Sejammitlwa and Others v The Attorney General and Others (Civil Appeal No. 9 of 202) [2002] BWCA 30; [2005] 2 B.L.R. 75 (CA) (19 July 2002)

[Home] [Databases] [WorldLII] [Search] [Feedback]
Botswana: Court of Appeal

You are here: SAFLII >> Databases >> Botswana: Court of Appeal >> 2002 >> [2002] BWCA 30

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]

Sejammitlwa and Others v The Attorney General and Others (Civil Appeal No. 9 of 202) [2002] BWCA 30; [2005] 2 B.L.R. 75 (CA) (19 July 2002)

.PDF of original document

.RTF of original document

IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA HELD AT LOBATSE
COURT OF APPEAL CIVIL APPEAL NO. 9/2002 HIGH COURT MISCELLANEOUS CIVIL APPLICATION NO. 126/01

In the matter between:-
EUSABIA DINEO SEJAMMITLWA        First appellant
SHIMA SELEBALO DIFELE    Second appellant
MOTLHABI MACKENZIE SEJAMMITLWA   Third appellant
AND
First Respondent Second Respondent Third Respondent
THE ATTORNEY GENERAL OF BOTSWANA BARCLAYS BANK OF BOTSWANA LTD BOTSWANA BUILDING SOCIETY

Advocate R.A. Solomon with him Mr. K.P. Gaoboi for the Appellants
Mrs. S. Mangori for the 1^st Respondent

JUDGMENT

CORAM: TEBBUTTAJP NGANUNU O ZIETSMAN JA PLEWMAN JA GROSSKOPFJA

TEBBUTT A3P

Section 10 (1) of the Constitution of Botswana provides that if any person is charged with a criminal offence then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time. The appellants, who have variously been charged in a six-count indictment of theft contrary to Sections 271 and 277 of the Penal Code and conspiracy to defraud

"' contrary to Section 312 of the Penal Code, averred in an application in the High Court, brought in terms of Section 18 of the Constitution, that their case had not been afforded a hearing within a reasonable time and that their constitutional rights under Section 10 (1) had accordingly been contravened. Dow J, who heard the application, dismissed it and ordered that the case proceed to trial. It is against that decision that the appellants now appeal to this court.

To determine the validity of the appellants' averments that their case has not been afforded a hearing within a reasonable time, it is necessary to refer briefly to the facts relating to the charges against them and thereafter to set out in detail the history and chronology of the matter. Before so doing however, it is perhaps as well to set out the actual wording of Section 10(1) of the Constitution. It is the following:

"If any person is charged with a criminal offence, then unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established or recognised by law."

The facts are that the first appellant was employed by Barclays Bank, the second respondent She was charged in the indictment (a) in count 1 thereof with having stolen on 28 May 1993 the sum of P49, 711.25 from the Bank; (b) in count 2, of having stolen on 25 September 1993 the sum of P89, 891.55 from the Bank; and (c) in count 3, of having stolen on 29 October 1993 the sum of P67, 933.27 from the Bank. The other charges relate in counts 4 and 5 to first and third appellants who are alleged to have conspired

"during May and June 1993 to defraud the Bank of the sum of P49,711.25 and during September of the sum of P89,819.55 and in count 6 to first and second appellants who are alleged to have conspired during November 1993 to defraud Jhe Bank of the sum of P67,933.27.

