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Maphorisa and Others v The State (Criminal Appeal No. 40 of 1995 ) [1996] BWCA 8; [1996] B.L.R. 133 (CA) (1 February 1996)

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IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA HELD AT LOBATSE
CRIMINAL APPEAL NO. 40 OF 1995
[HIGH COURT CRIMINAL TRIAL NO. [F] 9 OF 1994]
In the matter between:

VENA MAPHORISA MOSIMANEGAPE RANTU NEO MABU RODGER MOTHEBE
vs.

1st Appellant 2nd Appellant 3rd Appellant 4th Appellant


THE STATE
Mr. T. Joina for the 1st Appellant 2nd,3rd and 4th Appellants in person Mrs. I.L. Dambe for the Respondent
Respondent

JUDGMENT
CORAM;   A.N.E. AMISSAH, J.P.
W.H.R. SCHREINER, J.A. P.H. TEBBUTT, J.A.
TEBBUTT J.A.
The background to this appeal is an armed robbery near Mabole lands in Tonota on the road from Francistown to Gaborone on 11 January 1994 involving P500 000. The four Appellants were convicted in the High Court by Gyeke-Dako J. of conspiring to commit the robbery and the 1st and 2nd Appellants, acting in concert pursuant to a common purpose, of committing the actual robbery. It will be convenient to refer to the four Appellants by their surnames. Maphorisa is the surname of 1st Appellant;

2 Rantu that of 2nd Appellant, Mabu that of 3rd Appellant and
Mothebe that of 4th Appellant. They were first, third, fourth
and fifth accused respectively at the trial. In addition to the
convictions mentioned, Maphorisa and Rantu were also found guilty
of unlawfully causing grievous harm contrary to Section 230 of
the Penal Code. Maphorisa and Rantu were each sentenced to six
years imprisonment on the conspiracy charge, to eighteen years'
imprisonment on the armed robbery charge and to eight and four
years' imprisonment respectively on the charge of unlawfully
causing grievous harm. In each instance, all the sentences are
to run concurrently. Mabu was sentenced to six years'
imprisonment and Mothebe to four years' imprisonment on the
conspiracy charge. The Appellants now all appeal against both
their convictions and their sentences. Two other persons were
also charged with the Appellants at the trial. There were
Roderick Chisimba who was the 2nd Accused and Monamodi France who
was Accused No. 6. France was acquitted, but Chisimba was
convicted of the same counts as Maphorisa and Rantu and received
the same sentences as they did. He has not appealed.
The State relied for its case against the Appellants largely
on the evidence of two accomplices, Moagi Mafa and Charles
Chinengo. Chinengo was, indeed, at the time of the trial serving
a sentence of ten years' imprisonment for his complicity in the

3 robbery.

The story they told is in essence, and stripped of all its frills, the following. Mabu and Mothebe worked as supervising guards for a firm known as Security Express Company. That company was used by Standard Chartered Bank on occasions to convey money from its branch in Francistown to Gaborone. Large sums were usually conveyed in metal boxes that were loaded into vans belonging to Security Express Company. Guards employed by the latter would carry out the conveyances. Towards the end of November 1993, Rantu, a bricklayer, was doing some building work for Mafa. The latter used to fetch Rantu from his home in the mornings and take him home in the evening using his, Mafa's car, a Toyota Conquest No. BD 3757 D, to do so. One afternoon Rantu introduced Mafa to Maphorisa who said that he was looking for a car to use for the conveyance of money for some security guards. The next day Mafa, at Maphorisa's house, met Mabu and Mothebe. At that meeting it was clear that a robbery of money while being conveyed from Francistown to Gaborone, was being planned and that Mafa's car was intended to be used as the getaway vehicle.
Several further meetings were held between Mafa, Maphorisa, Rantu, Mabu and Mothebe. At one such meeting Mafa was told about a Zambian who was having false registration number plates made for the car. At the same meeting, so Mafa testified, Mabu

4 produced balaclavas, ropes, a revolver and a pellet pistol which
he said were to be used in the robbery. Mafa, who was getting
cold feet, was told that the guns were not going to be used to
kill anyone but merely to scare the driver of the van carrying
the money. At the next meeting the Zambian, who turned out to
be Chisemba, i.e. 2nd Accused, produced the false number plates.
Mafa was still uneasy about the whole enterprise and offered the
conspirators the use of his car without his having to
participate personally. This led to the recruitment of the
second accomplice witness, Chinengo, into the conspiratorial fold
by Chisimba. Chinengo attended a meeting at which all the
Appellants and Mafa were present. This was on 10 January 1994.
He was told of the plan to hijack the van carrying the money and
that this had been plotted since December 1993 but that it had
been delayed because of a lack up to then of a getaway car. This
was now going to do be supplied by Mafa. He was shown
balaclavas, gloves and ropes to be used in the hijacking. He was
also shown a revolver with twelve bullets and a pellet pistol.
Six of the bullets were loaded into the revolver by Maphorisa.
He was also told that a bolt-cutter was available in Mafa's car.
Chinengo asked what would happen if any of the guards on the van
who were not party to the conspiracy should offer resistance.
Maphorisa said they should be shot and killed. Chisimba and

