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Botswana: Court of Appeal |
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(1) On Count 3 for theft of one kitchen knife;
one pair of brown boots; one green suit; one floral towel; one blue pillow case and 4 cubes of toilet soap - Two years imprisonment.
for the theft of puma blanket and one bedspread - Eighteen (18) months imprisonment.
for the theft of sixty pula (P60) - Twelve (12) months imprisonment.
(2)
Count 5
(3)
Count 7 (A) Count 8 for being in possession of arms, namely,
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Thomas and Japi Kenaope gave evidence for the State. There is a dispute between the State and the appellant relating to their terms of employment and whether or not there was a dispute between the appellant and the deceased on 23 December 1987 as to
what was owing and whether or not the appellant accepted what the deceased was offering. I shall revert to this dispute. The deceased's employees were freed of their duties until 28 December when they were to report at Marakalalo.
Despite his youth Wynand Botha was found to be a good witness by the Court a quo. The statement of the deceased wife Jacoba Elizabeth Botha was admitted by consent. According to her the deceased took with him a pen-knife produced in Court as exhibit "G" and P80 when setting off with Wynand from Ellisras a
day earlier than planned for Marakalalo farm.
Wynand Botha said that, he and his father (the deceased) set out from Ellisras for the Marakalalo Farm in Botswana in the afternon of 27th December, 1987. The deceased spent P20 out of the P80 he had on him on petrol to fuel the vehicle. Apart from the P20 the deceased did not incur any other expenditure on the journey. En route to the Marakalalo Farm, Wynand says he asked his father to lend him the blue pen-knife exhibit "G" to use for cutting his finger-nails. He handed back the knife to the deceased after he had made use of it. He saw the deceased put the knife exhibit "G" back into the pocket from which he drew it. On their arrival at the farm,
the deceased suggested that they should first go to the cattle-post in the farm to up pick the two farm-hands namely, Senatla
Thomas and Japi Kenaope to go and cart certain items from the farm to the farm house. They drove directly to the cattle post,
the deceased driving. His pair of shoes was lying
on the floor of the vehicle just in front of the driver's seat
and between the brake and clutch pedals and his seat. After
collecting the two labourers they drove on a laterite and sandy
motor road running through the farm. It had rained the previous
night and dust on the road had settled. The labourers were
seated at the back in the passenger and or cargo compartment
of the vehicle while Wynand was seated by his father on the
passenger seat in the cabin of the vehicle. As they drove along,
they came to a spot where the road had been blocked with two
long pieces of logs stretching from one side of the road to
the other. On seeing this they became curious. Their curiousity
stemmed from the fact that the vegetation around the area was
such that it was hard to come by logs of that size. The deceased
was therefore put on enquiry. He pulled up and ordered the
labourers to clear the logs from the road. The deceased
disembarked from the vehicle to look for foot-prints. Wynand
was the first to discover shoe prints trailing from the spot
where the road-block had been erected into the shrubs and twigs
along the road. Wynand recognised the prints as similar to
the prints of his pair of brown boots kept in the farm-house.
He drew his father's attention to this fact. It is this pair
of brown boots which according to the testimony of Assistant
Superintendent Molefi Dikalanyane and other police officers,
the accused was wearing at the time of his arrest at Radisele
Village on the morning of 3rd January, 1988. Wynand and the deceased entered the bush, still following the shoe prints. He was some few meters behind his father. Suddenly there was a report of a gun. The deceased was hit and fell to the ground.
Wynand made every effort to revive his mortally wounded father but to no avail. The labourers had taken fright and had run away. Wynand took control of the vehicle, turned it around to go and seek help. As he was approaching the vehicle a second shot was fired from the direction of the first shot that had killed his father and as he was turning the vehicle he heard a third shot. He was not struck by the shots. He was heading for Machaneng to seek help. He met Finey Fourie
Johannes Malherbe and Sergeant Chita Mathambo. The Sergeant hurried back to get reinforcements whilst the others, after seeking out one Vos, went to the spot where the deceased had been left by his son. The Police were there before them.
