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Keboletse v The State (Criminal Appeal No. 19 of 1984) [1984] BWCA 27; [1984] B.L.R. 280 (CA) (6 December 1984)
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IN THE COURT OF APPEAL
OF BOTSWANA
Criminal Appeal No, 19 of 1984
In the matter between:
BALIKI KEBOLETSE
Appellant
vs.
THE STATE
Respondent
Mr. M. S. Gaongalelwe for the appellant Mrs. L. I. Dambe for the Respondent
JUDGMENT
Coram: O'Brien Quinn, C.J. Baron, J.A. Aguda, J.A.
T. AKINOLA AGUDA. J.A.I
The appellant stood trial before a senior magistrate between August and November, 1983 on a nine-count charge. Six of the counts alleged the theft of a number of cattle contrary to section 279 as read with section 276 of the Penal Code whilst
the other three alleged the possession of stock reasonably suspected to have been stolen contrary to section 3 as read with section 10 of the Stock Theft Act. The appellant pleaded not guilty to all the counts. However, after the prosecution had called twenty-one witnesses and the appellant had given evidence,
the learned trial magistrate convicted him on six of the counts but acquitted him on the others. He was sentenced to various terms
of imprisonment in respect of those counts upon which he was convicted. He thereupon appealed to the High Court. After hearing at
the High Court,
2
the appellant's appeal succeeded in respect of all the six counts, except one. The sentences passed in respect of the five counts
in which he succeeded were quashed whilst the sentence in respect of which his appeal was dismissed was allowed to stand. Subsequently
leave was granted to the appellant to appeal to this court against both the conviction and sentence passed in respect of that count. For purposes o this judgment it is only that count that Is relevant, and it was count 7 on the charge sheet. It alleged that the appellant tton or about the 6th July, 1983 at or near Marulamabedi area in the Central Administrative District was found in possession of eleven mixed cattle which were all reasonably suspected to
have been stolen and was unable to give a satisfactory explanation for such possession." On this count the magistrate convicted him in respect of only one head of cattle, and sentenced him to one year's imprisonment. It was this conviction and the sentence that were confirmed by the High Court and which are now the subject of this appeal.
From the mass of evidence that was led at the trial of this case, the following pieces are considered necessary for a proper understanding and consideration of the appeal and the case of the appellant. Sometimes in July 1983 as a result of information
received by the police some police officers went to the appellant's kraal with him. There eleven head of cattle were picked out from among 80-90 head, as being in possession of the appellant, all the eleven being reasonably suspected to have been stolen. According to the witness, Dokgobo Makutu (PW3) a police officer:
3
"The accused was asked 48 to how these beasts
came into his possession, but he did not give
any satisfactory answer. He said all these
cattle belong to him. He was further asked if
they were known to any of his herdboys, and he
said they may know. One of his herdboys by
the name of Diane was asked by Inspector Mochani,
if he knew about those cattle, and he said
those cattle did not belong to the accused.
I was present there at that time. Then the
accused was warned and cautioned
"
Another police officer Inspector Monthusi(PW21) said as follows:
"On the 6th July, 1983, I received some information that there were some cattle which were collected by the accused from the field. As a result I went to the kraal of the accused where I met one nerdboy of the accused Diane Kala, who showed me the cattle in question. I was with
the accused when I went to his cattle post. I asked the accused about certain cattle which were pointed out to me as the catties brought from the field. The accused failed to give any explanation and said his herdboy will know better about the catties. They were eleven
in number. I then seized those cattle as exhibits, and then warned, cautioned the accused of a charge of having in possession of stolen stock."
At this stage it is necessary to say that it is common cause between the parties that all the eleven head of cattle had the appellant*s
brand mark on them whilst one out of eleven had an additional brand mark, NCE. After the prosecution had closed its case at the trial the learned trial magistrate took the view that since the ten head of cattle had only the appellant's
brand mark on them, he would not call him to defend him/ in respect of those ten. As it turned out it is that single head of cattle that is the basis of the
conviction, subject of this appeal.
4
In his evidence in chief the appellant said:
"The beast with NCE also has my brand. This is my beast born out of my kraal, and I put my brand on it. NCE brand belongs to one Mr. Bosaikhutlng Radithobane. This beast I had sold it to Radithobane and that is why his beast(? brand) come on it. Police found this beast in my possession, but I told them that I had sold it to Radithobane."