5 Rantu agreed. Mafa then said that "if you are going to use

firearms in shooting at people, then count me out" Chinengo said he agreed and to ensure that the revolver was not used, he made it a condition of his participation that he be entrusted with it. This was agreed to. Maphorisa thereupon assigned to each of the participants their duties in the execution of the robbery. "D" day was to be the next day i.e. 11 January 1994. Before dispersing Mabu asked Chisimba, who was a "Sangoma" or witchdoctor, to divine whether their venture would be successful. The outcome of the divination was that 11 January was not propitious but Mabu insisted on the robbery taking place as planned since it could not be predicted when next such a huge amount, which he said would be P3 to 4 million, would be transferred from Francistown to Gaborone.
It was planned to hold up the van after it had gone beyond Tonota, which was over 3 0 kilometres from Francistown and when the van would be beyond the range of the short-range radio with which it was fitted.
On 11 January 1994, so went the evidence of Mafa and Chinengo, Mabu informed them that the van would be leaving Francistown for Gaborone at about 8 am and that Mothebe would be the supervising guard on the vehicle. Mabu also said that the amount involved was P500 000. The vehicle would be a white

6
Toyota "kombi".
Chinengo, with Maphorisa, Rantu, Chisimba and Mafa then went out along the Francistown-Gaborone road in Mafa's car. Mafa was driving. They stopped to fit the false number plates to the car and waited for the white "kombi" . It came past them and they then trailed it until it had gone beyond Tonota. The robbers then donned balaclavas and gloves. Those who had no gloves, put socks on their hands. They then "proceeded to pull alongside the xkombi'". Chisimba had at this stage taken over the driving of the car from Mafa. Maphorisa was seated on the passenger's side in the front of the car, holding the pellet pistol and Chinengo was in the passenger's seat on the left of the car at the back. As the car drew parallel with the "kombi", Maphorisa and Chinengo leant out of their respective windows and pointed their respective weapons at the driver of the "kombi". He braked sharply, stopped the "kombi", jumped out of it and ran into the bush. All the conspirators except Mafa, rushed to the "kombi". Mothebe and another guard, Albert Ngoma, were in the "kombi". Ngoma who appeared frightened out of his wits was ordered by Maphorisa to shut his eyes. When he did not do so immediately Maphorisa shot him with the pellet pistol in the head. At that stage the foreboding that the day would not be propitious turned out to be only too true, for the getaway car developed a puncture

7 and there was no spare wheel. By that time the robbers had taken
the two metal cases containing the money, which was in fact P500
000, out of the vehicle and were about to load it into the
getaway car. Maphorisa, Chisimba and Rantu suggested that Mafa's
car be burnt to erase possible exculpatory evidence and one of
them suggested that Mafa be burnt with it. Chinengo, however,
persuaded the others to let Mafa go and he drove off on the flat
tyre, leaving the others behind with the money. Before Mafa left
Rantu collected the bolt-cutter from Mafa's car and used it to
break open the metal cases. One was full of P10 notes and the
other of P50 notes. The false number plates were also removed
from the car and thrown into the bush.
Those who stayed behind at the scene of the robbery decided to wrap the money in their jackets and carry it away. They then buried the money at three different spots in the bush and at one spot also buried the revolver and the pellet pistol. They, however, each took with them three packets of P50 notes in addition to what each one had grabbed when the cases were opened. They thereafter dispersed in pairs.
The State evidence was that the police, who had been monitoring the progress of the security van, became alerted to the fact that it had been hijacked. They found Mafa at his broken down car and arrested him. Maphorisa and Chinengo who

