Matlapeng v The State (Criminal Appeal No 45 of 2000 ) [2001] BWCA 8; [2001] 1 B.L.R. 161 (CA) (31 January 2001)

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Matlapeng v The State (Criminal Appeal No 45 of 2000 ) [2001] BWCA 8; [2001] 1 B.L.R. 161 (CA) (31 January 2001)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
COURT OF APPEAL CRIMINAL APPEAL NO. 45 OF 2000 HIGH COURT CRIMINAL COMMITTAL NO: 19 OF 2000
In the matter between:
SHIMA MATLAPENG Appellant
and
THE STATE Respondent
Mr. K. P. Gaoboi for the Appellant Mr. I. Motsamal for the Respondent
JUDGMENT
CORAM: TEBBUTT JA LORD WEIR JA ZIETSMAN JA
ZIETSMAN JA:

The appellant was found guilty In the magistrate court of having raped Kaboyaone Kesetse at Lenganeng Ward, Tlokweng, on 6 March 2000. In terms Section 142 (3) of the Penal Code (as amended) he was required to undergo a Human Immune -System virus test before sentence was passed upon him. The result of the test indicated that he is HIV positive and, believing that the minimum sentence for

the offence was 15 years imprisonment, the magistrate committed the matter to the High Court for sentencing and a sentence of 15 years imprisonment was imposed.

The appellant appeals against both his conviction and his sentence. It was not proved at the trial that the appellant was HIV positive at the time when the offence was allegedly committed, and it appears to be clear from the record that both the magistrate and the judge of the High Court erred in concluding that the minimum sentence which could be imposed, having regard to Subsection 142 (4) (a) of the Penal Code, was 15 years imprisonment. It is clear from the decision of this court in the case of Dijaje Makuto v. The State_f Crimnial Appeal Case No. 31 of 1999, that subsection 142 (4) (a) does not apply in this case and that the minimum sentence applicable was 10 years imprisonment.

I come now to deal with the appeal against the conviction.

The appellant was found guilty on the strength of a plea of guilty. His counsel has submitted that his alleged plea of guilty was not unequivocal and was not made voluntarily, that a plea of not guilty should have been entered and that the matter should have gone to trial. What took place at the time when the appellant was asked to plead to the charge appears clearly from the record. A summary of the facts alleged against him was read out and explained to the appellant after which the following questions and answers were recorded:

3
"Court: Accused, did you understand the facts as they were
read to you?
Accused: Yes, I understood the facts..
Court: Do you admit the facts that on the evening of 6*

March 2000 at about 2030 hours at Lenganeng ward, Tlokweng you had sexual intercourse with the complainant Kaboyaone Kesetse?

Accused: Yes that is correct. I admit the facts.
Court: Do you also admit that such sexual intercourse was

without the consent of the complainant Kaboyaone Kesetse?

Accused: That is not true, she had consented.
Court: The accused denies an essential element of the offence

charged, his plea of guilty is therefore equivocal and I shall accordingly withdraw the plea of guilty and enter a plea of not guilty for the accused.

Accused: No, I want to plead guilty. 1 said she had consented because, she consented when I became violent, when I used force on her.

Court: I shall put the elements of the offence to the accused

again to ascertain, the plea he really wants to make in this matter.

Court: Accused, do you admit the facts that on the evening of

6^th March 2000 at about 2030 hours at Lenganeng ward in Tlokweng village, you had sexual intercourse with the complainant Kaboyaone Kesetse?

Accused: Yes, I admit the facts, I had sexual intercourse with her.
Court: Do you further admit that such sexual intercourse was

without the consent of the complainant Kaboyaone Kesetse?

Accused: Yes that is correct, she did not consent, I forced her to have sexual intercourse with me.

4
Court: Do you further admit that at the time you had unlawful

sexual intercourse with the complainant, you pulled her off the road, and as she resisted you hit her on the left side of her head with an unidentified hard object and occasioned her an injury on the head?

Accused: Yes I admit the facts, I pulled her off the road and hit her with a hard object as she resisted.
Court: What is this hard object which you hit her with?
Accused: It was a piece of iron. I picked it on the side of the road."

