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Basson and Another v The State (Criminal Appeal No. 12/89 ) [1989] BWCA 7; [1989] B.L.R. 217 (CA) (4 July 1989)
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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
COURT OF APPEAL CRIMINAL APPEAL NO. 12/89 HIGH COURT CRIMINAL APPEAL NO. 1 OF 88
In the matter between:
1.
JOHANNES BASSON
_
Appellants
2.
THEODORE HERMANSEN
vs.
THE STATE
-
Respondent
Mr. Advocate Camp for the Appellants Mr. S.A. Afful for the Respondent
JUDGMENT
CORAM: Amissah J.P. Aguda J.A. Doyle J.A.
AMISSAH, J.P.
The appellants, Johannes Basson and Theodore Hermansen, were charged before the High Court in Francistown with eleven counts made" up of three counts of attempting unlawfully to cause death contrary to section 222 (a) of the Penal Code (Cap. 08,01), three alternative
counts of doing an act with intent unlawfully to cause the death of another contrary to section 222 (b) of the Code, three further alternative counts of grievous harm contrary to section 235 of the
Code, one count of acts prejudicial to the safety or interest of Botswana contrary to section 3 (c) of the National Security Act, 1986
2
and one count of unauthorised use of Government vehicle contrary to section 6 (1) (b) of that Act. Hermansen alone was charged with making or conniving at the making of a false statement in a document contrary to section 6 (1) (c) of the National Security Act 1986.
At the beginning of the trial, there was a third accused, one Barry Jean Vivier, who was charged with harbouring contrary to section 8 of the .National Security Act. Upon a preliminary objection taken on his behalf at the commencement of the trial the count on which he was charged was quashed. So he was discharged.
At the end of the trial the two appellants were acquitted and discharged on all the counts they faced except the three counts relating to causing grievous harm. On two of these, they were convicted of the offences as charged. On the third, they were convicted, not
of causing grievous harm, but, of the lesser offence of assault occasioning actual bodily harm under section 252 of the Penal Code. The appellants were each given sentences ranging from 3 years imprisonment
on the least serious of the three offences to 10 years on the most serious, together with strokes ranging from 3 to 8. All the sentences were to run concurrently. In effect, therefore, each of the appellants
had a sentence of 10 years imprisonment with 8 strokes of the cane to bear.
The appellants have appealed against both their convictions and sentences. I shall henceforth restrict myself to the three counts on which the appellants were convicted and sentenced.
It was not the case of the prosecution that the harm inflicted on the victims of the crime was done directly by the appellants themselves. It was the case of the prosecution that the two appellants together with others not before the court had acted with a common purpose to commit an unlawful act, and that the harm was done by
the others. But that by law, such acts done by the others in such circumstances were the acts of the appellants.
The appellants were arrested in the middle of the night on the 20th of June 1988 at the security road-block on the Lobatse-Gaborone road about 10 kms. south of Gaborone. They were on their way
towards Gaborone. What led to their arrest will presently be related. But in the course of the investigation of the case, the appellants
made statements to the police upon caution which were confirmed later before a judicial officer. As the learned trial judge's decision turned substantially on these statements, and as one of the main challenges
to it in this Court is an attack on the use he made of them, I shall reproduce them in full with all linguistic flaws. In his statement, the 1st appellant, Basson, said:
"I understood the above cautioning and I wish to make a statement to explain my involvement. I Johannes Basson (Kpl) is at the
moment in the Intelligence Service of South African Defence Force and my head office is in Pretoria under the command of Mr. Rowe (ool-3931020 Code 0044) but at present moment I am working for
a private company called ESSEM IM and Exports (011-4620130 Code 3440). The employment is just for a covering up. Since we are not allowed to be seen visiting offices. I have been in the service from 1984 and my force number is 78303237 and currently holding the rank of Corporal.
On Thursday 16th June, 1988 I received a telephone call from my boss Mr. Rowe that I must meet him in the Holiday Inn Hotel in Johannesburg.
I went there and met him there and he said to me that I got a task to do in Botswana. I asked him what task that was and he said that I had to take a car into Botswana. He said to me that he
brought the car with him anci that I must registerered the car under the name of H.J. Smit. He gave me then a false passport in the name of H.J. Smit. He also said to
4
me a team of 5 men must go to Gaborone and do a task namely the captured or kill of a man. That was an active member of the ANC. He was only named to me as Oupa and I am not sure where he stay. He also said to me that a man
with the name of Theo would be in charge of the task. Five other members with the names of Phil, Willie, Teffo, Kas and John will
be the team that will do the task. I said to him that I don't know Botswana so well and that he must send another person who knows the area. He said then to me that I must not worry because I will be met in Lobatse by a person namely Dirk and that he knows the roads well
and that I must just follow him. He gave me the R250.00 and also P30.00. He also gave me a Botswana Telephone Book and said to me that I must look in it for a business with which I can make an appointment to go and see them. I then found the advert of Mr. Masalila in the book and phoned him to make the appointment. The appointment was for Monday.' Mr. Rowe also said that I must phone him the morning (Saturday) so that he must tell me if 1 must go or not. I phoned him on the Saturday and he said I can go to Gaborone. I left that Saturday morning and spent the rest of the day and night on the road in the casino in Mmabatho Sun. The rest of Sunday
I also spend in Mmabatho and I went through the gate at Ramatlabama at about 630 that afternoon and went to Lobatse. There I met Dirk at Lobatse and we spent the night in the Hotel at Lobatse. The next morning I left for Gaborone to go and speak to
Mr. Masalila. Dirk went to look for the roads over that we were going to use that night. I went for Gaborone and went and speak to Mr. Masalila. From him I asked advise of any type of business that I can maybe open in Botswana. He said to me that because I. am not a permanent resident of Botswana T cannot open a
5 business because that is only for residents of
Botswana. I ask him also what the the charges is to
buy a farm in Botswana and how the meat market is.