They were under the command of Sgt. Mathambo who by the time of giving evidence had been promoted to the rank of Sub-Inspector. They
found the deceased's body near a pan or pond. He had a gun shot wound in the chest. The water cooler earlier placed by his son on the deceased's head was still there. The Sub-Inspector saw two sets of foot prints near the spot where the deceased lay. One set was clearly that of young Wynand. The other matched the foot prints near the spot where the road block was erected. The prints had been made by shoes with a distinctive design on the soles. They led to and away from the spot where the deceased lay. The shoe prints led him to
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a nearby Mokoba tree under which he found a rifle, twenty seven
rounds of 30.06 ammunition and a yellow bedspread. A small
distance away he found a large kitchen knife. The rifle and
the other items (possibly other than the ammunition) were
positively identified as having been taken from the one or other
houses on the farm Marakalalo. According to the evidence of
the police officers who arrested the appellant on 3 January
1988, the foot prints found near the deceased were made by a
pair of boots which the appellant was wearing at the time of
his arrest. The boots belonged to Wynand Botha and had been
left at the farm house when the Botha family left it on 23 December
1987. The rifle was positively identified by uncontradicted
evidence as having come from the farm house where it was left
on 23 December 1988. The knife was identified as the deceased's.
The bedspread was identified as Pheto Sekgoma's kept at the
farm house.
The investigation was both swift and thorough. A shot impala near the water pan, the log obstructing the road and other objects and spots were photographed. Measurements were taken and exhibits
removed. More particularly Detective Superintendent Ndulano Boitshepo of Mahalapye Police drew a design of the pattern left by the boot to and from the tree to the spot where the deceased lay. The Detective Superintendent corroborates the evidence of Sub-Inspector Mathambo. Superintendent Mogotsi Moupi from Francistown came to Mahalapye to lead the team of investigators. He visited the scene and found three 30.06 rifles cartridges. He took measurements. The exhibits were found within a radius
of less than 30 metres from the spot where the deceased fell dead. He deployed the men at his disposal to look for the accuse
Assistant Superintendent Molefi DIKALANYANE, acting on information received, swooped on a hut at Radisele Village in the early morning of Sunday, 3 January 1988.
The Assistant Inspector went up a man busy washing himself who answered the description that he had of the suspect he was seeking.
Upon being asked whether he was Joseph Mokwena the appellant answered in the affirmative. He was informed that he was under arrest
as a suspect in respect of the murder of the deceased. There is no evidence that the appellant was warned in terms of the Judges Rules that he had the right to remain silent nor is there any evidence that the accused said anything at that early stage in answer to the accusation made.
The Assistant Inspector asked who the owner of the hut was as he wanted to inform him that he wanted to search the hut. The appellant said the owner was in the lands but that his personal effects were in another house to which he led them. He showed them a travelling bag. In it there was a pillow case in which were the following items:
(a)
The jacket of the pair of green trousers he was
wearing at the time of his arrest (exhibit
D).
(b)
in the pocket of the jacket was found the blue pen-knife (exhibit G).
(c)
a green coloured towel (exhibit F).
(d)
Four cubes of bathing soap marked "Beauty soap" (exhibit H - H1-H3).
(e)
a pair of black trousers of which the accused claimed ownership and was subsequently released
(b)
to him in exchange for the green pair of trousers exhibit D, and
(f) a puma blanket (exhibit "E").
Items (e) and (f) above were found in the travelling
bag which contained the blue pillow case and its contents.
A fort night later Wynand and his mother were asked to identify these articles at the police station. They did so. They went to the farm house to check whether or not they were missing and found that they were. Wynand also identified the shoes which the accused was wearing at the time of his arrest.
OS
the fact could be inferred that the accused killed the deceased".
No valid submissions were made to us that the Court a quo
was wrong. We could find none on the record.
To fortify its case the State tendered to prove a written
statement made by the appellant to the District Officer of
Mahalapye. Appellant's Counsel sought for the first time on
appeal to argue that Peter Poitshego Matheatau was not shown
to have been duly appointed as a judicial officer and that
if for no other reason the statement amounting to a confession
should not be admitted. Counsel for the State produced a copy
of the Government Gazette in which a notice issued by the Office
of the President on 16 May 1980 declares that he was appointed
a Magistrate with effect from 1 December 1979. As the point
was not taken in the Court below we saw no reason why we should
not receive the notice. There is no substance in the point
taken.