The magistrate then recorded the following: "I am satisfied that the accused wishes to maintain his plea of guilty. I shall revoke my earlier ruling and allow accused 's plea of guilty to stand."

Before a plea of guilty can be recorded the magistrate or judge trying the case must be satisfied that the accused fully understands the charge brought against him and intends to admit all of the elements of that charge. If there is any doubt about this a plea of not guilty must be recorded. Where all of the elements of the offence are understood and unequivocally admitted by the accused he can, in a case such as this, be convicted purely on his plea of guilty.

In the present case the appellant, when first asked whether the sexual intercourse was without the consent of the complainant, said: "That is not true, she had consented." The magistrate then quite correctly stated that because the accused had denied an essential element of the offence his plea of guilty was not

unequivocal and that the plea of guilty would be substituted by a plea of not guilty. The accused then said "No I want to plead guilty." The magistrate again put the elements of the offence to the appellant who then told her that he had forced the complainant to have intercourse with him and that she in fact did not consent to the intercourse. He went on to describe the force he had used, and stated that he had hit the complainant with a piece of iron.

Reading the record, and in particular the part of the record quoted above, I have no doubt that the appellant admitted, and intended to admit, all of the elements of the offence and that his plea of guilty was unequivocal.

The appellant's counsel also takes the point that the trial magistrate erred in not advising the appellant of his constitutional right to legal representation.

Every accused person is entitled to a fair trial and it is incumbent upon the judicial officer presiding at his trial to ensure that he is aware of his rights. A failure to fully explain his rights to an accused person might in certain circumstances lead the court of appeal to conclude that there has been a failure of justice and that the conviction cannot stand.

An accused person's right to legal representation at his trial is enshrined in Section 10 of the Constitution of Botswana. See also the case of Maphane v. The State 1991 BLR 304 at 311. The question whether it is the duty of a judicial officer to

inform an unrepresented accused of his right to legal representation, and whether his failure to do so will inevitably result in an irregularity in the judicial proceedings, was considered in the South African Appellate Division Case of S v. Mabaso and Another 1990 (3) SA 185 (A.D.) It was held in that case that a Judicial Officer presiding at criminal proceedings does have a duty to inform an unrepresented accused of his right to legal representation and that a failure to do so might lead a court of appeal to conclude that there has been a failure of justice . This matter is more fully dealt with in another judgment of this court in the case of Ndanaka Moroka v. The State Cr.A No. 41/2000 where reference is also made to the cases of S v. Radebe 1988 (1) S.A. 191 and S. v. Rudman 1989 (3) S.A. 368.

In the Mabaso case the accused were not informed of their right to legal representation before they pleaded. In certain of the charges brought against him accused Nol pleaded guilty, but after questioning him the magistrate noted pleas of not guilty to those charges and to the other charges brought against him. Accused No. 2 pleaded not guilty to all charges. During the questioning of the accused on the strength of their pleas certain admissions were made by them. These were recorded as formal admissions and were relied upon at the end of the trial when the guilt of the accused was determined. The question which the court had to decide was whether an irregularity had been committed. The court held that the purpose of the questioning of an accused who has pleaded not guilty to a charge is to clarify the issues in dispute. The court held further that where an accused pleads guilty to the charge the object of the questioning is not to further

incriminate him but to prevent the erroneous entering of a plea of guilty. An accused person has the right to legal representation at the time when the questioning takes place but the failure to inform him thereof will not necessarily result in an irregularity leading to a failure of justice. In the Mabaso case it was held that no failure of justice had occurred. However, each case will depend upon its own particular facts.

In the present case the appellant was not advised of his right to legal representation before he pleaded and before he was questioned on the strength of his plea. He first told the magistrate that the complainant had consented to the intercourse. Thereafter he said that she did not consent thereto. Fairly detailed questioning by the magistrate followed and the appellant's answers do not suggest that he was then confused in any way. He was in fact adamant that he intended to plead guilty to the charge.

