2 He alleges that before he was arrested he demanded a reason or cause for his arrest but Selebogo merely said that he was under orders
to arrest him. He alleges further that he was then manhandled, handcuffed and forcefully pursued into a vehicle during the course
of which he bit his tongue and bled from the mouth. He was then taken by the Military Police to a BDF camp where he was detained
in a cell while handcuffed. Later he was conveyed to Francistown Jubilee Hospital and asked to supply a blood specimen. There is
then something missing in paragraph 5 of the particulars of claim but I think that it would have alleged that he refused to allow
his blood to be taken. As a result of these occurrences he alleges that he suffered injuries in the form of abrasion, to his left
firearm and a haematoma. Its location is not specified. He also suffered pain and the loss of his freedom. He claims P65,000 for
unlawful arrest and detention P35,000 for assault and P50,000 for pain and suffering.
In view of the evidence which was given it is not necessary to set out details of the Respondents plea which, while admitting certain
of the facts in the particulars of claim, is in essence a denial of any wrongdoing.
The Appellant gave evidence at the trial at some length. He related how he went into the bar of the Tati Hotel where an argument developed
with a person called Constable Genge Marumo. A Major Leshongwane was also in the bar but left it when the argument developed. The
Major came back to say that he had called the Military Police. At this stage all the members of the
3 BDF left the bar. The Appellant says that a Sergeant Moses who was originally a military policeman came to investigate the occurrence.
He said to the Appellant that he had heard that he, the Appellant, was harassing Ministers within the Bar. He went into two bars
and then left. The Appellant went to the Railway Hostel to see someone. Two Land Rovers arrived and someone, shouting from a distance
of ten metres, said that they were there to "collect" him. He asked Selebogo the leader what they wanted to collect him
for to which Selebogo replied that they were not there to collect him but were going to arrest him.
The Appellant says that when he was talking to Selebogo some members of the force handcuffed him, mishandled him and kicked him. They
then took him to the BDF Camp where they detained him in handcuffs. There was some conversation at the offices of Major Mosekiemang
and thereafter the Appellant was taken to Jubilee Hospital where blood was to be taken from him. The Appellant asked the Major why
they wanted blood and it was made clear that they wanted it to test whether or not he was under the influence of liquor. He refused
and the doctor said that she could not extract blood without the consent of the patient. They left and the Appellant was handcuffed
again. He was taken back to the BDF camp and to the military clinic. He says that a Lt. Phetogo, a qualified nurse extracted blood
without his consent. This caused him to feel dizzy and to have a headache. He was given a pill by Lt. Phetogo.
The Appellant says that he was taken back to his cell and
4 handcuffed. He spent the night in the cell. The following day he was told that charges were being prepared and would be presented
to him that day. This proved impossible and he was released with an instruction not to leave camp and to report again at 7.3 0 a.m.
on the following morning. He did so and told the major that he was not feeling well. He saw a doctor and complained of back pains,
wounds on his hands and blood in his urine. He received treatment. The following day he again saw the doctor and was given different
treatment.
There was some discussion on the next day concerning whether there was proper notice of the charges against the Appellant and that
night he was put in a cell. On the following day, the 26th March, the Appellant said that he wanted to be tried by a Court Martial.
He was threatened by Col. Motlamme with further detention in a cell if he persisted in his demand for a Court Martial. He then pleaded
guilty to one count.
The cross-examination of the Appellant did not appear to destroy any part of the Appellant's evidence. The version to be given by
the State witnesses was put to him but he stuck to his guns.
For the State Lt. Col. Leshongwane, W/O Selebogo, Lt.Col. Motlamme, W/0 Tibe, Major Mosenyi and W/0 Baitshoki gave evidence. No purpose
would be served by setting out the evidence of each of these witnesses. I will therefore attempt to give a short summary of the whole
of the State case.
5 The Appellant's conduct in the Tati Hotel was provocative and insulting. He appeared to be drunk. He insulted both a local attorney
and a Minister of Botswana. He did the same thing to members of the BDF who were in the Hotel. This evidence was given by Lt.Co.
Leshongwane and W/0 Tibe.