He said to me that it is only possible when I start
a company here. Then I can buy the farm through the
company. He said to me that he will help me start
the company and that it will cost me P600.00. He
said that P400.00 goes for the lawyers and P200.00
goes for his own secretary company. He also said
that the prices of land is about P150.000 for 500
hectar. I said than to him that I first want to
discuss the story with my partner in SA and when we
reached a discussion then I will phone him back. He
gave me then his business card and a form which must
be filled in when a person what to start a company.
I left then Mr. Masalila's place and went to Gaborone
Sun and had a few drinks there. Then I left again
for Lobatse at about 3.30 the afternoon. At Lobatse
I met again with Dirk and we ate again at the Hotel
and had a few drinks. After that we left for the
place where we was supposed to pick up the 5 members.
On our way there Dirk was driving in front. We
picked the other persons up at about 10.15 that
night. The place was near the railway line on a
dirt road and I have already shown the place to
the police. We took the people then to the drop off
point south of the Road-block. We droped them of
and drove off in the same direction that we came
till we reached the main road again. Then we turn
again in the direction of Lobatse and drove
for about 5 km and turn then around again. We
stopped there and pretend that we were working on
the my car. On our way out to the main road I saw
a white Land Cruiser standing next to the road.
After about and hour we thought that the 5 persons
should now have passed the road-block so we proceed
on to Gaborone. In At the road block we were
6
arrested and taken into custody.
I don't know the exact place where we were supposed to pick up the people again but it was near the railway again. The exact location of the place where the man was staying that was supposed to be captured or kill I don't know either only that it is in the Borakanelo area, but I know that after the task we had to take the 5 people
to a river on the eastern side of the town and drop them there of then they would go back by foot. We (the two cars) would go out as normal.
I also state here today on the 21st of June 1988 that I took the police to the place where we picked the people up - the first time and that I took them to the place where we dropped them of before the road-block and I also saw the
place where the shooting took place and the police showed me blood marks on the road and bullet-points."
The rest of Basson's statement dealt with an earlier assignment when he had to cover an ANC meeting in Francistown.
The statement of Theodore Hermansen was not so detailed. He said:
"I understood the above cautioning and I want to give a statement of how I got involved in the situation. I am a South African citizen working for Inter State Traders & Reps (Pty) Ltd with a branch in Gaborone Botswana situated at Eagle House Broadhurst Industrial with the name Intercontinental Traders (Pty) Ltd. I do visit
this country on Bussiness and I made use of the Hotels for accomodation. On the 13/6/88 a British person by the name Jerry phoned me to come and see him, in a Hotel bar in Johannesburg. He said he
7
knows 1 go to Botswana and he offered me money to fetch some people for him there.
He phoned me again on the 15/6/88 to find out if I would do it, and then he mentioned the fact of Diamonds that made me think he was smuggling.
I met him again on 17/6/88 in a parking garage in Johannesburg where he showed me the money and he said he will deposit it in my account. He then drove me with the Cressida Reg No
MMJ195T Past Koster and there he explained to me where to find the other person that will help me and the road I must take to get there.
I drove to Lobatse on the 19/6/88 where I met the person called Smit with a white VW Golf. We slept there that night and the next night we drove to the place picked them up and dropped them at another point which the person that looked like their leader pointed out to me. After that
I drove into the road block where I was arrested.
The place pointed out to me was a side street on the Lobatse Rd + 10 km before Gaborone.
The person directing me then said I must pick him u again where the road goes into Gaborone by the circle. From where I must take him and the people with him + - six to a house in Broadhurst
and once we get there he will give me further instructions on where to take them after that. I have noticed one person had a medium
size hammer with him.
After dropping the people a car passed me at the level crossing with his brights on. That was the last time I saw them. But on dropping them the
8
speaker told me not to leave the area for an hour after the drop.
Today the 21/6/88 I showed the police the points where I picked them up and dropped them."
These two statements were admitted without objection at the trial. The appellants did not give evidence or call witnesses.
One of the complaints made against the judgment by the Court a quo is that the learned trial judge used the contents of the statement of one appellant against the other and vice versa. Indeed, there are passages in the judgment which support this contention. The well
known common law principle of evidence is that a statement made by one accused person whether to the police or to other persons,
except a statement made in the presence or absence of a co-accused in the course and pursuance of a joint criminal enterprise to
which the co-accused is a party, is not evidence against the co-accused. If, however, the co-accused, either expressly or by implication, adopts the statement and thereby makes it his own, the position is different. The statement so adopted becomes the statement of the co-accused: R v. Rudd (1948) 32 Cr.App.R. 138; R. v. Gunewardene (1951) 35 Cr. App.R.80; R v. Rhodes (1960) 44 Cr.App. R. 23.
In this case, there is no evidence that either appellant was confronted with the statement of the other and the other either by word or conduct adopted the statement. Nevertheless, after the learne judge had recited the two statements he continued in the following manner:
"The contents of the two statements show quite clearly that the 'Theo' mentioned by the 1st accused is no other person than the
2nd accused and the 'Smit' mentioned by the 2nd accused is the 1st accused. The 1st accused is described in his passport, Exhibit W, as Henrik Johannes Smit.
9
and the 2nd accused was described as Theodore Hermansen in his birth certificate, Exhibit EEE1, and the other documents, Exhibit EEE3 to 6, which he gave to Mr. Masalila (PW7) to support his application for residence permit. The two (Smit and Theo) met and spent the
night on 19th June, 1988, together at the Cumberland Hotel at Lobatse and were arrested together the next night whilst on operational duties with other men."