8
were together were arrested in Tonota. The police found some of
the money on them. Maphorisa had P30 000 on him and P2000, which was tucked into his under-pants. Chinengo had P26 000 in a plastic bag. The other Appellants were all arrested shortly thereafter. The police evidence was that subsequent to their arrest the Appellants took them into the bush. Although none of them pointed out an exact spot, a search of the area involved disclosed three places where money was buried. The money was found in bundles. The bundles had the labels of the Standard Bank, Botswana on them and they were sealed with the Standard Chartered Bank's seal. The bundles were wrapped in jackets. At one of the places the police also exhumed a revolver and a pellet pistol.
The police had also on the day of the robbery, found in the vicinity of the place where the "kombi" was standing, the metal cases, which had been forced open, the false number plates, a pair of sunglasses, three balaclavas, gloves and a bolt-cutter.
Subsequent to his arrest Rantu took the police to a spot on the river bank next to the Marang Hotel in Francistown where from under a tree he exhumed a plastic bag containing P8 500 in P50 notes.
Apart from the evidence of the two accomplices, Mafa and Chinengo, the State called one Omphemetse Boatametse. He was

9
also a security officer employed by Security Express Company.
He lived with Mothebe. He said that on 7 January, 1994 he saw Maphorisa, Chisimba and Rantu arriving at Mothebe's house in a white Toyota Conquest BD 3757 D driven by Mafa. Mabu was present at the time at the house. They all went from the yard into the living room but left shortly afterwards. He saw them all together at the house again on the next two days i.e. 8 January 1994 and 9 January 1994. Cross-examined by Maphorisa, Boatametse said "I suspected you to be planning something because whenever I entered the yard you people dispersed".
The State also called the security guard Ngoma who described how the van was held up and robbed and how he was shot when he did not close his eyes when told to do so. He had to undergo surgery to have the pellet removed from his forehead and spent 14 days in hospital. Dr. Clifford Simpemba said that the pellet, which must have passed through the bony tissue of Ngoma's head, was removed surgically from his right frontal sinus. Asked if the injury was life threatening, Dr. Simpemba said: "In my view the injury was serious and could possibly have caused death."
The learned trial Judge found that the State had proved beyond reasonable doubt against the four Appellants the conspiracy to rob and the armed robbery with personal violence against 1st and 2nd Appellants i.e. Maphorisa and Rantu. He also

10
found that the shooting of Ngoma in the head amounted to
"grievous harm" as set out in Section 23 0 of the Penal code, as amended, read with the definition of "grievous harm" in Section 2 of the Code, and that 1st Appellant, Maphorisa, had done the shooting. He found Rantu guilty on this count as well. As on the armed robbery count, Rantu was convicted on the basis of a common purpose with Maphorisa.
In a lengthy, comprehensive and careful judgment, the learned trial judge dealt extensively with, and critically analysed, the law relating to conspiracy; to armed robbery as contained in Sections 292 [1] and [2] of the Penal Code; to grievous harm as contained in Section 230 of the Penal Code; to the doctrine of common purpose; and the legal principles applicable to accomplice evidence. It would be a work of supererogation for me to repeat it all here. I can find no fault with any of the expositions of the law by the learned Judge, who was at great pains to ensure that he applied the relevant legal principles carefully to the facts of this case. I am in no doubt that he did so correctly.
The learned trial Judge was especially concerned to remind himself of the danger inherent in considering and assessing the evidence of accomplices, of the need for approaching such testimony with caution and of the requirement of confirmation

11
thereof by corroborative evidence.
Keeping those principles firmly before him, the learned Judge found that both accomplices, Mafa and Chinengo, were credible witnesses. He found that Chinengo's evidence confirmed that of Mafa in all material respects. However, this was not enough for the learned Judge who, in respect of their evidence in relation to each one of the Appellants, sought corroboration for it in other evidence. On the conspiracy count he found it in the evidence of Boatametse about the meetings at Mothebe's house and, in regard to Maphorisa, in the finding on him, almost within an hour of the robbery, by the police of the P3 0 000 and the P2000 concealed in his under-pants. The money was still wrapped in the Standard Chartered Bank's plastic bags, identified by the Treasury custodian of the Bank, one Monyatsi, as being those sent from Francistown in the security van on the day in question.
On appeal Mr. Joins, for the 1st Appellant submitted that the trial had been conducted in an unfair manner. In particular he sought to challenge the admittance by the learned Judge of a number of pieces of evidence as being either hearsay or constituting questions of a leading nature. I need not detail them. I can find no instance where the trial Judge was anything but eminently fair to the Appellants. Suffice to say that Mr.