Under cross-examination he said as follows:
"I do not remember exactly when I sold this beast to Radithobane, but it was sometimes during the winter of this year. After he bought it, he had not taken it yet. He had instructed his young brother to brand it with his brand NCE at my kraal. I told the police that I had sold this beast to Radithobane."
In his judgment the trial magistrate did not believe this
evidence of the appellant, as stated above, and clearly said
so in his judgment. He said:
"In respect of count VII(7) the explanation given by the accused in respect of one cattle with NCE brand mark is difficult to believe and therefore unacceptable.11
Now the relevant law under which the appellant was
charged and convicted, in respect of which this appeal has
been brought to this court, as I have said, is the Stock
Theft Act, Section 3. That section provides as follows:
"A person who is found in possession of stock or produce in regard to which there is reasonable suspicion that the same has been stolen and is unable to give a satisfactory account of such possession shall be deemed to be
guilty of an offence."
At the hearing of this appeal, Mr. Caongalelwe counsel for
the appeallant admitted that the beast was indeed found in
possession of the appellant and that there is reasonable
suspicion that the same haef been stolen, but contends very
5
forcefully that the lower courts were wrong in coming to the conclusion that the appellant was "unable to give a satisfactory account of such possession*N The main prop of his argument Is this: the appellant told the police that he had sold the animal to Radithobane and that was why the animal had on
it the brand mark NCE in addition to his; that the beast was found in his possession only because the buyer decided to leave it among
his cattle for the time being; that having told the police all this, he had discharged the obligation on him under section 3, that it was for the police to investigate the authenticity of his allegation; and that not having done so and disproved the allegation of sale to Radithobane, the appellant was entitled to acquittal and discharge. Subsidiarily Mr, Gaongalelwe submitted that no adverse inference can be drawn from the fact that the animal was found in possession of the appellant after the sale since there was no suggestion that that animal had been left there for an unreasonable period of time after sale; and that in any case there is no proof that it belongs to any other person. In support of his argument the learned Counsel referred this court to Gardiner and Lansdown, South African Criminal Law and Procedure 6th Ed. Vol. II, page 1686 R. v. Zulu(1951) 3 S.A. 44, at p. 50; and Serole v. The State 1976 B.L.R. 82 at p. 83.
In her submission, State Counsel for the respondent, Mrs. Dambe, made the point that the trial magistrate, and the Judge on appeal were right in not accepting the story of the appellant as he gave varying and contradictory
6
accounts as to how he came Into the possession of the animal. If the trial magistrate did not believe the explanations of the appellant - which he was entitled to on the evidence -this court cannot hold that he was in error. She further submitted that it did not matter to whom the brand NCE belong but that in any event the appellant's evidence was vague as to when the alleged sale took place; that the appellant failed to mention the amount the animal was sold for, and the names of witnesses etc. She finally submitted that the appellant could have
called as witnesses the alleged buyer of the animal and his brother who was alleged to have branded the animal. Learned Counsel also
referred this court to the same page of Gardiner and Lansdown. supra?
It is necessary at this stage to state that, the provisions of section 3 of our Stock Theft Act are in para roatera with those of section 1 of the South African Act of the same title, Act No. 26 of 1923; therefore it will be proper and beneficial for this court to examine the views of the Judges and
Jurists of that country for purposes of guidance. As learned counsel for the appellant rightly pointed out three main elements of the offence created by the Stock Theft Act, section 3 call for examination. Theee are: (1) possession by an accused of the stock in question; (2) reasonable suspicion that the stock has been stolen; and (3) whether the accused is able to give satisfactory account of his possession
of the stock. In this case, learned Counsel for the appellant admitted the existence of the first two elements whilst denying the
existence of the third element
7
basing himself upon the submissions which I have earlier set down. It is therefore necessary for this court to consider only the third element.
The first point that must be made is that whether the account given to the police by the appellant of how he came to be in possession
of the cattle satisfies the police or not is not of much importance; but as Gardiner and Lansdown, supra, at page 1696, has put it, "it is the tribunal before which the accused is brought to trial which must be satisfied as to the account given of the possession - R. v. Qutu 1921 A. D. 506."
Having disposed of that preliminary point it becomes important to note that the section does not cast any onus on an accused charged
under the section to prove anything; he is only obliged to give an account of how he came to be in possession of the stock. If he
gives an account which is found to be satisfactory by the trial court, he is entitled to be acquitted. However, if he is unable to
give such a satisfactory account, then he will be guilty of the offence, provided of course that the other elements mentioned above
are established. See R. V. Tobesa & Ano. 1926 T.P. 459; and R. v. Epstein 1951(1) S.A. 278. Once an accused gives an which is satisfactory to the trial court, he cannot be convicted unless the ^state is able tc discharge the onus on it to establish its case beyond reasonable doubt. See R. v. Gceba 1928 E.D.L. 424, at p. 428; and also R. v. Maloy 1931 T.P.D. 193.
