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State v Dintwa (Criminal Application No 28 of 2000) [2000] BWCA 17; [2000] 2 B.L.R. 72 (CA) (24 July 2000)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
Court of Appeal Criminal Application No 28 of 2000
High Court Miscellaneous Criminal Application No.fFI 92 of 1998
In the matter between
THE STATE        APPELLANT
Versus
ISHMAEL DINTWA  RESPONDENT
Mrs Attorney L. I. Dambe with Mr Busang for the State Mr Attorney P.A. Kgalemang for the Respondent
JUDGMENT
CORAM: Amissah P. Aguda J.A. Steyn J. A. Korsah ].A. Friedman J. A.
FRIEDMAN J. A.
On 20th August 1998 Ishmael Dintwa, to whom I shall refer as "the accused", was arrested on a charge of rape. On 1 December 1998 he lodged an application in the High Court for bail. In the same application he sought an order declaring Section 142[1] [i] of the Penal Code [Cap 08:01 which had been introduced by Section 3 of the Penal Code [Amendment] Act, 1998, was unconstitutional.
l

The accused's application was set down for hearing before the High Court [Mwaikasu ]] on 14 April 1999. By that time the Attorney General had already, on 14th December 1998 withdrawn the charge against the accused. Despite the state prosecutor having informed the court of the withdrawal of the charge and that to proceed with the application would be "an academic exercise", the court postponed the application for hearing on a later date.
On 19th May 1999 the matter was argued and on 22nd June 1999 the learned judge gave a "ruling" granting the application with costs.
On 14 ]une 2000 the Attorney General served a notice in terms of Section 336[1] of the Criminal Procedure and Evidence Act [Cap 08:02] challenging the correctness of the ruling. Section 336 reads as follows:
[ 1 ] Where the High Court, at any stage of criminal proceedings, gives or makes any decision, ruling, opinion or statement on or in relation to a question of law and the Attorney-General has any doubt as to the correctness thereof, he may submit that decision, ruling opinion or statement to the Court of Appeal and cause the correctness thereof to be argued before the Court of Appeal on behalf of the State in order that the Court of Appeal may determine the correctness thereof for the future guidance of all courts.
[2] For the removal of doubt, it is hereby declared that the application of subsection [1] extends to an opinion or statement which is not essential to the determination of any issue.
2

The ruling given in the High Court was not made at any stage of criminal proceedings. By the time the application was heard the charge had been withdrawn and there were consequently no criminal proceedings in which it was competent for any ruling to have been given. The ruling given by the learned judge on 22 June 1999 was thus of no force or effect. It follows that the Attorney General's challenge of the ruling was likewise incompetent.
For these reasons the only course open to this court is to strike the matter off the roll. I must point out, however, that in so doing, this Court expresses no view on the correctness or otherwise of the ruling.
The matter is struck from roll.
DATED AT LOBATSE THIS 24th DAY OF JULY 2000.
G. Friedman Judge of Appeal

I agree
A. N. E. Amissah President

I agree
T.A. Aguda judge of Appeal


I agree
K.R.A. Korsah Judge of Appeal


I agree
J.H.Steyn Judge of Appeal


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