Dube v The State (Criminal Appeal No. 22 of 1996 ) [1996] BWCA 39; [1996] B.L.R. 694 (CA) (19 July 1996)

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Dube v The State (Criminal Appeal No. 22 of 1996 ) [1996] BWCA 39; [1996] B.L.R. 694 (CA) (19 July 1996)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
Criminal Appeal No. 22 of 1996 High Court Crim. App. No. 191 of 1995
In the matter of:
EZRA DUBE Appellant
vs
THE STATE Respondent
Mr. T. T. Tafila for the Appellant Mrs. P. Kalonda for the Respondent
JUDGMENT

Coram: Amissah, J.P.: Hoexter, J.A.: Lord Allanbridge, J.A.:

LORD ALLANBRIDGE. J.A.:
On 28 September 1995 the appellant pleaded guilty to three
charges of corruption at the Broadhurst Magistrate's Court.
These charges were:-
COUNT 1 STATEMENT OF OFFENCE

Corruption of a public officer contrary to Section 24(2) as read with Section 36 of the Corruption and Economic Crime Act No.13 of 1994.

PARTICULARS OF OFFENCE

furniture, and the amounts that each of the other tendering companies had quoted, in addition he requested that the said CHARLOTTE MATHANGWANE should use her position to influence the Tender Board to accept the tender submitted by C F PRINS Pty Ltd, the company with which the accused person was associated, by promising the said CHARLOTTE MATHANGWANE a valuable consideration, to wit a gift of R7,500.00 to be given to her by the said accused person.

COUNT 2 STATEMENT OF OFFENCE

Corruption of a Public Officer contrary to Section 24(2) as read with Section 36 of the Corruption and Economic Crime Act No.13 of 1994.

PARTICULARS OF OFFENCE

The accused person EZRA DUBE, on 22 September 1995 in Gaborone, in the Gaborone Administrative District, in the Republic of Botswana endeavoured to corrupt a Public Officer, namely one CHARLOTTE MATHANGWANE, a librarian, employed by the Department of National Library Service, hence a public officer, by directly seeking to influence the conduct of the said CHARLOTTE MATHANGWANE in respect of the duties of her office, namely that he asked her to disclose to him details of the other companies competing in the tendering process for a contract for the supply of library furniture, and the amounts that each of the other tendering companies had quoted, in addition he requested that the said CHARLOTTE MATHANGWANE should use her position to influence the Tender Board to accept the tender submitted by C F PRINS Pty Ltd, the company with which the accused person was associated, by giving to the said CHARLOTTE MATHANGWANE a valuable consideration, to wit a gift of P100.00.

COUNT 3 STATEMENT OF OFFENCE

Corruption of a Public Officer contrary to Section 24(2) as read with Section 36 of the Corruption and Economic Crime Act No.13 of 1994.

PARTICULARS OF OFFENCE

The accused persons EZRA DUBE and PIERRE De BILLOT, on 26 September 1995 in Gaborone in the Gaborone Administrative District, in the Republic of Botswana endeavoured to corrupt a Public Officer, namely one CHARLOTTE MATHANGWANE, a librarian, employed by the Department of the National Library Service, hence a public officer, by directly seeking to influence the conduct of the said CHARLOTTE MATHANGWANE in respect of the duties of her office, namely that they asked her to disclose to them details of the other companies competing in the tendering process for a contract for the supply of library furniture, and the amounts that each of the other tendering companies had quoted, in addition they requested that the said CHARLOTTE MATHANGWANE should use her position to influence the Tender Board to accept the tender submitted by C F PRINS Pty Ltd, the company with which the accused persons were associated, by promising the said CHARLOTTE MATHANGWANE a valuable consideration, to wit a gift of R7,000.00 to be given to her by the said accused persons.

