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Rankalo v The State (Criminal Appeal No. 25 of 2000) [2000] BWCA 24; [2000] 2 B.L.R. 164 (CA) (28 July 2000)
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IN THE COURT OF APPEAL FOR BOTSWANA HELD AT LOBATSE
Criminal Appeal No. 25 of 2000
[High Court Criminal Committal No. F14 of 1995
In the matter between:
MALOPE RANKALO
Appellant
And
THE STATE
Respondent
P. Kgalemang for the Appellant Mrs L.I. Dambe for the Respondent
JUDGMENT
CORAM: AM1SSAH P. AGUDA J.A. STEYN J.A. KORSAH J.A. FRIEDMAN J.A.
AMISSAH P.
The appellant was charged with rape contrary to sections 141 as read with section
142 of the Penal Code [08:01] as amended by the Penal Code (Amendment)
Act, 1998 [Act No. 5 of 1998]. The appellant duly appeared before the Senior
Magistrate at Serowe. After taking the evidence in the case, the Senior Magistrate
found the appellant guilty of the offence as charged. In accordance with section
142(3) of the Penal Code, the appellant was required to undergo a Human
Immune-system Virus (HIV) test before sentence. The appellant tested positive.
2
Under section 142(4), where it is proved that such a person was unaware of being HIV positive, he is liable upon his conviction for
rape to a minimum sentence of 15 years imprisonment. As the Senior Magistrate had no power to impose such a sentence, he committed the appellant to the High Court
under section 296 of the Criminal Procedure and Evidence Act for sentence.
The appellant duly appeared before Mwaikasu J. Before sentence, the appellant raised a number of objections to his conviction by the Senior Magistrate. One of his complaints was that the judgment was not read to him by the Senior Magistrate on the stated date. The learned Judge, "upon perusal of the record and upon interviewing the accused" came to the conclusion that this complaint was totally false. Later the judge said, "Now having
thoroughly examined the record of the lower court, I am fully satisfied that the accused's conviction is founded." The appellant
was, as a result, sentenced to the minimum term of 15 years imprisonment as required by law.
The appellant on his own noted an appeal on several grounds mainly relating to the unsatisfactory nature of the evidence on which his conviction was based. In this appeal, his Counsel abandoned all those grounds and took a single new point. That is that it is obvious from the record that no plea was taken at the alleged trial of the appellant, and since that was not done, there was an irregularity which vitiated the conviction. For that proposition, Counsel relied on the decision of this Court in
3
Gaonyadiwe Mmatli and Another v. The State (Criminal Appeal No. 17 of
1999) (judgment given on 20 January 1999: unreported). In that case, Aguda
J.A. in a judgment which was concurred in by Steyn and Kumleben ]]A. said this:
"In my view as the law stands presently in this country, it is this - and it has been so espoused by the president of this court, Amissah, P. in State v. Newato 1990 BLR 563 at 571 -
"
the plea is an important feature preceding a
criminal trial. The Act requires it. It is upon the pleading that issue is joined between the accused person and the State."
It is not a mere ritual...., it is an important and indeed a vital feature of criminal trials in this country.
It stands to reason, I believe that a person can only be expected to effectively defend himself in respect of a charge of which he
has been given sufficient information in a language which he understands upon arraignment. To hold and proceed otherwise is fraught with extreme danger to our sense of justice in this country."
At the end of that judgment, Aguda J.A. concluded,
"The conclusion which in my view is irresistible is that the failure of a Court to [have] read the charge to an accused in open court and interpreted to him in a language which he understands and given an opportunity to plead to it is an irregularity which will render any conviction subsequently recorded thereafter null and void."
Counsel for the State has properly conceded that there is no indication that the charge sheet was ever read to the appellant; nor is there evidence that he was given an opportunity to plead to it. And that on the authority of State v. Newato and Gaonyadiwe Mmatli v. The State she could not resist the appeal.
In the circumstances, the appeal succeeds. The trial of the appellant by the Senior Magistrate is declared a nullity. And the case is remitted to the Magistrate's Court to be tried by a Magistrate other than Mr. Nare.
Meanwhile, the appellant is remanded in custody.
Delivered in open court at Lobatse on 28th July 2000
A.N.E. AMISSAH [PRESIDENT]
I agree:
T.A. AGUDA [JUDGE OF APPEAL]
I agree:
J.H. STEYN [JUDGE OF APPEAL]
I agree:
K.R.A. KORSAH [JUDGE OF APPEAL]
I agree:
G. FRIEDMAN [JUDGE OF APPEAL
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