Thus far, there cannot be much objection to the treatment of the evidence by the judge. If the statements of the appellants were looked
at separately and as affecting its maker only, there is no doubt that Basson otherwise known as Smit, the 1st appellant, according
to his own statement, had been instructed that the person who would lead the operations in which he was involved was "Theo", and that he subsequently met and acted together with Theodore Hermansen, the 2nd appellant, whom he said he was all along following in the drive to pick-up
and drop the other persons. Therefore, the fact that the judge came to the conclusion that the Theo mentioned by the 1st appellant
was no other than the 2nd appellant cannot be faulted. Neither, in the circumstances can the judge's conclusion that the person whom
the 2nd appellant referred to as "Smit" in his statement was no other than the person parading under the name of Henrick
Johannes Smit, the 1st Appellant. For the 2nd appellant admits to meeting Smit and going on his driving operation with him. Indeed,
the 1st appellant had false papers describing him as Smit. Both statements speak of their meeting at the hotel in Lobatse on the
19th of June and both were arrested together when they were on the ferrying operation at the road block on the night of the 20th
of June.
Where exception could be taken to the learned judge's use of the statements was in the following pronouncement that:
"The statements of the accused persons again show that they were in agreement: with others from
10
South Africa to enter the country (Botswana) to either capture or kill a man or some men in Gaborone."
The statement of the 1st appellant supports this finding. But the statement of the 2nd appellant does not. Nowhere in his statement
does the 2nd appellant state, or adopt any statement to the effect, that he had agreed with anybody anywhere to enter Botswana to capture or kill anybody. The judgment here, therefore, does give the impression that in the learned judge's mind, what had been said by the 1st appellant in his statement bound the 2nd appellant. In fact, the whole
judgement of the Court a quo proceeds on that basis.
The submission of learned Counsel for the State on this point is that the general principle which forbids the admission of a statement of one accused person as evidence against his co-accused is qualified in cases where the accused persons are found to have acted with a common purpose. Because in such cases, Counsel submitted, the acts and statements of one accused person are admissible against the other. The Common law, however, is that for the acts or statements by one accused person, whether in the presence or not of a co-accused,
to be admissible as evidence against his co-accused, they must be made in the course and pursuance of a joint criminal enterprise
to which the co-accused is a party. For the statement in this case of one accused person to be evidence against the co-accused, it
must have been made in the course or pursuance of a joint criminal enterprise. The question then is whether a statement made to a police or judicial officer after arrest is a statement made in the course or pursuance
of a joint criminal enterprise.
In Mawaz Khan v. R (1967) 1AC 54 each of two accused persons charged with murder separately made a statement to the police in the absence of the other. Both
statements set up identical alibis and offered identical explanations, many of the details of which were contradicted by witnesses. Neither accused gave evidence at the trial, The trial judge first pointed out in his summing up to the jury that
u
statement made by an accused in the absence of his co-accused is only evidence against the maker. The judge then continued with the
following:
"What the Crown says is that these statements have been shown to be a tissue of lies and that they disclose an attempt to fabricate a joint
story
the fabrication of a joint story
would be evidence against both. It would be evidence that they had co-operated after the alleged crime."
The Judicial Council of the Privy Council upheld this direction.
That case shows that precedent exists in some common law jurisdictions for the proposition that statements made by accused persons to the police or other authority after arrest could be taken as statements made in pursuance of a conspiracy to commit an
illegal act. But the important factor is that for admission against a co-accused such statements must qualify as having been made in pursuance of the conspiracy. If the common law as stated above applied to Botswana, we would, therefore, have said that as the appellants statements in this case whether taken independently or together did not show that they were made in pursuance of a conspiracy, either statement could not be taken against the other co-accused.
Be that as it may, the common law as stated does not apply to Botswana. In Botswana the position is governed by statute. Section 229 of the Criminal Procedure and Evidence Act (Cap.08:02) states the law in a short and simple sentence. It says:
"229. No confession made by any person shall be admissible as evidence against any other person."
I do not think that this provision admits of any gloss or amplification
12
from cases decided in other jurisdictions. In this jurisdiction, therefore, a statement which amounts to a confession made by one person is not admissible as evidence against another person. Of course,
different considerations may apply if such a statement is admitted or adopted by the other person. But then the admission or adoption
makes it that other person's own statement. That was not the case here. The learned judge, therefore, erred in using the statement
of one appellant against his co-accused, when he said that "the statements of the accused persons....show that they were in agreement with others from South Africa to enter the country (Botswana) to either
capture or kill a man or some men in Gaborone." and based his judgment on it. However, the use of the statements in that manner
occasioned prejudice to only the 2nd appellant.
The statement of the 1st appellant, on the other hand, supports the learned judge's pronouncement. I do not think that it can be said, therefore, that the statement of the 2nd appellant was wrongly used against him. The 1st appellant suffered no prejudice whatsoever
from the judge's unfortunate lapse, because nothing said in the 2nd appellant's statement came up to the admission 1st appellant
himself made in his own statement. That he was involved in illegal enterprise with others to come to Botswana to capture or kill
a person is a statement which fell from 1st appellant's own lips and is evidence against him.
The statements should have been separately treated, each as evidence against its maker only. In that light, would this misdirection vitiate the conviction of either of the appellants? If, as
we think, no prejudice was caused to the 1st appellant by the manner in which the judge treated the statements, then this particular misdirection
cannot by itself affect the decision in his case. In the case of the 2nd appellant, the position is not exactly the same. But to
properly assess whether the misdirection occasioned a substantial miscarriage of justice to him to justify this Court in disturbing his convi cti.on, the Court should look at the objective facts established in his case and to consider them in relation to the misdirection.