It will immediately be appreciated that the offences are alleged to have been committed during the second half of 1993. On 17 December 1993 the appellants were arrested and several properties, including motor vehicles, belonging to the third appellant were impounded by the police. It was only on 21 June 1995 that the appellants were first arraigned before a court in the magistrates court at Broadhurst. Following numerous appearances by them and postponements of the case, on 5 May 1997 the charges against the appellants were withdrawn by the State, which was, however, given leave to reprosecute them. In October 2000 the appellants were again charged and brought before the Gaborone Village Magistrates Court on 26 January 2001 and trial dates were set for 17 to 20 April 2001. On 28 March 2001 the appellants brought their present application, which was dismissed by Walia , AJ for want by the appellants to have given the statutory notice required by the State Proceedings (Civil Actions by or against Government or Public Officers) Act (Cap. 10:01) to the first respondent, the Attorney General (to whom I shall refer as such further herein). He, however, gave them leave to renew their application. This was then done by the appellants who served notice of their new application on the Attorney General on 12 July 2001 and

filed the application on 5 September 2001. The judgment of Ms. Justice Dow was delivered on 28 January 2002.

I turn then to detail, against that factual background, the chronology of events at all the stages of the proceedings in this matter.

It is common cause that the investigations in this matter were completed in July 1994 but that it was only almost a year later on 21 June 1995 that the appellants were first brought to court. They had, in the meantime, on 5 May 1995 successfully obtained a High Court order directing the return of their attached goods. On 10 May 1995, however, the Attorney General obtained a rule nisi from the High Court for the retention of the goods, which rule was confirmed in June 1995. On 23 June 1995 first appellant appeared in court and was granted bail. On 21 July 1995 the appellants were served, at a court appearance, with a 17-count indictment. This was withdrawn on 16 August 1995 and a fresh charge sheet with 13 counts was substituted for it. Appearances by first and third appellants followed on 4 September 1995, 18 September 1995, 3 October 1995 and 24 October 1995. Second appellant was in prison for a separate offence and was not brought to court on those occasions. On 24 October 1995 trial dates were set for 28 and 29 November 1995 but as the prosecutor was not available on those dates, the case was postponed to 18 December 1995 when trial dates were set for 21 and 22 March 1996. Those dates were confirmed on 18 January 1996 and on 15 February 1996 the case was mentioned again. On 21 March 1996 the case

did not proceed when called as certain crucial exhibits were not available as they were with the Bank. The prosecutor sought a postponement to 2:00 p.m. that day. In granting it the magistrate said the following:

"I am very much concerned with the attitude of the prosecution. One would have expected the prosecution to have evaluated their case before coming to Court rather than wait until the trial is about to commence. This causes a waste of time and indeed time has been wasted. I would reluctantly grant the application for an adjournment with a strong warning that should the prosecution fail to proceed with the trial this afternoon, I might be compelled to dismiss the charges."

At 2:00 p.m. an adjournment of fifteen minutes was sought by the prosecutor. The magistrate said: "I reluctantly grant the adjournment with the strong warning that the prosecution take a serious view of the prosecution case."

Despite the adjournment the case did not proceed but was postponed to 22 March 1996 when the State made major amendments to the charge sheet. The matter was then postponed once more to 29 and 30 July 1996 for trial. Again the case did not proceed but was further adjourned to 7 October 1996 then to 7 November 1996, and on that day to 21 November 1996 when trial dates were set for 5 to 7 May 1997. It was on 5 May 1997 that the State applied to withdraw the case. Defence counsel opposed it and moved that the matter proceed to trial. In seeking to withdraw the charges, Mrs. Dambe for the State said that although the witnesses had been assembled, a lot of documentary evidence was required. Certain vital documents were not

"' available, the Bank official who was in possession of them being out of the country in Swaziland. The only productive thing to do therefore, she said, was to withdraw the case under Section 150 (A) of the Criminal Procedure and Evidence Act, with liberty to the State to re-prosecute.

Granting the withdrawal but with liberty to the State to re-prosecute, the magistrate said the following:

"I have to at once raise concern on the attitude of the State in failing to bring this matter to finality within reasonable time as the inordinate delay could infringe on the accused's constitutional right to trial within reasonable time. This case has been pending according to my record since 21 May 1995. Trial dates were set before and the present reasons were never advanced. One cannot help but endorse the views of learned counsel Motswagole that the State has not shown the high degree of competence as would be expected.

