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Attorney General v Kegasitswe and Another (Criminal Appeal No. 18 of 201) [2002] BWCA 10; [2002] 1 B.L.R. 55 (CA) (20 January 2002)
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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Criminal Appeal No. 18 of 2001
High Court Crim. App. No. F22 of 2001
Mahalapye Crim Case No. MH 381 of 2000
In the matter between:
THE ATTORNEY GENERAL
Appellant
vs
MOTHUSI KEGAS1TSWE K ANOTHER
1$t Respondent
KELOTHOKO KELAOTSWE
2nd Respondent
Mr. L. Z. Ngcongco for the Appellant Mr. E. F. Luke II for the Respondents
JUDGMENT
Coram:
P. H. TEBBUTT, AGJ.P.:
N. W. ZIETSMAN, J.A.: R. I. SUTHERLAND, J.A.:
ZIETSMAN, J.A.:
This appeal turns on the interpretation of the definition of robbery as contained in
section 291 of the Penal Code, and in particular on the meaning to be given to the
words "actual violence" in the section. Section 291 reads as follows:
"Any person who steals an\ rhing, and, or immediately before or immediately after the time of stealing it, uses or threatens
to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance
to its being stolen or retained, is guilty of the offence termed robbery."
2
The two respondents were charged in the Magistrate's Court at Mahalapye with robbery in contravention of the aforementioned section.
They pleaded guilty to the charge. The State's statement of facts was then read out to the respondents who confirmed the correctness
of those facts. Each respoondent then made a further statement concerning the matter. The Magistrate was satisfied that the respondents
had admitted all of the elements of the offence of robbery and she found them guilty as charged. She sentenced each respondent to
the minimum sentence of 10 years' imprisonment.
An appeal by the respondents to the High Court succeeded. Lisimba, ]. held that the respondents had not admitted that they had used
or threatened to use actual violence against the person of the complainant, this being a necessary element of the offence of robbery.
He therefore ordered that the case be remitted to the Magistrate for the pleas of guilty to be recalled and for the proceedings to
commence afresh. Essential to Lisimba, ].'s judgment was his conclusion that the word "violence" as used in the section
signifies the exercise of physical force to inflict injury or damage to persons or property. In the present case, the respondents
admitted having applied physical force to the complainant in order to facilitate the theft of his money, but they did not admit or
say that this physical force had resulted in an injury to the complainant. Lisimba, J.'s conclusion was that they had therefore not
admitted all of the elements essential to the offence of robbery.
3
Lisimba, ].'s finding, in a nutshell, is that if a person assaults someone and steals something from him, he is guilty of robbery
only if the assault causes actual injury to the victim.
The State, with leave from the Court a quo, has appealed against this finding by Lisimba, ]., the State's submission being that on the facts of this case proof that the complainant
was injured when he was assaulted by the respondents was not a requirement for them to be convicted of robbery.
Before considering the meaning of the words "actual violence" in the section, I intend dealing with a further point raised
by Mr. Luke who appears for the respondents.
Mr. Luke referred us to several authorities which provide that before a plea of guilty by an accused person can be accepted, the presiding
judicial officer must be completely satisfied that the accused has fully understood the charge against him and that he in fact intends
to admit all of the elements that constitute the offence in question. His submission is that not enough was done in the present case
to ensure that the respondents fully understood the elements which constitute the crime of robbery.
4
It is clear from the record that a detailed statement of the facts alleged by the State
was put to the respondents and that they accepted the correctness of those facts.
The statement of facts reads follows:
"The two accused persons are friends and students at two different local Community Junior Sec Schools as addressed by the charge
sheet. The complainant is also a resident of Tshikinyega Ward.
The complainant was drinking beer at Lejose Liquor restaurant on the night of 1 -2/12/2000. The two accused persons and another one
who is lawfully separated from them happened to be at the same bar. At about midnight the victim left the bar alone intending to
go to sleep. He had already been identified by the accused persons as the correct person to be robbed. They followed him and somewhere
before he could arrive at his place they attacked him. The complainant ran into a nearby yard in which he was caught by the accused
persons and pushed him down. He was stepped onto the ground by one of them. The other one was holding him tight by his hands whilst
the third person did the searching. He screamed for help and somebody from the yard came out of the house. The accused persons ran
away with the victim's P400-00 contained in a purse. The first accused was identified. His identity was disclosed to the Police by
the reporter. He was arrested in the morning. He admitted the commission of the offence and handed his share of PI 20-00 to the Police.
He disclosed accused two to the Police and he was quickly arrested as well. Accused two also handed his cash share of PI 20-00 to the Police. It was explained and confirmed by them that the P400-00 stolen
in cash was equally shared at PI 20-00 between them then the remainder of P40-00 was jointly spent by them in buying drinks. They
produced the wallet exhibit to the Police on demand. It is produced with the amount of P2 40-00 to this honourable court as part of evidence. A charge of robbery was preferred against the accused persons which they were warned for by D/Sergeant Alidy."
5
After the statement of facts had been read out to the respondents, they made the following statements.
The first respondent (accused No. 1) said:
"I understand the facts. The facts are correct. I agree that I followed complainant from a restaurant. When we caught up with
him we attacked him. I admit that we searched him and took P400-00. We attacked him so that we could take money from him. I received
a share of PI 20-00 from the P400-00 we stole from him. I am guilty. I robbed the complainant and before I took the money I assaulted
him."
