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Kesimolotse v The State (Criminal Appeal No. 18 of 1991) [1991] BWCA 6; [1991] B.L.R. 297 (CA) (2 July 1991)

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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Criminal Appeal No. 18 of 1991
In the matter between:
SAMUEL KESIMOLOTSE       Appellant
versus
THE STATE        Respondent
CORAM: A.N.E. AMISSAH, J.P. G. BIZOS, J.A. W.H.R. SCHREINER, J.A.
Appellant in person
Mr. G. Baruti for the Respondent
JUDGMENT
BIZOS, J.A.:
In a lengthy charge sheet of some seven pages, the appellant^was charged with three others. He was the third accused. There were seven counts of stealing contrary to the provi-sions of section 276 read with section 281 of the Penal Code and a last count of obtaining money by false pretences in contravention of section 313 of the Penal Code.
Not all the accused were charged on all the counts.
Counts 1 to 7 are otherwise substantially similar. It is alleged that one or more of the accused all of whom were employed in the Public Service in the Electrical Department stole property listed in various schedules belonging to the Botswana Government in their possession by virtue of their employment.

The appellant is not one of the accused charged on counts 1, 2, and 5 nor on the last count of obtaining money by false pretences.
The appellant was acquitted on count 3 and 4 but was convicted on counts 5 and 7.
Count 5 charged that the appellant alone stole a refrigerator which came into his possession by virtue of his employment and sentenced to three (3) years imprisonment, 18 months of which was suspended on certain conditions.
Count 7 charged that the appellant together with two of his co-accused stole over 120 electrical parts. Having been convicted the magistrate imposed a similar sentence to that imposed on count 5. His conviction and sentence on count 7 were set aside by the learned Chief Justice on appeal.
His appeal on the conviction and sentence on count 5 relating to the refrigerator was dismissed by the learned Chie Justice. leave was granted to appeal to this Court.
No objection was raised to the charges in the magistrate's court nor before the learned Chief Justice in the High Court even though he was represented in both courts.
As the appellant's resources were probably exhausted by the lengthy trial in the magistrate's court and subsequent appeal, he appeared before us in person.
Mr. Baruti, who not only appeared before us but in both lower courts, was asked to argue whether or not the charges were in accordance with the provisions of the Criminal Procedure and Evidence Act and/or whether it was fair to join the appellant together with other persons who had to face othe

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charges in which he was not even alleged to have been involved. He was given an opportunity to prepare his argument before us. He contended that there was nothing wrong with the charges as they were drawn nor was there any unfairness to the appellant. He also argued that even if there was any formal defect in the charges we should not interfere as there was no prejudice to t he appellant .

He also contended that the conviction of theappellant of stealing the refrigerator was well founded and that we should dismiss the appeal.
On the joinder issue counsel submitted that sections 129(1) and section 130 of the Criminal Procedure and Evidence Act (Cap. 08:02) empowered the Attorney-General to charge d ifferent persons with different offences as he saw fit but that in any event he could do so if it was convenient for the prosecution particularly where the same witnesses were to be called to prove the allegations against the persons charged.
In view of the submissions made it is necessary to set out
both sections relied on:
ge ther of
"129. (1) Different offences may be charged to in the same indictment or summons if they are founded on the same facts, or form or are part a series of offences of the same or a similar character .
(2)      Where more than one offence is charged in an indictment or summons, a description of each offence so charged shall be set out in a separate paragraph of the indictment or summons called a count.
(3)      Where, before a trial, or at any stage of a trial, the court is of opinion that a person accused may be embarrassed in his defence by reason of being charged with more than one offence in the same indictment or summons, or that for any reason it is desirable to direct that the person be tried
(2)     

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separately for any one or more offences charged in an indictment or summons, the court may order a separate trial of any count or counts of such indictment or summons."
"130. The following persons may be joined in one indictment or summons and may be tried together, namely -
(a)     
persons accused of the same offence committed in the course of the same transactions;
(b)     
persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence.
(c)      persons accused of more offences than one of the same kind (that is to say, offences punishable with the same amount of punis-ment under the same section of the Penal Code or of any other law) committed by them jointly within a period of 12 months;
(d)      persons accused of different offences committed in the course of the same
t ransaction;
(e)      persons accused of any offence under
Divison V of Part II of the Penal Code,
and persons accused of receiving or
retaining property, possession of which is
alleged to have been transferred by any such
offence committed by the first-named
persons, or of abetment of or attempting
to commit either of such last names offences;
(f)      persons accused of any offence relating to
counterfeit coin under Division VII and
Part II of the Penal Code, and persons
accused of any other offence under the said
Division VII of Part II relating to the same
coin, or of abetment of or attempting to
commit any such offence."
Section 129(1) clearly does not authorise the Attorney
General to charge different persons with different offences.
authorises him to charge different offences against a person o
persons.

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The persons who may be joined in one indictment or summons are specifically provided for in section 130. That the legislature specifically provided which persons may be joined in section 130 makes it abundantly clear that it did not intend to give the Attorney-General the power contended for in section 129(1).

