In re: Dynamic Services (Pty) Limited and The Attorney General and Another (CR.APP. NO. 3/96) [1996] BWCA 16 (2 February 1996)

The Attorney General has submitted to this Court certain questions for determination by virtue of the power conferred by Section 336 of the Criminal Procedure and Evidence Act. This section deals with the situation where the Attorney General has a doubt about the correctness of any decision, ruling, opinion or statement given or made by the High Court. In these circumstances the Attorney General may cause that decision, ruling, opinion or statement to be argued before the Court of Appeal so that this Court may determine the correctness thereof for future guidance of all Courts. The power to consider such a matter is not confined to an opinion or statement which is essential to the determination of any issue [sub-section (2)].

The present matter arises from criminal proceedings in the Magistrates Court where the accused were charged with theft and forgery in relation to certain refrigerated containers which were alleged to be the property of the Botswana Railways. The trial commenced on the 14th December 1994, when the accused pleaded not guilty. After a number of postponements, the evidence commenced on the 14th July 1995. On the 17th August 1995 Ms. Solomon for the State said that she wished "to apply for an adjournment under Section 13 8 of the Criminal Procedure and Evidence Act" because of the non-availability of witnesses. This application was opposed. Counsel for the accused stated that he would not be available until November. In regard to the problem raised by the proviso to Section 138 it was said on behalf of the state that "the court has always transgressed the provision [sic] of Section 138 in relation to the 30 days period" and it was submitted that the Court had a discretion considering the circumstances of the case.

"In light of what has just been said by the Defence counsel the trial will not continue within 30 days period envisaged under Section 138 because to do so will mean that the accused will

appear undefended or will have to engage another counsel. Thus the court will postpone the hearing to the 6th November - 11th November. The accused shall appear for mention on the following dates 18th September and 18th October 1995."

The accused were dissatisfied with this order and brought an urgent application in the High Court for an order, inter alia, "reviewing and setting aside the Order granted by the Magistrate, refusing the application by the accused for the postponement of the trial and directing that it be placed on the Magistrate's roll on the 11th September or such other date prior to the 18th September as the High Court may deem meet." Answering affidavits were filed.

The application came before Barrington-Jones J. After dealing
with two point in limine which are not relevant to the present
application the learned Judge decided that the magistrate should
not have postponed the accuseds' trial on the 18th August 1995
until the 6th November of that year. He expressed the view that
the order made by the Magistrate was "both contrary to Section
13 8 of the Criminal Procedure and Evidence Act as well as to the
spirit of that provision." He ordered that "an earlier date than
the 6th November be found for the continued hearing "

"1. Whether the Magistrate in the circumstances of the present case where the trial had already commenced and witnesses had been called was right in relying on Section 13 8 of the Criminal Procedure and Evidence Act when she granted an adjournment of the case on the

Where a criminal trial is pending and the Court considers it necessary and expedient to postpone the continuation of trial to a date exceeding a period of one month with provision for monthly appearances before Court as formal mention in a situation where the accused is not remanded in custody; is such a course of action contrary to the proviso to Section 138 of the Criminal Procedure and Evidence Act as well as the spirit of that provision?
3.

Where a criminal trial is pending in the Magistrates Court and the case is part heard is the Court precluded from adjourning the continuation of trial for a period exceeding 15 days if the accused is in custody and one month if the accused is not in custody where necessary provision is made for formal mention in 15 days and one month respectively?"

The formulation of this question occurred when argument was being presented on behalf of the Attorney General. Strictly a question raised under Section 336 of the Criminal Procedure and Evidence Act should arise from a decision, ruling, opinion or statement of the High Court whereas this question deals with the Magistrate's ruling. However, as the same question could be reformulated with reference to the ruling of Barrington-Jones J. I think that it should be answered by this Court.

We are of opinion that the proviso to Section 13 8 had no relevance to the circumstances of the situation which the Magistrate and the High Court were called upon to consider. This was because the trial had already commenced and the relevant provision was Section 139 and not Section 138. Section 139 has no proviso similar to the one to be found in Section 13 8 and the discretion conferred upon the Court to grant an adjournment under

That the intention of the Legislature was to draw a distinction between a postponement of a "pending" trial in terms of Section 13 8 and an adjournment "at any period of the trial whether evidence has or has not been given" follows from the very coexistence of the two sections in Part C of the Act. Section 138 uses the terms "postpone" and "postponement" whereas Section 139 refers to a trial being "adjourned". It is also apparent from the wording of Section 140 (1) which commences with the words

While the reference in Section 138 to a case being "pending" could in another context cover all cases which are not yet completed, it has a more limited meaning in the context of Section 138 and the provisions of Sections 139 and 140 and relates to cases where the trial has not yet commenced i.e. where there has not yet been a plea. It is clear from Section 139 that this section operates from the date of the plea because it says specifically that adjournments may be adjourned "whether evidence has or has not been given". The answer to this question is therefore: No.