Counsel then acting for the appellant at the trial gave
notice that objection was taken to the admissibility of the
confession. He gave the following grounds:
(1)
that the accused did not make the statement voluntarily;
(2)
that he was threatened into making the statement by the police among those who issued the threats was one Thomas, then stationed at Mahalapye police station.
(3)
the threats took the form of assaults on him to compel him in making a statement;
(4)
that the accused could see the police officer who took him to the District Officer through the office windows of the latter whilst making his statement".
In consequence the learned Judge a quo ordered a voir dire
she wishes to do so entirely on his/her own free will and
(ii) that if he/she does make a statement it
will be reduced to writing and may be used
in evidence in any subsequent legal
proceedings. Asked whether having been
so warned he/she still wishes to make a
statement, he/she says
He/she is then asked the following questions his/ her answers recorded after each.
1.
Has any person offered you any inducement or
reward for making this statement?
A. No_
2.
Has any person threatened you with any punishment
or unpleasant consequence if you do not make
this statement?
A. No
3.
What is your reason for wishing to make this
statement?
A. I want to tell you the truth
It will be observed that the form does not incorporate
the phrase in sub-section (2) of section 229A:
"may be used evidence either for or
against him" but says:
"in any subsequent legal proceedings"
The three further questions were no doubt drafted in order
to enable the magistrate or justice to determine that in fact
the election to make a statement is made freely and voluntarily
made and without any undue influence. With due respect to the
draftsman of the form I am of the view that they are inadequate.
It is almost inevitable that a policeman will only cause a person
to be taken to a magistrate or justice to make a statement if
a statement has already been made to him and he is of the view
that he is unable to take it. The responsible police officer
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says as much in this case.
The draftsman of the form did not have regard to the dictum
of the President of the Court made in the case which follows:
In MOSOTHO MASINA AND REX MOGOTSI v The State (Case No. CA14/83)
where Amissah JA (as he then was) with Maisels JP and Kentridge
JA concrurring said at pages 22 - 23:
"If the Police pass an accused or suspected person to a Judicial Officer for his confession to be taken only because the Police themselves cannot take it down, as the Police
in this case claim was the position here, and the prosecution are unable to prove that the original confession to the Police was free and voluntary, the prosecution face the uphill task of showing clearly beyond reasonable doubt that whatever may or may not have influenced the making of the confession to the Police the repetition or elaboration of which the Judicial Officer is called upon to record, ceased to operate on the mind of the person who has already confessed
under the, at least, doubtful circumstances. And to my mind, the prosecution do not discharge this burden by showing that the Judicial Officer before whom the accused or suspected person was taken, however well-educated or experienced
he was, did not find it his concern or important to ask whether the person had made a previuos statement on the matter or to enquire about the circumstances which led to the person's appearance before him".
It further appears from the same judgment that the cases
in Botswana.England and South Africa on the point were considered
and approved by the Court. They are set out and discussed on
pages 14 to 22 of the unreported judgment. It is not necessary
to set them out again. Reference will be made to certain passages
in these cases to show what the duty of the judicial officer
is and how a revised form may assist him to discharge it.
What De Villiers JP said in
R v NDOYANA and Another 1958(2) SA 562 at 563 was quoted
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with approval by Amissah JA (supra pl8.)
"The real check whether the provisions of sec. 244 have been fulfilled should be made by the judicial officer before whom the accused appears to make his confession.
It must be carefully explained to an accused person especially where he is an illiterate .... that he is in the presence of a magistrate or justice of the peace, who has no connection with the police and that he has nothing to fear and can speak freely. He should be questioned whether he has made any similar statement before, and why he wishes to make his present statement. He should be told that there is no obligation on him to make any statement at all and if he does that it will be used in evidence and he should be specially asked whether he has been assaulted or threatened to induce
him to make the statement or been advised to make the statement or whether any promise or inducement has been made to him.
In R Gumede and Another 1942 AD 398 at 433 Feetham JA's
concluding remarks were:
"If this second proviso is to be retained in the
law in its present some, (which requiring that it
should be reduced to writing by a magistrate) some
rule of procedure should be laid down as to
questions to be asked by a magistrate, so that the
person making the statement before a magistrate may
be encouraged to diclose what has led up to his appearance
before the magistrate for the purpose of making his
statement".