The charges were read over and explained to the appellant.
Put briefly the facts were that Miss Mathangwane was a librarian
employed by the Botswana Government. New library furniture was
required and the normal tendering procedures were being used.
In about August 1995 the appellant contacted this librarian and
invited her to lunch in order to discuss business which could be
to her financial advantage. The librarian was worried by this
suggestion of such a meeting and contacted the Directorate of
Corruption and Economic Crime. Thereafter she went to lunch in
a restaurant in Gaborone with the appellant on 22 September 1995.
She was carrying a tape recorder which she used to record the
conversation. The appellant asked her to obtain information
about companies tendering for the new library furniture contract.
He explained he was in association with a South African supplier
and wished such information to enable his associates to submit

4 a favourable tender. He also asked her to use her position as librarian to influence the Tender Board towards his associate. For these services he offered her R7,500.00 and the offer forms the basis of the first charge.

The second charge relates to the fact that the appellant gave the librarian a lift back to her office in his car after this lunch on 22 September 1995. During the journey he gave her a P100.00 note for her to keep. This payment formed the basis of charge 2.

The third charge relates to a further lunch meeting. The appellant had previously suggested to the librarian that she should meet his South African associate who turned out to be Pierre De Billot. This meeting between the librarian and these two men took place at the same restaurant in Gaborone on 2 6 September 1995. The conversation was again tape recorded. During the conversation both men offered her R7,000.00 for precisely the same services as the appellant had earlier requested. This meeting forms the basis of charge 3 for the appellant and charge 1 for his associate De Billot.

On 28 September 1995 the Principal Magistrate heard statements in mitigation of sentence by both accused who were appearing without legal representatives acting on their behalf. The appellant said he was a first offender, had worked in Botswana for nearly five years and was married with three children. He said the result of the convictions would affect the welfare of his family and asked the Court to consider leniency in passing sentence. The Magistrate then sentenced the appellant to 3 years imprisonment and a fine of P5,000.00 with 6 months

5 imprisonment in default of payment on each of the three separate charges. The sentences of imprisonment were ordered to run concurrently, but the prison sentences in respect of default of the separate fines were ordered to run consecutively. The appellant's associate, De Billot, was sentenced to 3 years imprisonment and a fine of P5,000.00 with 6 months imprisonment in default of payment, on the single charge which affected him.

On 12 October 1995 the appellant appealed to the High Court against both conviction and sentence on all three charges. Although he had pleaded guilty to these charges he submitted that they had been unnecessarily split and thereby caused him prejudice. He also appealed against the severity of the sentences and further submitted that the Magistrate had erred in not suspending a portion of the sentence merely because he was a foreigner. I will deal with these matters separately. Appeal against conviction

This appeal was part of the appeal by both accused heard by Barrington-Jones, J. in the High Court. The latter's judgment thereon was given on 23 May 1996. During the course of this appeal in the High Court counsel for the State accepted that the appellant should not have been convicted of both charges 1 and 2 which related only to the events of 22 September 1995 but maintained that the convictions of the appellant as regards charges 1 and 3 should stand. Unfortunately the judgment of the learned Judge gave no reasons for his refusal of the appellant's appeal against conviction and failed to quash the appellant's conviction on charge 2, a matter which had been conceded as appropriate by Counsel for the State in the High Court.

These omissions were brought to the attention of the Judge by the appellant's notice for leave to appeal to this Court of Appeal, dated 24 June 1996. The learned Judge then hastened to put the matter right by issuing a Ruling dated 2 July 1996, which granted leave to appeal and explained that, due to a computer malfunction, the penultimate paragraph of his judgment had not been printed. That paragraph is reproduced in his Ruling and, although it does confirm that the appellant's conviction on charge 2 was quashed, it fails to deal with the appellant's argument on the question of splitting the remaining two charges. That argument will now be dealt with by this Court. I should add that at this stage of proceedings before us, Counsel who appeared for the State confirmed that the appellant's conviction on charge 2 should be quashed and for the avoidance of doubt it will be quashed in this Court.

I now turn to the appellant's appeal against conviction on charges 1 and 3 . This was argued before us on the basis that the two acts charged separately were committed with one single intent and constituted one continuous transaction and that by splitting the charges into two the appellant had thereby been prejudiced.

