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Lekoba v The State (Criminal Appeal No. 11 of 1991 ) [1991] BWCA 3 (1 July 1991)
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IN THE COURT OF APPEAL OF BOTSWANA
Criminal Appeal No. 11 of 1991 High Court Crim. App. No. 193 of 1990
In the matter of:
TORO LEKOBA
Appellant
vs
THE STATE
Respondent
Appellant in person
Mr. B. Mmolawa for the State
JUDGMENT
Coram: B. A. DOYLE, J.A.: G. BIZOS, J.A.: W.H.R. SCHREINER, J.A.:
DOYLE, J.A.:
On 20th June, 1990 the applicant, together with another man Oarabile Koboditsile, was charged in the Gaborone Magistrate's Court
on two counts, namely theft contrary to section 276 of the Penal Code and fraudulent immitations of a number plate contrary to section
112(1) of the Road Traffic Act.
Briefly the facts were as follows. At about 11 a.m. on the 14th December, 1989 a red unregistered Nissan Sentra car was stolen from
the premises of Broadhurs Motors in Gaborone. On the same day the applicant accompanied by another man drove the car into a yard
in Gaborone. Later that day the applicant and a man named Koboditsile crossed the border into South Africa in the car which was then
bearing the number BD 855 which in fact belonged to another vehicle. The car was driven to Mafikeng to the house of a man named Calvin
Malope Suping who was known to Koboditsile.
m
The applicant and Koboditsile said they had run out of petrol. They tried to borrow money from Suping but he had none. They then
left the car with Suping intending to return and pick it up. Before they could do so the car was picked up by the police at Mafikeng
who got in touch with the Bot swana Police. In due course the applicant and Koboditsile were arrested by the Botswana Police. When arrested the applicant said that the car had been taken to him by Koboditsile.
The latter said that he did not know where the car came from but that the applicant might know.
Faced by this case the applicant and Koboditsile gave evidence. Their evidence was to the same effect. Their defence was that the
applicant knew a man named Douglas Kebeng Manene. Both applicant and Koboditsile had met Manene at a festival in Gaborone on 9th
December, 1989. They had asked him for a lift to attend another festival to be held in Johannesburg on 14th December, 1989. Manene
agreed to pick them up at the applicant's house on 14th December. On that day Manene appeared with two cars a B.M.W driven by himself
and a Nissan Sentra car with the number BD 855 driven by another man. Manene explained that his car was full but suggested that the
applicant and Koboditsile could drive the Nissan car to Johannesburg to attend the festival and afterwards could take the car to
Calvin Suping for the installation of an air conditioner. They had done this and returned to Botswana. The applicant said that on
20th January, 1990 he and Koboditsile were picked up by Inspector Pholo of the Botswana Police. Both he and Koboditsile explained
to Inspector Pholo that the car had been brought by Manene but they had not been believed. The applicant did not know the
?
ED
present whereabouts of Manene. He had looked for him but could not find him.
In the course of his judgment the learned Magistrate referred to the fact that Manene's existence had never been put to Suping, that
the first time that Manene's name arose was in a question put to Inspector Pholo who had replied that neither applicant nor Koboditsile
had mentioned Manene. Manene was a person central to the defence and had been introduced at the tail end of the prosecution. This
to the Magistrate might suggest that Manene was nothing but an afterthought and a figment of the imagination.
The learned Magistrate gave full consideration to the totality of the evidence which led him to the conclusion that the applicant
was guilty of the offences charged. He convicted the applicant and sentenced him to 33 months' imprisonment.
The applicant's appeal to the High Court was dismissed and leave to appeal to this Court was refused. He now seeks leave from this
Court.
For the purpose of his application the applicant has latched on to the passage in the Magistrate's judgment in which is suggested
the possibility that Manene was nothing but an afterthought and a figment of the imagination.
The applicant contends that though his whereabouts may be unknown, Manene does exist. For that purpose he has sent a letter to this
Court in which he states that there is an official record of his existence in that in 1988 Manene appeared on a charge before the
Gaborone Village Magistrate's Court. Over a period of more than six months he appeared for mention on many occasions before he finally
4
absconded. The applicant's contention is that if Manene exists, this undermines the whole of the Magistrate's judgment.
According to the applicant Manene is a friend whom he has known in Moshupa, Gaborone and the Republic of South Africa. He was a close
enough friend to have entrusted applicant with a valuable motor car. His whereabouts were well known to the applicant before the
trial. The giving of the car by Manene was the applicant's defence. Yet his name is only introduced at the very end of the prosecution
case and at a time when he can no longer be found by the applicant.
Even if Manene exists, this does not invalidate the Magistrate's consideration of the case or his decision. His remark about the
possible non-existence of Manene was fully justified on the evidence as it then was.
The Magistrate gave proper consideration to the whole of the evidence which was overwhelming.
The application for leave to appeal is refused.
I have perhaps dealt with this matter at a length which it does not deserve but I would add that in my opinion, the learned Magistrate
tried this case admirably.
B. A. DOYLE Judge of Appeal
1 agree
G. BIZOS
Judge 0F Appeal
?
mmm
I agree
W.H.R. SCHREINER Judge of Appeal
GIVEN AT LOBATSE this
day of July, 1991
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