The question which arises here is whether the failure by the magistrate to inform the appellant of his right to legal representation amounted in this case to an irregularity and a failure of justice. After careful consideration of the matter I have come to the conclusion that despite the failure of the magistrate to advise the appellant of his right to legal representation, and despite the initial confusion regarding his plea of guilty, the appellant clearly intended to plead guilty to the charge and no miscarriage of justice occurred. My conclusion is that the noting of the plea of

guilty by the magistrate was justified and that the appellant was correctly convicted on the strength of his plea.

In view of my conclusion that the appellant's plea of guilty was correctly noted and relied upon, it becomes unnecessary for me to deal with the other points raised by appellant's counsel regarding the admissibility or otherwise of the medical report and the affidavit from the forensic laboratory, which documents were handed in at the trial.

I would In the result dismiss the appeal In respect of the appellant's conviction, but allow the appeal In respect of the sentence and substitute for the sentence of 15 years Imprisonment a sentence of 10 years Imprisonment.

Delivered in open Court this 31st day of January 2001

N. W. ZIETSMAN
JUDGE OF THE COURT OF APPEAL

I AGREE
P. H. TEBBUTT JUDGE OF APPEAL
I AGRil
LORD WEIR
JUDGE OF APPEAL

IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
COURT OF APPEAL CRIMINAL APPEAL NO. 45 OF 2000 HIGH COURT CRIMINAL COMMITTAL NO. 19 OF 2000
In the matter between:
SHIMA MATLAPENG Appellant
and
THE STATE Respondent
Mr. K.P. Gaoboi for the Appellant Mr. I. Motsamai for the Respondent

JUDGMENT
CORAM: TEBBUTT JA
LORD WEIR JA ZIETSMAN JA
THE COURT:
The appellant was found guilty in the magistrate's court of having raped Kaboyaone Kesetse at Lenganeng Ward, Tlokweng, on 6 March 2000. In terms of Section 142 (3) of the Penal Code (as amended) he was required to undergo a Human Immune - System virus test before sentence was passed upon him. The result of the Test indicated that he is HIV positive and, believing that the minimum sentence for

2
The offence was 15 years imprisonment, the magistrate committed the matter to the High Court for sentencing.
It was not proved at the trial that the appellant was HIV positive at the time when the offence was allegedly committed. The learned judge in the High Court applied the decision of this court in the case of Diiaie Makuto v. The State Criminal Appeal case no 31 of 1999 and imposed the minimum sentence applicable in such circumstances viz. ten years imprisonment.
The appellant does not appeal against the sentence but appeals against his conviction only.
The appellant was found guilty on the strength of a plea of guilty. His counsel has submitted that his alleged plea of guilty was not unequivocal and was not made voluntarily, that a plea of not guilty should have been entered and that the matter should have gone to trial. What took place at the time when the appellant was asked to plead to the charge appears clearly from the record. A summary of the facts alleged against him was read out and explained to the appellant after which the following questions and answers were recorded:

3
"Court: Accused, did you understand the facts as they were
read to you?
Accused: Yes, I understood the facts..
Court: Do you admit the facts that on the evening of 6^th

March 2000 at about 2030 hours at Lenganeng ward, Tlokweng you had sexual intercourse with the complainant Kaboyaone Kesetse?

Accused: Yes that is correct. I admit the facts.
Court: Do you also admit that such sexual intercourse was

without the consent of the complainant Kaboyaone Kesetse?

Accused: That is not true, she had consented.
Court: The accused denies an essential element of the offence

charged, his plea of guilty is therefore equivocal and I shall accordingly withdraw the plea of guilty and enter a plea of not guilty for the accused.

Accused: No, I want to plead guilty. I said she had consented because, she consented when I became violent, when I used force on her.

Court: I shall put the elements of the offence to the accused

again to ascertain, the plea he really wants to make in this matter.

Court: Accused, do you admit the facts that on the evening of

6^th March 2000 at about 2030 hours at Lenganeng ward in Tlokweng village, you had sexual intercourse with the complainant Kaboyaone Kesetse?

Accused: Yes, I admit the facts, I had sexual intercourse with her.
Court: Do you further admit that such sexual intercourse was

without the consent of the complainant Kaboyaone Kesetse?

