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Mokgadi and Others v The State (Criminal Appeal No. 19 of 1990) [1990] BWCA 14; [1990] B.L.R. 617 (CA) (4 December 1990)
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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
Criminal Appeal No. 19 of 1990
In the matter between:
MMOLOTSI MOKGADI GEORGE ARBI ONALENNA TIEGO
and
THE STATE
Respondent
T. E. Ramokhuwa for the Appellants Miss P. Solomon for the State
JUDGMENT
Coram A. N. E. Amissah, J.P. T. A. Aguda, J.A. B. A. Doyle, J. A.
AGUDA, J.A:
The three appellants were, on February 10, 1986 arrainged before the Chief Magistrate in Gaborone on a charge containing six counts. Count 1 alleged breaking and theft contrary to section 207(a) and 276 of the Penal Code against the three appellants; count 2 alleged obtaining credit by false pretences contrary to section 316
of the Code against the three appellants; counts 3, 4 and 5 each alleged robbery of three different persons on three different places
on the same day contrary to section 297(2) of the Code against the three appellants; whilst count 6 alleged malicious damage to property
contrary to section 337 (1) of the Penal Code against appellants numbers 1 and 3 only.
They were duly tried and convicted, and sentenced as follows:
Apellant No. 1 was convicted on all the six counts and sentenced to various terms of imprisonment, but effective
14 years, plus 10 strokes of the cane.
Appellant No. 2 was convicted on counts 3, 4, and 5 and sentenced to various terms of imprisonment, but effective 12 years. By reason of his old age he was not sentenced to any stroke of the cane.
Appellant No. 3 was convicted on all the counts, excluding count No.2, and was sentenced to effective 12 years imprisonment, plus 10 strokes of the cane.
The appellants duly noted their appeals to the High Court. After
due hearing the sentences were altered as follows:
Appellant No. 1
10 years imprisonment
Appellant No. 2
10 years imprisonment
Appellant No. 3
8 years imprisonment
The learned Judge, a quo Murray, J., did not come to a conclusion on
the question of the imposition of corporal punishment by the trial
Magistrate. He however purported to make a reference on that issue to
this Court. That matter came before us in the November/December
Session of 1988. As there was no proper reference we found we were
unable to make an order and refused the purported reference.
Then on May 2, 1989 the appellants filed a "Notice of Reinstatement" of the appeals on the grounds that Murray J., did not give a complete judgment. By an order of Barrington-Jones, J., dated March 7, 1990, the proceedings in the High Court were reinstated.
Arguments were proffered before Barrington-Jones, J., who delivered a Ruling on May 30, 1990. In that Ruling the learned Judge held
that he could not proceed with any matter concerened with the appeals of the appellants since Murray, J., had dealt with the appeals. According to the learned Judge the only remedy available to the appellants was for them to seek leave to appeal out of time to the Court of Appeal with a view to obtaining an order setting aside proceedings before
Murray, J.
Then on November 15, 1990, each of the three appellants filed in
Ql
this Court a Notice of Application for Leave to appeal out of time. The three applications came before this Court on November 27,
1990. We granted the leave sought, and we were addressed by Counsel for the appellants as well as for the State.
The first appellant started his stealing career from 1974 - at least that was the first time he was convicted of stealing. He has
been convicted on eight different occasions from that time till now. Apart from various terms of imprisonment imposed on him four times, he has been sentenced to corporal punishment five times beginning with the four strokes imposed on him on September 12, 1974 when he
was appparently about 12 years of age.
The second appellant who is shown to be 45 years of age commenced his own stealing career in Johannesburg, South Africa in 1963. He has since been convicted on five different occasions for offences
of stealing or store-breaking.
The third appellant is shown to be 23 years of age without any previous record of stealing or house breaking or any offence of fraud whatsoever.
As stated earlier in this judgment the appellants have been convicted of serious offences, and I cannot see any justification for
reducing any of the terms of imprisonment imposed on each of the appellants. To that extent therefore the appeals of all the appellants
are dismissed.
As regards the imposition of corporal punishment on the first and third appellants I can see no justification for making an order
for the imposition of strokes on them. The term of imprisonment which was imposed on the third appellant was eight years.
Q
In so far as the first and second appellants are concerned, the imposition of corporal punishment on previous occasion has not effected any change in the criminal careers they had embarked upon for several years. And the term of eight years imprisonment imposed on the third appellant is sufficiently long as to make the imposition
of corporal punishment in addition undesirable. It seems to me therefore that the orders for imposition of corporal punishment on the first and third appellants should not be allowed to stand.
The appeal of each appellant is dismissed save that the order for the imposition of corporal punishment on the first and second appellants is set aside.
GIVEN AT LOBATSE THIS
4th
DAY OF December, 1990.
T. A. AGUDA JUDGE OF. APPEAL
A.N.E. AMISSAH
JUDGE PRESIDENT
B. A. DOYLE JUDGE OF APPEAL
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