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Motswiri v The State (Criminal Appeal No. 26 of 1984 ) [1984] BWCA 29; [1984] B.L.R. 286 (CA) (6 December 1984)
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IN THE COURT OF APPEAL OF BOTSWANA
Appellant
Respondent
Criminal Appeal No. 26 of 1984 In the matter of:
ISAAC MOTSWIRI
vs
THE STATE
Appellant in Person
Mrs, I. Daiabe for the State
JUDGMENT
CORAM: O'Brien Quinn, CJ Aguda, JA Kentridge, JA
AGUPA, JA
The appellant was charge* with the offence of stealing from a motor vehicle contrary to section 280(c) of the Penal Code. When asked to plead to the charge before a Chief Magistrate, he pleaded not guilty. Four witnesses gave evidence for the prosecution after which the appellant gave evidence in his
own defence. He was later convicted of the offence and sentenced to prison for 18 months, 9 months of which were suspended for 3 years. He appealed to the High Court and his appeal both against conviction and sentence was dismissed. Later he was granted leave to appeal to this Court.
The facts of this case are that on July 7, 1982 the complainant, one Balu Chamme parked his motor vehicle in his compound at White City, Gaborone, and was admitted into a
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Hospital. He was away for 5 days, and when he came back to his home he discovered that the tool box, the pressure plate and the release bearing of the vehicle were missing. He then made a report to the police. According to his evidenoe "The value of the stolen property is P516." According to other witnesses, the appellant and another person had been found in the complainant's co
pou
d whilst the complainant was in hospital removing from the vehicle the articles the appellant was alleged with stealing. When challenged by the witnesses he had told them that the complainant was his friend and that it was the complainant who had permitted hi™ to remove the articles. However, in his evidence he alleged that he only went with another person to the complainant's compound, and that the man took the complainant's spanner. According to him, he did not knew the person who took him to the complainant's compound but corroborated the evidence of one of the prosecution witnesses who said that she challenged him. On the whole, the trial Magistrate convicted him of the offence as charged, and sentenced him. And as I have said earlier his appeal to the High Court failed.
There can be no doubt whatsoever that the accused stole from the vehicle belonging to the complainant some of the parts of the vehicle and some other articles contained therein. The real problem posed by this case is whether or not such stealing falls within the compass of Section 280(c) of the Penal Code under which the appellant was charged and convicted.
Section 276 of the Penal Code makes provision for punishment generally for theft; whilst Sections277 to 286 make*
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provisions in respect of special types of stealing considered
to require more severe punishments. Section 280 which is the one /relevant/to this case has the marginal note "Stealing from
the person: stealing goods in transit, etc," The relevant
part of that section reeds as follows:
"280. If a theft is committed under any of the circumstances following, that is to say -
(c) if the thing is stolen from any kind of vessel or vehicle or place used for the conveyance or custody of goods in transit from one place to another,
the offender is liable to imprisonment for ten years."
The punishment prescribed under Section 276 is imprisonment
for three years.
The question which arises in this case therefore is whether stealing from a motor vehicle parts of that vehicle or of the; articles usually Kept in it as necessary for the proper running cf the vehicle, auch as a box of tools, a spare tyre etc, would come under the provision of Section 280(c).
The appellant in this case was unrepresented by Counsel, but the State Counsel, Mrs. Danbe, filed Heads of Argument which have fairly presented the legal points with clarity and which this Court has found useful. Mrs. Dambe's conclusion is that the appellant was wrongly charged and wrongly convicted under Section 260(c) of the Penal Code. She Y-ns asked this Court to substitute a conviction under Section 276 of the Penal Code for the one recorded under Section 280(c),
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citing the case Tshumunyana Hesle & Ano. v The State 1977
B.L.R. 47. This case was not brought to the notice of the
Judge who took this case on appeal although the appellant was
at the hearing represented by an Attorney. In a recent
Review Case, The State v Patrick Vellio & Anp, Review Case
No. 619 of 1984, judgment dated November 7, 1984, the
Chief Justice, sitting as s Review Judge cited the jMasie case,
supra, with approval and said that that case has been followed
in many other cases in recent tines.
The ratio decidendi of the Masie case is shown in the
Report as follows:
"Section 280(c) of the Penal Code applies only to the theft of goods entrusted to a carrier for transportation and in the possession of a special owner for carriage or custody."
Edwards, J. who decided the Kasie case quoted with approval
certain dicta from two Malawi cases: Billiat v Regina 1 A.L.R
480 and Livison v Regina 4 A.L.R. 268. In the first case
Tredgold, CJ. was quoted as saying:
"Subsection (c) would appear to be directed against the theft of *oods entrusted to a carrier for transportation. It is doubtful whether it applies to parts of the carrier's own vehicle."