13
The relevant law governing our powers on an appeal in a criminal case is found in section 13(1)(b) and (3). It reads as follows:
"13. (1) On an appeal against conviction the Court of Appeal may allow the appeal -
(b) if it considers that there was a miscarriage of justice.
(3) Where the Court of Appeal, in an appeal against conviction, considers that, notwithstanding the fact that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, there has been no substantial miscarriage of justice, it may dismiss the appeal."
Before coming to the case of the 2nd accused, in particular, we should look at the facts of the case as a whole and against the 1st accused.
The facts proved by the prosecution which led to the arrest of the appellants and their making the statements detailed above, were
that on the 20th of June 1988 a patrol of policemen left Naledi Police Station at about 10.15 p.m. to assume duty. There were five constables, Takobona, Mhlabano, Morutwa, David and Sabone, and one Sergeant Machinya. None of them carried arms. The constables were to be dropped
for duty in the Kgale area. They were driven in a Government owned Toyota land cruiser vehicle BX 84 0217 by Sergeant Machinya.
Getting to Kgale, they saw in the distance on the road two cars with parking lights which had stopped. The policemen thought they should investigate the cause of such stoppage and were approaching the cars when they started and in reasonably fast speed approached and passed the police land cruiser at the railway crossing at that
point. Each of the cars was white. One of them was a Toyota Cressida with registered number MMJ 195 T, the other was a V\\ Golf with
14
registered number MTJ 919 T. Both these numbers, as it turned out, were South African car registrations. As the cars passed the land cruiser, the Toyota Cressida was in front of the VW Golf. Some of
the policemen noticed that each car was occupied by one driver and that that driver was white. Whatever suspicions the police had
entertained when they saw the stationary vehicles on that quiet road at that time of the night disappeared when the cars began to move with reasonable speed before the police reached them. The police, therefore, did nothing about stopping the two cars to ask any questions.
With their suspicious assuaged, the police rather came to a halt at about the same point where the two cars had originally stopped. Constable Takobona who had been riding in the driver's cab with Seargeant Machinya and Constable Mhlabano got out of the cab and went
to the back of the Land Cruiser to open the door to let out his colleagues at the back. At about the same time Sergeant Machinya
got out of the driver's seat and went towards the front of the vehicle to urinate. Just when he was opening the vehicle's back door, Constable Takobona heard a sound like something crawling or running. When he turned to look, he saw a human being crawling. Constable Takobona
became afraid, moved towards where the Sergeant was to tell him. But before he could do so, there was a burst of gun fire. Several
rapid shots were fired. Then the land cruiser was approached by a number of white men, one of them in a black balaclava. They went
to the back of the land cruiser and pulled out the policemen who were there taking shelter from the firing. As they did this the
white men shouted at the policemen in Afrikaans. Constable David said that one of the white men pulling them out hit them with the butt of a gun. Constable Morutwa also said that he was held by the neck and dragged out by one of the attackers who hit him with the butt of a gun as he was holding him. The attacker put the butt of his gun on the constable's chest. It was a black gun with holes in it.
There must have been utter confusion amongst the policemen. As they managed to escape from their land cruiser and from the attackers, they fled Into the dark. They met and had to negotiate a fence to reach a distance they felt safe. In doi.ng so, they sustained injuries to various parts of their bodies; their uniforms were torn.
lb
The policeman most seriously injured by the attack was Constable Mhlabano, who received bullet wounds to both hands and had one other
broken. He had wounds to his face, chest, back and forearms. He was not able to give evidence at the trial as he was still ill in
hospital.Constable Morutwa got a bullet through his thigh while he was in the land cruiser. Five of the policemen managed to run
away, Constable Mhlabano was left lying on the road for some time. The attackers then drove off in the police land cruiser and abandoned
it some 200 meters from the spot where the appellants had earlier picked them up. At the inspection next day of the place where the
vehicle was abandoned, the investigators also found abandoned some rather large hammers and an extra large wire cutter, all of which must
have belonged to the assailants. These were exhibited in the case. The policemen subsequently got help from the Kgale Mission and reported to their
headquarters.
As indicated earlier, the appellants were not on the scene when the attack took place. But after the policemen involved in the incident reported what had happened, the appellants were arrested as they were about to go through the road block 10 kms south of Gaborone
on the Lobatse-Gaborone road. The point where the incident had taken place was about a few kilometers on the side road to Kgale south
of the road block on the main road where they were arrested.
When the investigators inspected the scene of attack they found about a dozen or so spent bullets and some empty cartridges around
the place. The expert evidence on the bullets was that they were all fired by 9 mm automatic pistols or 9 mm sub-machine guns. They were described by the expert as arms of war.
The case which the prosecution sought to make against both appellants on the charges on which they were convicted was that they acted
together with other persons not before the Court with a common purpose to commit an unlawful act within Botswana and that in the course of committing that act one or more of their members caused grievous harm to the three policemen. As we know, one of the three charges
16
was reduced by the judge in convicting the appellants to assault occasioning actual bodily harm.
Taking the statement of each appellant as evidence against himself, the objective acts proved in the case of the 1st appellant were that his real name is Johannes Basson. On his own admission he is
an intelligence officer, holding the rank of corporal, in the South African Defence force. He was, a few days before the incident, instructed
by his superior officer to proceed later to Botswana, and there, acting together with other men, to kill or capture a named person.
He was told that the mission would be led by "Theo". Later on he learnt he would be meeting a man called Dirk who knew
the roads in Botswana whom he had to follow in the operation. His superior officer gave him a false passport in the name of Smit.