The second respondent (accused No.2) said:
"I understand the facts. The facts are correct. I admit that I followed complainant from the restaurant at night. I was with
accused 1 and another. We attacked him when we caught up with him. We took P400-00 from him. I received a share of PI 20-00 from
the money we stole from him. I admit that I committed robbery. The reason why we assaulted him was to steal the money. We jointly
spend the remaining P40-00."
The admissions made by the respondents were factual and not technical admissions and there is nothing to suggest that they did not
understand what they were admitting. They admitted that they intended to steal from the complainant; that they followed him when
he left the restaurant; that he tried to run away from them; that he was caught by them and pushed down onto the ground; that one
of them held him by his hands while the other "stepped (him) onto the ground" and a third
6
assailant, apparently a minor who was with the two respondents, searched his pockets; that his purse containing P400-00 was taken
from him and that they (the respondents) then ran away. The respondents admitted further that they attacked and assaulted the complainant
so that they could steal his money.
It is quite clear what the respondents admitted doing, and the only question that arises is whether the facts admitted by them constitute
the crime of robbery. The respondents did not admit that their assault upon the complainant injured him in any way and we must assume
for the purposes of this judgment that he was not injured. This brings us back to the question whether Lisimba, ]. was correct in
his conclusion that robbery is not committed where a man is assaulted and his money taken from him unless he is injured in the process.
Lisimba, ]., in interpreting the words "actual violence" used in the section, quoted
the following definitions taken from The Shorter Oxford English Dictionary:
"Actual: Existing in act or fact; real."
"Violence: The exercise of physical force so as to inflict injury or damage to persons or property; action or conduct characterized by this."
He then went on to state the following in his judgment:
"It seems obvious from the above definitions that to establish robbery the prosecution must prove as part of its case that the
exercise of physical force inflicting injury or damage was at the material time an existing act or fact and was real."
7
The New Shorter Oxford English Dictionary (published in 1993) gives several
meanings to the word "violence." These include:
"The exercise of physical force so as to cause injury or damage to a person, property, etc."
"A "violent or injurious act."
"A physical assault."
"Law: The unlawful exercise of physical force." From these definitions it is clear that the infliction of physical force upon the
person of another can correctly be described as the exercise of violence against that person even if no injury results therefrom.
Mr. Luke argued in support of Lisimba, J.'s decision. He submitted that if a person is thrown to the ground and his money is taken
from him the nature of the offence committed depends entirely upon whether the victim is injured or not. If he is not injured the
offence is not robbery; if his knee, for example, is visibly grazed, the offence is robbery.
Mr. Luke's submission is clearly not supported by the South African authorities
where the offence of robbery also requires the use or threat of violence. Robbery,
as accepted and applied by the courts in South Africa, is defined as follows:
"Robbery consists in the theft of property by intentionally using violence or threats of violence to induce submission to its
taking."
8
See South African Criminal Law and Procedure, Vol.2, 3rd Edition, as edited by
Milton (hereinafter referred to simply as "Milton") on page 642: Milton at page
651 states the following:
"Any violence which would constitute an assault suffices. It may be very slight in degree, and it need not cause injury."
There are many South African cases in which persons have been convicted of
robbery where no injury was caused to the victim. Cases which immediately come
to mind are the bag-snatching cases. If the victim holds onto her bag, and force has
to be used to remove it from her grasp, the offence committed is robbery. See e.g.
the case of S v. Gqalowe 1992 (2) S.A.C.R. 172 (E) where Mullins ].
distinguishes the bag-snatching cases from cases of pickpocketing where no violence
is used. See also the case of S v. Mogala 1978 (2) S.A. 412 (A). In none of
these cases was the question of injury to the victim an issue.
The same approach has been applied in this country. In the case of S v. Rabaseje 1985 B.L.R. 328 (High Court) an accused who attacked a night watchman who was on duty, and bound and blindfolded him before breaking into a restaurant and stealing
goods therefrom, was convicted of robbery. No mention was made of any injury having been caused to the night watchman. In a case
decided in this Court, the case of Raboijane George and Another v. The State (Cr. Appeal No. 4/1999), the following is stated (at page 10):
9
"Moreover, the degree of violence need be very slight. Any violence which would constitute an assault would suffice i.e. unlawfully
and intentionally applying force to another. A mere friendly handshake or a pat on the back may not be sufficient but a forceful
slap done intentionally would probably suffice. Which is why bumping a person off balance was held in England sufficient to constitute
robbery. (See Anthony Mark Dawson and Anthony James v. R (1977) 64 Cr. App. 170.)"
To hold that robbery is committed only If an assault causes an injury to the victim could have illogical consequences. A relatively
minor assault could result in an injury such as a cut or abrasion. On the other hand, a serious, life-threatening assault, such as
an attempted suffocation, may leave the victim with no injury. Would the minor assault justify a conviction of robbery (assuming
the other elements of the offence to be present) but the serious assault not?
Mr. Luke was not able to quote any authority for the proposition that the word "violence" in the section in question implies
the infliction of injury to the victim. Such a requirement is not stated in the section and to read it into the section is not justified.
It is our conclusion that Lisimba, J. erred in his conclusion and that the appeal must succeed.
10
In the result, the appeal succeeds and the conviction and sentence imposed by the Magistrate are reinstated and confirmed.
AV
Given in open Court at Lobatse this '^Q day of January 2002.
N. W. ZIETSMAN Judge of Appeal
I agree
P. H. TEBBUTT Ag. judge President
U2,
I agree
R. I. SUTHERLAND judge of Appeal
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