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Molefe v The State (Criminal Appeal No. 14 of 1999 ) [1999] BWCA 10; [1999] 1 B.L.R. 471 (CA) (23 July 1999)
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IN THE COURT OF APPEAL FOR THE REPUBLIC OF BOTSWANA HELD AT LOBATSE
COURT OF APPEAL CRIMINAL APPEAL NO. 14 OF 1999 HIGH COURT CRIMINAL APPEAL NO. 230/95
In the matter between:
JOSEPH MOLEFE
and
THE STATE
APPELLANT
RESPONDENT
Mr. H.M. Sikhakhani for the Appellant Mrs. R.S. Segokgo for the Respondent
CORAM:
A.N.E. Amissah P. R.A. Korsah J.A. M. Kumleben J.A.
KUMLEBEN JA
The appellant stood trial in a subordinate court on two counts: Robbery as defined and provided for in section 291 and 292[2] of the
Penal Code CAP 08:01; and unlawful possession of ammunition in contravention of section [9][1][4] of the Arms and Ammunition Act
Cap 24:01. He was convicted on both counts and sentenced to 10 years imprisonment and to a fine of P150.00 or two months
imprisonment respectively. His appeal to the High Court on both counts was dismissed. But, with leave granted by that court, the robbery
conviction is now before us.
On the night of 27th October 1994, at about 10.00 p.m. the complainant and his wife returned to their home in Lobatse by car. He had a suitcase containing
inter alia cash in an amount of P15,000.00, being the cash takings from their Supermarket. His wife drove and parked next to the house. As he
reached the entrance he heard shots being fired. Three men were involved in the attack, two of whom wore masks. The tall, unmasked
man, who had fired some shots, ordered him to hand over the suitcase. He promptly complied. This assailant and a shorter man wearing
a mask ran away. His wife, Ratanang Monthe, seated behind the steering wheel of the car, saw the unmasked man enter the house, heard
three shots being fired and observed this person, together with another assailant, emerge from the house with a gun and the stolen
suitcase. She had the presence of mind to alight from the car in an attempt to identify the vehicle they were using. The second eye-witness
was the domestic servant of the complainant. On the arrival of the car she came out to assist them with the carrying of parcels.
She too identified the tall, unmasked man.
The grounds of appeal rely on no misdirections but allege for a variety of reasons that the court erred in finding that the offence
was proved beyond reasonable doubt: more particularly, that the identification of the appellant was flawed and that the rejection
of the evidence of his alibi witnesses
2
was unwarranted. Both these women maintained that "the tall man" was the appellant whereas he and his witnesses said he
was in Gaborone, or at least not in Lobatse, on the night in question, that is, on 27th October 1994.
To my mind the identification by the two women cannot in any way be faulted. There was adequate lighting both from the street and
the interior of the house. Each had more than a fleeting opportunity to observe the appellant. Thus it was that they both without
hesitation pointed out the appellant at an identification parade. The manner in which the identification parade was conducted was
in all respects proper.
But in addition to this direct identification other evidence serves to confirm the fact that the appellant was involved in the robbery
at Lobatse that night. According to the prosecution witness Santy Montshiwa, the appellant met her at the bank where she was depositing
money for her employer, the complainant. The appellant told her that he had made enquiries about the complainant's banking procedure.
He also asked her whether he had dogs or guns at his home. This she reported to her employer and the police as soon as she heard
of the robbery. When the appellant was arrested and asked where he was on the night of 27th October 1994 he said, contrary to the
alibi he subsequently put forward that, "he was around Lobatse".
3
The prosecution case was thus a substantial one on the strength of which the Magistrate rejected the alibi "as being a mere afterthought
and untrue". He went on to say in his judgment: "If the court believes, as it does, that he was positively identified by
the two people who witnessed the incident, then that means he was not at Gaborone as he alleges together with his witnesses".