Accused: Yes that is correct, she did not consent, I forced her to have sexual intercourse with me.

4
Court: Do you further admit that at the time you had unlawful

The magistrate then recorded the following: "I am satisfied that the accused wishes to maintain his plea of guilty. I shall revoke my earlier ruling and allow accused 's plea of guilty to stand."

Before a plea of guilty can be recorded the magistrate or judge trying the case must be satisfied that the accused fully understands the charge brought against him and intends to admit all of the elements of that charge. If there is any doubt about this a plea of not guilty must be recorded. Where all of the elements of the offence are understood and unequivocally admitted by the accused he can, in a case such as this, be convicted purely on his plea of guilty.

The appellant's counsel also takes the point that the trial magistrate erred in not advising the appellant of his constitutional right to legal representation.

An accused person's right to legal representation at his trial is enshrined in Section 10 of the Constitution of Botswana. See also the case of Maphane v. The State 1991 BLR 304 at 31 1. The question whether it is the duty of a judicial officer to

inform an unrepresented accused of his right to legal representation, and whether his failure to do so will inevitably result in an irregularity in the judicial proceedings, was considered in the South African Appellate Division Case of S v. Mabaso and Another 1990 (3) SA 185 (A.D.) It was held in that case that a Judicial Officer presiding at criminal proceedings does have a duty to inform an unrepresented accused of his right to legal representation and that a failure to do so might lead a court of appeal to conclude that there has been a failure of justice . This matter is more fully dealt with in another judgment of this court in the case of Ndanaka Moroka v. The State Cr.A No. 41 /2000 where reference is also made to the cases of S v. Radebe 1988 (1) S.A. 191 and S. v. Rudman 1989 (3) S.A. 368.

In the Mabaso case the accused were not informed of their right to legal representation before they pleaded. In certain of the charges brought against him accused No 1 pleaded guilty, but after questioning him the magistrate noted pleas of not guilty to those charges and to the other charges brought against him. Accused No. 2 pleaded not guilty to all charges. During the questioning of the accused on the strength of their pleas certain admissions were made by them. These were recorded as formal admissions and were relied upon at the end of the trial when the guilt of the accused was determined. The question which the court had to decide was whether an irregularity had been committed. The court held that the purpose of the questioning of an accused who has pleaded not guilty to a charge is to clarify the issues in dispute. The court held further that where an accused pleads guilty to the charge the object of the questioning is not to further

7
incriminate him but to prevent the erroneous entering of a plea of guilty. An accused person has the right to legal representation at the time when the questioning takes place but the failure to inform him thereof will not necessarily result in an irregularity leading to a failure of justice. In the Mabaso case it was held that no failure of justice had occurred. However, each case will depend upon its own particular facts.
In the present case the appellant was not advised of his right to legal representation before he pleaded and before he was questioned on the strength of his plea. He first told the magistrate that the complainant had consented to the intercourse. Thereafter he said that she did not consent thereto. Fairly detailed questioning by the magistrate followed and the appellant's answers do not suggest that he was then confused in any way. He was in fact adamant that he intended to plead guilty to the charge.
The question which arises here is whether the failure by the magistrate to inform the appellant of his right to legal representation amounted in this case to an irregularity and a failure of justice. After careful consideration of the matter we have come to the conclusion that despite the failure of the magistrate to advise the appellant of his right to legal representation, and despite the initial confusion regarding his plea of guilty, the appellant clearly intended to plead guilty to the charge and no miscarriage of justice occurred. Our conclusion is that the noting of the plea of

8
guilty by the magistrate was justified and that the appellant was correctly convicted on the strength of his plea.
In view of the conclusion that the appellant's plea of guilty was correctly noted and relied upon, it becomes unnecessary to deal with the other points raised by appellant's counsel regarding the admissibility or otherwise of the medical report and the affidavit from the forensic laboratory, which documents were handed in at the trial.
In the result the appeal in respect of the appellant's conviction is dismissed and the conviction and sentence are confirmed.
P.H. TEBBUTT JUDGE OF APPEAL
LORD WEIR JUDGE OF APPEAL
N.W. ZIETSMAN
JUDGE OF APPEAL

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