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Garekwe v The State (Criminal Appeal No. 8/93 ) [1994] BWCA 16 (14 July 1994)
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1
IN THE COURT OF APPEAL OF BOTSWANA
COURT OF APPEAL CRIMINAL APPEAL NO. 8/93 HIGH COURT CRIMINAL APPEAL NO. 269/88
In the matter between:
SEGAETSHO GAREKWE
APPLICANT
AND
THE STATE
RESPONDENT
ADVOCATE EM PATEL FOR THE APPLICANT
MR. ATTORNEY S.A. AFFUL FOR THE RESPONDENT
RULING
CORAM: T.A. AGUDA, J.A.
P.H. TEBBUTT, J.A.
T.A. AGUDA, JA;
On June 30, 1987, the Applicant was arraigned before a Magistrate on a charge containing five counts of stealing, and pleaded not guilty to all the counts. After a full trial he was on November 10, 1988, convicted on all the counts and sentenced to various terms of imprisonment with no option of fine. All the sentences were to run concurrently, but wholly suspended for 3 years. On November 18, 1988, he filed an appeal against his convictions only. For reasons which are not clear on the record, the appeal was not determined before April 7, 1993, when it was dismissed by Gyeke-Dako, J. On May 18, 1993, the Applicant made an application to appeal to this Court. That application was dismissed by the same learned Judge on June 16, 1993. It would appear
that what happened next was that the Applicant filed an application in Court on June 30, 1993, seeking the following orders:
2
"1. Postponing the criminal application under criminal appeal case number 8/93 to the next Court of Appeal Session.
2. Alternatively to paragraph 1 supra:
2.1
Removing the aforementioned criminal application from the roll of July 2 1993 of the Court of Appeal Session;
2.2
Permitting the applicant to cause the reinstatement of the Applicant's application for leave to appeal and the Applicant's appeal on the roll of the next Criminal Appeal Session ...."
In his supporting affidavit, the applicant deposed to the
following facts among others:
1.
That prior to June 16, 1993, he had, on the High Court premises, had a discussion with an officer of the Court, Mr. Motlhabi, and had been advised that in the event that his appeal to the High Court was refused, and in the further event that a Judge of the High Court refused him leave, then any further application for leave that he might make would be on the roll of the Court of Appeal session commencing on July 2, 1993.
2.
He was then preparing for his LLB degree examination, and both his attorney Mr Soyab Mehtar and his intended Advocate Mr EM Patel were on pilgrimage to Mecca.
3.
Then on June 17, 1993 he contacted Mr. Mehtar regarding his intention to file an application for leave to appeal and to have the services of an advocate. Mr Mehtar told him that he could not brief Counsel until he, the Appellant, deposited sufficient funds with him.
I will now quote certain paragraphs from the said affidavit
which I believe are very germane to the application before this
Court. They are as follows:
"8. On 21 June 1993 I was surprised when I was informed by attorney Mercy Garekwe (my sister) of Segaetsho and Company that my
application for leave to appeal was set down on the roll of 2 July 1993 of the above Honourable Court.
3
9.1
On 22 June 1993, I again contacted Mr Mehtar and informed him that the application for leave to appeal was set down on the roll as aforesaid.
9.2
He enquired whether I filed a Notice in respect of the leave to appeal. I informed him that such a Notice was not filed.
9.3
Furthermore, I sought the indulgence of my attorney Mr Mehtar that whilst I am engaged in raising funds which I will place in due course with him, he should brief Adv. Patel in Johannesburg so that I may consult with him.
10.1
In the interim Ms Garekwe procured the record of the Court a quo as well as a copy of the judgment of the High Court of 7 April 1993.
10.2
I then contacted Mr Afful, the Attorney General and advised him that since I have not had the opportunity to fully instruct my attorney Soyab Mehtar and to brief counsel to argue the application for leave to appeal as well as the substantive appeal the matter should be postponed to a future date.