And in the second case, Cram J. was quoted as saying -
"Clearly, the object is to strike at the mischief of stealing goods which are out of the careful surveillance of the owner and in possession of a special owner for carriage or custody. Such goods can properly be 3aid to be in transit."
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First I would like to say that there can be no argument that the provision cannot apply to parts of the carrier's own vehicle, as in this case. This clearly would have been the end of the consideration of this aspect of this appeal, but for the
fact that it does appear to me that it is essential to make some clarification in respect of the other aspects of the provision. Again I have no doubt in my mind that the mischief aimed at by the provision of •Section 280(c) is the stealing of goods in various states of transit. It will include goods stolen from any vessel or vehicle which is in the actual process of being used to transport such
goods from one place to another. It will also include ^oods stolen from a place of deposit used for the conveyance of the goods stolen from one place to another. It will also include goods stolen from a place of custody of goods in transit from one place tc another. With the greatest respect there is nothing in the section which makes it an essential element of the offence that the goods once they are in th~ process of transit must have been entrusted to a carrier or a person other than the owner and I am not
prepared to read that condition into the provision. It may well be, and indeed it is usual in such cases, that such floods are entrusted to carriers or persons other than the actual owners of the goods. However, I cannot see how it can be argued that stealing of goods in transit which are being transported by the owner in his own vessel
or vehicle does not come within
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the provision of the section. To hold that where a person steals goods in transit beinp transported by the owner in his own vessel or vehicle is not caught by the section is not only to do
violence to the provision but tc create an obvious absurdity in the law.
It seems clear from the views I have expressed herein that if a person decides to convey his own produce or goods for sale in his own vehicle from one place to another and a person steals such produce or goods along with other itens of
property such as the extra ty
e or or tool-kit of the vehicle, then whilst the thief can be properly convicted of stealing of the produce or of the {/oods in transit under section 280(c) of the Penal Code, he cannot be convicted under that section with respect to the extra tyre or tool-kit.
Therefore, in this particular case the conviction
of the appellant under Section 280(c) cannot be allowed
to stand. However, State Counsel in her Heads of
Argument has urged this Court to substitute a conviction
under Section 276 of the Penal Code. In making that
submission, Counsel relies upon the provisions of the
Criminal Procedure and Evidence Act, Section 186(1) and
of the Court of Appeal Act, Section 13(6). Section 186(1)
of the Criminal Procedure and Evidence Act provides that -
"Where a person is charged with an offence consisting of several essential elements a combination of sorr-e only of which constitutes a complete offence (hereinafter referred to as a minor offence),
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and such combination is proved,
he may be convicted of the minor offence althou.jh he was not charged with it."
And Section 13(6) of the Court of Appeal Act ^ives power
to this Court, if the facts proved at the trial of a
Criminal cars no warrant, to alter the conviction to one
for a different offence of which the appellant could have
been convicted by the trial Court. If this Court exercises
its power under t'ris section and alters a conviction,
it is also empowered to substitute a different sentence.
A3 it is clr,ar- to .re that the trial Court could have
properly convicted the appellant ef cifcple theft under
Section 276 of the Penal Code, by virtue cf section
186(l) of the Criminal Procedure and Evidence Act, supra
I would alter, and hereby alter the coMviction recorded
against the appellant under Section 28C(c) of the Penal
Code to one under Section 276 of the Code.
The appellant was sentence to 18 months imprisonment,
nine months of which were suspended. But since the
offence for which he her. new been convicted carries a
lesser aaxinum punishment than the one of which he was
convicted by the trial Court, that sentence will be, and
is hereby reduced to one of imprisonment for 12 months,
eight months of which are suspended for a period of
3 years on condition that the appellant is not convicted
of a similar offence within that period. The appellant
alleges that he had spent 21 days in prison between
conviction and when he was released on bail, that period
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should be taken into account.
The learned State Counsel rightly pointed out in her Heads of Argument that the learned trial Magistrate made an Order against the
appellant for the payment to the complainant of compensation in the sum cf F326.0C without any evidence whatsoever apart from the ipge dixit of the complainant that the total value of the articles stolen was P510.00. In these circumstances that Order cannot be allowed tc remain, and it is therefore quashed.
( I agree
C'BRIEN QUINN, CJ
I agree
KIKTRIDGE, JA
DATED at Lobatse this 6th day of December, 1984.
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