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State v Rankgwathi (Criminal Appeal No. 47 of 202) [2003] BWCA 11 (1 January 2003)
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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Court of Appeal Criminal Appeal No. 47 of 2002 High Court Criminal Appeal No. 1 of 2001
In the matter between:
Appellant
THE STATE
and
Respondent
DIKELEDI DILALA RANKGWATHI
Mr. K. N. Sebotho for the Appellant Mr. A. Mhaka for the Respondent
JUDGMENT
CORAM: N. W. ZIETSMAN J.A. C. PLEWMAN J.A. A. M. AKIWUMI J.A.
PLEWMAN, J.A.
The facts in this appeal are not in dispute and the point of law in issue is a narrow one. The respondent was the Post Mistress at
the Ramotswa Post Office. She was charged in the Magistrate's Court with one count of theft -stealing by a servant contrary to Sections
271 and 277 of the Penal Code (Cap 08-01). She was alleged to have stolen P52,700 which came into her possession in the course of
and by virtue of her employment. She was convicted and sentenced to five years imprisonment. Two years of her sentence were conditionally
suspended. On an appeal to the High Court her conviction was set aside. The Attorney General has appealed against the decision of
the High Court on a point of law.
The matter arises as follows. On 29th February 2000 a pensions officer of the Botswana Postal Services delivered the sum of P55000 to, respondent. This was to be paid
to old age pensioners on a monthly basis. P2700 was properly paid out by respondent and it was her duty to lock the remainder of
the money away for safe keeping in the Post Office Safe of which she (and she alone) had the key and the secret time lock code. All
this she did but it seems that she was at the time encountering certain personal problems which were praying on her mind. These problems
had led respondent to place her trust in two persons (fraudsters) who she arranged to meet and who persuaded her that if she brought
them money they would "pray over her money" to solve her personal problems. She had initially taken a safe box containing
PI 1000 of her personal funds to them and handed this over to them. It was to be opened after seven days. On 29 February 2000, (as
it happened the seventh day) she again arranged to meet these persons but she was asked to bring along more money. This she did using
the P52.700 pension money held in the Post Office Safe. When she met these persons she handed this sum of money to them after putting
it into a plastic bag they provided. It is not really necessary to recount the inevitable result. After the ceremony a plastic bag
was handed to her. She did not check its contents but on her return to the Post Office put it into the safe. The following morning
she opened the safe and found that the money was missing. It is an old story which it seems persons are able to repeat without end.
To make matters worse her own safe box was not returned to her and (to no one's surprise) the fraudsters disappeared.
2
The argument in the Court below centered on what is known as the law relating to "temporary takings" (as to which see Rex
v Milne and Erleigh 1951 (1) SA. 791 (A) at. 865). The State contended that on the facts recounted above Section 264 (2) of the Penal
Code came into operation and (her protestations notwithstanding) respondent was deemed to have taken the money with fraudulent intent.
In the Court aquo the argument focused on Section 264 (2)(e). But in my view what should in fact have been debated was Section 264
(2)(c).
It is perhaps advisable to quote Section 264(1) and the material parts of
Section 264(2). These sections read:
"264 (1) A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts
to the use of any person other than the general or special owner thereof, anything capable of being stolen, is said to steal that
thing.
264 (2) A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with any of
the following intents, that is to say -
(a)
(b)
(c)
an intent to part with it on a condition as to its
return which the person taking or converting it
may be unable to perform;
(d)
(e)
in the case of money, an intent to use it at the will
of the person who takes or converts it, although
he may intend afterwards to repay the amount to
the owner,
and "special owner" includes any person who has any charge or lien upon the thing in question, or any right arising from
or dependent upon holding possession of the thing in question."
3
It was argued in the Court below, and this argument was repeated before us, that the word "use" in subsection (e) meant
"consume" and (then) that the section did not apply because, on the basis that her account could reasonably possibly be
true, respondent had not had the intent to "use" (i.e. consume - or spend) the money. I have some doubt that it is correct
to construe the word "use" (as the Court a quo did in upholding the appeal to it) in this manner. The dictionary meaning
of use is "employ for a purpose". The real difficulty (for the purposes of this appeal) would be the word "repay"
but it seems to me to be unnecessary to resolve this question. I therefore do not make any finding on the proper construction of
subsection (e).
I have quoted subsection (c) above.
The "condition as to its return" which the person guilty of the taking "may be unable to perform" would arise
in a case where money is handed to some other person over whom one has no control. This is a circumstance clearly demonstrated in
the present case. The respondent had no control over the fraudsters, and in handing the money to them she lost control of the money.
This resulted in her not being able to return the money to the safe. She is therefore deemed, in terms of section 264 (2)(c), to
have had the requisite intent for a conviction on the charge of theft even if her actual intention was to return the money. If regard
is had to section 277 (which provides an enhanced sentence in the case of stealing by clerks or servants) one can conclude that the
legislature had in mind the very difficulties which might
4
arise under the common law in the case of "temporary takings" when it enacted Section 264.
In the result I am of the view that the Court below erred and that its decision must be set aside and the Magistrate's order restored.
I then so order. The terms of my order are as follows:
1.
The appeal succeeds
2.
The decision of the High Court in this matter is set aside.
3.
The order of the Magistrate convicting the respondent and his sentence is restored.
DELIVERED IN OPEN COURT AT LOBATSE ON THE .... DAY OF JANUARY 2003.
C. PLEWMAN JUDGE OF APPEAL
I agree,
///^^-
N. W. ZIETSMAN JUDGE OF APPEAL
I agree,
A. M. AKIWUMI JUDGE OF APPEAL
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