W/0 Selebogo tells how he and others went to the Tati Hotel as a result of a report made to the Military Police. The Appellant was
not there and the police party then went to the Railway Hostels. There they met the Appellant. He had a bottle in his hand. When
told that the Military Police were looking for him he broke the bottle and tried to attack the Police with it. He fell down and tried
to support himself. The bottle fell out of his hands. He was then handcuffed and lifted into the police vehicle, a Land Rover. W/0
Selebogo says that the Appellant was not injured when placed in the vehicle. He smelt of alcohol on his breath and staggered when
he walked. When they took him to the BDF camp there was no sign of bleeding from the mouth. He was put without handcuffs into a cell.
According to the Sergeant Major the cause of the arrest and detention of the Appellant was the threat of violence with the broken
bottle. Up to that stage no decision to arrest had been made arising from the reported incident at the Tati Hotel. W/0 Baitshoki
was told that they were going to arrest the Appellant so that, if his information was correct, the sole cause of the arrest and detention
could not have been the aggression with a broken bottle. The Court accepted the evidence of W/0 Selebogo.
6 Lt. Col. Motlamme deposed to the laying of charges and trial of the Appellant stating that there was no objection to his taking
the trial or a demand for trial by Court Martial. The Appellant was found guilty on all of the five charges brought against him.
There were no threats of coercion by telling the Appellant that if he did not agree to be tried by the Colonel and insisted on being
brought before a Court Martial he could be returned to a cell.
Major Mosinyi was instructed to take the Appellant to Jubilee Hospital and have a sample of blood taken. He says the Appellant refused
to permit the extraction of blood at the Hospital but when he was taken to the BDF clinic there were no problems and the Appellant
willingly extended his arm so that Lt. Phetogo could take the blood. This was put into two test tubes one of which was given to the
Appellant. At the time blood was taken there was no question of the Appellant being handcuffed.
At this stage it is convenient to deal with the only possible legal issue which can arise in the present matter. Rule 8(3) (c) of
the Registered Nurses Disciplinary and Ethical Rules promulgated under the Nurses and Midwives Act Cap 61:03 entitles a registered
nurse to extract blood in the absence of a medical practitioner: "either for the purposes of doing investigations that she considers
to be necessary or for the purpose of supplying blood for grouping or cross-matching". Implicit in this is that a nurse is not
allowed to take blood from a person for any other purpose unless a doctor is present. Lt. Phetogo
7 was a registered nurse and the purpose in his taking blood did not fall within the limits laid down in the Rule. I agree that the
words "investigations that she considers to be necessary" would not cover the situation where someone else decides that,
for the purposes of the institution of disciplinary proceedings, it is desirable that the blood of a person should be tested for
the presence of alcohol.
The question however arises as to whether the apparently illegal taking of blood is something which has bearing upon the issue of
whether or not there has been an assault. In my view it does not. A contravention of the Nurses Disciplinary and Ethical Rules might
bring about disciplinary action before the Nursing Council, but this, in the absence of a misrepresentation, would not by itself
mean that it can be relied upon by a third person in order to convert what was not an assault into an actionable assault. That is
determined by the facts of the case irrespective of whether the nurse would render himself liable to disciplinary proceedings before
the Nursing Council.
Sergeant Major Baitshoki corroborates the other state witness as to what happened at the Railway Hostels and thereafter -especially
what occurred at the Hospital and the Clinic.
The learned Judge having heard the case delivered himself of an extremely thorough judgment. He realised that the case involved two
contradictory versions of what happened and that he had to make a finding as to which version he found to be credible. This
8 involved taking a view as to the credibility of the witnesses because neither of the two conflicting stories presented to the Court
were inherently improbable. Either could have been true. It seems that the learned Judge was impressed with the witnesses for the
State and did not believe the Appellant.
The question which this Court has to ask itself is whether there is a good reason for finding that the learned Judge came to a wrong
conclusion on any of the material issues of fact and so whether he misdirected himself. There is no basis for so finding. On the
contrary the judgment of Nganunu J. shows that he considered all the evidence from that dealing with the evidence of what occurred
at the Tati Hotel to the trial and conviction of the Appellant. The result therefore is that no wrong has been proved. There seems
to be nothing which the learned Judge failed to consider and I am therefore of the view that the appeal must fail.
The appeal is dismissed with costs.
Delivered in open court at this A.'. . day of February, 1996
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