Despite being given liberty to re prosecute, the appellants, as stated above, were only again brought before court some 3 Vi years later in October 2000, and presented with the present 6- count indictment. The matter was then postponed to 26 January 2001 and on that day set down for trial on 17 to 20 April 2001. On 28 March 2001 appellants launched the application which was dismissed for want of statutory notice. A fresh application filed on 5 September 2001 resulted in the judgment of Dow J on 28 January 2002 dismissing their application and which is the subject of this appeal.

From the recital of the facts and the history and chronology that I have set out, it is clear (i) that there was a period of approximately 18 months

"between the arrest of the appellants for offences alleged to have been committed in 1993 and the first arraignment of the appellants in June 1995; (ii) that there was a further two-year period from the date of first arraignment to the withdrawal of the charges in May 1997; (iii) that there was a 3 Vi year period between May 1997 and the launching of the present case in October 2000. Moreover, between their arraignment in June 1995 and the withdrawal of the charges in May 1997 the first and third respondents were obliged to be present in court on no fewer than thirteen occasions for mentions or postponements of the case, in most instances due either to the nonavailability of the State witnesses or of the documer evidence required for the State case, or of the prosecutor. Second appelant was not present on those occasions as he was in prison and it is undisputed that it was the obligation of the State to have him produced in court but that it failed to ensure that that occurred. The two-year delay between June 1995 and May 1997 was not occasioned by the appellants, as the trial court's strictures on the prosecution amply demonstrate.

With all the aforegoing circumstances in mind, has there been an unreasonable delay in bringing their case to trial so as to contravene their constitutional rights in terms of Section 10 of the Constitution? The first question is: what is an unreasonable delay?

In her judgment in the court a quo Dow J opined that underlying the right to a trial without unreasonable delay were the following considerations viz; to

prevent oppressive pre-trial incarceration; to minimise the anxiety and concern of the accused; and to limit the possibility that the defence will be impaired or prejudiced. As a headline statement of the reasons why an accused person has a right to a trial without unreasonable delay, I agree with the learned judge. However, as I shall later show, those headlines are merely pointers to a much wider expression of the reasons for the right.

Dow J found that the appellants had not succeeded in establishing that their trial had been unreasonably delayed. Central to that finding was an assertion that once the first indictment was withdrawn in May 1997, time had stopped to run and a consideration of whether an unreasonable time had elapsed only involved the period from October 2000 until the appellants' launched their application on 28 March 2001. She based that finding on the fact that the appellants were between May 1997 and October 2000 not persons "charged with an offence" as set out in Section 10 (1). I am, with respect, unable to agree with those findings for reasons which I will now proceed to set out.

In a milestone judgment in the Supreme Court of Zimbabwe in the case of In re Mlambo 1992 [4] SA 144, the Court had to decide a question similar to the one with which this court is faced. In that case the applicant was arrested in 1986 and charged with theft. He subsequently appeared in court on 12 occasions until August 1987 when the prosecutor withdrew the charges, the applicant being told that he could be charged at a later date. In August 1990 he was summoned to appear again in court on substantially the

'same charges. He then brought an application for a permanent stay of the proceedings on the basis that his constitutional right to a fair trial within a reasonable time had been infringed. The court granted the application. In considering the purpose underlying the constitutional guarantee of a fair trial within a reasonable time Gubbay O, who delivered the judgment of the full court of five judges, said the following at pp 147G - 148 B:

"In the opinion of the Supreme Court of the United States, the speedy trial guarantee in the Sixth Amendment to the Constitution is 'designed to minimise the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nonetheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.' See United States v Macdonald 456 US 1 [1982] at 8, adopted in United States v Loud Hawk 474 US 302 [1986] at 311.

