Toteng v The State (Criminal Appeal No. 15/94 ) [1994] BWCA 24; [1994] B.L.R. 188 (CA) (14 July 1994)

A few minutes after 3 am on June 25, 1993, a night watchman employed by Moshupa Senior Secondary School discovered that the Administrative Block of the School was on fire. He raised an alarm as a result of which the Headmistress, her Deputy and other persons residing within the School compound woke up, and subsequently had the fire put out with the assistance of the Fire Brigade from Gaborone. Considerable damage had by then been done to the building as well as to other property of the School. Previous to the date of the incident, there had been some problems in the School as a result of which the students had boycotted classes. However a report concerning the fire incident was made to the police for investigation. As a result of their investigation the police came to the conclusion that the building had been set on fire maliciously by certain persons including two

2 persons who were subsequently charged to court in these proceedings for the offence of Arson, contrary to Section 326 (a) of the Penal code. After they had been duly tried by a Senior Magistrate, the two accused persons of whom the present appellant was the second accused were, on February 19, 1994, convicted of the offence, and each of them was sentenced to jail for 4 years of which 1 year was suspended for 3 years. The appellant duly noted an appeal to the High Court. On April 15, 1994, the High Court, Gyeke-Dako, J., dismissed that appeal save that the sentence imposed by the Senior Magistrate was altered to one of 3 years' imprisonment with 2 years suspended for 3 years.

It is against that judgment of the High Court that the appellant has filed this appeal. Counsel for the appellant, Mr. Chula Dahanayake, apart from filing a 10-pages Heads of Argument also filed written submissions running to 17 pages. However the kernel of all these and of the oral submissions made before this Court is that the Senior Magistrate was in error to have held that upon the evidence tendered before him, the prosecution had discharged the onus of proof on it, and that the High Court was also in error to have upheld the conclusion of the Senior Magistrate in this regard.

As the learned trial Senior Magistrate says in his judgment the real drama as to the offence for which the appellant was convicted commenced on June 22, 1993, and terminated with the setting of fire to some of the School buildings in the early hours of June 23rd. The evidence disclosed that at about lunch time on June 22, 1993, as the appellant and some other students including one KEBATSHABILE TSIE, referred to in the record as

3 PW3, sat near some empty fuel drums three male students came by looking for something. According to PW3 the appellant asked the three male students what they were looking for. They said tliey wanted "petty" which was their coined term for petrol, but whose meaning was as at that time unknown to PW3. The appellant told them that she could give them money not there and then but at her home. Later in the evening of the day the male students went to the house of the appellant. According to PW3 in her evidence the appellant there and then gave P20 to those male students. She continued thus:

"The 2nd accused asked me to pull a P20.00 note. I pulled it, and gave it to 2nd accused. I then went back into the house again. The 2nd accused further asked me to bring a container. I brought a plastic container which had paraffin in it. Then the 2nd accused emptied the paraffin, and put the paraffin into the bottle which I had brought from the house. Then the 2nd accused gave the guys the bottle and the money. The guys went to buy petrol. And this was the time when I understood the word "petty" to mean

had added P2.00 to buy 10 litres of petrol. We were in two-roomed house and paraffin was kept in one of the rooms while petrol was kept outside. Then we -the boys, myself and the 2nd accused went out. The boys took the container containing petrol. I and the 2nd accused went to buy bread."

"The 2nd accused wrote to me after that - it was a message. She said that once police ask me about petrol, I should say that I know nothing about it. The message was written on a brown paper."

The piece of paper was admitted in evidence as Exhibit 1 without objection but the appellant subsequently in her evidence denied being the writer of the note. There was no evidence that

"Later, I was given P2.00 to buy 2 litres of paraffin. The second container of petrol was given to us by the 2nd accused. She gave us 2 containers, one for petrol and the other for paraffin. Both of my colleagues carried petrol while I carried paraffin. We then went to the home of the 2nd accused. The petrol was put behind the door of the sitting room of the 2nd accused. We found Dineo and the 2nd accused. The 2nd accused gave P20.00 to Mogakolodi."