12
Joina's submissions in regard to the evidence are entirely devoid
of substance in the first place and secondly, did not go to the essential aspects of the evidence which pointed overwhelmingly to Maphorisa's guilt. A criticism by Mr. Joina that the learned Judge did not sufficiently warn himself of the dangers of accepting the evidence of the accomplices, Mafa and Chinengo, is entirely without foundation. As I have stated, the learned Judge went to great lengths to do so as is clearly shown not only by his setting out of the legal principles in five pages of the judgment, in which all the relevant authorities are collected and considered, but also by his requirement of corroboration on all relevant aspects. Mr. Joina also submitted that the element of grievous harm had not been proved. I can think of few clearer examples of grievous harm being caused than when a man is shot in the head, the pellet passing through bony tissue and then having to be surgically removed necessitating his having to spend 14 days in hospital and when, in his expert opinion, a medical doctor says that the injury could have caused death. The convictions of first appellant were fully justified and his appeal against them must fail.
Rantu's appeal was also centred on the unfairness of the trial court, a submission for which, like that of Mr. Joina, he could not justify by pointing to anything in the record to

13
substantiate it. He also submitted that as no photographs had
been taken of him pointing out spots to the police the court should not have admitted the evidence. Such a submission has no substance and in any event could not possibly vitiate his convictions in the light of all the other evidence against him. I agree too, with the learned Judge a quo that his common purpose with Maphorisa was overwhelmingly established.
Mabu's appeal was directed to the fact that it was not established beyond reasonable doubt that he was one of the conspirators. He submitted that the evidence of the accomplices was that he told them when the security van was to transport the money and that the amount involved was P500 000. He could not have done so, so he argued, in the light of the evidence of the Treasury custodian of the Bank, Monyatsi, and that of Boatametse. Monyatsi said that little advance notice - often only 24 hours -was usually given to the security company when money was to be transported from one Bank branch to another. In the case of the conveyance in question he had requested it on the morning of 10 January 1994 from the supervisor of the company, one Palalane. Palalane was told that the consignment had to be moved from Francistown to Gaborone. The evidence of Boatametse, as well as Ngoma and Mabu and Mothebe, was that the instructions in regard to a conveyance was given to the guards concerned at a morning

14
parade on the day of the conveyance. The guards were not told
of the amount to be conveyed. In the light of the aforegoing evidence, said Mabu, it could not have been him who had told the robbers about the conveyance and the amount involved.
In dealing with his submission it is necessary, I feel, to make the following observation. It cannot be disputed that a robbery of the security company van, carrying two metal cases containing P500 000, took place. It is also clear from the fact that false number plates, balaclavas, gloves, ropes, and a bolt cutter were found in the vicinity of the hijacked vehicle, that the robbery was carefully planned. It is also clear that the robbers must have been informed as to when a vehicle carrying money from Francistown to Gaborone would be travelling along the road between those towns and that the vehicle must have been described to the robbers because they were lying in wait for that vehicle on the very day that it was transporting the money along the road in question. That information could only have come from either someone at the bank in Francistown or from the security firm. The probability is overwhelming that it was the latter for nobody at the bank would have known what vehicle was going to be used or its registration number. Who then at the security company could have had the required information? The supervisor, Palalane, would probably have known it. There is, however, not

15
a tittle of evidence to implicate him but, on the contrary, there
is the direct evidence of Mafa and Chinengo to implicate Mabu and
Mothebe who were both supervising guards employed by the company.
Mabu and Mothebe, however, say they could not have had access to
the information. Not so, said the other employee of the company,
Boatametse. In reply to questions about this aspect by Mabu, he
said:
"We are never told the full amount you are to convey. But if one really wants to know you can get the information" (my emphasis)
That statement by Boatametse was not challenged.
In the light of this evidence and of all the other evidence, particularly that of Mafa and Chinengo, whom the trial Judge believed, the probabilities are so great as to leave no reasonable doubt that it was either Mabu or Mothebe who gave the robbers the information that enabled them to execute their preplanned enterprise. Mafa and Chinengo said it was Mabu. The trial court found that it was him. Nothing has been put before this court to persuade me that he was wrong. Mabu's conviction, too, in my view, must stand.
In his appeal, Mothebe argued that proof of his alleged complicity in the robbery was based solely on the evidence of Mafa and Chinengo and that there was a significant discrepancy in their respective testimonies which rendered their evidence so

