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State v Sibanda (Criminal Appeal 1/2000) [2000] BWCA 3; [2000] 1 B.L.R. 167 (CA) (1 January 2000)
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.RTF of original document
1
IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
COURT OF APPEAL CRIMINAL APPEAL NO. 1/2000 HIGH COURT CRIMINAL APPEAL NO. 50/98
In the matter between:
THE STATE
Appellant
VS
TAKESURE SIBANDA
Respondent
Messrs S. Tiroyakgosi, B. Nlandla and E. Batsalelwang for the Appellant.
Mr. U. Mack for the Respondent
\par
V
AND
COURT OF APPEAL CRIMINAL APPEAL NO. 33/99 HIGH COURT CRIMINAL APPEAL NO. 231/96
In the matter between:
OLEBENG IKUTLWENG AND 2 OTHERS
Applicant
Vs
THE STATE
Respondent
2
Mr. U. Mack for the Applicant
Messers S. Tiroyakgosi, B. Nlandla and E.
Batsalelwang for the Respondent
JUDGME N T
CORAM: Amissah P Korsah JA Friedman JA
FRIEDMAN JA:
These two matters were heard together as the same issue arises in both.
The relevant facts in the SIBANDA matter are as follows: Takesure Sibanda, to whom I shall refer as the accused, was charged with housebreaking and theft in the Magistrate Court together with two co-accused. On 30th January 1998 he was convicted and sentenced to 6 years imprisonment on the housebreaking charge and to 4 years on the theft charge. The sentences were ordered to run concurrently.
The accused appealed to the High Court against both the convictions and sentence. The appeal was heard on 11th November 1998 by Gittings J who dismissed his appeal.
3
On 19th November 1998 the accused appeared before Gittings J in person (as he had done at his trial) seeking leave to appeal to the Court of Appeal. On that day the accused informed Gittings
J that he had not understood some of the proceedings in the magistrate's court as he does not speak Setswana. He stated, further,
that he had been unable to conduct his defence properly as he was not afforded the benefit of an interpreter who could translate
from Setswana into English.
Gittings J postponed the application until 8th December 1999 in order to obtain an affidavit from the magistrate as to whether, in the light of the accused's assertion that he had raised this
issue before the magistrate when his trial commenced on September 1997, he had in fact raised the question of his inability to understand
Setswana and whether he had asked for an interpreter.
In an affidavit deposed to on 3rd December 1999 the
magistrate stated, inter alia, as follows:
"5. That on the 1st September 1997 the appellant and two others were arraigned before me on charges of House-breaking and theft from the same house;
4
6. That the appellant stated very clearly that he understood the charges and pleaded not guilty to both;
7.
That at all times as can be discerned from the record, the appellant and the court were understanding each other. For example he cross-examined
the witnesses ably. And he chose to speak the English Language when he gave evidence;
8.
That the appellant appears not to be a first offender though a check on his previous convictions yielded nought. He appeared to me to be a person well familiar with court proceedings so that if he had a problem with the language he would or should have indicated that. He mitigated well and even knew of a "wholly suspended sentence" as
he said in mitigation.
9. I believe that the appellant is just playing around."
In a judgment delivered on 8th December 1999 Gittings J stated that "in the light of the recent decision of the Court of Appeal in the case of CR. APP. 42/98 KABELO MMESETSE AND ANOTHER VS THE STATE concerning the necessity of Accused persons being afforded interpreters in their case, I believe I should err on the side of caution
and order a retrial of this matter in the Magistrate Court." Gittings J further ordered that the new trial be conducted before
a different magistrate and that an interpreter be made available to the accused.
5
The Attorney General then brought an application to this
Court in terms of Section 336(1) of the Criminal Procedure
and Evidence Act (Cap. 08:02) for a determination of the
correctness of the order of Gittings J that the accused be
retried. Section 336(1) 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."
It would appear that the order made by Gittings J on 8th December 1999 was not a decision on or in relation to a question of law; nor was it given at any stage of criminal proceedings. It
was an order rescinding the order he had made previously dismissing the appeal. The criminal proceedings had terminated when the
accused was convicted and sentenced. However, at the hearing before this Court, counsel for the Attorney General applied for the
matter to be treated as an appeal by the Attorney General in terms of Section 12(1) of the Court of Appeal Act, Cap.04:01. Counsel for the accused having agreed to this course, this Court acceded to the Attorney General's application.
