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ATTORNEY GENERAL
Appellant
Versus
| DAVID MOTLATSI MAFOIANE | 1st | Respondent |
| ZWELINZIMBA C.S. LINDA | Ond | Respondent |
| MOREETSI MOLOSIWA NINJA | 3rd | Respondent |
| PETER TSHEOLE | 4 th | Respondent |
| PETER MOARABI | 5th | Respondent |
| TLHABOLOGO BAOKI | 6th | Respondent |
CORAM:
Amissah P. Steyn J.A Friedman ).A. Kumleben ].A. Lord D. B. Weir
FRIEDMAN J.A.
I agree with both judgments I agree with both judgments I agree with both judgments
SAFLII:
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Court. My Lord some of the accused persons were arrested in South Africa and Lesotho. The witnesses are in South Africa and Lesotho.
They have not turned up and we have no prospects of finding those witnesses. All these gentlemen have been awaiting trial since 1996 and nothing has happened.
Even those witnesses that I have met, their testimony do not support the charges laid against the accused person. I wish therefore in the circumstances to withdraw charges against all the Accused persons. There is nothing I can do in the circumstances".
Counsel for the defence then applied for the acquittal of respondents. They
pointed out that as the respondents had pleaded, they were entitled, in terms of
section 150[4] of the Criminal Procedure and Evidence Act [Cap 08:02]
[hereinafter referred to as "the Act"], to demand that they be acquitted or
found guilty. Counsel also submitted that the property which had been seized
from them, be returned. In answer to the court's question "What do you say
about the application for the return of the properties by the accused?", Mr
Gunda stated:
"Except for the gun and the ammunition all the other properties we have no objection of them being handed back to the accused. I wish to say it is in our criminal justice that accused persons should be tried within a reasonable time. The accused persons like I said have been awaiting trial since 1996. Some were released as late as last year. 1 do not know what I can say in the circumstances in trying to justify the delay or the non availability of the witnesses. I agree with
the Court of Appeal decision in the case of Richard Busi.
Asked by the court what he had to say about the acquittal of the respondents, Mr Gunda replies as follows:
"Your Lordship has a discretion which is justified in the circumstances. I am unable to proceed with the trial without my vital witnesses. I have witnesses whom I consider vital and justice would
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demand that his Lordship can use a discretion they can be acquitted without prejudice to charges. I wish to inform the court that we might not proceed ever in view of the fact that the witnesses are not available and there no prospects of finding them. Like we are saying, the ballistics expert has not arrived from Zimbabwe. Your Lordship has a discretion to acquit. I can not justify the non appearance of the witnesses.
After an adjournment Gittings J delivered a short judgment in which he said he had read the judgment of this court in the matter of Busi v the State, Cr. Ap 24 of 1996, to which he had been referred, and proceeded as follows:
"In the light of the attitude of the state and the offences with which the six accused persons were charged were committed on the 19th of ]une 1996. I consider that justice demands that the application for their acquittal should be granted".
Mr Molomo, who appeared before us for the appellant, argued two main points. Firstly, he submitted that in acquitting respondents the court a quo had exercised its discretion improperly: it should have inquired into the statements made by Mr Gunda with regard to the unavailability of the state witnesses and, had he done so, he would not have acquitted respondents, but would have discharged them, leaving it to the State to decide whether to prosecute them again. He submitted, further, in this regard, that Mr Gunda had not been authorised by the Attorney General to withdraw the charges against respondents and that the court a quo should have investigated whether Mr Gunda in fact had the necessary authority. Secondly, he submitted that the court a quo ordered the return of the property
seized from respondents without making any inquiries as to whether third parties had any rights in respect of such property.
It is appropriate, at this stage, to examine the relevant provisions of the Act.
Section 150[4] reads as follows:
"Any person who has once be called upon to plead to any indictment or summons shall, except as is specifically provided in this Act or in any other law be entitled to demand that he be either acquitted or found guilty.