The superior also gave him a VW Golf car to use on the operation. Basson, pretending to the Botswana authorities to be Smit, entered
Botswana on June 19 of 1988. He met with a person answering the name of Dirk in the Cumberland Hotel in Lobatse where they stayed
together. They both arrived at the hotel late at night. Only one room was booked by D. van Niekerk, (the "D" standing for
"Dirk"), the name under which the 2nd appellant was masquerading, for the two of them. They spent the night together in
that room. On the next night they drove, each of them in one car,towards Gaborone, then branched off on to a side road to a place
near the railway line and there picked up five men. Names of the men who would form part of this squad were given him by his superior
in Johannesburg. The strategy was to drive the men to a point south of the security road-block about 10 km south of Gaborone on the
Gaborone-Lobatse road, there to drop them, then to idle about for some time to enable the men to circumvent the road-block on foot,
and then pick them up again on the road near Gaborone and to continue on with the mission. After their mission, which was to kill
or capture a person, the drivers, were to drive their passengers to where they were originally picked, and there to drop them, so
that they could make their way back from where they came by foot. The geography of Botswana shows that the Kgale area is quite close to the South African Border.
17
Shortly after the appellants had dropped the men, 1st appellant found a vehicle coming from the opposite direction. The cars driven by Dirk, who was leading in his Toyota Cressida car, and himself, went on their way passing by the on-coming vehicle which turned
out to be the land cruiser carrying the policemen. The land cruiser stopped at about the place where the two cars had earlier been
seen waiting, and had obviously only recently dropped the men. One of the policemen saw a man creeping about near the land cruiser.
Almost simultaneously there was rapid gun fire hitting the land cruiser and the policemen several times. Armed men came to the land
cruiser pulled out the policemen still at the back of it. While pulling them out, one of the policemen had a gun pointed at him.
He said the gun was about 75 cm long. Two others were hit in the body with the butt of a gun. One policeman gave evidence that one of the assailants rested the gun on his chest. He described the gun as black with holes in it.
When the assailants took the police land cruiser, they drove it to a place only a few meters from where they were picked and abandoned the vehicle.
The places were identified next day by the 1st appellant to the police. Not too far away at the spot where the land cruiser had stopped and the shooting had taken place, several spent bullets and empty cartridges, which were produced in Court, were found. Some hammers,
one with a rubber handle and two with metal handles, were found. There were other things like blood and torn parts of clothes to
corroborate the policemen's detailed evidence.
There was the evidence of the expert that the bullets could have been fired only by a 9 mm automatic pistol or 9mm sub-machine gun,
either of which was an arm of war.
The evidence led by the prosecution was not seriously challenged. On that evidence, the learned judge was entitled to draw whatever inferences necessary flowed from it. Further, being a case depending
on inferences, we think this Court is as capable of drawing the inferences as the trial judge himself. He took the view that the 1st appellant, Basson, was acting in concert with the other persons
18
mentioned in his statement and with the 2nd appellant with a common purpose to commit an illegal act of murder or the abduction of a person or persons. That in the circumstances, though the injury to policemen was not done directly by the 1st appellant, as it was an act
done by the persons with whom he acted in concert, the acts of those persons were as much his own act as if he had done them himself.
The learned judge's explanation of the law on the point was:
"By section 24 of the Penal Code, therefore, (the) accused would be guilty of the offences proved to have
been committed by the said men if the offences are found to be of such a nature that their commission was a probable consequence of the prosecution of the illegal enterprise."
Now, section 24 of the Penal Code provides:
"24. When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in
the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."
The judge made reference to the decision of this Court in Lesogoro and Ditshabue v. The State (Criminal Appeal No. 28 of 1.985 C.A. 18th July, 1986) in which 1 had occasion to say at page 9 in relation to section 24 of the Penal Code:
"The offence actually committed by one
19
or more of the party in order to be an offence committed by all must be a probable, not merely a possible, consequence of their common purpose."
And later at page 10 where I added that:
"Foreseeability of the consequence as a probability is crucial."
The learned judge also referred to the even more illuminating pronouncement of Schreiner A.C.J, speaking for the Appellants Court in R v. Bergstedt 1965 (A) S.A. 186 at page 188:
"For common purpose to create liability in such cases there must have been actual knowledge that there was some probability that, in circumstances that might well arise, the further criminal act would have been committed. The knowledge may of course, be established by inference, so that it would be proper to tell the jury that they should apply common
purpose if satisfied that the accused, whose responsibility for the act of another is under inquiry, "must have known" of the probability."
In this Court, the learned trial judge's conclusion on this point has been challenged on the ground that:
(a) applying the probability test laid down in the two cases there was no probability that the unknown persons would attack a police patrol so far from their target and which patrol was not interfering
20
in any way with the carrying out of the enterprise; the probability was that the appellants would have hidden away from the police patrol rather than taken an aggressive attitude, and frustrated the carrying out of the said mission.
(b) there was no evidence to show that the appellant was aware of the fact that the persons not before the Court were armed.
If one may take the second objection first. The 1st appellant came to this country on a mission, as he himself said, to kill or capture
a person. That was, according to him, the sole purpose of his visit. This act was to be done in concert with the 2nd appellant and
five other persons. Part of his contribution was to drive some members of this assassination squad to Gaborone, where they were to
execute the unlawful act using a method which avoids the security road block on the Lobatse-Gaborone road. Given the nature of his
mission as admitted to by himself, the fact that his companions were picked up late at night, that the companions were in fact armed,
the evidence on the size of the gun which was pointed at one of the policemen, and the fact that others were hit by the butts of
guns, that some of these companions travelled with him in his car, and above all, the anxiety that the companions should not pass
through the security check on the road, where no doubt their arms and other suspicious instruments would have been discovered and led to their detention, the claim on behalf of the 1st appellant that he did not know that his companions
were armed comes as a surprise. The only proper inference which we are able to draw from these facts is that the appellant must have
known that his companions were armed.
