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Kotlhao v The State (Criminal Appeal No. 7 of 1999 ) [1999] BWCA 9; [1999] 1 B.L.R. 364 (CA) (23 July 1999)

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conviction and sentence was dismissed. With the leave of the Court a quo he appealed to this Court against both his conviction and sentence.
On 6 July 1999 his appeal was upheld and his conviction and sentence were set aside, reasons to be given later. These are the reasons.
Appellant was found in possession of certain articles which had been stolen. When asked by the Police for an explanation appellant stated that he had received the articles in question from one Raditonki Kgosipheko (PW4).
PW4 testified that he and appellant had agreed to break into the complainant's house and to steal there. They gave effect to this agreement and shared the stolen goods.
Appellant, who was unrepresented, gave evidence in his defence. He stated that one night while he was lying on his bed with his girl friend listening to his radio, there was a knock on the door. His girl friend opened the door and found PW4 there. PW4 entered the house carrying a radio and a bag. He asked appellant to lend him some money and offered to leave the radio with appellant as security.

Appellant lent PW4 P15 and indicated that he would like to buy the radio. PW4 left the radio and the bag with appellant, the understanding being that they would discuss the price of the radio later. After PW4 left, appellant opened the bag and helped himself to a tracksuit which he found in it.
At the conclusion of his evidence appellant was asked by the magistrate whether he wished to call any witnesses. Appellant replied: "I wish to call one witness, but she has been present in Court through out the proceedings", to which the magistrate's response was, "in that case it would be unprocedural to have her testify." The witness was accordingly not called.
In his judgment the magistrate having warned himself of the necessity for caution in respect of the evidence of PW4 who was an accomplice, accepted PW4's evidence and rejected that of appellant.
One of the grounds of appeal raised by appellant was that his "witness was chased by the magistrate for no reason". Appellant did not indicate to the magistrate who his witness was, but in this Court appellant stated that the

witness whom he had wished to call was his girl friend who had been present when PW4 brought the stolen goods to appellant's house.
Mr Mack, who appeared for the State in the appeal, conceded that the fact that appellant's witness had been present in Court did not disqualify her from testifying. He submitted, however, that the evidence against appellant was such that his witness's testimony would not have assisted him. He accordingly submitted that appellant had not been prejudiced by the magistrate's refusal to allow the witness to be called.
I do not agree. Even paying due regard to the fact that the weight to be attached to the witness's evidence owing to her having been in court throughout the case, could be adversely affected, it cannot be said that her evidence might not have provided corroboration of appellant's evidence which could have resulted in the trial Court being left in doubt as to appellant's guilt.
In the circumstances the trial Court's refusal to allow appellant's witness to be called amounted to an irregularity which occasioned a miscarriage of justice.

Appellant's conviction can accordingly not be allowed to stand. (cf Makwapeng V. The State (Criminal Appeal No.29 of 1998)
As the State has not asked for a re-trial it is unnecessary to consider whether an order that appellant be re-tried would have been appropriate or competent.
For these reasons the appeal was upheld and the conviction and sentence set aside.
Delivered in open court at Lobatse on 23^rd July 1999

I agree:
I agree:

G. FRIEDMAN [JUDGE OF APPEL]

J.H.STEYN
[JUDGE_OF APPEAL ]

LORD W.I.S. ALLANBRIDGE [JUDGE OF APPEAL]