These words aptly describe the main purpose of the right to be afforded a fair hearing within a reasonable time under Section 18 [2] of the Constitution of Zimbabwe namely, to minimise the adverse effect on the person charged flowing from the pending disposition of a still to be determined criminal charge. The right, therefore, recognises that, with the passage of time, subjection to a criminal charge gives rise to restrictions on liberty, inconvenience, social stigma and pressures detrimental to the mental and physical health of the individual. It is a truism that the time awaiting trial must be agonising for accused persons and their immediate family. I believe that there can be no greater frustration for an innocent person charged with an offence than to be denied the opportunity of demonstrating his lack of guilt for an unconscionable time as a result of delay in bringing him to trial.

The right recognises, also, that an unreasonable delay may well impair the ability of the individual to present a full and fair defence to the charge."

I share the sentiments of Gubbay O. They apply equally to the Botswana Constitution. The learned Chief Justice stated that the provision benefits

society as well, assisting witnesses, protecting victims of offences and re assuring the community that serious crimes are investigated and timeously tried.

While this is true, the provision is essentially concerned with ensuring the rights of the individual. It is part of chanter 2 of the Constitution which protects the fundamental rights and freedoms of the individual. As remarked by Amissah JP in this court in Maphane v The State [1991] B.L.R. 304 at 308 E - F

"The demand for a trial within a reasonable time is another way of expressing the popular tenet that justice delayed is justice denied. But this demand is all too often discussed within the context of the convenience of the court, although, to my mind, the primary objectives of the provision is to afford a protection against delayed administration of justice to the accused."

(See also Samuel Ntwa v The State - Miscellaneous Application No. F39/2001 unreported at p.5). In considering whether there has been an unreasonable delay, the length of the time period involved must be considered. As I have stated, it was the view of Dow J that the period between the first arraignment of the appellants in June 1995 and the withdrawal of the charges in May 1997 had to be discarded in any consideration of the time period and only the period subsequent to October 2000, when the appellants were again brought before court and re-charged should be considered, because between May 1997 and October 2000 they were not facing any charges and were not in that period persons "charged

^{n with a criminal offence." A similar approach was considered by the Zimbabwe Supreme Court in the Mlambo case and by the High Court in Botswana in the case of Samuel Ntwa supra and was rejected in both instances. In the latter case, Marumo J in a carefully reasoned and well expressed judgment said that it has been said time and again by courts in this and other countries
that constitutional provisions ought to be interpreted in such a way as to give effect to constitutional guarantees and not to diminish
them. The latter approach, he said, would only serve to defeat the very purpose for which the guarantees exist and ought to be avoided.
The need for a purposive and generous construction of the Constitution was stressed in this country in the celebrated decision of
Attorney General v Dow [1992] B.L.R. 119 (C.A.) echoing the opinion of Lord Diplock in Attorney General of the Gambia v Jobe 1984 A C 689 (H.L) at 700 and the famous words of Lord Wilberforce in Minister of Home Affairs and Another v Fisher 1980 A C 319 (H.L) at 329 and endorsed again by this court in the present session in the matter of The State v Moatlhodi Marapo - Cr. App 15/2002.}

In both the Mlambo and the Ntwa case the court had regard as to what was meant by the word "charged" in the relevant constitutional provision. Interpreting the word "charged" in Section 10 (1) in the light of the principles of generous interpretation mentioned, Marumo J in Ntwa said:

"It is clear to me that it cannot simply refer to the formal process by which the person is arraigned before the court. It is entirely conceivable that the mental anguish, the inconvenience, the social stigma, the detrimental pressures and a whole array

of other ills sought to be avoided by the constitutional guarantee can be visited upon an individual long before the formal process of the filing of a case at a court registry. For example, the practice in this country is for the police to warn and caution a person for a charge at the conclusion of investigations. That may well be the point where the potential prejudice commences and the dock starts to tick. I would be very'surprised if, for example, our courts were to countenance a situation where an individual is warned and cautioned for a charge, only to be formally brought to court several years later in the absence of compelling reasons for the delay. I certainly would not. And yet that is precisely what could happen if the word "charged" in Section 10 [1] were to be given a restrictive interpretation. I have no hesitation in concluding that such a situation could severely detract from the enjoyment of the constitutional guarantee in question and would have the potential to despoil members of the public of a fundamental right which they ought to enjoy."