That leads to the first objection; was the shooting of the policemen a probable consequence of the enterprise which the first appellant
and his companions were engaged in that night. A person who undertakes an illegal mission with colleagues knowing that some of those colleagues are armed and that the object of the mission
21
but as a reasonable probability that if they are resisted or thwarted by the forces the law or others, the arms would be used against
those
persons. It matters not that the evidence is that the police who
happened to be in the neighbourhood of the place where the armed members
of the mission were hiding did not know of their presence. It matters
not that the reasonable thing for those armed men to have done if they
had known that the police were not actually aware of their presence
would have been to hide or lie low until the danger had passed. The
obvious fact is that in such circumstances, armed men on an illegal
mission thinking, perhaps erroneously, that they had been or would
be found out would most probably use their arms to effect their escape.
If the 1st appellant had been asked whether the armed men he carried
would, if surprised by the police or other persons in authority in
circumstances in which those men thought they could only escape by
shooting the surprisors the armed men would do so, the evidence leads
to the conclusion and the one conclusion only, that he would in honesty
have said, of course. The fact that adopting this course would
frustrate rather than promote the original objective of the mission
does not alter this situation. The choice, to the cornered man would
most probably be one between being caught or remaining free to pursue
his aims another time.
The case against the 1st appellant of acting together with others with a common purpose to do an illegal act is on the evidence quite
clear. He admits in his statement to an objective which is violent as well as illegal. That admission does not apply to the 2nd appellant,
Hermansen.
Now we come to the case made against Hermansen, the 2nd appellant. He admits to coming to Botswana only to fetch people. That was what the person who sent him here told him. But as that person in the course of some conversation mentioned diamonds, the 2nd appellant says he thought his mission was connected with the smuggling of diamonds. It: is significant that the person whom he claims sent him did not expressly tell him that diamond smuggling was the mission's objective.
22
He does not explain how the diamonds came to be mentioned. We do not, therefore, know whether the conclusion he said he came to in
this respect is reasonable or not from that reference. We, therefore, have to determine its truth or otherwise from the surrounding circumstances and subsequent evidence proved.
It must be reiterated that the facts of the case were common cause. Therefore, the learned trial judge was not faced with a serious task of finding primary facts from conflicting evidence. As the facts
were accepted, his task was to draw the inferences which flow from them. This, we have said before, is a function we can equally
perform. What, therefore, were the facts proved against the 2nd appellant?
He had been coming to Botswana before, and holds an employment here under his proper name, Theodore Hermansen. He says he was on this occasion approached by one Jerry in Johannesburg to come to
Botswana to fetch some people. Fetching people would normally be done without disguise. But in this case the appellant was asked to
come to Botswana not under his own name, but under the assumed name of Dirk van Nierkerk. He was given a false passport under that
assumed name. The passport on the face of it is a genuine South African passport. He is given a car for the mission. He is told that
he would meet a man called Smit in Botswana who will help him in his mission. He met the 1st appellant, who at the time was in fact
also travelling under an assumed name with a false passport and in a car which like the 2nd appellant's, was not his own but had
been given to him for the purpose of the mission. The 2nd appellant may say that he did not know these facts about Smit, but they
nevertheless remain facts that were proved about Smit, whom the 2nd appellant admits that his instructor in Johannesburg told him would be his helper on this mission. Though there is no evidence that the 2nd appellant knew the 1st appellant before this meeting, they both checked into the Cumberland
Hotel in Lobatse on the night of June 19 under a hotel form filled in by the 2nd appellant in the assumed name of van Nierkerk. 1st
appellant paid for the room while his new acquintance, van Nierkerk,
23
filled in the form. Both slept the night in that room.
On the next night, both 1st and 2nd appellants set out together in their respective cars to the point near Kgale where they picked
the 5 or 6 persons. How they knew of this place to pick up their men is not stated. The fact, however, is that they did know. The
men they picked were armed. Apart from the arms they had the very large hammers and wire cutter exhibited. That they had arms is
clear from the fact that those men used them against the injured policemen. The submission was made on behalf of the 2nd appellant
that as the ballistics expert called by the prosecution said the bullets fired on the police must have come from either an automatic
pistol, which could be so small that it could be hidden in the pocket, or a sub-machine gun which could be as long as two feet, and
the prosecution did not positively prove which of the two was used, the appellant should be given the benefit of the more favourable option. So it
was submitted that the weapon used could have been so small that it could be hidden in a pocket and the 2nd appellant would not have known about
it. The evidence of the policemen who were attacked, however, supports the conclusion that as between the automatic pistol and the
sub-machine gun, the weapon that the picked men had was the sub-machine gun. Recall may be made to the evidence of one of the policemen that a gun about 75 cm in length (i.e. three quarters of a meter) was pointed
at him by one of the assailants. The other policemen in the party attacked gave evidence of being hit by the assailants with the
butts of guns and in one case, an assailant resting a gun on his chest. This evidence was not challenged, and must be accepted. At the lowest, the
assailants must have had at least one gun of a size which would be obvious to any one, like the 2nd appellant, who met them that night.