Provided that in a magistrate court, by leave of the court and for reasons to be stated on the record of the proceedings, the prosecution
may withdraw the case at any time before the close of the case for the prosecution, in which case the accused person shall be discharged without prejudice to his being charged again for the same offence; the prosecutor may withdraw the case at any time after the close of the case for the prosecution before judgment by leave of the court and for reasons to be noted on the said record in which case the accused shall be acquitted and discharged".
Section 278[3] of the Act reads as follows:
"Nothing in this section shall be construed as depriving the Attorney-General, or the public prosecutor with his authority or on his behalf, of the right of withdrawal of any indictment or summons at any time, and lodging a fresh indictment or issuing and serving a fresh summons for hearing before the same or any other competent court:
Provided that the proviso to section 150[4] shall apply mutatis mutandis to such withdrawal".
Section 150[4] is clear and explicit: once an accused has pleaded he is entitled to demand that he be either acquitted or found guilty. The proviso to this section is restricted to proceedings in the magistrate's courts.
Section 2 78[3] deals with a different matter, namely the prosecutor's right to withdraw an indictment at any time, and to lodge a fresh indictment. This right is qualified by the proviso to section 278[3] which,
for convenience incorporates mutatis mutandis the proviso to section 150[4]. Thus, whenever a prosecutor wishes to exercise his right to withdraw an indictment and issue a fresh one, the proviso to section 278[3] has to be complied with.
The proviso to section 278[3] applies to proceedings in all courts, not only in the magistrate's court. It does not follow, however, that the proviso to section 278[3] qualifies in any way the substantive provisions of section 150[4]: i.e. it cannot have any bearing upon the right conferred
upon an accused in section 150[4] to demand that he be acquitted or found guilty once he has pleaded.
To decide whether the orders made by the court a quo were justified or not, it is necessary to look at the facts to determine what it was that the court a quo was called upon to decide and whether, in the light of the facts, the trial judge's decision can be faulted. Cf S v Bopatse 1966 pi SA 145 TCI.
The prosecutor in the present case started by informing the court that he wished "to withdraw charges" against all the respondents. Subsequently he indicated that he had no objection to the seized property, except for the pistol and the ammunition, being returned to respondents.
Asked specifically what his attitude was to the respondents7 legal representatives' submission that their clients should be acquitted, Mr Gunda indicated that they could be "acquitted without prejudice to charges". That was a meaningless statement; an acquittal cannot be qualified and charges could not be brought once they were acquitted. However, he finally stated
that the court had "a discretion" to acquit.
Having pleaded, respondents were entitled to demand that they be acquitted: Section 150[4] says so in so many words. In the light
of all the circumstances, namely, the lengthy period [some four years] that had elapsed since their arrest, the fact that the prosecutor had indicated that he would not be able to find witnesses who could establish the state case and his intimation to the court that he was not opposing the respondents' demand that they be acquitted, the court a quo's decision to acquit the respondents is unassailable.
Similarly, with regard to the order that the seized property, with the exception of the pistol and the ammunition, be returned to respondents, the court a quo relied, as it was entitled to do, on the fact that the prosecutor, representing the State, had no objection to such an order being made. There is no suggestion on the record that any third party had an interest in any of such property. In the circumstances the order for the return of the property
made by the court a quo was fully justified.
Relying on the judgement in Busi's case [supra], Mr Molomo sought to argue that the judge a quo had not averted his mind to all the material necessary to enable him to exercise his discretion properly. In Busi's case after two witnesses had been called by the State, the prosecutor found himself without witnesses and asked for the charge to be withdrawn. On the facts of that case it was clear that he was merely asking for the accused to be discharged, unlike in the present case where the attitude of the prosecutor as conveyed to the court was that he acquised in the respondents' demand that they be acquitted.
On 6* ]uly 2000 appellant lodged an affidavit deposed to by the Attorney General in which the latter stated that Mr Gunda was not authorised by him to withdraw the charges against respondents. This was followed by an affidavit by one Balibadzi Zulu Boy, the investigating officer in the case, which was tendered shortly before the hearing of this appeal. In this affidavit he describes the discussion which took place between Mr Gunda and himself
at the hearing on 14 February 2000. In short, he says that he disagrees with Mr Gunda's assessment of the merits of the prosecution's
case.