In the Mlambo's case, Gubbay a. said this: at p 149 G -1

"The time to be considered starts to run from the moment a person is charged. The key word is "charged". What does it mean in the context of Section 18(2)? Does the provision envisage only the situation where the accused is called upon in court to plead to a formal charge? To my mind, such a restrictive construction has the effect of rendering the protection almost nugatory. It squares more with an arraignment. And, of course, it would be susceptible to untold abuse, permitting the State to delay inordinately before bringing a person before the trial court, happy in the knowledge that by so doing there has been no violation of a constitutional right.

I have no hesitation in holding that the time frame is designed to relate far more to the period prior to the commencement of the hearing or trial than to whatever period may elapse after the accused has tendered a plea. This meaning is wholly consonant with the rationale of Section 18(2) - that the charge from which the reasonable time enquiry begins must correspond with the start of the impairment of the individual's interests in the liberty and security of his person. The concept of 'security' is not restricted to physical integrity, but includes stigmatisation, loss of privacy, anxiety, disruption of family, social life and work"

"'I am in agreement with both these points of view. In my opinion when a person is "charged" is not when he is first arraigned before a court. When a person is "charged" may occur at a date prior to the case coming before the court, such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted or the date when preliminar/ investigations were opened. "Charge", for the purposes of Section 10(1) may be defined as "the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence," a definition that also corresponds to the test whether "the situation of the (suspect) has been substantially affected." (See Eckle v Germany Federal Republic)(1983) 5 EHRR1 at 31 and Foli v Italy [1983] 5 EHRR 313 both cited in Mlambo's case. In Foli's case it was said that 'whilst "charge", may in general be defined as "the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence", it may in some instances take the form of other measures which carry the implication of such an allegation and which likewise substantially affect the situation of the suspect.'

In the present case the appellants were, I find, "charged" when they were arrested in December 1993. To use the words of Gubbay G an arrest is a "vehicle to court" and falls within the same category as the issuance and service of a summons citing the crime the accused is alleged to have perpetrated.

It was that act that "started the clock ticking" against the State. Did it stop ticking by the withdrawal in May 1997 of the charges against the appellants? This, too, was something that occupied the attention of the court in both the Mlambos case supra and the Ntwa case Supra, Gubbav a said the following at p 151 A - C

"Can the State stop the clock by resorting to the expedient of withdrawing the charge before plea, as it is permitted to do under Section 297 (3) of the Criminal Procedure and Evidence Act (of Zimbabwe) only to reinstate the same charge, or a charge based on the identical information, when in a position to commence with the trial? In my opinion, the type of withdrawal envisaged in Section 18 (2) of the (Zimbabwe) Constitution is an irrevocable one - a withdrawal after plea by the Attorney General in terms of Section 13 of the Criminal Procedure and Evidence Act, thereby entitling the accused to a verdict of acquittal in respect of that charge. In other words, the withdrawal must be one in which no hearing of the charge can ever arise. To adopt any other construction would be to emasculate the protection the Constitution intends to afford."

Headdedatpl51J-152A:

"It necessarily follows, in my view, that the withdrawal of the charges against the applicant on 23 August 1987 did not interrupt the time frame, which commenced to run either upon the applicant's arrest on 3 October 1983 or with first remand by the magistrate a few days later, and that the date of service of the summons is not to be taken as the critical moment when the clock started to tick against the State. In sum, the correct approach in this matter is to evaluate the reasonableness of the overall lapse of time."

Again I agree completely with the views of the learned Chief Justice.