The time of night when the 2nd appellant and his helper, the 1st appellant, collected the five or six men, the point of collection,
the weapon and instruments they carried must have led any man associated with them that night, as the 2nd appellant was, that these were men engaged in an unlawful mission in Botswana of a dangerous nature
which may involve the use of violence. It seems highly unlikely that the
24
armed men would have troubled to conceal the fact of being armed from the 2nd appellant who was already there for the purpose of helping
them in their enterprise, whatever its ultimate purpose. The hammers and wire cutting instrument must have been only too obvious
to be seen. That the 2nd appellant must have known that the men were armed is surely also evidenced by the fact that the person among the group they picked up, who he admits was giving him instructions on the spot on
what to do, asked him that they be dropped somewhere south of the security road-block on the road to Gaborone, and be picked up after
the road-block somewhere nearer Gaborone. If I may be permitted to repeat his own words on this,
"....the next night we drove to the place, picked them up and dropped them at a point which the person that looked like their
leader pointed out to me
The place
pointed out to me was a side street on the
Lobatse road + 10 km before Gaborone. The
person directing me then said I must pick
him up again where the road goes into
Gaborone by the circle. From there I must
take him and the people with him + - six to
a house in Broadhurst and once we got there
he will give me further instructions on
where to take them after that
"
If he did not know before, now he had seen the people involved in his supposed diamond smuggling mission. Diamond smuggling, if that
was indeed the object of the enterprise as he understood, though in itself unlawful, could presumably be carried out in a manner
which involved no violence. But that does not mean that it could not be carried out without violence. And if a person engaged with
others is aware that the method of operation was to involve the use of weapons, why should the law treat that associate differently from any person who engages himself with others to commit any other unlawful act
involving the use of violence? If this mission was for diamond
25
smuggling of the nonviolent type, why five people, why the arms and instruments the men carried, why did they need to avoid the security
road-block? The only possible inference which these facts are capable of is that the men did not want to be found by the security
forces with their arms which they were carrying. Yet the 2nd appellant, having seen them in circumstances when his mind must have been disabused, chose to continue with his part of the concerted plan. If it may
be said that he then became afraid that he might come to some harm from the armed gang had he not transported them to the drop-off
point, there was nothing preventing him from driving away and escaping from them once he had dropped them. He had the car; they did
not. But that was not what he did? He rather chose to continue with those associates and to obey the alleged leader amongst them
whose orders wherever they might lead the 2nd appellant, he was prepared to follow. On the face of the evidence adduced the diamond
smuggling thesis put forward in his statement becomes a highly improbable story. According to the 2nd appellant's own statement,
"But on dropping them the speaker told me not to leave the area for an hour after the drop." That is what he did. He idled
around for a time, then thinking that he had given them sufficient time to walk round the security road-block and thereby avoid detection,
he and his companion Smit drove in apparent innocence to the road-block to continue with their illegal mission. That is when they
were arrested.
The circumstantial evidence that he was on that night engaged with others with a common purpose to commit an unlawful act in the course of which violence would probably be use is overwhelming.
We must not overlook the fact that, like his co-accused, the 2nd appellant did not give any evidence at his trial. Nor did he call any witnesses. His alleged story that his idea was that the man
who sent him from South Africa was smuggling was, therefore never tested. Claims now made on his behalf that it was possible that he could not have known that the men were armed are not claims that he made
for himself or through witnesses on oath at his trial. On this I need refer to nothing more than Hoffmann and Zeffert The South African Law
26
of Evidence (4th edition) in which Professor Zeffert says at page 599:
"An accused's failure to testify can be used as a factor against him, it has been held, only when, at the end of the case for
the State, the State has prima facie discharged the onus that prima facie discharged the onus that rests on it (in the sense, here, of evidence upon which a reasonable man could convict), it cannot
therefore, be used to supply a deficiency in the case for the State, that is to say, where there is no evidence on which a reasonable man could convict.
The situation is rather different when the evidence against the accused is not direct but circumstantial. If the prosecution has proved
suspicious circumstances which the accused, if innocent, could reasonably be expected to answer or explain, his failure to tesfify
will strengthen any unfavourable inferences which can properly be drawn from the prosecution evidence. But this form of reasoning is permissible only when the prosecution case is strong enough to call for an answer. It must be sufficient in itself to justify,
in the absence of explanation or answer, the inference of guilt."
In our opinion the case in hand is such a case as described where the prosecution's case calls for an answer. The 2nd appellant, on
the evidence was engaged at least in aiding and abetting others in the commission of an offence involving the possession at night
without lawful excuse, proof of which lies on the defence, of housebreaking instruments. He himself said in his statement that he
saw one of the men carry a medium sized hammer and we have seen the size of the hammers
27
and wire cutting equipment exhibited in the case. The hammers can hardly be properly described as medium sized. Tf anything they answer the description huge. He was also from the evidence, aiding and abetting persons illegally carrying arms of war. He had compounded
his involvement by assisting these men to avoid certain detection at the security road block.
It must have been in his contemplation that these men, if thwarted or set upon by the security forces of the country or others in the course of their mission in circumstances in which the men felt
they were cornered, would use the firearms, as they did, in order to escape. It does not matter that the use during the course of the mission was not at the scene where its intended objective was to be achieved.
It does not matter, on hindsight, that if the armed men had realised that the police were not aware of their presence they would
not have used the weapons.
The question is, would the learned judge have arrived at the same conclusion of guilt against the 2nd appellant if he had properly
directed himself? In answering that question, we think the question he ought to have asked himself is, at the time that the 2nd appellant
saw the people that he and 1st appellant were to carry with their equipment and got directions from the supposed leader that they
were to operate so as to circumvent the security road-block, did the 2nd appellant know or have in contemplation the probability
that these men would use their arms on the mission if it went wrong? From the facts disclosed we have no doubt that the learned judge's answer would have been yes. If so, he would have convicted.
