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Muyenzelwa v The State (Criminal Appeal No. 49/94 ) [1995] BWCA 11 (30 January 1995)
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1
IN THE COURT OF APPEAL OF BOTSWANAl
HELD AT LOBATSE
COURT OF APPEAL CRIMINAL APPEAL NO 49/94 HIGH COURT CRIMINAL APPEAL NO 52/94
In the matter between:
ZACHEEL THOMAS MUYENZELWA
Appellant
and
THE STATE
Respondent
Mr. B.6. Toteng for the Appellant Mr. B. Morara for the Respondent
JUDGMENT
CORAM: AMISSAH J.P WYLIE J.A STEYN J.A
STEYN. J.A. :
Appellant was one of two accused in the Court below. I will
refer to him throughout as Appellant and to his co-accused as accused No l - which she was in the Court a quo - or as "Shirley."
Although Appellant was originally indicted on three counts, he was convicted only on one count of theft and was sentenced to 18 months imprisonment wholly suspended for three (3) years on condition that he was not convicted of an offence involving stealing or dishonesty and that "he compensates the Government the sum stolen." He was also sentenced to a fine of P300.00 or in default of payment four (4) months imprisonment.
2
This conviction in the Subordinate Court of the First Class for the Gaborone Magistrate District was confirmed by the learned Chief Justice in the High Court and the appeal was accordingly dismissed on the 26th of September, 1994. Leave having been granted the matter has now come before us by way of an appeal against the conviction only.
The appeal is essentially an appeal on fact. The grounds
are the following:
"1. The Honourable Court below erred in agreeing with the learned Magistrate that there was enough evidence to convict the 2nd accused of the offence of stealing by a person employed in the public service.
2.
The Honourable Court below erred in agreeing with the learned Magistrate that there was enough evidence to support or justify the application of the doctrine of common purpose in the case of 2nd accused.
3.
The Honourable Court below erred in agreeing with the learned Magistrate that the prosecution had proved its case beyond reasonable doubt in the face of the 2nd accused person reasonable and probable explanation. That is to say that the Honourable Court below erred in agreeing with the learned Magistrate's rejection of the 2nd accused's explanation.
4.
The Honourable Court below erred in coming to the conclusion that the learned Magistrate did properly warn himself of the danger of relying upon a co-accused person's testimony. Alternatively that if he did properly warn himself that he gave due weight to the risks involved in convicting upon the evidence of a co-accused.
5.
The Honourable Court below erred in coming to the conclusion that the learned Magistrate adopted the correct approach in so far as he believed certain parts of the 1st accused's evidence to the exclusion of others and in using those which he believed to found 2nd accused's conviction."
The charge on which Appellant was convicted reads as
follows.
3
"Stealing by person employed in the pubic service c/s 271 a.r.w. section 276 of the Penal Code Cap 08:01.
PARTICULARS OF OFFENCE
The two accused persons on or about the 18th day of December, 1992 in the Gaborone Administrative District being persons employed by the Government fraudulently and without claim of right stole cash P6, 600.00 being Government money which came into their possession by virtue of their employment."
The case can be best understood by reference to the evidence of the accused No 1 (Shirley) . The Learned Chief Justice summarised her evidence succinctly as follows:
"The evidence against the Appellant was given by his co-accused, Shirley Mapitse who testified that she was ordered to make an imprest form on the basis that she was going to Selebi-Phikwe on relief duties. Shirley filled in the imprest form. She was telephoned by Appellant advising her that he was on sick leave and that she must bring the imprest for authorization as he is the only one who knows about the Selibe-Phikwe trip. The Appellant was off-duty and on sick leave. She then drove and met the Appellant at an agreed place near his home. The imprest was authorised, with a request that the cheque should be hand-written. This was to ensure expeditious issue of the cheque. The Appellant advised Shirley to take the imprest direct to the banking section. The normal procedure is that such payment vouchers should be submitted to (PW5) Netty Pilane for recording on the ledger. By taking the voucher direct to the banking section, Shirley was side-stepping Netty Pilane and avoiding the recording in the ledger.