The next point which must now be considered is the mean-ng to be attached to the words "a satisfactory account of ..^s possession" under section 3 of the Stock Theft Act, quoted earlier. In this regard I wish to quote with approval the words of Caney, J.A.; in R. v, Zulu 1951(3) S.A. kk at p. 30 as follows:
"The conclusion to which I come is that no more can be required of a person found in possession of stock or produce reasonably suspected to have been stolen than to give a satisfactory account of his possession. This, in my opinion, is an account which may reasonably be true and which, if true satisfactorily explains his possession cf the stock or produce, as the case may be. This leaves the general onus in the case where it should be, namely, upon ihe Crown."
It seems to me that in the process of the determination of this issue by a trial court, the court will first and foremost have to
determine the issue whether the explanation given by the accused may reasonably be true. If it is not, that will be the end of the matter. If however, the explanation given by the accused cannot be shown to be false in any material particular and therefore may be true, then
the trial court must proceed to consider whether such an
be account will/satisfactory if true. This whole process does
not oblige the accused to establish that his explanation is
true. If his explanation is found to be one which may be
true, then the trial Judge will be bound to consider whether
it satisfactorily explained his possession.
Now in this case we find a situation in which the appellant admits the first two elements of the offence as set down earlier that he was found in possession of stock
9
which is reasonably suspected to have been stolen, but says that he has given a satisfactory account of how he came into possession. The trial magistrate did not believe the explanation, and in my view he was entitled to come to that conclusion upon the established facts. In the circumstances therefore, the appellant's explanation cannot be held to be a satisfactory account. As Mrs. Dambe, State Counsel pointed out, much of the explanation given by the appellant consists of vague allegations in circumstances which called for better particulars: sale to a named purchaser whose address is not given but who allowed the animal to remain with the appellant; date and ti.i.e of sale were not given; the consideration in the contract of sale was not mentioned; the buyer did not brand tne animal himself but asked his Junior brother to brand it; the uar~e of the Junior was not given. Upon all these facts, if the learned trial Magistrate came to the conclusion that the story of the alleged sale was false, it is my view that he cannot be held to have been in error. By this I do not mean that the appellant had any onus to prove anything, but he was obliged to give an explanation which might reasonably be true as to bow he came into possession of
the animal. If he had done this to the satisfaction of the trial Magistrate then there would have been much force In the argument
of counsel for the appellant that the State ought to have called evidence to show that the brand mark NCE found on the animal was
or was not that of the alleged purchaser Radithobane. In such a circumstance then the failure of the State in this regard would have been fatal to the State's case.
10 <
'] i it is, the appellant on the evidence was unable to give
oatisfactory account of his possession of the stock in question; and I therefore cannot see any merit in his appeal which is therefore, and for the reasons hereinbefore given dismissed.
The appellant has also filed an appeal against the sentence of one year*s imprisonment imposed upon him by the trial Court and confirmed
on appeal by the High Court. In all the circumstances it appears to me that a lesser punishment will meet the justice of this case. The appellant is a first offender; he is convicted of an offence under section 3 of the Stock Theft Act which carries a maximum punishment of PAOO and Two years imprisonment under section 10 of the Act; and the animal involved is only one head of cattle.
1to*4*y
M**
*nJk^^
There-
fore I would set aside the sentence imposed by the lower
courts and substitute thereof the following:
"The appellant shall pay a fine of P200 and in addition he is sentenced to a term of Imprisonment for twelve months of which nine months are suspended for a period of three years,
provided the appellant is not convicted of a similar offence or any offence of which stealing or unlawful possession of property reasonably
suspected to have been stolen or unlawfully obtained, is an element within that period. The appellant is given thirty days from the
date of this Order to pay the P200. Upon failure to pay withla tbat period this shall be sufficient authority for him to be imprisoned for a period of not more than six months which shall be consecutive
to the three months effective above.
11
GIVEN at the Court of Appeal, LOBATSE this 6th day of December, 1984.
JA AGUDA Judge of Appeal
I agree,
J. A. OBRIEN QUINN Chief Justice.
I agree,
L. Baron Judge of Appeal
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