In our view, the reason for convicting the appellants is that in the case of the 1st appellant he knew he was engaged with other persons with a common purpose to commit an unlawful act involving the use of guns. On his own admission, he knew that the unlawful
act was the killing or capturing of a man. In the case of the 2nd appellant, he was engaged with the same other persons at the same time with the
28
common purpose to commit an unlawful act namely, the commission of offences in connection with the carrying of arms and housebreaking
equipment at night. He aided and abetted them by agreeing to convey and actually conveying them in such a manner, burdened while
so armed as to avoid detection at the security road bock. In both their cases, each of the appellants would, from the circumstances,
have foreseen the probability of these men using the weapons they were carrying against the security forces of the country or others
who surprised or interfered with them. He made no admission of the ultimate objective of the enterprise. But he was prepared, on his own statement, to carry out his part as directed by their team leader. What he knew,
however, was sufficient to make him aware of the illegal and violent nature of their enterprise. In fact this common purpose with
which the 2nd appellant acted applies also to the 1st appellant. Though in his case he admits to knowing of an ultimate objective
which is even more serious. In both their cases, they must have foreseen that their companions would, if surprised or thwarted in
their undertaking, most probably use their weapons to effect their escape. As it turned out, their companions in fact used these
weapons against the policemen.
In our view, no miscarriage of justice of such nature as would justify the quashing of his conviction has been done to either of the appellants by the learned judge's treatment of their statements.
We would, accordingly, dismiss the appeal of each of the appellants against his conviction.
As I said at the beginning, the learned judge, upon conviction sentenced each appellant to an effective punishment of 10 years imprisonment and 8 strokes of the cane. The appellants have appealed against these sentences. It was submitted on their behalf that the term of imprisonment was imposed by the judge, not for the offences
for which they were actually convicted, but as if they had actually been convicted of the more serious alternatives of which they
were
29
charged. The submission, therefore, was that for the offences for which they were actually convicted, the sentences were unconsciounable and induced a sense of shock.
The sentences of imprisonment were within the discretion of the trial judge. Taking all the circumstances into account, he thought
the offences serious enough to warrant these sentences. Indeed, the enterprise in which the appellants were engaged was a most serious
one for the country as a whole and its people. Had their armed companions to whom they were lending assistance not misjudged the
situation and bungled the job, the ultimate consequences would certainly have been far worse. The 1st appellant admits to the knowledge of the intention to kill or abduct; the 2nd appellant while making
no such admission, admits that he was prepared to render any assistance required of him by their leader. And he did all this for
money. The injury inflicted on the innocent and unarmed policemen in the course of their enterprise was in one case serious enough
to cause his hospitatilisation for quite some time. We have not been directed to any legal principle which the judge infringed in
his imposition of this sentence. We cannot say that for the offences found the sentences were such that no reasonable judge would
impose. We, therefore, have no cause to interfere with the prison term.
Our attention was also drawn to the imposition of strokes, and many authorities from outside this jurisdiction were referred to us
to show that current thinking on the subject is that corporal punishment is an inhuman punishment which degrades its receiver. We
hold the view that corporal punishment coupled with a long prison sentence, unless mandated by law, is undesirable and is of no benefit
to the receiver, the complainant or society. In this case, we think that the term of imprisonment was sufficiently long enough to
meet the justice of the case and to serve as a deterrent to others, to make the imposition of strokes unjustifiable. The liability to corporal punishment for the particular offences for which the appellants
were convicted is, in our view, not mandatory. We are, therefore, minded, in accordance with our previous practice, to delete the
imposition
30
of strokes in the sentence.
The appeals against the sentences are allowed by the quashing of those parts of the sentences relating to strokes of the cane. The appeals are otherwise dismissed.
Finally, there was the appeal for the release of the two cars driven by the appellants in the course of their enterprise, which were
exhibited and by the order of the trial judge forfeited. The forfeiture was apparently ordered under section 315 (2) of the Criminal Procedure and Evidence Act. That section deals with the forfeiture of
weapons, instruments or articles used in connection with the commission of the crime. The subsection reads:
"(2) The court convicting any person of any
offence
which was committed by means of any weapon,
instrument
or other article produced to the court may,
if it
thinks fit, declare such weapon, instrument
or other
article to be forfeited to the State.
Even if the cars were to qualify as a"weapon, instrument or other article," the interpretation put on the section seems to us strained. The offences the trial court convicted' the appellants of were causing grievous harm and assault ocassioning actual bodily harm to the policemen. The weapon, instrument or article to be subject to forfeiture under the subsection should have been used in the commission of those offences. Even if the doctrine of common purpose is used to convict the appellants of these offences, if is difficult for
us to accept that the offences were "committed" by means of the cars. We are of the opinion that the provision does not cover the cars.
We are, however, unable to accede to the request of Counsel that the cars be released to the Attorneys of the appellants. In the circumstances
of this case where the appellants actually disclaim ownership of the cars, brought them into the country under false papers, and used them in the country solely in pursuance of the commission
31
of an unlawful act which contemplated the use of violence, we do not think that a Court like ours, without opportunity to enquire comprehensively into the substance of the appellants' claim to a right to a return of the cars, should do so. Apart from forfeiture under subsection (2) the courts have under section 315 various ways of dealing with exhibits produced at a trial. If the appellants claim a
right to the cars, we think the appellants should be left to assert these claims by whatever legal means thy think available to them.
We think the order of the forfeiture of the cars under section 315 (2) is wrong. But we make no order for their release.
A.N.E. AMISSAH JUDGE PRESIDENT
I agree
T. A. AGUDA JUDGE OF APPEAL
I agree
B. A. DOYLE JUDGE OF APPEAL
4th July, 1989
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