Under cross-examination he confirmed that "2nd accused gave P20.00 for petrol. I cannot know if the whole of the P20.00 was used in buying petrol. I was given P2.00 to buy paraffin. After buying petrol we went to the home of the 2nd accused." It was clear from the evidence of this witness that he took part in planning the burning of the building and that he indeed went out to the scene in the dead of night with others, but did not jump over the fence like those who actually set fire to the building.

It must be stated here that the last mentioned witness was regarded, quite rightly, as an accomplice and his evidence treated as such by the learned trial Magistrate in his consideration of the verdict in the case. He found ample corroboration of the witness's evidence in that of PW3 as regards the involvement of the appellant in the commission of the offence. Further corroboration is to be found in the note handwritten by the appellant, addressed to PW3, and tendered in

"The police might come for you and Dineo. If they ask both of you if you know something concerning petrol or whether you have seen petrol in my house on Tuesday night, please tell them no. Tell them that you only saw paraffin which I sent the three guys to go and

The appellant gave evidence, denying being the author of this note, but the learned trial Magistrate disbelieved her on this point. Upon the totality of the evidence presented in the case, I am unable to hold that he was in error in so disbelieving. In the main the appellant by her evidence struggled strenuosly but without success to convince the trial Court that she was not one of the students who conspired to set fire to some of the School buildings. A fair reading of her evidence in the light of the other evidence and other established facts show clearly that she was out to deceive the Court as to her part in the whole unfortunate episode. She told the Court that on June 22, 1993 -

According to her, later after 4 pm Kagiso and another came to meet her at her home. There and then she gave them a P2 0.00 note and two containers, but according to her, to buy paraffin. She told the Court that they later gave her a container full of

"I do not know if the petrol was kept under the table. The stove had a big cover hanging cover so that if petrol was put under the table on which the stove was, I could not see under the table."

All above evidence was given under examination-in-chief. It seems clear, in my opinion that, in view of these pieces of evidence, a finding that the appellant was part of the grand conspiracy to unlawfully and maliciously set fire to the building could not be faulted on the ground of the appellant's denial of such an involvement.

Most of the argument proferred by Mr. Dahanayake on behalf of the appellant has been directed to showing that there are contradictions as between the evidence given by each of PW3 and PW4 and the statements which each of them had made to the Police earlier. It was Counsel for the appellant that tendered the statement of PW4 and had it admitted, as Exhibit 2. However, Counsel did not cross-examine the witness as to the alleged contradictions or/and inconsistencies as between the witness's evidence on oath and the statement thus admitted, Exhibit 2. In so far as PW3 is concerned her ex curia statement was never put in evidence. And if in the circumstances the learned trial

Magistrate, who saw the witnesses, decided to believe them and to base his findings of fact on their evidence, in my view, it will not be part of the exercise of the powers of this Court to reverse the trial Magistrate in that regard. This is even more so where such findings of fact have been upheld by the High Court.

It is quite clear on the totality of the evidence led in this case that the appellant was one of the those who conspired to commit arson on the buildings. She was not physically present at the scene of the setting of fire to the buildings but those who were present and set fire to the buildings were executing a grand plan in which she, the appellant, had taken a very active part.

As stated earlier the sentence of four years imprisonment with only one year suspended was altered by the High Court Judge, Gyeke-Dako J., to one of three years with two years suspended. Before coming to that conclusion, the learned Judge had given consideration to the question of punishment which would be appropriate in all the circumstances. He took considerable pain to examine all the facts, the circumstances of the case and the applicable law. I have not discovered how the learned Judge can be faulted on any grounds whatsoever. I am therefore of the view that the appeal against sentence is without any merit whatsoever.

I agree.
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T.A. AGUDA JUDGE OF APPEAL
W. BRAND JUDGE OF APPEAL

Botswana: Court of Appeal

Toteng v The State (Criminal Appeal No. 15/94 ) [1994] BWCA 24; [1994] B.L.R. 188 (CA) (14 July 1994)