There are a number of reported cases in the South African
Courts that have established there is a rule of practice against
the unnecessary splitting of charges in certain circumstances.
I consider it is well expressed by Wessels, J.A. in S. V Grobler
1966 (1) S.A. 567 (A), at page 523 where he states:-

"Having regard to the genesis of the rule (which could in my opinion be more aptly described as a rule of practice against the duplication of convictions) I am of the opinion that it was designed to prevent a duplication of convictions in a trial where

the whole of the criminal conduct imputed to the accused constitutes in substance only one offence which could properly have been embodied in one all-embracing charge and where such duplication results in prejudice to the accused."

As pointed out by Wessels, J.A., further down the same page
of the same reported case of Grobler, there are a number of tests
which singly or combined are applied on a common-sense view to
achieve the object of the rule. Two of these tests were referred
to by Counsel (at the request of the Court) in Grobler's case and
reported at page 507. They are that there is an improper
duplication if: (a) The two acts charged separately were done
with one single intent and constituted one continuous
transaction; or (b) the evidence necessary to form the one charge
necessarily involves proof of the other. These two tests were
referred to with approval by James, J. at page 171 of R v
Steenkamp and Others 1957 (3) S.A. 168 (N), who stated that it
is clear that the tests may be applied conjunctively or
separately, depending upon the circumstances of the case under
consideration. I adopt and approve that view of the learned
Judge James. I consider that in the case before this Court the
circumstances of it require consideration of both tests. In this
case the circumstances of charges 1 and 3 are different in at
least three respects. Firstly, the dates are different, the
events being four days apart. Secondly, the sums involved are
different being offers of R7,500.00 and R7,000.00 respectively.
Thirdly, and most importantly, the appellant is charged alone on
the first charge but acting along with his co-accused on the
third charge. In this situation the second test regarding proof
is not met. The facts of each charge are very different. In any

8 event, the result of charging the appellant in one charge of one crime committed alone on one day and another similar crime along with another accused on another occasion could well have been prejudicial to him.

In these circumstances I am satisfied that Counsel for the appellant in his clear submission to this Court sought only to apply the first of the two tests and that the application of the second test, which is appropriate in the circumstances of this case, is fatal to his appeal against conviction. Appeal against sentence

In the first place Counsel for the appellant submitted that the reliance of the High Court judge on the letter from the Directorate on Corruption and Economic Crime, which reduced the co-accused's sentence from 3 years to 18 months imprisonment, and then not giving a similar benefit to this appellant was unfair and contrary to justice. Furthermore, he submitted that the introduction of this letter, which amounted to fresh evidence being presented to an appellate Court, was not appropriate in the circumstances of this case, [see Mosinyi vs The state 1987 B.L.R. 371 at page 373] .

The factual background which led to this unfortunate situation arising appears to be that the Director of the Directorate on Corruption and Economic Crime sent a Savingram to the Attorney General, dated 9 April 1996, which indicated that, following on his imprisonment after being sentenced, De Billot elected to give information to the Directorate on matters which were of great assistance to it in its fight against corruption. The Savingram did not stop there because it went on to detail

9 that De Billot was severely shocked by the nature of his punishment, had recently married and his young wife who lived alone was suffering greatly, both financially and mentally as a result of her husband's detention. In these circumstances the Director requested the Attorney General to bring this situation to the attention of the presiding judge in the High Court so that he could consider whether a reduction in sentence was justified.

This Court has also seen a copy of a letter by the Attorney General addressed to the Assistant Attorney and Prosecution dated 10 April 1996, which stated the Attorney General's attitude was that the State should be able to confirm to the High Court on appeal that De Billot had, subsequent to his conviction and sentence, given valuable information to the Directorate. The Attorney General went on to suggest that whether such events, which were post facto, could now be brought before the Court was a matter that should be argued before the Court by the appellant. In other words he decided to present this new evidence to the Court through one of his representatives and then leave it to the Court to decide whether it should receive it and thereafter act upon it.