At the hearing of the appeal Mr Molomo submitted that the affidavits were admissible in terms of section 10[1][c] of the High Court
Act [Cap 04:02] read with section 7 of the Court of Appeal Act [Cap 04:01] which entitles this Court to receive further evidence
when deciding an appeal.
There are two comments which it is necessary to make following on the filing of these affidavits. Firstly, the authority of the Attorney General, to which reference is made in section 278[3], was irrelevant for
the purposes of the action taken by the prosecutor when he withdrew the case. The Attorney General's authority is required only if
the prosecutor seeks to withdraw an indictment and replace it with another. That was not what Mr Gunda sought to do. The Attorney General's specific authorisation was therefore not required. The affidavits are accordingly irrelevant and cannot be considered. I do not, of course , intend to suggest that the Attorney General
does not have authority to control a prosecution in the sense of giving a prosecutor instructions during the course of a trial. The attorney General can even replace a prosecutor at any stage of the proceedings. However, as far as the court is concerned, it is entitled to assume that a prosecutor appearing for the
State in a criminal trial, has the authority of the Attorney General in regard to the manner in which the trial is conducted.
Secondly, in terms of section 51 [4] of the Botswana Constitution, the powers of the Attorney General inter alia to conduct criminal proceedings may be exercised by him in person or by officers subordinate to him in accordance with his general or specific instructions. The Attorney General normally acts though subordinates such as Mr Gunda. By appointing a subordinate to conduct a criminal prosecution, the Attorney General represents to the court as well as to the accused and his legal representative, that such a subordinate is authorised by
him to conduct the prosecution. The court and the legal practitioner concerned are entitled to assume that such a subordinate is authorised to conduct the proceedings. Moreover, the court is entitled to rely on statements made by such a subordinate in the course of conducting proceedings.
To suggest, as Mr Molomo has submitted, that when Mr Gunda informed the court a quo that he did not have witnesses who could advance his case in any way, the court should have embarked on an independent investigation into whether this was in fact so or not, is absurd. Similarly, Mr Molomo's submission that the court a quo should not have accepted the prosecutor's assurance that there was no objection to the seized goods being returned to respondent's but should itself have investigated whether third parties had any rights in such property, has only to be stated to be rejected. The courts are entitled to rely on what the prosecutor says in circumstances such as these. They are not expected to conduct an independent investigation into the veracity of statements and assurances given to them by the Attorney General's representative. Such reliance is essential for the efficient conduct of its business by the courts and the upholding of their independence.
Finally it needs to be pointed out that if a miscarriage of justice has been caused in the present case, the fault lies squarely with appellant's representative. There is no way in which this court can avert such a possible result.
The appeal is dismissed with costs.
DELIVERED IN OPEN COURT AT LOBATSE THIS
DAY OF JULY 2000.
G. FRIEDMAN
Judge of Appeal
AMISSAH P.
I would like to add two points to what my Brother Friedman has said. One is a point of practice and the other on the merits.
When the appeal was called, we raised the following matter with counsel for the appellant. Despite the fact that the decision of Gittings J was given on 14th February 2000, and preliminary grounds of appeal were filed by the appellant four days later, it was not until 30 June that the appellant filed his heads of argument. The 2nd and 4th respondents were accordingly obliged to file their heads without reference to the heads filed by appellant. It must be realised that
the Session of the Court commenced on 3 July 2000. On that day, the appeal was set down for hearing on 7 July. On 5 July, that is two days before the
hearing, a second and more detailed heads of arguments was filed by the appellant. No acceptable reasons were given why appellant delayed some four and a half months before filing his heads of argument. Clearly the late filing of heads prejudiced the respondents
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who had very little time to prepare themselves and to assist the court in a matter of such considerable public importance. No application to condone the failure to file heads timeously was ever made. Counsel did however tender an apology on behalf of the appellant. The appellant also sought as late as 6 ]uly, that is the day before the hearing, to introduce evidence not previously tendered in the Court a quo in the appeal before us. The evidence was contained in two affidavits: one by the appellant himself and the other by the investigating officer referred to in the judgements. Again, on this occasion no explanation
was forthcoming as to why such a lengthy delay had occurred before taking the unusual step of seeking to introduce fresh evidence on appeal.
