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Moruakgomo and Another v The State (Criminal Appeal No. 32 of 1993 ) [1994] BWCA 5 (31 January 1994)

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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
CRIMINAL APPEAL NO. 32 OF 1993 (HIGH COURT CRIMINAL APPEAL NO. 45/92)
In the matter between:
FIRST APPELLANT SECOND APPELLANT
JAMES SEBONTI MORUAKGOMO
MICHAEL LESOTLHO
VS.
THE STATE
Mr. T. Joina for the Appellants Mr. M.E.C. Mhango for the State
JUDGMENT
CORAM: A.N.E. AMISSAH, J.P. T. A. AGUDA, J.A. J. J. TRENGOVE J.A.
TRENGOVE J.A.:
The Apellants and two other accused, Lazarus Mosotho and James Radikgwa, were charged in the Lower Court at Gaborone of Theft Common contrary to section 271 of the Penal Code. At the commencement of the hearing on 7th October, 1992, the Prosecutor withdrew the charge against Iazarus Mosotho as the State wanted to (and did indeed) call him as an accomplice witness against the other accused. He was accordingly discharged and trial then proceeded against the other accused, that is, James Radikgwa (Accused No. 1), First Appellant (Accused No. 2) and Second Appellant (Accused No. 3).
In the particulars of offence the State alleged that "the accused persons between the dates of 25th February, 1992, and the 24th February, both date inclusive, at house No. 13938 Gaborone West in the Gaborone

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Administrative District jointly and acting together without claim of right took a Nissan Combi registration No. BD 2127 E thereby intending to permantly deprive ownership of the said motor vehicle the property of Pauline Moswang valued at P36.000.00".
The accused all pleaded not guilty. However, in the result, First Appellant and James Radikgwa were convicted of Theft, as charged, while Second Appellant was convicted of Possession of Stolen Property contrary to section 318 of the Penal Code. The Magistrate committed all three accused in custody to the High Court for sentence in terms of section
295     
of the Criminal Procedure and Evidence Act. On 26th February, 1993, The Honourable Chief Justice Mokama, sentenced each one of the accused to one year imprisonment in accordance with the provisions of section
296     
of the said Act. Thereafter, and notwithstanding the provisions of section 296 (4) of the Act, the Appellants appealed to the High Court against their convictions and sentences. The learned Justice Barrington-Jones heard the appeals and in the result altered the convictions to convictions of Receiving Stolen Property contrary to section 317 of the Penal Code, leaving the sentences unchanged. The Appellants were granted leave to appeal to this Court by Barrington-Jones J. on the 25th September, 1993. However, by that time they had already completed their sentences and have now appealed on conviction only. Against this background, I shall deal with the issues raised on behalf of the Appellants during argument in this Court,
The first issue relates to the jurisdiction of the High Court in respect of the appeals of the Appellants against their convictions and sentences. Counsel for the Appellants sumbitted that the learned Justice Barrington-Jones had erred, in law, by purporting to exercise

3
the jurisdiction vested in the High Court in terms of section 10 of the
High Court Act, in that, in terms of section 296 (4) of the Criminal
Procedure and Evidence Act, the Appellants were by then deemed to have
been tried and convicted in the High Court. Counsel for the State quite
properly supported this submission for it is clearly well-founded.
Section 296 (4) of the Criminal Procedure and Evidence Act provides
as follows:
"If the High Court, under the provisions of this section passes any sentence upon any person such person shall be deemed to have been tried and convicted for the offence concerned before the High Court." (my underlining).
The effect of this subsection, as I understand the position, is that after the learned Chief Justice had passed sentence upon the Appellants on 26th February, 1993, the High Court was functus officio as far as their convictions and sentences were concerned. It follows, therefore, that the subsequent proceedings before Barrington-Jones J. in the High Court - namely Appellants' appeals against their convictions and sentences, and their subsequent applications for leave to appeal to this Court - were, as a matter of law, a nullity. This Court shall therefore proceed to deal with the present appeals as if they had been lodged directly to this Court, after sentences had been passed upon the Appellants by the High Court, in terms of the aforesaid section 296 (4).
I now come to the submission on behalf of the Appellants in respect of the merits of their convictions. Counsel for the Appellants submitted, firstly, that the learned Magistrate misdirected himself, in law, with regard to the corroboration of the evidence of an accomplice in that, so the argument proceeded, "the need only arises if at the end of the prosecution case there was proof beyond the reasonable doubt that

