Mpitsang and Another v The State (Criminal Appeal No 99/1999) [2002] BWCA 35 (8 October 2002)

On the 4^th September 2002 I quashed the convictions and set aside the sentences imposed upon both Appellants and intimated that my reasons for making this order will follow. There are they.

The appellants were charged jointly in one charge sheet as follows. On the first count the second appellant was charged with the crime of theft contrary to section 271 of the Penal Code to which he pleaded

not guilty. It was alleged that on the 20^th November 1995, at Digoro General Dealer in Kanye he stole P80.00 from one Galaletsang Monekwe. The first appellant was not charged on this count.

In the second count, both appellants were charged jointly with the crime of robbery contrary to Section 291 as read with section 292 in which it was alleged that both of them did, on the 21^st December 1 995 at Pudumo ward in Kanye, use violence to rob one Sligman Toko of the sum of PI 000.00.

On the third count the first appellant was charged, alone, with the crime of house breaking contrary to section 300 (1) of the Penal Code, wherein it was alleged that on the 13^th February 1996 he broke and entered the house of Edith Maitseo Mminatau with intent to steal therefrom.

In the fourth count it was alleged that the first appellant, having entered the house of Mminatau stole therefrom property valued at P3 11 7.00 belonging to Mminatau.

It can thus be seen that the appellants committed one offence, that of robbery, together , acting in concert with one another. This offence was committed at a place which is different from the locations where the other three offences were committed. The charge preferred against the second appellant on count one was committed a month before the offence charged on count 2 and at a different place. Similarly the charges preferred against the first appellant in counts three and four have nothing in common with the charges in count one and two be it in terms of time or place. In short the learned Principal Magistrate who presided over the trial conducted a mass trial for which there is no provision in the Criminal Procedure and Evidence Act Chapter 08:02. Section 1 30 of that Act, which deals with the question of joinder of accused persons in one indictment or summons, does not sanction the procedure which was adopted in this case.

When the case was called on the morning of 4^th September 2002, I asked Mr. Mubika who appeared on behalf of the state if the convictions were not fatally flawed by the misjoinder which had taken place. He fairly conceded that the convictions are irregular and

should be set aside. He relied in this regard on the judgment of Miller J in S v. Sithole and Others 1966 (2) SA 335 (N). In that case, the six appellants had been separately charged with the same offence and had been convicted. On appeal, counsel for the accused took the preliminary objection that the trial court had no jurisdiction to try the appellants together. Miller J. when upholding the objection stated at page 338 E - F that:

"....unless there is some special provision which saves the matter for the state in some other statute or enactment, it should be held that the holding of a joint trial was either a purported exercise of a non-existent jurisdiction or constituted an irregularity of such a nature that it resulted per se in a failure of justice and in vitiating the proceedings entirely."

Sithole's case was referred to along with several English, South African and Zimbabwean cases in Sv. Marimo and Others 1973 RLR 70 (GD) when Beadle CJ identified two schools of thought on the question of misjoinder. The one school of thought considers that no inferior court has jurisdiction to hold "mass trials" or alternatively that if it is not a

The opposing school of thought holds the view that, irregular though the holding of a "mass trial" may be, the court can condone it provided the accused has not been prejudiced. Most of the cases in this latter school of thought concern the situation where more than one person is charged jointly in one indictment when the facts of the various charges are so distinct that there is a misjoinder of the accused. In other words where the accused have been charged separately on different indictments, the view expressed is that while it is impermissible on the ground of lack of jurisdiction, such trials can be condoned if there is no prejudice to the accused.

"I am not greatly impressed by this line of distinction as it seems to be a highly artificial one depending entirely on the particular procedure adopted by the prosecution. In both cases the effect

is that a "mass trial" has been held of a number of accused whose cases are entirely separate from each other and the position does not seem to me to be affected by the fact that in the one case the accused have been irregularly joined together in one indictment, whereas in the other there has been no irregular joinder. It should not, I think, rest with the prosecution, by adopting the irregular procedure of wrongly joining the accused together in one indictment, to make it possible to condone the irregularity of holding what is, in effect, a "mass trial" whereas if the prosecution follows the correct procedure of indicting the accused separately from each other, it would not be possible to condone the holding of such "mass trial."

I respectfully agree with the views expressed by the learned Chief Justice. See also S v. Kondoni 1982 (1) ZLR 76 (SC); S v. Masanqo 1982 (1) ZLR 82 and S v Machona and Others. 1 982 91) ZLR 87(SC).

In American parlance what occurred in this case was a mistrial which vitiates the proceedings. Mr. Mubika urged me to remit the matter for a fresh trial or fresh trials to be held. I am reluctant to adopt that course because of the time that has elapsed since the offences were committed in 1995 and early 1996. I prefer to leave the matter open so that the Attorney General can use his discretion in deciding whether or not to retry the accused persons.

Botswana: Court of Appeal

Mpitsang and Another v The State (Criminal Appeal No 99/1999) [2002] BWCA 35 (8 October 2002)