Shirley received the cheque the following day and took it to the Appellant who advised her to deposit it in her account. After she deposited the cheque, the Appellant asked her to lend him P2 000 to repair his vehicle. The Appellant had promised to repay the money and that it was their practice to lend each other money. The Appellant borrowed a further P600 from her promising to repay it and the P2000 in January. The Appellant did not repay the P2600. She later realised that she was not going to Selibe-Phikwe and then pressed Appellant for repayment.
After her evidence she was cross-examined by Appellant and by the Prosecution. She confirmed that it was standard practice that an authorising officer for an imprest must know about the trip and repeated that she lent the
4
Appellant P2000 and P600 within a short period; between 18th December and 29th December. She confirmed the evidence of PW4 that if she was going on relief duties, PW4 would be the first to know."
It was the State case that the Appellant and accused No 1 had conspired to steal the sum of P6600 from the Government by securing the issue of a false application for a travelling imprest to the aforesaid value. This they did by falsely representing that Shirley was going on "relieve duties" at Selibe-Phikwe when they both knew that this representation was untrue.
The Appellant's defence was that he had been approached by the Regional Director of Selibe-Phikwe regional project one Mr. Thipe who told him that "he was looking for someone in Appellant's unit to relieve at Selibe-Phikwe as usual". He says that he told Thipe that he could not give him an officer from his unit as he was understaffed and that he referred him to the Senior Administration Officer, a Mrs. Thebe.
After "a day or so" Mrs Thebe approached him" to confirm if Thipe had approached me " (Appellant) . He confirmed this as well as the fact that Shirley's name had been mentioned as a possible candidate and was given the assurance by Mrs. Thebe that "she would look into that".
I interrupt the recording of Appellant's version to say that his Counsel had at no stage directed any cross-examination at
5 Mrs. Thebe. Her evidence was clear and unequivocal. She as a
Senior Administrative Officer at the relevant Ministry (Finance
and Development Planning), would have to deal with any request
for relief duties to be provided at Selibe-Phikwe. No request
had been made at the relevant time for any officer to be sent
to Selibe-Phikwe to perform relief duties. The information
contained in the relevant documentation was false. Indeed, in
the end this was common cause. The question is did the Appellant
know it to be so?
As I have indicated above, he appreciated that it would be necessary for him to impute some knowledge to someone of the request for accused No 1 to relieve at Selibe-Phikwe. For this reason he sought to involve two persons. The one was Grace Thebe. In the light of her explicit statement that she had no knowledge of the request and that she had in no way been involved in its approval, it is inconceivable that had Appellant instructed his Counsel of his alleged conversation with her, her testimony would not have been challenged. The record shows that there was no cross-examination on Appellant's behalf directed at this witness. His evidence in this regard was therefore correctly rejected as false.
The other person whose name was mentioned was Mr. Thipe. Very specific evidence was tendered by the State to the effect
6 that no request was made by the Senior Administrative Officer at
Selibe-Phikwe for anyone to come and perform relief duties. The
witness, a Mr. Molotlhanyi said categorically in evidence that
if such a request was made he would by virtue of his position
know of it. At no stage was it suggested to him that a Mr. Thipe
had made the request that was suggested is reflected by the
following evidence elicited in cross-examination on behalf of
Appellant;
"In December, 1992 I was at Selebi-Phikwe. During December 1992 I never left or wanted to go away for medication. At my office in Selibe-Phikwe, the Director would request for a relief Officer from the Ministry. The Director is Mr. Beirne. I do not know if the Director can not make a request by telephone. I would not know if the Director made a request by telephone."
It is noteworthy that the Mr. Thipe was never mentioned, but a speculative questioning takes place concerning the possibility of Mr. Beirne making a request by telephone. It is hardly necessary to say that Mr. Thipe was never called by the Appellant as witness.
But there are other evidential nails in Appellant's coffin. It is clear on all the testimony that the normal procedures for the processing of an Application of this nature were not followed. Indeed these protective mechanisms were dramatically short-circuited. Appellant, it is not disputed, knew that he did not have the authority to sanction accused No 1 going on
7 relief duties. This was the unchallenged evidence of Grace
Thebe. When Shirley approached the Senior Accounts Assistant,
Netty Pilane, for an imprest to go to Swaziland in March, Netty
told her it was too early for her to apply for an imprest.
