in which the charge was laid. Consequently, notwithstanding Mr Newman's argument, the appeal must be dismissed.
However, there are two things still to be said. The first relates to the manner in which these offences should be charged. In circumstances in which the prosecutor wishes to rely on section 47(11), the particulars of the offence should be set out as they were in the present charge sheet. but the statement of the offence should set out a contravention of section 46(1), read with section 47(11). The second point to which I wish to refer is one which is also mentioned in the judgment of the Chief Justice. At the conclusion of his judgment, he urged the Legislature to add a new section to the Statute, to make it a separate and independent offence to drive or be in charge of a motor vehicle while the blood level is above the prescribed limit. I would endorse that recommendation.
KENTRIDGE JA
I Agree.