In Ntwa's case supra, Marumo J, remarking that the charges were not withdrawn in that matter, nevertheless expressed the view that the withdrawal contemplated in Section 10(1) was, consistent with the rule of interpretation referred to earlier in his judgment, one of the nature and form that would completely unconditionally and unequivocally extricate an individual from the prejudicial situation that would otherwise result from the delay.

I agree. Appellants were not free men who from that time had ceased to be faced with criminal charges. They would have been if they had been acquitted or discharged but that would only have followed an unconditional withdrawal of the charges. As stated by Amissah JP in Richard Busi v The State 1997 B.L.R. 6S at p.72 H, in the case of a discharge without an acquittal, the prosecution could prefer fresh charges, as the State was given leave to do in this case. The withdrawal in the present case was not unconditional. Far from it. The State was ^given leave to withdraw the charges, with liberty to re-prosecute. This was made abundantly clear to the appellants by the magistrate. They therefore had hanging over their heads the spectre of their being charged again at any time. It must be remembered that the charges were withdrawn because of the non-availability of documents that were in the possession of a bank official who was at that stage out of the country. The prospect of his early return to Botswana or of the documents being obtained via another official was therefore a very real one. The withdrawal of the charges was therefore indisputably a conditional

16
^{K'one and as such did not stop the clock ticking, its mechanism having been set in motion in December 1993.}

That the delay in bringing the appellants to trial more than 7 years later, the most recent trial dates having been set for 17 April 2001 onwards, is a lengthy one cannot be gainsaid. Is it, however, an unreasonable one?

In Richard Busi v The State supra Amissah IP. in this court said:

"In determining what is reasonable time, the period taken to bring to prosecute the charge will be one, but only one, of several factors to be taken into account. The nature of the particular criminal act, the charge, the availability of witnesses, the efforts to prosecute the charge expeditiously, the availability of judges or magistrates, will be factors which would have to be taken into consideration."

Those factors were obviously not intended by the Court of Appeal to be exhaustive.

In the present case, except in one instance, every postponement between June 1995 and May 1997 was occasioned by the State, prompting the scathing remarks made by the magistrate about the conduct of the prosecution. The thirteen appearances required of the appellants in that period obviously caused not only inconvenience to them but also financial detriment. No explanation for this inordinate delay, save the non-availability of documents, has been forthcoming from the State. Following the withdrawal of the charges in May 1997 nothing was done for 3 V2 years to

17
institute a re-prosecution. The documents, according to the investigating officer were only obtained by him from the Bank on 1 June 1998, over year later. No explanation has been given as to why this took so long. He then still did nothing about contacting Mrs. Dambe until May 2000, just on two years later. And then another six months went by before the appellants were re-charged. Once again no explanation for these inordinate delays is forthcoming from the State. In my view, this all reflects a singular lack of concern both on the part of the State and on the part of the Bank, who could have pressed the State to move the case forward, to pursue the prosecution. They certainly both showed no concern whatsoever to have it expedited. The learned judge a quo found that the State and the defence share the blame for the failure to bring the first indictment to trial. This assessment of the situation is not borne out by the facts and is erroneous. So is her finding that the appellants did nothing during the initial period from June 1995 to May 1997 to assert their rights. Even before they were arraigned for the first time they sought and obtained an order for the release of their goods that had been attached following their arrest, an order which, however, was thwarted by the subsequent application by the Attorney General for the retention of the goods in terms of the Proceeds of Serious Crime Act 19 of 1990. Moreover, on several occasions during the period from June 1995 to May 1997 when they appeared in court when their case was mentioned or to be told of further postponements, the appellants through their attorney, urged the court to dismiss the charges against them. In any event it could have been argued that the period from June 1995 to May 1997 did not represent an

"unreasonable delay. On 5 May 1997 they expressed their disquiet that the case was taking so long to be brought to trial and protested that their constitutional rights under Section 10 were being infringed. It was, however, of course, on that day that the charges were withdrawn.