The envisaged application to separate a trial in terms of section 129(3) does not envisage that different persons may be charged with different offences. If embarrassment is shown by one or other or more of the different person or persons properly charged with the offence or offences the court may make an order that one or other of them be tried separately on one or other of the same offences as charged.
The basis upon which different persons may be joined in one charge or indictment or summons are set out in section 130. If section 129(1) empowered the joiner contended it would have been unnecessary to enact section 130.
In the charge sheet in this case the offences charged against the various combinations of the accused were not the same. They were committed on different dates at different places by different persons. Section 130(a) does not authorise such joiner. The acts of the various accused or permuations thereof cannot be said to have been committed "in the course of
the same transactions."
Section 130(b) clearly refers to those responsible for committing a crime and those who have helped them to commit or attempt to commit the crime.

Section 130(c) requires joint wrong doing and could be of no assistance to the State as on its own allegations some of the accused acted jointly with others but some did not.
Section 130(d) requires that different offences should be alleged to have been committed in the course of the same transaction. It can hardly be suggested that acts committed by different persons on different dates in relation to different property were committed in the course of the same transaction.
Division V of Part II of the Penal Code refers to theft in its various forms. Section 130(e) empowers the Attorney General to join receivers and aiders and abetters of the main offender. It does not authorise what was done in this case. Nor does 130(f) which in view of its clear terms is of no application to the matter before us.
It will have been observed that nowhere is there provision in the Act that because the same witnesses may be able to depose to the commission of the offences different accused may be charged with different offences in the same indictment or summons. This was the main reason advanced for the course taken.
The inevitable conclusion is that appellant's trial was irregular. Whether this irregularity rendered the trial a nullity within the meaning of section 13(4) of the Court of Appeal Act (Cap. 04:01) or merely a point decided in the appellant's favour which in addition requires us to enquire into whether or not a substantial miscarriage of justice occurred ((section 13(3)) is not necessary to decide in view of what follows.

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On the merits there is much to be said for the appellant's case on count 5 relating to the refrigerator.
The evidence and arguments in the magistrate's court is
almost 150 pages. Not much of it relates to the appellant. The
magistrate's judgment runs to 33 pages but little of it
concerns the appellant's case. Not only is it brief, it also
contains a number of misdirections both of matters not
considered and prejudicial matter which ought not to have
been considered. It reads:
"Count 5 faces accused No. 3 alone. The accused is changed with the theft of a government fridge which fridge had been issued to the Electrical Department in Ghanzi. The prosecution also alledge that the same fridge had come into the possession of accused No. 3 by virtue of his employment. The prosecution case goes on to say that after the same fridge was stolen from the Electrical Department in Ghanzi it was later recovered from the house of accused No. 3 at Shashe. In his defence the accused No. 3 states that when he took the fridge from the Electrical Department Ghanzi, he had intended returning it. Accused No. 3 also stated that when he took the fridge out of the department premises he informed accused No. 4. Accused No. 3 stated that he had thought that he could keep the fridge in his custody first like any other tools he had as the Electrical Department. Accused No. 3 goes on to say that the reason why he took the fridge with him was because he feared that if the left fridge behind and it disappeared he would he "surborged" for it. It showed he noted that when the accused took the fridge home he was going on leave. Accused No. 3 goes on to say that he was arrested before he went back to Ghanzi.
Having carefully gone through the evidence of both the prosecution and the Defence (accused No. 3) I come to the following conclusion; It is common cause that during the materials time a refrigerator belonged to the Botswana Government and kept at the Electrical Department Ghanzi was removed by accused No. 3 from such premises. This is found in the evidence of PW12 who stated that himself a certain Thomas and PW13. PW12 goes on to say that the same fridge was loaded in a government vehicle after knock off hour. This has also been confirmed by the accused

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No. 3 himself. There is also no doubt that the same fridge belonged to the government. This has been statedly PW12 whose evidence was never challenged. The same witness identified the fridge, in court by the worlling on it. The fridge was written "Electrical Department". Accused No. 3 also confirmed the fact that the fridge belonged to the Government. The same fridge was written on it Ghanzi Electrical Department. There is also no doubt that the same fridge was recovered from the home of accused No. 3 by PW15 the investigating officer a certain inspector Matshameko. The question I have to determine before arriving at the conclusion is whether the circumstances surrounding the removal of the fridge from the Electrical Department in Ghanzi and its subsequent recovery at the accused's home in Shashe justily a findity of theft.
Around the period when the fridge in question was removed from Electrical Department Ghanzi, an assortment from the Electrical Department by employees of the same department. Some of the stolen articles or materials were later recovered or found to have been used by some of the employees of the business. The accused was present at the Electrical Department during certain times when some properties belonging to the government Electrical Department were stolen by some employees of the same department. The fridge forms part of the articles which were removed from the Electrical Department around the same time some articles were stolen from the same department. No documents of any kind were signed signalling the removal of the fridge from the Electrical Department to the accused's home in Shashe where it was later recovered. According to the evidence of PW12 the fridge was removed from the Electrical Department after knock off hour. The removal of the fridge knock off hour justifies an inference that this was meant to limit publicity. The accused's home where the fridge was recovered is at least eight hundred kilometres (800 kms) away from Ghanzi by road. Shashe is a village in the Francistown area. Though the accused gave his reasons from taking the fridge to his home in Shashe. I find the reasons weak. If the reasons given by the accused were substantial he would have surely removed all the items in his office including the functure. But that is not so. Besides, I find the reason overwhelmed by other considerations, as are given above in support of the prosecution case and or a finding of theft on the part of accused No. 3. It is on the basis of the above that I find the prosecution having proved a cse of theft by a person employed in the

Public Service beyond reason doubt against the accused No. 3 and accordingly the accused No. 3 is </