SAFLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Botswana: Court of Appeal

You are here:  SAFLII >> Databases >> Botswana: Court of Appeal >> 1988 >> [1988] BWCA 5

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]

Bula v The State (Criminal Appeal No. 7 of 1988 ) [1988] BWCA 5 (29 June 1988)

PDF of original document.PDF of original document

.RTF of original document

IN THE COURT OF APPEAL OF BOTSWANA
Criminal Appeal No. 7 of 1988
In the matter betweeen:
NTELASELO BULA
and
THE STATE
Appellant in Person
Mr. 0. Marata for the Respondent
JUDGMENT
AMISSAH, JP AGUDA, JA BIZOS, JA
AGUDA, JA.
When this appeal came before us on June 29, 1988 we dismissed it after hearing the appellant in person. We now give our reasons for so doing.
The appellant and another person, Sekwate Bula, were charged before a Magistrate's Court at Mochudi for stealing one bullock the property of one Shaw Koko. They pleaded not guilty. After a trial at which the prosecutor called four witnesses and the two
2/      

2
accused persons gave evidence in their defence, the other person Sekwate Bula, was discharged and acquitted. The first accused now the appellant thereafter filed an appeal to the High Court out of time. The appeal was by leave heard by Barrington-Jones, J. on March 2, 1988. After hearing the appellant, the learned Judge dismissed the appeal summarily but subsequently on April 28, 1988 granted the appellant leave to appeal to this Court. The only reason given by the learned Judge for granting leave was that although on the charge sheet the ownership of the bullock was put in Shaw Koko, the evidence given by three prosecution witnesses including Shaw Koko himself was that the beast was the property of someone else by the name of Kwateme.
The first point to be made in this case is that the trial Magistrate disbelieved the appellant when he laid claim to the ownership of the beast in question, and indeed held that he stole it. Those findings were not faulted by the learned Judge on appeal, and we have no reasons to disagree with them.
Now as to the ownership of the beast the evidence believed
by the trial Magistrate, and which remained unchallenged by the
learned Judge on appeal, is simple and it is this. Shaw Koko,
deposed as follows in part on examination-in-chief:
"I own the cattle ... The beast belongs
to Kwatame ... The nala ox was born in
my kraal ....Kwatame is the owner of the
beast. He does not know the beast. I
claim it since I reported it     "
Under cross-examination, he told the Court:

3/....

3
"The beast strayed a long time back ... I
still have the mother. I earmarked the
nala ox ... When I earmarked the beast I
used the owner's earmark         "
"I say beast belongs to Kwatame. It was
born in my kraal         I know the beast.
It stays with me. The owner does not know it. I can testify in absence of owner because it stays in my kraal".
PW2, one Keremang Dickson deposed as follows:
"The beast was born in our kraal. We share the same kraal with PW1.... I have known this beast ever since it was born".
Under cross-examination the witness admitted that the beast was
Kwatame's. According to PW3, one Dintwe Chimane, who lives in
the same kraal, he had known the beast for a long time. "The
beast's mother is still present          The beast is PWl's
because it has gone for matisa. The real owner is Kwatame".
Under cross-examination the witness told the Court as follows:
"Beast is PWl's. No second owner. I know it to be PWl's. I milked its mother. It went missing in June. It was alone. It grew up in my hands. I knew its mother I know its younger ones".
It is clear from the evidence as herein set down that
whilst Kwatame was indeed the owner of the beast, Shaw Koko
was lawfully in possession of the beast. Indeed Shaw Koko was
in lawful possession of the mother of the beast in question,
and the mother gave birth to it whilst in such possession.
Therefore there can be no doubt that property in the beast
was at the material time vested in both Shaw Koko and Kwatame.
At this juncture it is pertinent to make reference to
V

4
Section 130(c)(i) of the Criminal Procedure and Evidence Act, Cap 08:02, which says that -
"the description of property in an indictment or summons shall be in ordinary language and such as to indicate with reasonable clearness the property referred to and if the property is so described, it shall not be necessary .... to name the person to whom the property belongs or the value of the property".
It is clear from this provision that it was not in the
first place necessary to have mentioned the name of Shaw Koko
in the charge. But the charge having mentioned Shaw Koko as the
owner the onus then lay on the prosecution to prove that Shaw
Koko was either the general owner or the special owner of the
beast.
It is abundantly clear from the evidence as set down above, that whilst Kwatame was the general owner Shaw Koko was the special owner.
Section 269 of the Penal Code under which the appellant was charged says that -

"(2) A person who takes or converts
anything capable of being stolen is deemed
to do so frandulently if he does so with        
(a) an intent permanently to deprive the
general or special owner of the thing of it,
and "special owner" includes any person who has any charge or lien upon the thing in question, or any right arising from or dependent upon holding possession of the thing in question".
5/      

5
Clearly therefore no error was committed by putting the ownership of the beast in question in Shaw Koko who was in charge of the animal when it was stolen by the appellant. I can therefore see nothing wrong in the conviction of the appellant as charged, and it was for this reason that we dismissed the appeal.
GIVEN at the High Court, Lpbatse this 29th day of 1988.
T. A. AGUDA, JA

I agree
A.N. E. AMISSAH, JP


I agree
G. BIZOS, JA

SAFLII: | Terms of Use | Feedback
URL: http://www.saflii.org/bw/cases/BWCA/1988/5.html