You are here:
SAFLII >>
Databases >>
Botswana: Court of Appeal >>
1990 >>
[1990] BWCA 15
[Database Search]
[Name Search]
[Recent Decisions]
[Noteup]
[Help]
Molelekedi v The State (Criminal Appeal No. 10 of 1990) [1990] BWCA 15; [1990] B.L.R. 630 (CA) (4 December 1990)
.PDF of original document
.RTF of original document
?
IN THE COURT OF APPEAL OF BOTSWANA
Criminal Appeal No. 10 of 1990
In the matter of:
DUKE MOLELEKEDI
Appellant
vs
THE STATE
Respondent
Mr. G. Komboni for the Appellant Mr. S. P. Sedie for the State
JUDGMENT
Coram: A. N. E. AMISSAH, J.P.: T. A. AGUDA, J.A.: G. BIZOS, J.A.:
BIZOS, J.A.:
The applicant, a twenty-eight year old ex-soldier applies for leave to appeal against his conviction for the unlawful possession of 19 grenades, 25 switches and 21 detonators contrary to the provisions
of Section 9(1) read with section 9(5) of the Arms and Amunition Act No. 20 of 1979. He was sentenced to 8 years' imprisonment by
the Chief Magistrate of Gaborone. Barrington-Jones, J. confirmed the conviction, reduced the period of imprisonment to 5 years and refused an application for leave to appeal to this Court.
The application was refused on Monday the 26th November, 1990 on the ground that there were no reasonable prospects of success. It was intimated that reasons would be furnished later. These are the reasons.
During July, 1988 the applicant, to whom I shall refer to as the accused, approached his friend THABO SWEREKI to buy hand grenades which the accused had to sell. SWEREKI informed the police. They
?
HJ
asked their informer to pretend to the accused that South African potential buyers had been found, willing and able to buy the deadly merchandise.
Detective Inspector Johannes Mokgaoganyi of the Serious Crimes Division at the Criminal Investigation Headquarters in consultation
with his seniors planned what he described as "an operation" to be executed under his command.
He gave P5 000 to Detective Constables Makale, Mojiwa and Mlandu, instructed them to approach the accused and ask him to point out the explosives. He and Detective Sergeant Mosinki followed a safe distance behind the Constables to the Urban Shopping Centre
where they met the accused and thereafter to Thamaga. They stopped on the way to pick up a bag from the accused mother's house. The Senior officers remained a short distance behind throughout the operation but followed them in the direction of Molepolole. Near the village the accused got out of the car carrying a bag. He climbed a hill and came back with the bag. He and the Detective Constables went into a restaurant in Molepolole. The Inspector followed them into the restaurant.
Constable Mojiwa pointed out the accused to the Inspector who invited them to the car. A bag was in it which contained the explosives. The Constables said in the accused's presence that they came
from the accused and he did not deny it. At the police station P2 000 cash was found in the accused's underwear. Constable Makale
handed P3 000 back and said apparently in the presence of the accused that the P2 000 came from the P5 000 handed to him earlier. Without objection from the accused's legal representative the Inspector said that the accused took him to his mother's house and a place on
the
?
QJ
hill where the accused said the explosives were kept.
Constable Mlandu said that he introduced himself as Sello and his companions by other false names. He told the accused that he has learned that he had explosives for sale. The accused confirmed that
it was so, and said that he had obtained them from the Botswana Defence Force when he was still a soldier.
He positively identified the explosives in court as the ones the accused produced from the hill and put into the bag he had obtained
from his mother's place at Thamaga. The accused said that he was selling them at P200 each and wanted P10 000 for the whole package. The price agreed upon was P5 000. Only P2 000 was handed over to him. The evidence does not show when or how the balance of P3 000 would be paid to him.
Both witnesses for the prosecution were cross-examined by Mr. Tebogo of the University Legal Clinic. No coherent contrary version was put to them on behalf of the accused although questions were asked about the role of Thabo Swereki. It was also put to them that the pointing out was as a result of force being used which was denied.
The record shows the Inspector saying "He (the accused) did not say that he found the articles while herding cattle" and
Mlandu: "The accused never said he found them herding cattle". There are no contradictions or improbabilities in their evidence.