4
Appellants committed an offence punishable under Section 271 of the Penal
Code." In this regard, Counsel referred to the following passage in the
record where the accomplice witness, Lazarus Mosotho, is recorded as
having said under cross-examination:
"Accused 2 (first Appellant) and 3 (second Appellant) did not steal the combi. They never planned the theft of the combi with me."
On the basis of this passage, Counsel argued that at the close of the
prosecution case the offence had not been proved against the Appellants
and the case against them should therefore have been dismissed. In my
view, the contention is unsound for the following reasons:
Firstly, Counsel has, in my view, misconstrued the effect of the passage
in question. This appears clearly from the following passages in
Lazarus Mosotho's evidence-in-chief. The witness stated that during
February 1992 - he could not remember the exact date - he was at James
Radikgwa's house when First Appellant turned up there. He spoke to
James Radikgwa outside the house. When they came into the house, James
Radikgwa told Lazarus Mosotho that First Appellant wanted them to steal
a combi for him in Gaborone West. They agreed to do so, and First
Appellant promised to pay them for their services. A week later, James
Radikgwa arrived at Iazarus Mosotho's place and again told him that
First Appellant wanted them to steal a combi. That same evening they
set out to do so. With reference to this escapade, Lazarus Mosotho
said:
"That same evening me and Accused 1 (James Radikgwa) set out for the motor vehicle. The combi had been shown to me by Accused 1, it was at Gaborone West parked at the flats next to Gaborone West Police Station. We went for the combi at 10 p.m. I was with Accused 1. Upon arrival Accused 1 entered the yard I remained outside, he came back and told me that the combi

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was not locked. We went into the yard together whilst accused 1 opened the door to the combi and removed the plastic covering the ignition key, he was using a screw driver which I had given him . .. Accused 1 then cut some wires and used them to start the vehicle ... The motor vehicle started I then went behind the yard whilst the accused moved the combi out of the yard... Thereafter we got into the motor vehicle and we drove to Molepolole."
Lazarus Mosotho further stated that on the following day they met
with First and Second Appellants at a petrol filling station in
Molepolole. Referring to this occasion, he said:
"Accused 1 (James Radikgwa) told me he had gone to Gaborone to call Accused 2 (First Appellant). We then drove to Molepolole. Whilst at Molepolole we went over to Accused 2. He had parked two combis next to a Petrol Filling Station. Accused 1 was with Mike, Mike is accused 3 (Second Appellant). When we arrived at where Accused 2 and 3 were, we disembarked from the combi we came with (i.e. the stolen vehicle) and handed it to Accused 2 we then took the combi which was driven by accused 2 ... The combi we took from Accused 1 (sic) was white and red at the bottom it was registered BD 5324 B. The other combi that was parked at the place where we found Accused 2 was registered BD 7762 A. We then drove along Letlhakeng road. Accused 1 was driving BD 5324 B. Accused 3 was driving BD 7762 A. The one we had stolen was being driven by Accused 2."
Thus, according to the above passages from Lazarus Mosotho's
evidence-in-chief, neither of the Appellants were directly or actively
involved in the actual planning and execution of the theft of the combi.
This is entirely consistent with his statement in cross-examination that
"Accused 1 and 3 did not steal the combi. They never planned the theft
of the combi with me." Howerver, this does not mean that Appellants were
in no way implicated in the theft. The effect of Lazarus Mosotho's
evidence, both in chief and under cross-examination, was clearly that
First Appellant was the instigator of the crime, and that Second

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Appellant had become involved in the process of scrapping or dismantling the vehilce after the commission of the theft.
As I have already mentioned, Counsel for the Appellants submitted that the need for corroboration of accomplice evidence, "only arises if at the end of the prosecution case there was proof beyond all reasonable doubt that the Appellants committed an offence punishable under section 271 of the Penal Code." No authority was quoted in support of this somewhat startling proposition, and I am not aware of any. In my opinion it is clearly wrong. According to the record, application was made for the discharge of the Appellants at the close of the prosecution case. The learned Magistrate, in dismissing the application, stated that "The Court having examined the evidence before it has come to the conclusion that all the three Accused have the case to answer." As I understand this ruling, the Magistrate was of the opinion that there was a prima facie case against the Appellants, that is, that there was evidence upon which a reasonable man could find that they had committed the offence, and he accordingly excercised his discretion to refuse to discharge the Appellants at that stage. There are, in my opinion, no grounds upon which that decision can be called into question at this stage.
Counsel for the Appellants further submitted that the learned Magistrate erred in finding that there was sufficient corroborative evidence implicating the Appellants in the commission of the offence. Referring to the judgment of Schreiner J. in REX VS. JOHN 1943 TPD 295 AT 300, Counsel contended that it was not enough for the corroborative evidence to establish that the offence had been committed, it must also show that the Appellants had, directly or indirectly, participated in the commission of the offence.