The learned judge a quo also stated that the appellants did nothing to assert their rights during the period from 5 May 1997 until they were re-charged in October 2000. This comment is entirely unjustified. That period is some 3 V2 years during which the State had given no indication that it was going to reprosecute them. In any event, there would have been no basis for them to approach a court to have their rights protected. It was only once the prosecution had been reinstated that any obligation arose to have asserted their rights. Without a reinstatement of the prosecution no court would have entertained any application by them, as such an application would have had no foundation and would have been regarced by the court as premature. At any rate even if the appellants had failed to act when they should, their omission pales into insignificance in the overall context of this case.

The learned judge a quo also found that since October 2000, when the present indictment was registered against the applicants, "the delays are wholly attributable to the actions of the applicants." This finding, too, is unwarranted. The appellants were brought before court on 26 January 2001 to face the charges preferred against them in October 2000. They launched their initial application before Walia AJ on 28 March 2001, a matter of two

"months Icter. This can, by no standards, be regarded as an unreasonable delay. His judgment, dismissing the application for failure to give the Attorney General the required statutory notice was only delivered on 3 May 2001. On 12 July 2001, again some two months later, the required statutory notice was served by appellants on the Attorney General giving him 30 days to respond to the appellants' request that the prosecution be stayed and that they be acquitted and discharged. That response was therefore due on 13 August 2001, before which the appellants could not move their application, but when no favourable response was forthcoming, the application which is the subject of this appeal was launched within three weeks. To say that when their application before Walia AJ was dismissed on 3 May 2001 with leave to relaunch it, they did not undertake such relaunch until September 2001 is distortion of the actual facts. It is clear that there was no delay by the appellants in seeking to assert their rights under Section 10 (1).

The learned judge also said that the appellants had not been in custody and
therefore could not claim any prejudice. They had also not claimed that they
were prejudiced. This is, in the first place, not factually accurate. In his
founding affidavit the first appellant averred (an averment supported by the
other two appellants) -

"that we stand to suffer inordinate prejudice in our defence if the trial were to proceed given the passage of time since the offence were allegedly committed. Events have since faded from our memories and some witnesses have passed away whilst other are nowhere to be found. I personally feel embarrassed by the charges for I cannot now remember everything that happened seven years ago."

20
Secondly, lengthy incarceration is not the only prejudice an accused can
suffer as a result of a long delay. As stated by Friedman JP in Moeketsi v
Attorney General of Bophuthathswana and Another 1996 B.C.L.R.
947 [B] at 969 B - I:

"an inordinately unexplained long delay negates the concept of a fair trial. Memory is amongst the most flimsy, mercurial and wayward of our faculties."

Friedman JP also said in relation to prejudice to the accused:

"Under this factor, an ongoing deprivation of liberty, impairment of defence evidence, the age or illness of a witness, and the passage of time, particularly a long time, are some of the considerations taken into account by the courts."

And Gubbay O in Mlambo's case at p 155 E - F said that a very long delay inherently gives rise to a strong presumption of prejudice to an accused. He had on p 152 H -I referred to the landmark judgment of Justice Powell in the United States Supreme Court of Barker v Wingo at 407 US 514 [1972] pp 530 - 2 where the following appears:

"A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants, which the speedy trial was designed to protect. This court has identified three such interests: (i) to prevent oppressive pre-trial incarceration; (ii) to minimise anxiety and concern of the accused, and (iii) to limit the possibility that the defence will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defence witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not

21
always reflected in the record because what has been forgotten can rarely be shown."

I agree with the above expressed views. They represent what I believe should be the approach in Botswana to a right to a fair trial and they encapsulate the underlying ratio of the citizen's individual right contained in Section 10 (1) which "recognises that with the passage of time subjection to a criminal charge gives rise to restrictions on liberty, inconveniences, social stigma and pressures detrimental to the mental and physical health of the individual" (per Gubbay a at p 147 I - J) and is designed to minimise the adverse effect on the person charged flowing from a long-delayed criminal prosecution.