Accused No 1 then informed the witness that she had already
talked to Appellant "who had approved her request". Netty now
goes to Appellant's office to tell him what Accused No 1 had
said. His response according to her was that "she (Shirley)
could apply for an imprest as she was supposed to go to Selibe-
Phikwe." This witness also confirmed "that Appellant told her
that Accused No 1 was supposed to go to Selibe-Phikwe before
going to Swaziland". There were other departures from the
prescribed processes which should have raised loud alarm bells
to anyone confronted by a request for approval of the request
or authorization of the relevant voucher.
However, worse for Appellant is to follow. The evidence
discloses that he had applied for and been granted sick leave
for the period 16th-18th December. Appellant did not dispute
Shirley's evidence that he signed the authorisation sanctioning
the payment of the funds on the 17th of December while he was on
sick leave. According to accused No l, she was telephoned by
Appellant to bring the imprest for his signature on that day to
the "Calabash Mall" so that he could authorize it. She did so,
8 found him in the parking area and he duly signed the necessary
documentation. Save that the appellant denies the telephone call
and that the assignation took place by prior arrangement, it was
common cause that Appellant signed the imprest in a car at the
Mall while he was on leave.
Now, it is clear that there were other authorised officers present at the office on the day in question who could have signed the voucher. It is also clear that there was no urgency in securing the required approval. Indeed according to the evidence and despite still being on sick leave, Appellant did come to the office in the afternoon of the next day the 18th of December. According to accused No 1, it was on this day that Appellant asked her " to lend " him money. It was pursuant to this request that she withdrew P2000 the next day (the 19th of December) and gave the money to the Appellant. The fact that she withdrew these funds as alleged by her was confirmed by her bank statement which was handed in by consent. There is however, no evidence corroborating her version that both this amount and P600 of the P800 she withdrew subsequently (on December 29), was paid over to the Appellant.
I return to the Appellant's version. Apart from the conflict between his evidence and that of PWs 4 and 5 (Grace Thebe and Netty Pilane) it is relevant in assessing the weight
9 of the evidence to note certain unsatisfactory features of the
Appellant's testimony. These are the following:
"1. He conceded that he was aware that he authorised an imprest "which was not supposed to be authorised".
2.
He could give no explanation as to how accused No 1 could have known that he was in the parking lot, outside the butchery - which is part of the shopping Mall and how she could have traced him there if there had not been a prior assignation.
3.
He conceded that he had never signed documentation of this kind in those circumstances before.
4.
In cross-examination he resiled from his version that PW 4 had confirmed that Shirley was going to Selibe-Phikwe.
5.
He and accused No 1 did lend one another money from time to time, but he denies the request for a loan at this time to pay for damage caused to his car in an accident.
6.
Whilst it normally takes a week to process an application of this kind and despite the other evidence of a lack of urgency, he considered the matter so urgent that he wrote on the application that "payment be made by handwritten cheque".
In these circumstances it is hardly surprising that both in the Court a quo and in the High Court it was found that Appellant's version could not reasonably possibly be true. It follows that in the absence of any acceptable explanation from him and in the light of the uncontradicted evidence referred to above, the only reasonable inference to be drawn from the proved facts is that Appellant conspired with accused No 1 to steal Government funds to the value of P6600 and did so by authorising the payment concerned.
This in my view would have been a sufficient finding to have
10 sustained a conviction. However, it does not require any
erudition that Appellant would probably not have participated in
the theft without any benefit for himself. In these
circumstances and more especially in the absence of any
explanation on his part that he was prompted by altruism or by
reasons other than his own enrichment, the evidence of accused
No 1 that she withdrew P2000 on the 19th of December to enable
him to ward off his creditors falls in to place as an
irresistable final piece of the theftuous jigsaw puzzle.
In my view the Appellant was rightly convicted and his appeal against his conviction should be dismissed. There was, rightly so, no appeal against the sentence imposed by the Court a quo.
The appeal is dismissed. The conviction and sentence are confirmed.
GIVEN AT LOBATSE THIS 30TH DAY OF JANUARY, 1995.
J. H. STEYN [ JUDGE OF APPEAL]
I agree
A.N.E. AMISSAH
I agree
LORD N. WYLIE. [JUDGE OF APPEAL]
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