The Magistrate thus rejected the evidence of the appellant and his four alibi witnesses solely for the reason that he accepted the evidence for the State: there was no independent appraisal of the defence case. This was
a misdirection on his part as appears from this citation from the decision in S v Guess 1976(4) SA 715 (A) 718(D) and 719 (A):
"The magistrate obviously misdirected himself in accepting Makapan's evidence without stating his reasons for disbelieving the
appellant and Miss Brown. The correct approach which the magistrate should have adopted in weighing up the evidence of the State
and that of the defence appears from the dicta of the following two reported cases:
(1) Per DE VILLIERS, J.P; in Schoonwinkel v. Swart's Trustee, 1911 T.P.D. 397 at p. 401:
"This Court, as a Court of appeal, expects the court below not only to give its findings on the facts, but also its reasons for
those findings. It is not sufficient for a magistrate to say, 'I believed this witness, and I did not believe that witness'. The
Court of appeal expects the magistrate, when he finds that he cannot believe a witness, to state his reasons why he does not believe him. If the reasons are, because of inherent improbabilities, or because of contradictions in the evidence of the
witness, or because of his being contradicted by more trustworthy witnesses, the Court expects the magistrate to say so. If the reason
is the demeanor of the witness, the Court expects the magistrate
4
to say that; and particularly in the latter case the Court will not lightly upset the magistrate's finding on such a point".
This dictum was intended for a civil case but it is equally applicable to a criminal case.
(2) Per LEON, J., in S. v Singh, 1975 (1) S.A. 227 (N) at p. 228:
"Because this is not the first time that one has been faced on appeal with this kind of situation, it would perhaps be wise to repeat once again how a court ought to approach a criminal case on
fact where there is a conflict of fact between the evidence of the State witnesses and that of an accused. It is quite impermissible
to approach such a case thus: because the court is satisfied as to the reliability and the credibility of the State witnesses that,
therefore, the defence witnesses, including the accused must be rejected. The proper approach in a case such as this is for the court
to apply its mind not only to the merits and demerits of the State and defence witnesses but also to the probabilities of the case.
It is only after so applying its mind that a court would be justified in reaching a conclusion as to whether the guilt of an accused has been established beyond reasonable doubt. The best indication that a court has applied its mind in the proper manner in
the above-mentioned example is to be found in its reasons for judgment including its reasons for the acceptance and the rejection of the respective witnesses".
I now turn to the defence case. The appellant said that on the evening of 27th October 1994 at about 7.00 p.m. he boarded a train at Lobatse with two friends, Reginald and Donny. They arrived at Gaborone at around
8.30 p.m. There they proceeded to the house of his girlfriend Linda Gasewagae. He spoke to her but she would not let him in. He spent
the night in Gaborone and saw his girlfriend there on 28th October. This evidence, as I have indicated, is contradicted by his statement on arrest.
5
His next witness said in his evidence-in-chief that he dropped the appellant and his two friends off at the railway station at Lobatse
on 27th October at 'around 19:00 hours". Under cross-examination he was asked whether he saw them actually leave. His reply was that
he actually boarded the train with them but jumped of it "around 19:05 hours". This account of an enigmatic five minute
train ride cannot be accepted. It was obviously given to convey that the appellant actually left by train. His next witness also
testifies to a train departure with the appellant to Gaborone. He was, however, uncertain of the date and his evidence cannot therefore
assist the appellant. Similarly a further witness, who also allegedly accompanied the appellant, was unable to say with any degree
of certainty that this visit to Gaborone was on the night of 27th October. The other details of this visit furnished by these two witnesses suggest that such a visit may well have taken place but
that it has been transposed for alibi purposes to 27th October. This is confirmed by the evidence of his final witness. She was his Gaborone-lover. She said he knocked on her door at about
9.00 p.m. on the 27th October but she refused to let him in and the next morning she spoke to him at her place of employment in Gaborone. She, however,
also said that he only visited her at weekends and that the 27th October 1994 was part of a weekend. According to the calendar, of which we are entitled to take judicial cognisance, the 27th October was a Wednesday. When this was pointed out to counsel for the appellant he was constrained to concede that there was either
a deliberate conspiracy to mislead the court or that these witnesses were uncertain of the
6
date on which this visit took place. On either premise such evidence loses all corroborative value.
Thus, viewed independently the defence case is in material respects defective and in no way refutes or casts doubt on the convincing
evidence tendered by the prosecution. Reverting to the misdirection on the part of the court a quo, section 13[3] of the Court of Appeal Act [Cap: 04.01] authorises this court to confirm a conviction, despite an irregularity, "provided
there has been no substantial miscarriage of justice". In this case there can be no doubt that the dictates of justice call
for the confirmation of the conviction.
The appeal was also against the sentence. Since it is in the circumstances a mandatory one, it must stand.
The appeal is dismissed. The conviction and sentence on count 1 are confirmed.
DELIVERED IN OPEN COURT AT LOBATSE ON THE 23rd DAY OF JULY
1999.