7
The question of convicting an accused on the single evidence of an
accomplice is, in the first instance, governed by section 240 of the
Criminal Procedure and Evidence Act which provides that:
"Any Court which is trying any person on a charge of any offence may convict him of any offence alleged agaist him in the indictment or summons on the single evidence of any accomplice: Provided that the offence has, by competent evidence, other that the single and unconfirmed evidence of the accomplice, been proved to the satisfaction of such Court to have been actually committed."
In the instant case, the requirement of the proviso was clearly
satisfied by the testimony of the owner of the stolen combi, Pauline
Moswang. Her evidence as to the theft of the vehicle was not challenged.
It is furthermore apparent from the Magistrate's judgment that he was
fully aware of the so-called cautionary Rule and of the danger of
convicting on accomplice evidence. In R VS. MPOMPOTSHE AND ANOTHER 1958
(4) S.A. 471 (AD) AT 476, Schreiner Ag. C.J. referred to the purpose of
the cautionary rule and said:
The whole purpose of the latter (the cautionary rule) is to ensure that, even if the section is satisfied, there is some further guarantee that the right man has been brought to trial. The cautionary rule does not require that the triers of fact should be told or should warn themselves, that there must always be corroboration of the accomplice. As was pointed out in REX VS. NCANANA 1948 (4) S.A. 399 (AD) AT PAGE 405, there may be a sufficient guarantee if certain other features are present."'
Having carefully considered all the evidence, I am not persuaded that the learned Magistrate erred in coming to the conclusion that the accomplice was indeed a satisfactory and reliable witness and that First Appellant was the opposite.
As to the Second Appellant, the learned Magistrate found, quite

8
correctly, that there was no evidence that he had, prior to the commission of the crime, directly or indirectly participated in the theft of the combi. However, the Magistrate held that there was evidence "that he was found by the police to have been in possession of suspected stolen property" in respect of which he had given a false explanation. In the result he was convicted, as I have already mentioned, of "Possession of Suspected Stolen Property contrary to section 318 of the Penal Code".
Counsel for the Appellants submitted that the learned Magistrate erred in convicting Second Appellant of Possession of Property which was reasonably suspected of having been stolen contrary to section 318 of the Penal Code and that the conviction was void on that account. I accept that the learned Magistrate erred in convicting Second Appellant of an offence under section 318. Such an offence cannot be regarded as a minor offence to simple theft nor is it one of those offences of which Second Appellant could have been lawfully convicted on a charge brought under section 271 of the Penal Code.
The Magistrate should have invoked the provisions of section 195 (a) of the Criminal Procedure and Evidence Act and have convicted Second Appellant of the offence of Receiving Stolen Property contrary to section 317 (1) of the Penal Code. In the circumstances, I am of the opinion that this Court should act under the provisions of section 7 of the Court of Appeal Act and set aside the conviction of Possession of Suspected Stolen Property contrary to section 318 of the Penal Code and substitute therefore, a conviction for Receiving Stolen Property contrary to section 317 (1) of the said Code.
In the result, I would (1) in the case of First Appellant, dismiss

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the appeal, and (2) in the case of Second Appellant set aside the conviction for Possession of Suspected Stolen Property contrary to section 318 of the Penal Code, and substitute therefor , a conviction for Receiving Stolen Property contrary to section 317 (1) of the Penal Code.
DELIVERED IN OPEN COURT AT LOBATSE THIS 31ST DAY OF JANUARY, 1994
[CJ. TRENGOVE] JUDGE OF APPEAL

I agree
A.N.E. AMISSAH JUDGE PRESIDENT


I agree
T.A. AGUDA J.A. JUDGE OF APPEAL

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