The accused's version goes along the same way as that of the State but departs on the vital aspects. He says that Thabo Swereki told him that three of his South African friends who were touring Botswana wanted to be taken to the Koboko cave. He refused Swereki's request when first made but agreed to show them the cave when it was again made coupled with a promise to give the accused P2 000
for his
L"4J
trouble. They met the "tourists," he was shown P5 000 and was
promised P2 000 for his services. He was asked if he had a bag for
camera to be put into and that is the reason why he went to his
mother's place at Thamaga. At the cave it was Thabo Swereki who
unearthed some objects and put them in the bag. Swereki was given
P2 000 which he in turn gave to the accused. He put the money in hi
pocket not in his underwear. At the restaurant they were confronted
by the senior police officers to whom he denied knowledge of and
participation in any transaction involving explosives. He was then
assaulted. For fear of further assaults he said that he had found
them whilst herding cattle. He never told them that he had taken th
from BDF when he was a soldier. The place where the explosives were
found was pointed out by Swereki and not by him. He was
cross-examined at some length during which most of the obvious
improbabilities in his story emerged.
Three main grounds of appeal were advanced on behalf of the
accused by Mr. Komboni:
"1. The learned trial Magistrate erred in admitting into evidence the testimonies of the two police traps, to wit: PW2 and PW4
without especially cautioning himself of the dangers and risks inherent in such evidence.
2.
The learned trial Magistrate erred in finding that
the arms of war exhibited during the trial were
retrieved from the appellant, when there is no
evidence available on record proving that the arms
of war so exhibited were seized from the appellant.
Alternatively the learned Magistrate erred in finding that the exhibited arms of war were the ones seized from the appellant and handed over to the arms expert while the evidence of the person who purportedly handed the same arms to the expert is not available on record.
3.
The learned Magistrate erred in no acquitting
the appellant when the explanation he gave in
?
his defence might reasonably be true, even if it might have been improbable."
The second ground may be disposed of briefly. Although there was no evidence by the persons who handled the explosives to and from
the expert witness, Phometsi, he gave evidence that what he received was before the Court. Constable Mlandu in turn identified the objects before the Court as the articles which came from the accused's possession. There was no need for any further evidence.
In support of the first and third grounds it was submitted on the authority of S v. Malinga 1963 (1) S.A. 692 (A), S v Chesane 1975 (3) S.A. 172 (T), R v Katz 1959 (3) S.A. 408 (C), S v Mabaso 1978 (3) S.A. (0) and S v Rosinah Mmatitwa 1974-5 B.L.R. 41 that the Magistrate ought to have rejected the evidence of the witnesses for the prosecution because they were agents provocateurs who might reasonably have had motives of their own in falsely implicating the accused.
The failure of the State to call Thabo Swereki also looms large as part of the argument. It is suggested that he, for his own purposes conspired with the police officers to secure the accused's conviction who was innocent of the crime charged.
That Courts have to approach the evidence of traps with caution has often been authoratively stated. The evidence of agents provocateurs has obviously to be approached with greater caution bordering on suspicion that they may be perjuring themselves for some improper motive.
A distinction has however to be made between a trap being prepared by senior police officers in order to unearth evidence of a crime which has or is being committed and a crime instigated by an agent provocateur to induce a person to commit a crime which would not
?
otherwise have been committed.
cf R v Sang 1979 Cr. App. R 282.
There would be no need to enter the debate on the moral and legal issues involved in the use of agent provocateurs if it is found that the offence of possessing arms of war was being committed by the accused before the police knew anything about it. Similarly if it is found that the police were approached by Swereki the accused's friend as a result of the accused initiative he was not an agent provocateur but performing a citizen's duty to inform the police of the unlawful possession of dangerous weapons. That he voluntarily co-operated with the police and made common cause with them in the pretence that they were South Africans interested in buying the explosive devices does not make him an agent provocateur . The offence of unlawful possession that was committed was not in any way instigated by him. He was instrumental in inducing the accused to expose where the explosives were kept. The case was argued as if the offence was one of offering them for sale which of course is a wrong basis.
Be that as it may, the fact that he allowed himself to be used as an instrument to expose his friend must be taken into consideration.
He did not give evidence. Justifiably much was made of this in argument. No reason has been furnished why he was not called. We must assume he was available. The explanation is probably to be found in the manner in which the accused's case was conducted in the Court below. No issue was joined with the two State witnesses. It was
put to them that the accused had found the explosives whilst herding his father's cattle. In this, there was a clear implied admission the explosives were in his possession. Once that was impliedly admitted
and the other details of their evidence showing that the accused was
?