M. KUMLEBEN JUDGE OF APPEAL
7
AMISSAH P.
agree
A.N.CfcMlSSAH-^ JUDGE OF APPEAL
KORSAH J.A.
agree
K.R.A. KORSAH JUDGE OF APPEAL
8
IN THE COURT OF APPEAL FOR THE REPUBLIC OF BOTSWANA HELD AT LOBATSE
COURT OF APPEAL CRIMINAL APPEAL NO. 14 OF 1999 HIGH COURT CRIMINAL APPEAL NO. 230/95
In the matter between:
JOSEPH MOLEFE
and
THE STATE
APPELLANT
RESPONDENT
Mr. H.M. Sikhakhani for the Appellant Mrs. R.S. Segokgo for the Respondent
CORAM:
A.N.E. Amissah P. R.A. Korsah J.A. M. Kumleben J.A.
KUMLEBEN JA
The appellant stood trial in a subordinate court on two counts: Robbery as defined and provided for in section 291 and 292[2] of the
Penal Code CAP 08:01; and unlawful possession of ammunition in contravention of section [9][1][4] of the Arms and Ammunition Act
Cap 24:01. He was convicted on both counts and sentenced to 10 years imprisonment and to a fine of P150.00 or two months
imprisonment respectively. His appeal to the High Court on both counts was dismissed. But, with leave granted by that court, the robbery
conviction is now before us.
On the night of 27th October 1994, at about 10.00 p.m. the complainant and his wife returned to their home in Lobatse by car. He had a suitcase containing
inter alia cash in an amount of P15,000.00, being the cash takings from their Supermarket. His wife drove and parked next to the house. As he
reached the entrance he heard shots being fired. Three men were involved in the attack, two of whom wore masks. The tall, unmasked
man, who had fired some shots, ordered him to hand over the suitcase. He promptly complied. This assailant and a shorter man wearing
a mask ran away. His wife, Ratanang Monthe, seated behind the steering wheel of the car, saw the unmasked man enter the house, heard three shots being fired and observed this person, together with another assailant, emerge from the house with a gun and the stolen suitcase. She had the presence of mind to alight from the
car in an attempt to identify the vehicle they were using. The second eye-witness was the domestic servant of the complainant. On
the arrival of the car she came out to assist them with the carrying of parcels. She too identified the tall, unmasked man.
The grounds of appeal rely on no misdirections but allege for a variety of reasons that the court erred in finding that the offence
was proved beyond reasonable doubt: more particularly, that the identification of the appellant was flawed and that the rejection
of the evidence of his alibi witnesses
2
was unwarranted. Both these women maintained that "the tall man" was the appellant whereas he and his witnesses said he
was in Gaborone, or at least not in Lobatse, on the night in question, that is, on 27th October 1994.
To my mind the identification by the two women cannot in any way be faulted. There was adequate lighting both from the street and
the interior of the house. Each had more than a fleeting opportunity to observe the appellant. Thus it was that they both without
hesitation pointed out the appellant at an identification parade. The manner in which the identification parade was conducted was
in all respects proper.
But in addition to this direct identification other evidence serves to confirm the fact that the appellant was involved in the robbery
at Lobatse that night. According to the prosecution witness Santy Montshiwa, the appellant met her at the bank where she was depositing
money for her employer, the complainant. The appellant told her that he had made enquiries about the complainant's banking procedure.
He also asked her whether he had dogs or guns at his home. This she reported to her employer and the police as soon as she heard
of the robbery. When the appellant was arrested and asked where he was on the night of 27th October 1994 he said, contrary to the
alibi he subsequently put forward that, "he was around Lobatse".
3
The prosecution case was thus a substantial one on the strength of which the Magistrate rejected the alibi "as being a mere afterthought
and untrue". He went on to say in his judgment: "If the court believes, as it does, that he was positively identified by
the two people who witnessed the incident, then that means he was not at Gaborone as he alleges together with his witnesses".
The Magistrate thus rejected the evidence of the appellant and his four alibi witnesses solely for the reason that he accepted the evidence for the State: there was no independent appraisal of the defence case. This was
a misdirection on his part as appears from this citation from the decision in S v Guess 1976(4) SA 715 (A) 718(D) and 719 (A):
"The magistrate obviously misdirected himself in accepting Makapan's evidence without stating his reasons for disbelieving the
appellant and Miss Brown. The correct approach which the magistrate should have adopted in weighing up the evidence of the State
and that of the defence appears from the dicta of the following two reported cases:
(1) Per DE VILLIERS, J.P; in Schoonwinkel v. Swart's Trustee, 1911 T.P.D. 397 at p. 401:
"This Court, as a Court of appeal, expects the court below not only to give its findings on the facts, but also its reasons for
those findings. It is not sufficient for a magistrate to say, 'I believed this witness, and I did not believe that witness'. The
Court of appeal expects the magistrate, when he finds that he cannot believe a witness, to state his reasons why he does not believe him. If the reasons are, because of inherent improbabilities, or because of contradictions in the evidence of the
witness, or because of his being contradicted by more trustworthy witnesses, the Court expects the magistrate to say so. If the reason
is the demeanor of the witness, the Court expects the magistrate
4
to say that; and particularly in the latter case the Court will not lightly upset the magistrate's finding on such a point".