The appellant is the Attorney General of the land. His office is the custodian of the public interest and its right to sound and efficient legal practice. He should ensure that the manner in which legal proceedings are conducted on his behalf is manifestly fair and equitable to other parties against whom he appears, as well as in the best interest of the administration of justice by the Court. Prejudice occasioned by unjustified delay should be avoided. Regrettably the
way in which the present appeal was prosecuted has not complied with these requirements.
As I said in open court, we trust that such unacceptable practice will not occur in future.
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With regard to the merits of the appeal, I must say that I agree totally with what my Brother Friedman has said. This case is illustrative of the basic principle that every case depends on its own peculiar facts. As the person who was responsible for writing the decision in the Busi case I think I ought to state that I do not think that that decision justifies us in holding otherwise than dismissing the appeal of the Attorney General in this case. There is a vast difference between a judge acquitting an accused person when the prosecutor applies to withdraw the charges and a judge acquitting when the prosecutor states that in the circumstances in which he finds himself, the State cannot proceed, and has no prospects of ever proceeding with the case and therefore concedes that the judge is entitled, as the accused person requests, to acquit him as section 150(4) provides. The former was what happened in the Busi case; the latter happened in this case. Confirmation of the position adopted by the prosecutor in this case is supplied by the fact that he agreed to the release of the properties obviously intended as exhibits in the case. How any future prosecution, in his estimation, was to be proved when the exhibits had, upon his acquiescence, been released and disappeared to Lesotho and South Africa where the accused persons live, is a question which confounds me. In my opinion, the prosecutor virtually told the Court that a future prosecution was impossible.
I further agree that it is not the business of the Court to embark upon an inquiry to find out whether or not the concession to an acquittal was specifically authorised by the Attorney General. The Attorney General in choosing the prosecutor to
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prosecute the case represents to the Court that the prosecutor is competent to do so, and that he, the prosecutor, has his, the Attorney General's, authority to conduct the case as the prosecutor thinks appropriate. If in the conduct of the case the prosecutor reaches a point where he thinks the Attorney General should be consulted, nothing prevents the prosecution from seeking an adjournment for an appropriate period of time to do so. If the prosecutor proceeds throughout a case without asking for such an adjournment, the Court cannot know and cannot be expected to divine that the prosecutor has reached the limits of his authority and is in need of fresh instructions. To conclude otherwise is to appoint the Court a supervisor of the prosecutor, which would make the
business of the Court impossible. It would impose a duty on the Court to embark upon an inquiry to find out every time the Court disagrees with the prosecutor whether the latter has the authority of the Attorney General in saying what he has said. What the limits of a prosecutor's authority are is a matter between the Attorney General and his representative. It is for the Attorney General to take what action he deems fit within his office for any breach of general or specific instructions by his subordinate, and not for the Court.
Finally, with regard to the affidavit of the Police Officer that he disagreed with the opinion of the prosecutor, I must say that I had always believed that it was the duty of the Attorney General's office, as discharged by his representatives, to advise the police on a criminal prosecutions. The affidavit presumes that the respective roles
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of police and Attorney Generals representative should be reversed. I am sure that It was not the intention of the Attorney General
to encourage this presumption.
I think the respondents were properly acquitted.
DELIVERED IN OPEN COURT AT LOBATSE THIS 24th DAY OF JULY 2000.
A.N.E. AMISSAH President
J. H. STEYN Judge of Appeal
M. KUMLEBEN Judge of Appeal
LORD D. B. WEIR Judge of Appeal
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URL: http://www.saflii.org/bw/cases/BWCA/2000/15.html
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