6
Once Gittings J dismissed the accused's appeal on 11th
November 1999, he was functus officio. His order
dismissing the appeal could not be varied save in
accordance with Order 48 of the High Court Rules. That
Order reads as follows:
1. The court may in addition to any other powers it may have mero motu, or upon the application of any party affected, rescind or vary -
(a)
an order or judgment erroneously sought or erroneously granted without notice to any party affected thereby;
(b)
an order or judgment in which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error
or omission;
(c)
an order or judgment granted as the result of a mistake common to all parties.
2.
Any party desiring any relief under this rule shall make application therefor upon notice to all parties whose interests may be affected
by any variation sought.
3.
The court shall not make any order rescinding or varying any order or judgment unless satisfied that all parties whose interests may
be affected have notice of the order proposed."
None of the provisions of that Order entitled the learned Judge to rescind the order made on 11th November 1999 and to order a re-trial. The facts of the Mmesetse case to which Gittings J referred are entirely distinguishable. In that
7
case it was common cause that the accused did not understand Setswana and that an interpreter was required to interpret into a language
which the accused understood. The Court of Appeal having received affidavits in terms of Rule 29 read with Rule 51 of the Rules of
the Court of Appeal found, on the affidavits placed before it, that the trial judge had failed to satisfy himself that the interpreter
in question was properly qualified to interpret into a language understood by the accused. In the circumstances the Court of Appeal
found that the irregularity which had occurred had resulted in a failure of justice which vitiated the proceedings.
In the present case there was no appeal before Gittings J; the appeal had already been disposed of on 11th November 1999. It was no longer open to the learned judge, at the hearing of an application for leave to appeal to the Court of Appeal
against his order dismissing the accused' s appeal, to order a retrial. Such an order amounted to a rescission of the judgment given on 11th November 1999, dismissing the appeal. As indicated above, no grounds existed justifying such a rescission.
8
The appeal by the Attorney General against the order made by Gittings J on 8th December 1999 in which a retrial was ordered, succeeds and that order is set aside.
I turn now to the matter of IKUTLWENG AND 2 OTHERS VS THE
STATE. The three accused in that case, namely Olebeng
Ikutlweng (first accused), Winky Moroka (second accused)
and Khokhae Itirileng (third accused) were convicted and
sentenced in the magistrate's court for the following
offences:
COURT 1: All three accused were convicted of robbery
first accused was sentenced to 14 years imprisonment and two strokes of the cane; second accused was sentenced to 12 years imprisonment
and two strokes and third accused was sentenced to 4 years imprisonment.
COURT 2: All the accused were convicted of possession of a firearm without a licence and each was sentenced to a fine of P200 or three months imprisonment.
COURT 3: First accused was convicted of theft and sentenced to 18 months imprisonment.
COURT 4: First accused was convicted of possession of a firearm without a licence and sentenced to a fine of P200 or three months imprisonment.
COURT 5: First accused was convicted of robbery and sentenced to 14 years imprisonment.
The sentences were ordered to run concurrently.
All the accused appealed to the High Court against both
their convictions and sentences. In a judgment delivered
9
on 1st
October 1997 Aboagye J dismissed each accused's
appeal.
The accused applied for leave to appeal to this
Court.
On 24th March 1999 Aboagye J made the following
order:
"Application for leave to appeal to the Court of Appeal is refused.
1st appellant's conviction and sentence on count 4 is quashed."
The accused then applied to this court for leave to appeal. On 7th January 2000 their application was dismissed but the issue as to the competence of the order made by Aboagye J quashing the conviction and sentence of first accused on count 4, was referred to this Court for consideration.
For the reasons stated above in regard to the
Sibanda
matter, Aboagye J was functus officio at the stage
that he
heard the application for leave to appeal. No
grounds
existed on which it was competent for him to have
quashed
the conviction on count 4.
The order made by Aboagye J on 24th March 1999 quashing first accused's conviction and sentence on count 4 is accordingly set aside.
10
DELIVERED IN OPEN COURT THIS
DAY OF JANUARY 2000
(JUDGE OF APPEAL)
I agree
A. (PRESIDENT)
I agree
KORSAH JUDGE OF APPEAL)
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