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Monyatsi v The State (Criminal Appeal No. 16 of 1988 ) [1988] BWCA 16 (28 November 1988)

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IN THE COURT OF APPEAL
OF BOTSWANA
Criminal Appeal No. 16 of 1988 (High Court Cr. Case No. 257 of 1987)
DAVID MONYATSI   Appellant
versus
THE STATE        Respondent
Appellant in person
Miss P. Solomon for the Respondent
JUDGMENT
CORAM: A. N. E. Amissah, J.P. T. A. Aguda, J.A. B. A. Doyle, J.A.
DOYLE, J.A.:
The Appellant was charged on two counts of rape and one of House-Breaking and Theft. The magistrate accepted pleas of guilty on each count and sentenced Appellant to the total of fourteen years imprisonment.
Appellant appealed to the High Court against the convictions and sentences on each count. The hearing was on 20th April, 1988. Appellant says he was not permitted to argue on the appeals against conviction. The learned judge wrote a judgment in which he dealt only with the appeals against sentence. He allowed the appeals to the extent of reducing the totality of sentences to nine years.
No record appears as to what happened to the appeals against conviction but on 19th September, 1988 the same High

Court Judge granted leave to appeal to this Court against the conviction on the third count. Again the application made by the Appellant is missing.
Obviously no appeal can lie to this Court direct from a Magistrate's Court. It seems therefore the appeals against conviction must have been summarily dismissed and either inadvertently no record was made or it has been mislaid. The Court has decided to hear the appeal on this basis.
When taking the plea to the third count the magistrate inter alia asked the following questions.

Court
Did you break into the caravan and how?

Appellant replied: "Yes, the door was
slightly ajar and I pushed it" .
A plea of guilty was recorded.
The question which arises in this appeal is whether pushing a door which was ajar constituted a breaking.
Counsel for the state cited section 304(1) of the Penal
Code which reads as follows:
"304(1) A person who breaks any part, whether external, or internal of a building, or opens by unlocking, pulling, pushing, lifting, or any other means whatever, any door, window, shutter, cellar, flap, or other thing, intended to close or cover an opening in a building, or an opening giving passage from one part of a building to another, is deemed to break the building."
He argued that the reference to pushing covered the
point and that pushing further open an open door constituted
a breaking. On consideration I cannot agree. I consider
that the cogent word in the definition is "opens" and that

it relates to a closed door. The definition does not, for instance, contemplate a breaking depending on the girth of a person who passes through a door which is slightly open, half open or almost wholly open.
It is of interest to note that this is the position at common law . See R. v Smith & Mood 178.
The wording in the definition does not seem to me to indicate clearly an intention to make a change.
The magistrate should therefore have entered a plea of not guilty. The plea of guilty was a nullity. The conviction and sentence on the third count is quashed.
GIVEN at LOBATSE this 28th day of November, 1988.

B.A. DOYLE JUDGE, OF COURT

I agree:
A.N.E. AMISSAH JUDGE PRESIDENT


I agree:
T.A. AGUDA JUDGE OF APPEAL

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