10.3
Mr Afful advised that in spite of the fact that a Notice for the Application for Leave to Appeal to the above Honourable Court of appeal has not been filed, I should attempt to do so and have the Heads of Argument settled and filed as well as served on him by Tuesday 29 June 1993."
After this, according to the
Applicant in his said
affidavit, the Applicant's Counsel in
his presence spoke to Mr
Motlhabi on the phone on June 24, 1993,
and Mr Motlhabi suggested
to Counsel -
4
"although the matter is on the roll for 2 July 1993, and since there is no formal notice for leave to appeal, then a Notice should immediately be filed with him; and a memorandum be sent to him indicating my predicament and which would be used to have the matter postponed to the next session of the Court of Appeal."
In the event, the application of June 30, 1993 did not come before the Court on July 2, 1993 but was put on the roll of the next session of this Court, namely the January 1994 session. In efFEct therefore the Applicant had succeeded in all the orders he sought in that application, both the main order numbered 1 as well as the alternative order numbered 2.1.
It is extremely difficult to understand what prayer 2.2 means, namely, "permitting the applicant to cause the reinstatement of the applicant's application for leave to appeal and the applicant's appeal on the roll of the next Criminal Appeal session." This is very difficult to understand because the Applicant had himself in his supporting affidavit admitted in paragraph 9.2, supra, that he had not filed a Notice of Appeal to this Court. His application before Gyeke-Dako J., had been dismissed on June 16, 1993, and therefore could not be reinstated either by that Court or by this Court. And it is clear that if the Applicant needed leave to file an appeal to this Court, there could be no appeal cognizable before the leave had been granted. In effect therefore this Court cannot permit the re-instatement of the only Applicant's application for leave to appeal which had been dismissed by the High Court. We also have no power to put on the roll of this Court any purported appeal by the Applicant which has bot been properly filed, and which is nothing but an imaginary appeal.
That, in my view, would have been the end to this
5 application but for the fact that all the parties concerned had continued to act in the belief that there is before this Court application for leave to appeal. And I think that it is just and right that I consider the matter from that angle. This is the more compelling as it was in that belief that I dealt with this matter when it came before this Court on January 14, 1994. I am now prepared to deal with this matter as if it is a proper application for leave to appeal which the Applicant had manifested an intention to file even before his appeal was dismissed by the High Court which intention he has persistently pursued with some vigour, even though with a certain amount of dilatoriness since then.
When this matter was called before me on January 14, 1994, Mr Afful, Senior Assistant Attorney General represented the Respondent. The Applicant was absent and unrepresented by any Attorney or any Advocate. At that hearing from the facts placed before me by Mr Afful I was completely satisfied that the Applicant had adequate notice of the hearing and that his failure to attend Court either in person or by a legal practitioner was either due to an abandonment of the intention to appeal or to some other reason in respect of which I was not permitted to speculate. I then had no alternative but to dismiss what I thought was an application for leave.
In the proceedings now before us, a number of affidavits have been filed by the Applicant in justification of his absence from Court on January 14, 1994. All the affidavits are designed to convince us that he did not have a proper notice of the Court's sitting on that date. The Respondent has also filed a
6 number of affidavits in his effort also to convince us that the Applicant had sufficient notice. If, of course, on the affidavits I am now convinced that I acted upon information which was not totally correct in material particulars, I shall in that event be prepared to set aside my order of January 14, 1994. I am however in agreement with Mr Patel for the Applicant that it would be necessary for me to take that step only if I am of the opinion that the Applicant has some prospects of success were he to be afforded another opportunity of having his appeal argued before this Court.
The Applicant was charged with stealing five different sums of money on five different occasions, being property which came into his possession on account of his employer, the Botswana Democratic Party (BDP). In arguing that the Appellant had some prospect of success Counsel for the Applicant submitted that the learned trial Magistrate, as well as the High Court, were in error when they held that the various sums of money were the property
of the BDP. It was also argued that there was no conclusive evidence that the Appellant did not utilise the various sums of money in the interest and for the benefit of the BDP.