This passage is also quoted with approval by Amissah JA (supra p.14) as is the earlier part of the judgment of Feetham J.ft .indicating how important it is that accused persons or suspects should be protected by adequate safeguards before a statement is recorded.
Persons who have made confessions to magistrates often try to avoid their consequences by alleging that they were assaulted, threatened
with assault, deprived of one or other of their rights as prisoners or that they were promised benefits if they confessed such as being released on bail, used as State
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,near witnesses or that persons/or dear to them would not be arrested.
They often allege that they did not know that they were before
a judicial officer when making their statement. In the interests
of the suspects and all those involved in the taking of the
statement consideration ought to be given to devising a more
comprehensive form to be used. It may in appropriate cases
bring out that the first statement made to the police was not
freely and voluntarily made. It may also be helpful in testing
the veracity of the accused in later proceeedings if he complains
of ill-treatment not mentioned in the preliminary enquiry indicated
on the form by the judicial officer.
It was further submitted by Counsel for the appellant that the judicial officer is confined merely to confirming the statement made by the accused or suspect to the police and that he should not himself record the statement. The provisions of subsection(2) of section 229A clearly say the contrary. There is no substance in that argument.
Be that as it may the real enquiry before the trial court
was whether the statement recorded was admissable in evidence
against the maker having been proved to have been freely and
voluntarily made by him in his sound and sober senses and
without having been unduly influenced thereto as required by
sub-section (4) of section 229A.
The further argument advanced on behalf of the appellant
that the statement was inadmissable was based to a great extent
on the judicial officer's failure to ask the appellant whether
he had made a statement previously and under what circumstances. If the questions had been asked it may have emerged, so it was,
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not in his sound and sober senses; or that he was unduly influenced 'thereto' (ie, to make a confession). In other words, in all the circumstances is there proof beyond reasonable doubt that the accused's exercise of free will was not unduly influenced.
An example of particular thoroughness in the analysis of the relevant evidence is to be found in the judgment of FEETHAM JA, which became the ratio of the Court, in R v Gumede and Another 1942 AD 398 at 411 in fine-433. In that case despite the untrustworthy evidence of the accused, the confessions were held to have been wrongly admitted and the convictions were set aside. On this latter point, S v M 1963 (1) PH H88, MILLER J. similarly did not believe the accused, but nevertheless held the confession to be inadmissible because, as the learned Judge put it.
'I am not satisfied ... that something undisclosed did not happen to induce the accused on that date to make the statement which he did'.
Finally, with regard to the correct approach in analysing the relevant evidence, the fact that the accused's written confession to the magistrate contains an introductory admission of the absence of inducement or encouragement or
promises to make a confession, does not per se carry the day. It ranks as a factor, an important one, in favour of the State, to be considered together with all the relevant factors".
The reasons for this special care are to be found in
the judgment of Baron JA in S v Ndlovu 1983(4) SA 507 at
520:
1,1 But it is perhaps worth pointing out to those responsible for the investigation of crime that the employment of improper methods and the preoccupation with securing a confession at the expense of a full investigation into the circumstances surrounding the offence are likel to be counter-productive and may well result in guilty persons going free. I cannot but echo the cynicism expressed by CAVE J. in R v Thompson [1983] 2 QB where he said;
"I would add that for my pari I always suspect these confessions, which are supposed to be the
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off-spring of penitence and remorse, and which nevertheless are repudiated by the prisoner at the trial. It is remarkable that it is of very rare occurrence for evidence of a confession to be given when the proof of the prisoner's guilt is otherwise clear and satisfactory; but, when it is not clear and satisfactory, the prisoner is not frequently alleged to have been seized with the desire born of penitence and remorse
to supplement it with a confession; a desire which vanishes as soon as he appears in a court of justice"
But at the end of the day the greatest danger is to be the innoncent and to society itself. This was admirably expressed by CHARLES J. Zondo and Others v R (1964) SJNR 102 at 133:
"The basis upon which evidence of an incriminating statement is excluded in the absence of proof of the condition of admissibility is not that the law presumes the statement to be untrue in the absence of such proof, but because of the danger which induced confessions or admissions present to the innocent and the due administration of justice. The danger has been aptly pointed out by the American authority on evidence, Professor Wigmore Evidence vol 4 s 2250, in the following passage:
"The real objection is that any system of administration which permits the prosecution to trust habitually to compulsory self-disclosure as a source of proof must itself suffer morally thereby. The inclination develops to rely mainly upon such evidence, and to be satisfied with an incomplete investigation of the other sources .. . ultimately the innocent are jeopardised by the encroachment of a bad system'''.