16
unreliable that a court could not have convicted on it. The
discrepancy was that Mafa said that the meeting on 10 January 1994 took place at Mothebe's house whereas Chinengo said it was at Maphorisa's house. This discrepancy, however, is more apparent than real for in his evidence in chief Mafa also said that the meeting was at Maphorisa's house and it was in cross-examination that he said it was at Mothebe's house. In any event the discrepancy is so minor, when viewed against the totality of the evidence, that it cannot possibly be said to destroy the reliability of Mafa and Chinengo as witnesses. The same argument was raised before the trial court who carefully considered it but also found it to be unmeritorious, particularly in the light of the corroborative evidence of Boatametse as to Mothebe's association with the other conspirators named by Mafa and Chinengo. I agree with the learned trial Judge. In my view, Mothebe's appeal against his conviction too must fail.
I turn then to the question of sentence. The crime of conspiracy to rob carries with it a maximum sentence of seven years. The learned trial Judge took into account the fact that all the appellants were first offenders. He furthermore had regard to their personal circumstances. It has been stressed time and again that sentencing is the prerogative of the trial judge and lies within his discretion and that a Court of Appeal

17 will not interfere with the exercise by the trial court of that
discretion unless it is satisfied either that the trial court has
misdirected itself or that the sentence is so severe as to induce
a sense of shock. No misdirection by the present trial judge has
been suggested, nor could there be. There was none. The
sentences imposed are undoubtedly heavy but they do not induce
any sense of shock as far as I am concerned. The evidence shows
clearly, from the method of preparation for, and the execution
of, the robbery that this was a carefully and elaborate planned
robbery that the appellants conspired to commit. The sentences
on the major participants i.e. on first, second and third
appellants of imprisonment of six years and of four years on
fourth appellant, whose role was a lesser one than the others,
are not such that I can find any reason to interfere with them.
In so far as the sentences of imprisonment of eight years
and four years on first and second appellants on the charge of
unlawful causing grievous harm are concerned, I can also find no
reason to interfere with them. In terms of section 230 of the
Penal Code the trial judge was enjoined to consider whether there
were any extenuating circumstances. He did so. He found none
in the case of first appellant and I agree with that finding.
He found, however, that as Rantu's conviction on this count was
based on common purpose, extenuating circumstances could be said

18
to exist in his case. Again, I agree. The sentences on the two appellants on this charge seem to me, to be eminently suitable. On the armed robbery charge the sentence on first and second appellants was one of eighteen years' imprisonment each. It is without doubt a severe sentence. There has, however, been a most alarming increase recently in violent crime in Botswana, in many, if not most, instances involving the use of firearms. The incidence of armed robbery is indeed frightening. This court has had direct evidence of that from the increase in the number of cases of armed robbery that come before it on appeal. The court's roll for this session is again weighed heavily with cases of this nature. There is no doubt that law-abiding citizens are becoming ever more concerned at, and frustrated by, this increasing spate of violent robberies and of the use of firearms in their perpetration and are looking to the courts to provi' some check to it and to offer some protection from it. That courts can do by the sentences they impose on those w' brought to book for such crimes. Those sentences mus* the revulsion of society in regard to these crimes ar commit them must be aware that if convicted, severely dealt with. in the present case carefully planned a large scale robbery invol^ were prepared to use firearms in the execut'*

19
to overcome any resistance by killing those who might try to
thwart them. That such a possibility was a very real one is proved by the fact that Chinengo, who did not want to be part of any killing, insisted on his being given care of the most lethal of the weapons, namely the revolver, Nevertheless, first appellant did not hesitate to use his pellet pistol to shoot the guard, Ngoma, during the robbery when the latter refused to shut his eyes. He was lucky that he did not kill Ngoma. The injury he inflicted, so said Dr. Simpemba, could have caused death. The circumstances of this robbery, in my view, warrant a severe sentence to serve both as a punishment for its perpetration and as a deterrent to the Appellants in the future and to other would-be armed robbers. In so far as 1st Appellant is concerned, therefore, I would not interfere with the sentence. Rantu's part in the robbery also merits a severe sentence. He knew that there was a distinct possibility of someone being shot during the robbery but nevertheless went ahead in carrying it out. He did not, however, as 1st Appellant did, actually shoot anyone. That, I feel, probably entitles him to a lesser sentence than that imposed on the 1st Appellant. In my view an appropriate such lesser sentence should be one of 14 [fourteen] years' imprisonment.
In the result, the appeals of all the Appellants, except

20
save that of 2nd Appellant against his sentence, fail and are
dismissed and their convictions and sentences are confirmed, save that the sentence of 18 years imprisonment on 2nd Appellant, Mosimanegape Rantu, for the robbery is reduced to one of 14 years' imprisonment. That sentence is to run concurrently with his other sentences.
DELIVERED IN OPEN COURT AT LOBATSE THIS DAY OF FEBRUARY, 1996.
P.H. TEBBUTT [JUDGE OF APPEAL]

I agree
A.N.E. AMISSAH [JUDGE PRESIDENT]


I agree
W.H.R. SCHREINER [JUDGE OF APPEAL]

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