Ndlovu v The State (Criminal Appeal No 28 of 201) [2002] BWCA 15 (30 January 2002)

The appellant was convicted in the Magistrates Court at Francistown on two counts of robbery, one count of housebreaking and one count of stealing from a dwelling house. On each of the two robbery counts the appellant was sentenced by the magistrate to 10 years imprisonment, two years of which were conditionally suspended. His sentence for the housebreaking was 6 years imprisonment and 5

strokes, and for stealing from the dwelling house he was sentenced to 18 months imprisonment. It was further ordered that the sentences would run concurrently.

The appellant's appeal to the High Court was unsuccessful. However, it was correctly held by that Court that the Magistrate erred in ordering the suspension of part of the imprisonment imposed in respect of the two robbery counts in view of the provisions of section 308 (2) of the Criminal Procedure and Evidence Act. Subject to the correction of this error the appellant's appeal was dismissed but he was thereafter given leave to appeal to this Court.

In his appeal to the High Court the appellant took the point that he was not given a fair trial in the Magistrate's Court. He alleged that he had been assaulted by the police and was also ill, and that owing to his illness he could not hear or speak at the time of his trial. This argument by the appellant was adequately dealt with and dismissed by the High Court. In his appeal to this Court the appellant did not advance this argument.

The only submission advanced by the appellant in this Court was that on the evidence the State had failed to prove his guilt beyond all reasonable doubt.

The State case, briefly, is that the appellant, together with another man who was accused No.2 at the trial, robbed the two complainants, Dzikamani Sekepe and

Baeti Balemi, of money and other articles, tied them up and locked them in a hut, and then broke into a nearby house owned by Balemi Muhlawendaba and stole articles from that house. Evidence was given by the complainants Sekepe and Balemi which was to the effect that the appellant and accused No.2, after approaching them and asking them to change foreign currency, assaulted them, tied them up and robbed them of various articles before proceeding to the main house where the housebreaking and the further thefts took place. The owner of the main house, Balemi Muhlawendaba, also testified to the breaking in at his house and to the theft of articles from his house. It was further proved that as the appellant and accused No. 2 left the main house they were chased. The appellant was caught. He was wearing one of the stolen articles, a tracksuit, and he had some of the other stolen articles still in his possession. This was also confirmed by the witness Constable Mmopi. The appellant's evidence was a complete denial of the facts alleged by the State witnesses. He stated that he was arrested by the police while waiting for a taxi, and he denied ever having been in possession of any of the stolen articles.

In his submissions on appeal to this Court the appellant pointed to certain contradictions in the evidence given by the two witnesses Sekepe and Balemi. Sekepe stated that it was accused No. 2 who tied them up; Balemi said that it was the appellant. Sekepe stated that the appellant had a knife. She did not say that accused No. 2 also had a knife. Balemi stated that accused No. 2 had a knife in his

possession and that the appellant had three knives, one in his hand and two in his pockets.

The appellant pointed further to the fact that no knives were produced as exhibits at the trial and that the pieces of string or articles of clothing used to tie him and accused No. 2 up were also not produced.

The discrepancies referred to are not material ones or sufficient to cast doubt on the witnesses' credibility nor does the fact that the articles mentioned were not produced in court have any bearing on the appellant's guilt.

A perusal of the record leaves us in no doubt that his convictions were amply proved and justified by the evidence and that there is no merit in his appeal.

In the result the appeal is dismissed and the convictions and sentences, as corrected by the High Court, are confirmed.

Botswana: Court of Appeal

Ndlovu v The State (Criminal Appeal No 28 of 201) [2002] BWCA 15 (30 January 2002)