Prolonged interrogation of an accused or suspect may amount
to an undue influence even though it may not amount to what
is usually referred to as "third degree" methods. Confrontin
the suspect with evidence to elicit a reply is permitted
but not questioning him repeatedly and extensively in order
to induce him to admit what is being put to him and which
he has previously denied may in certain circumstances amount
to undue influence and has often been disapproved by the
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Courts. However, disapproval of police or administrative methods in a particular case does not mean that the confession will be excluded. Whether or not the accused will was overborne will be a question of fact to be inferred in all the circumstances of the case.
Cf South African Criminal Law and Procedure vol. 5 p. 872 by LANSDOWN & CAMPBELL and the cases cited therein.
Bearing in mind the above principles the Court must look at the evidence as a whole to determine whether or not there is a reasonable possibility that when the appellant made an oral statement to the police officers he did so freely and voluntarily and without been unduly influenced thereto. Because they were not asked what transpired during the period of interrogation Counsel for the appellant asked us to infer that there must have been an initial denial and that as a result of the interrogation in the presence of a number of armed policemen the appellant was induced to confess.
There are many cogent factors in this case which point the other way.
The most important is the state of mind of the appellant after the items of clothing and other articles were found in his travelling bag shortly before he confessed to the police officers. As indicated earlier in this judgment and in the judgment of the Court a quo the evidence was damning. The appellant must have thought that there was no point in denying what he confessed to have done.
The killing of the deceased for the reasons set out later in this judgment arose from a sense of grievance against him by the appellant. Although this line of reasoning is weakened by his failure to mention it in his confession, crimes committed in anger are generally more likely to be admitted than coolly and well planned ones where every effort has been made to conceal them.
The inspector in charge of the investigation is clearly a senior and experienced officer. He must have known that the evidence against the accused would probably have been sufficient to secure a conviction. There was hardly any need for him to induce the appellant to confess.
Had anything improper happened during the period of interogation one would have expected the appellant represented by Counsel in the Court a quo to have made some mention of it. Instead he concocted a story of vicious assaults calcuated not to leave any marks over a lengthy period during the day and two nights which was shown to have been completely false. He made his confession within hours of his arrest.
In all the circumstances the learned Judge a quo
correctly admitted his confession in evidence. It reads
as follows:-
"On Saturday the 26th December 1987, I went to Mr. Botha's farm in the Tuli Block near Machaneng Village. I went to the workers' compound and slept in the hut I was staying in. I woke up in the afternoon and went to Mr. Botha's house and found a safe in one of the corner of the house. I tried to open the safe in search for some money but I could not open the said safe. The house was not
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locked I opened a wooden box containing rifles. I took one of these rifles and four bullets. I went to my hut at the workers compound. I went back to Mr. Botha's house and took two of his blankets I went away through the workers' compound. I was going towards Machaneng Village. On the way I rested near the pond. I heard the impallas' sound nearby. I went towards them.
I tried to shoot at them but I was not able to operate the rifle. I struggled but the rifle later discharged the bullet and hit the
impala on the hip killing it. I took out a knife and cut the impalla open. I cut off the liver and roasted it.
I went for two big poles and laid them across the road. I later heard the sound of the lorry. The lorry came and stopped by the poles. Mr. Botha and his son got out of the car. They followed my shoe prints. I was hidding in the Bush. I could not run away because the veld was clear and Mr. Botha and his son could see me. Then I struggled to shoot aiming at Mr. Botha. After a short whilet he rifle discharged the bullet and hit Mr. Botha. He fell down. His son and two African boys ran away. Mr. Botha's son stopped and returned to his father. I fired two more shots and Mr. Botha's son ran away to the car and drove away. I went to Mr. Botha and found him already dead. I took the sum of sixty pula (P60.00) out of his pocket. I put the rifle near his body and ran away. I went as far as Radisele where I stayed at some people's place until the pol
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