6 45 of the Interpretation Act Cap. 01:04 provides that in an enactment the word "shall" shall be construed as imperative and "may" as permissive or empowering. I do not believe that it is possible to construe Section 138 in such a way us to confer a discretion upon a magistrate as to whether he should have regard to the limitations placed upon the grant of postponements contained in the proviso to Section 138 or to disregard them because in his view the peculiar circumstances justify it.

It seems to have been suggested by the Attorney General's representative in argument before the Magistrate that because Courts have regularly ignored the proviso to Section 13 8, it must be regarded as having been tacitly repealed or rendered nugatory. It seems that under the Roman-Dutch Law there was a rule whereby a statute, as in the case of rules of the common law, could be abrogated by disuse.

"In Roman-Dutch Law, following Roman law a statutory-rule, too, could become abrogated by disuse. As in the final result all legislative power derives from the people, the people can always repeal a statute and it does not matter whether they do so expressly, through the legislature, or tacitly, through contrary custom or desuetude. In English law, on the other hand, a statute, having been passed by the legislature, can only be repealed by the legislature and is consequently not subject to abrogation by disuse.

In the law of South Africa both rules have found resting places. Section 135 of the South Africa Act 1909, lays down that "subject to other provisions of this Act all laws in force in the several Colonies at

the establishment of the Union shall continue in force in the respective provinces until repealed or amended by Parliament or by the Provincial Councils in matters in respect of which the power to make ordinances is reserved or delegated to them.

The word "laws" in this section has been interpreted by our courts to mean statutes, and it has accordingly been held that no statute which was in force at the time of Union or which was promulgated after Union can be repealed otherwise than by a later statute. As Innes CJ put it in R V Detody, in enacting section 135 "Parliament really adopted in respect of South African legislation, the English rule that a statute remains in force until duly repealed .... moreover the principle of non-obsolescence, having been approved for the body of legislation at the date of Union should be applied by the Courts to all future as well as to all past of South African statutes."

There remains the question of whether a pre-Union statute may have been abrogated by disuse prior to Union. The approach which our courts have adopted is that with British occupation, the Roman-Dutch doctrine of abrogation was replaced by the English doctrine of non-obsolescence."

The authors then proceeded to set out the categories of legislation which may have been abrogated by disuse prior to the British occupation. They also point out that there has been some academic criticism of the decision in R v. Detody that the English rule relating to abrogation of statutory provisions by disuse has generally replaced the Roman-Dutch Law which rendered this possible. However, the author of the section on "Statute Law and Interpretation" in Vol. 25 of The Laws of South Africa states the law in substantially the same terms as set out in the extract from Hahlo and Kahu quoted above (see para. 265).

8 The present Constitution of the Republic of Botswana does not contain a provision similar to Section 135 of the South Africa Act which was apparently considered significant in R v. Detody (supra). However section 86 of the Constitution confers upon Parliament the power to make laws for the peace, order and good government of Botswana. By section 87 laws made by Parliament are to be styled "Acts". An "Act" or "Act of Parliament" in terms of Section 49 of the Interpretation Act Cap 01:04" means "a law enacted by the Parliament of Botswana or any law of an authority formerly exercising authority to make laws for the territory or any part of the territory comprised in Botswana."

It appears from the Constitution that Parliament is the sole legislative authority in the Republic of Botswana and it alone may amend or alter or repeal statutes whether enacted before or after the commencement of the present Constitution. The Republic of Botswana is a democracy and its legislative power is derived from the people. It is therefore unnecessary and undesirable to retain the rule that abrogation by disuse is still a possibility because legislation should be an expression of the wishes of the people.

Such a rule can only give rise to uncertainty and difficulty whereas the rule of English law that abrogation by disuse is not a way in which a statute may impliedly be repealed is straightforward and practical. I am therefore of the view that in the present matter the fact the proviso to Section 138 may have been generally disregarded by the Magistrate Court and

The Criminal Procedure and Evidence Act Cap. 08:02 came into operation on the 1st January 1939, but, by virtue of the Interpretation Act, is in the same position as any Act passed after the commencement of the present Constitution on the 30th September 1966.

I think that it was conceded at the hearing of this application that the order of the Magistrate did not comply with the proviso to Section 138. This must be so because the postponement was to the 6th November and the order that there should be a formal monthly mention in Court during the period between the date of the Magistrate's Order and the 6th November did not convert it into "a postponement for a period not exceeding a month" as required by the proviso.

Botswana: Court of Appeal

In re: Dynamic Services (Pty) Limited and The Attorney General and Another (CR.APP. NO. 3/96) [1996] BWCA 16 (2 February 1996)