As regards the first issue, it appears that it was correct to have alleged in the charges that the various sums of money came into possession of the Appellant only on account of the BDP, his employer. It was argued that property in the various sums of money continued to reside in the Frederich Ebert Foundation (FEF)
the body that donated them to the BPP. This was based on the premise that any of the donations by FEF which remained after
7
the BDP had utilised it for the purpose of the seminar for which
it was given must be returned to the FEF. Counsel used the
evidence of PW5 JOHAN CHRISTIAN SCHUNITTLEIN, the Director of the
FEF, to buttress that contention. The witness had told that
Court under cross-examination that -
"If a cheque for P5000.00 was issued for a certain programm and only P2000.00 was spent, then the balance of P3, 000.00 remains the foundation money."
The submission that because the unspent part of a donation which was to be returned was the property of the donor means that property in the whole sum donated remained in the donor all the time, is obviously fallacious. As soon as the donee or any one or its behalf received the donation, property passed to the donee.
Once the programm for which the donation was made was completed, and an account rendered, then property in any sum left unaccounted for reverted to the donor.
The second ground of attack on the judgment which is
proposed to be appealed is that it was not proved beyond a
reasonable doubt that each of the five sums of money was not
utilised by the Appellant in the interest of the BDP. It is
common cause that the various sums of money came into the
possession of the Appellant. He says that he utilised them for
a programm of destabilising the opposition parties in the
interest of the BDP, not being a programme for which the FEF made
the donations. The learned Judge of the High Court rightly
stated the law as follows:
"Now it is to be noted that a breach of administrative or financial instructions cannot, per se, found criminal responsibility. The prosecution must go further to establish that such breach
was used as an engine of fraud or to facilitate the commission of the offence."
8
Apart from the Appellant saying so, there is no other evidence that the BDP or any of the other top officials knew of any plan or necessity for destabilising other political parties, or bringing them down. Indeed none of all those who gave evidence in this case including Mrs CLARE OLSEN, MP, whom the Appellant succeeded, and EDISON SEELETSO, the Financial Officer who was in the witness box for several days, was cross-examined on this issue nor testified that they knew of such a plan. The question of destabilising or bringing down the opposition parties or creating confusion in them surfaced in this case in the evidence of the Appellant.
Under cross-examination he said -
"I would not say the amount in respect of Counts 1 to 5 are stolen monies. After receiving the monies, I did not know exactly what the money was meant for. I am not in a position to reveal
in open Court what exactly I used that money for. I can only say it was spent to boost the image of the party and to bring down the image of the opposition parties, and to crack down on the opposition party. I cannot say how this money was used."
Later still under cross-examination he admitted that the
various sums of money were spent for illegal purposes, of which
the financial officer PW8 was not aware. In at least one
instance he admitted that a receipt No. 12099 for a sum of money
P15000 (the subject of Count 5) did not appear in the carbon copy
"because that money was not supposed to be reflected anywhere in
the books of the BDP." The learned trial Magistrate rejected the
defence of the Appellant "that there was a secret dealing between
the BDP and the FEF and that the BDP was to spend the excess
money for illegal purposes." The learned appeal Judge agreed
with the finding of the learned trial Magistrate in this regard.
9 It is impossible for this Court, upon the evidence on the record, to hold that the findings were in any way unwarranted or perverse.
In my view, therefore, and for all the reasons which I have hereinabove given the prospect of success of the Appellant in this appeal is non existent. It is therefore clear that it becomes unnecessary to decide whether or not the Appellant was properly notified of the hearing on January 14, 1994. The only point that need be said is that whilst I hold that the use of JUD 2 7 for giving notice of a hearing to an Appellant is not obligatory, the Registrar must in all cases make use of the Form unless it proves impracticable to do so.
For all the reasons given herein I would, and hereby do, dismiss the Appellant's application.
DELIVERED IN OPEN COURT THIS 14TH DAY OF JULY 1994
T.A. AGUDA
JUDGE OF APPEAL
P.H. TEBBUTT JUDGE OF APPEAL
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