I regret that I must state that I consider this was not a proper course of action. It should have been appreciated that it is only in very exceptional circumstances that new evidence should be presented to an appeal Court and that there are no such circumstances present in the circumstances of this case. We can well understand that the encouragement of information being given about corruption to the proper authorities must be promoted wherever possible but the method chosen in this case was not one

10 which the Courts should allow. This information should never have been given to the presiding judge. It placed him in a difficult position and led him to reduce a sentence on grounds which did not exist at the time the sentence was imposed by the trial judge. It has further left this appellant with an understandable sense of grievance that whilst the sentence of his associate and co-appellant has been halved, his own sentence remains to be served in full.

I have anxiously considered whether such a reduction in the co-appellant's sentence should have any effect on this appellant's sentence. However, I have come to be of the view that the serious error of bringing the Savingram to the attention of the High Court judge, should not be compounded and further extended to require a reduction in the sentence of the appellant by this Court of Appeal. That would only be making a second error in a situation where the appellant's appeal against sentence should be considered upon its own particular merits.

The second ground of appeal against sentence argued by Counsel for the appellant was that the personal circumstances of the appellant were such as to justify a reduction in sentence. He is now required to pay two fines which total P10,000.00. He is destitute and unable to pay such fines which will result in his being required to serve another year's imprisonment, being two periods of 6 months imprisonment in default of payment of two separate fines of P5,000.00. This would result in the appellant serving a total of 4 years imprisonment for a crime in which the maximum period of imprisonment available to the Court under the Corruption and Economic Crime Act, No. 13 of 1994 was only 10

11 years imprisonment. In these circumstances, whilst it is accepted he was convicted of a very serious crime, his Counsel submitted that he is a first offender and was a simple individual running a small company whose livelihood as a result of his conviction is now destroyed. Such a total sentence was too severe, must create a sense of shock to the Court, and Counsel suggested that it should at least be effectively halved as regards a total period of imprisonment.

I have carefully considered this second ground of appeal but I am quite satisfied that the whole circumstances of this case, including the personal circumstances of the appellant as fully narrated by Counsel to this Court, would not justify any reduction in sentence. I agree with the sentencing Magistrate where he states, in his judgment on sentence, that corruption is a social evil which needs nipping in the bud and requires a deterrent sentence. In my own view it strikes at the very foundation of a developing country's economy and merits severe punishment.

The third and last ground of appeal against sentence was based on the failure of the Magistrate to exercise his undoubted powers under Section 308(2) of the Criminal Procedure & Evidence Act [Cap 08:02] to suspend part or the whole of the appellant's sentence of three years imprisonment. In his careful judgment on sentence the Magistrate indicates that one of the factors he had in mind in passing sentence was that referred to the opinions of Barrington-Jones, J. and Aboagye, J. in the respective cases of State v Ben Tutu Chirikadzi Review Case No. 338/93 and State v Peter Tshabile Review Case No.F 224/90. This was to the effect

12 that it was impracticable to impose suspended sentences on persons who are foreigners and who, at the end of serving their sentences, are deported from Botswana. Such a situation would defeat one of the most important functions of a suspended sentence, which is to encourage the offender to be of good behaviour by having him monitored for a specific period of time.

I am quite satisfied that the Magistrate, who has a wide discretion in deciding whether or not to impose a suspended sentence, was fully entitled to take the fact that both the appellants were foreigners into account when exercising this discretion. The difficulty about imposing deferred sentences on foreigners is self-evident. The Magistrate did not misdirect himself in law in taking such a factor into account and this ground of appeal cannot succeed.

For all these reasons the appeal is refused. The convictions and sentences on charges 1 and 3 are confirmed and for the avoidance of doubt the conviction on charge 2 is quashed.

GIVEN IN OPEN COURT this 19th day of July, 1996
LORD W.L.S. ALLANBRIDGE Judge of Appeal
I agree A.N.E. AMISSAH
Judge President

13
I agree G. G. HOEXTER

Judge of Appeal

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