LzJ
in possession there appeared to be no need for further evidence. The senior police officer himself said that no statement was taken
from him as the accused had admitted possesion. Probably the informer's reluctance to publicly say he had betrayed his friend also played a part in the decision not to call him. The matter might have been different if the far fetched conspiracy mentioned by the accused in his evidence had been put to the State witnesses.
Nevertheless the evidence of the State witnesses should be approached with the necessary caution. Corroboration of their version in some material respect should be found to satisfy the Court
beyond reasonable doubt that their version is true and that of the accused false.
In this case both the Chief Magistrate and Barrington-Jones, J. who heard the appeal had no difficulty in accepting the State's version and rejecting that of the accused.
In so far as corroboration is required, it is to be found in the evidence of the accused himself which was inconsistent with what was put and more particularly what was not put to the State witnesses. The evidence that he had pointed out the place where the explosives were found was not challenged until he said into the witness box that Swereki did it.
His admission that he went to his mother's place to fetch a bag for the purpose of putting the camera of those who posed as tourists is too patent an attempt to avoid the obvious inference to be drawn.
The suggestion that he was given P2 000 to guide the tourists to the cave is beyond belief. It is surely too many times more than
a professional archaeologist would have charged for a guided tour.
?
L8.J
His version as a whole is demonstrately false. I am of the vi that the Chief Magistrate was correct in convicting him. Barrington-Jones, J. was correct in dismissing his appeal and in refusing him leave to appeal.
Barrington-Jones, J. reduced the accused's sentence from 8 yea imprisonment to 5.
The section provides for a compulsory minimum sentence of 5 ye and a maximum of 10 years.
The Chief Magistrate's judgment on sentence reads:
"Although the accused was a first offender and was "honourably" discharged from the army, the honour will have been completely shattered by evil revelations related to this offence. The munitions involved are military in character and were most probably taken from the army either by the accused, or through arrangements to which he was a party.
The use intended for the explosives and the place where they would have been deployed is not known, but anyone would shudder at the destructive potential of the exhibited munitions considering the state of insecurity and vulnerability in Botswana that relates to recent bombs and explosions especially around Gaborone. A perpetrator in such horrific ventures ought to suffer a deterrent sentence as a sharp warning to anyone in position to acquire such
munitions.
Considering the minimum and maximum prescribed I pass on the accused a sentence of 8 (eight) years' imprisonment."
In reducing the sentence Barrington-Jones, J. said:
"However, on the question of sentence I have to say that I am in some sympathy with the appellant's submissions if only because
he is a first offender and was honourably discharged from the Army; so that whilst appreciating the learned Chief Magistrate's concern
regarding ... "the destructive potential of the exhibited munitions ..." I am nevertheless left in some doubt as to the appropriateness of an 8 year sentence imposed on a 28 year old first offender.
?
In all the circumstances of the case I have concluded that the minimum mandatory sentence of 5 years' imprisonment for this type of offence should be imposed; and I therefore allow the appeal against sentence in reducing such sentence from one of 8 years' imprisonment to one of 5 years' imprisonment."
Although in my view this Court ought not to interfere with the reduction of the sentence by three years we should draw attention to the fact that no misdirection in the Chief Magistate's judgment is even alluded to by the learned Judge a quo nor are other valid reasons given for the reduction. Bearing in mind that the minimum sentence of 5 years would have to be passed if only one hand grenade was possessed for some less evil purpose than stealing them or receiving them for the purpose of enriching himself how could the minimum be an appropriate sentence having regard to the number the accused had in his possession and the amount of money he proposed to make? The learned Judge a quo gave no valid reasons as to why he "felt in
some doubt as to the appropriateness of an 8 year sentence
"
Speaking for myself I would not have entertained any doubt whatever that the sentence of the Magistrate ought not to have been disturbed.
Be that as it may I think it would be incorrect in the circumstances to interfere with the sentence passed on appeal by the Court a quo.
In the result the application for leave to appeal was dismissed for the reasons set out above.
GIVEN AT LOBATSE THIS 4th DAY OF DECEMBER, 1990.
G. BIZOS Judge of Appeal
?
QS1
I agree
A.N.E. AMISSAH
Judge President
I agree
AGUDA Jud^e of Appeal
SAFLII:
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/bw/cases/BWCA/1990/15.html