This dictum was intended for a civil case but it is equally applicable to a criminal case.
(2) Per LEON, J., in S. v Singh, 1975 (1) S.A. 227 (N) at p. 228:
"Because this is not the first time that one has been faced on appeal with this kind of situation, it would perhaps be wise to
repeat once again how a court ought to approach a criminal case on fact where there is a conflict of fact between the evidence of the State witnesses and that of an accused. It is quite impermissible to approach such a case thus: because the court is satisfied as to the reliability and the credibility of the
State witnesses that, therefore, the defence witnesses, including the accused must be rejected. The proper approach in a case such
as this is for the court to apply its mind not only to the merits and demerits of the State and defence witnesses but also to the
probabilities of the case. It is only after so applying its mind that a court would be justified in reaching a conclusion as to whether the guilt of an accused has been established beyond reasonable doubt. The best indication that a court has applied its mind in the proper manner in
the above-mentioned example is to be found in its reasons for judgment including its reasons for the acceptance and the rejection of the respective witnesses".
I now turn to the defence case. The appellant said that on the evening of 27th October 1994 at about 7.00 p.m. he boarded a train at Lobatse with two friends, Reginald and Donny. They arrived at Gaborone at around
8.30 p.m. There they proceeded to the house of his girlfriend Linda Gasewagae. He spoke to her but she would not let him in. He spent
the night in Gaborone and saw his girlfriend there on 28th October. This evidence, as I have indicated, is contradicted by his statement on arrest.
5
His next witness said in his evidence-in-chief that he dropped the appellant and his two friends off at the railway station at Lobatse
on 27th October at 'around 19:00 hours". Under cross-examination he was asked whether he saw them actually leave. His reply was that
he actually boarded the train with them but jumped of it "around 19:05 hours". This account of an enigmatic five minute
train ride cannot be accepted. It was obviously given to convey that the appellant actually left by train. His next witness also
testifies to a train departure with the appellant to Gaborone. He was, however, uncertain of the date and his evidence cannot therefore
assist the appellant. Similarly a further witness, who also allegedly accompanied the appellant, was unable to say with any degree
of certainty that this visit to Gaborone was on the night of 27th October. The other details of this visit furnished by these two witnesses suggest that such a visit may well have taken place but
that it has been transposed for alibi purposes to 27th October. This is confirmed by the evidence of his final witness. She was his Gaborone-lover. She said he knocked on her door at about 9.00 p.m. on the 27th October but she refused to let him in and the next morning she spoke to him at her place of employment in Gaborone. She, however,
also said that he only visited her at weekends and that the 27th October 1994 was part of a weekend. According to the calendar, of which we are entitled to take judicial cognisance, the 27th October was a Wednesday. When this was pointed out to counsel for the appellant he was constrained to concede that there was either
a deliberate conspiracy to mislead the court or that these witnesses were uncertain of the
6
date on which this visit took place. On either premise such evidence loses all corroborative value.
Thus, viewed independently the defence case is in material respects defective and in no way refutes or casts doubt on the convincing
evidence tendered by the prosecution. Reverting to the misdirection on the part of the court a quo, section 13[3] of the Court of Appeal Act [Cap: 04.01] authorises this court to confirm a conviction, despite an irregularity, "provided
there has been no substantial miscarriage of justice". In this case there can be no doubt that the dictates of justice call
for the confirmation of the conviction.
The appeal was also against the sentence. Since it is in the circumstances a mandatory one, it must stand.
The appeal is dismissed. The conviction and sentence on count 1 are confirmed.
DELIVERED IN OPEN COURT AT LOBATSE ON THE 23rd DAY OF JULY 1999.
M. KUMLEBEN JUDGE OF APPEAL
7
AMISSAH P.
agree
A.N.€TSMISSA+k^ JUDGE OF APPEAL
KORSAH J.A.
agree
K.R.A. KORSAH JUDGE OF APPEAL
8
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