I therefore come to the conclusion that there has been in this case an inordinately long delay in bringing the appellants to trial for offences allegedly committed more than 8 years beforehand; that the delay was, on the facts unreasonable and no adequate explanation for such delay has been given by the State; that the appellants have not waived or forfeited their rights by conduct on their part or a failure to assert their rights; that they have shown that they will be prejudiced by the delay; and that accordingly they have established that their constitutional rights to a fair hearing within a reasonable time as contained in Section 10 (1) of the Botswana Constitution have been violated. In coming to this conclusion I am not unmindful of the public interest to have crimes allegedly committed prosecuted but the State has had more than ample time to do so in this case.

22
Their appeal to this court therefore succeeds.

The next question is what order this court in consequence should make. Section 18 (2) of the Constitution confers wide powers on the court to make such orders as it may consider appropriate in enforcing any of the provisions of Section 3 to 16 of the Constitution, which will, of course, include Section 10 (1). It is now settled law that the powers include, in appropriate situations, the power to order a permanent stay of the prosecution, the effect of which would be the equivalent of an acquittal and discharge (see Richard Busi v The State supra). This is not the only competent verdict that can be returned by the court. The court can, for example, order that the trial should be continued without delay, as happened in the Ntwa case, or the appellants can seek damages for the delay. None of these alternative verdicts commend themselves in the present case. In Mlambo's case a permanent stay of the prosecution was ordered in a trial that had been delayed for a period of four years and seven months. In casu the delay is some seven years. In addition, as I have stated above, neither the State nor the Bank have shown any real concern for pursuing the prosecution and certainly not for expediting it. The non-availability of defence witnesses and a consequent inability to prepare and conduct an adequate defence due to the lapse of time, are very real prejudicial factors to the appellants. It seems to me, therefore, that the correct order is to direct that there be a permanent stay of the prosecution and that the appellants be acquitted and discharged.

The State is still in possession of the goods of the appellants held by it pursuant to the order the High Court dated 10 May 1995 and these must be returned to them.

The final aspect is the one of costs. The appellants seek their costs both in this court and in the proceedings brought by them in the High Court. Those proceedings were brought in protection of their constitutional rights emanating from a criminal prosecution and therefore the incidence of costs does not arise. However, the appeal to this court sought to disturb the judgment and order of the court a QUO. The State has chosen, unsuccessfully, to defend that judgment. In so far as the appeal is concerned therefore this court is of the view that different considerations to the proceedings in the High Court apply and the usual rule of the costs following the result applies and that the appellants must have their costs of the appeal.

In the result, the following order is made:-

The appeal succeeds, with costs against the Attorney General.

The prosecution by the Attorney General of the appellants before the Gaborone Magistrates' Court in a case registered as CRB 113/2000 is

(i) declared unconstitutional in that it violates the appellants' constitutional rights to be tried within a reasonable time.

(ii) is permanently stayed and the appellants are acquitted and discharged of all the offences with which they have been charged before the Gaborone Magistrate Court in the case registered as CRB 113/2000.

All the exhibits held by the Attorney General in connection with the said case pursuant to the Order of the High Court dated 10 May 1995 in Miscellaneous Case No. 147/95 are to be released forthwith to the appellants.

DELIVERED IN OPEN COURT THIS 19^TH DAY OF JULY 2002 AT LOBATSE.
P.H. TEBBUTT
ACTING JUDGE PRESIDENT

I agree
J.M. NGANUNU CHIEFJUSTICE

I agree
N.W. ZIETSMAN JUDGE OF APPEAL

I agree
C. PtEWMAN

I agree
JUDGE OF APPEAL
F.H. GROSSKOPF* ^ JUDGE OF APPEAL

SAFLII: | Terms of Use | Feedback
URL: http://www.saflii.org/bw/cases/BWCA/2002/30.html