Kemokgatla v The State (Criminal Appeal No. 43 of 202) [2003] BWCA 19 (31 January 2003)

The appellant was convicted of the offence of corrupt practices contrary to section 384(a) as read with section 386 and punishable under section 385 of the Penal Code [Cap. 08:01]. He was sentenced to serve a custodial term of 4 years imprisonment, 2'/₂ years of which were suspended on condition that during the period of suspension he is not convicted of an offence involving corruption. The present appeal" is against the decision of the High Court which upheld the determination and sentence by the Court of first instance.

The appellant was convicted of the offence of corrupt practices contrary to section 384(a) as read with section 386 and punishable under section 385 of the Penal Code [Cap. 08:01]. He was sentenced to serve a custodial term of 4 years imprisonment, 2^l/2 years of which were suspended on condition that during the period of suspension he is not convicted of an offence involving corruption. The present appeal is against the decision of the High Court which upheld the determination and sentence by the Court of first instance.

"... having submitted to be sworn as a witness and having fully answered all questions put to him (except only two questions) to the satisfaction of the court, the court enters in his favour an absolute freedom and discharge from all liability to prosecution for the offence now under consideration - either at the public instance or at the instance of any private party."

The appellant contends that a court of law can be positioned to make findings in respect of frankness and honesty of a witness (particularly the prime witness for the prosecution) only after an evaluation of all the evidence, including the evidence for the defence, as well as addresses from the prosecution and the defence. Therefore, there was a premature determination of the credibility of the key witness for the prosecution; and that implicit in that premature finding is a rejection of the frankness and honesty of the accused person as well as the credibility of his evidence.

"(1) Where any person who to the knowledge of the public prosecutor has been an accomplice, either as principal or accessory, in the commission of any offence alleged in any indictment or summons, or the subject of a preparatory examination is produced as a witness by or on behalf of the public prosecutor and submits to be sworn as a witness, and fully answers to the satisfaction of the court or magistrate all such lawful questions as are put to him while under examination such person shall thereby be absolutely freed and

provided that such discharge shall be of no force and effect and the entry thereof on the record of the proceedings shall be deleted if, when called as a witness at re-opening of the preparatory examination or at the trial of any person upon a charge of having committed such offence, the person in respect of whom the discharge was made fails to submit to be sworn as a witness or fully to answer, to the satisfaction of the magistrate holding the preparatory examination or of the court trying such charge, all such questions as are put to him while under examination as a witness." (emphasis added)

I note that s. 237 above quoted does not stipulate any specific time when the court may cause a discharge to be entered on the record of proceedings, save that the court may cause such entry to be made when it is satisfied that such person has fully answered all such lawful questions as are put to him. The section is silent on the veracity of the witness and does not require that the court should believe the evidence of such witness before entering a discharge of the witness. The court may order a discharge to be entered in pursuance of the section if it is satisfied that the witness has fully answered all lawful questions put to him. That was exactly the order that the trial court made. Viewed in this light, it is difficult to appreciate how the discharge of Nicholas Zakhem at the end of the case for the prosecution can be interpreted to mean that his evidence is believed by the court and so there has been a

"It seems clear that it is undesirable for the discharge to be given at a stage before, at any rate all the witnesses have testified and argument has been heard, since it might well indicate that the magistrate had prematurely come to the conclusion as to the credibility of the witness so discharged."

However, that the question before the Court of Appeal was not whether an irregularity in the proceeding in the trial court had occurred, but whether such an irregularity had indeed resulted in a failure of justice; whether such a failure of justice had indeed occurred, could only be answered by the realities of the case.

4. That as the appellant's legal representative at the trial raised no objection to the discharge of the accomplice, either when it was granted or at the end of the case, and objection was not made to the magistrate's conduct in the original grounds of appeal, that no failure of justice had occurred as a result of which the appellant did not have a fair trial.

I am, therefore, in agreement with Chatikobo J. that the discharge of the accomplice witness at the end of the state case was an irregularity. But as the learned Judge pointed out, the observation by Hoexter J.A. in R v. McMillan and Another 1958 (41 S.A. 461 (A) at 469 G-H - 470 A-B are apposite.

"Counsel argued that a trial judge cannot properly decide whether the answers of an accomplice have been frank and honest unless and until he has heard all the evidence. Assuming, without deciding, that the learned Judge President acted irregularly in granting a discharge to the accomplice Nvojana before the end of the trial, it seems to me that the second appellant suffered no prejudice by reason of the irregularity. In the first place the premature expression of an opinion as to the credibility of an accomplice will not prevent a trial Judge from making a fair appraisal of the accomplice's credibility at the end of the trial in the light of all the other evidence. Indeed counsel did not contest this. He argued however that the minds of the assessors may have been affected adversely to the second appellant by the alleged irregularity. That is an unconvincing argument. A judge sitting with assessors is surely entitled at any stage of the trial to discuss the case with his assessors and to express his views as to the credibility of the witnesses who have given evidence. He himself may change his views at a later stage of the trial and the assessors are not bound in any way by his views. The mere expression of his views by the Judge to the assessors cannot therefore have prejudiced the second appellant in any

way. Finally it is suggested that the alleged irregularity may have discouraged the second appellant in his defence. I can think of quite a number of cases in which an accused may be discouraged by an order of the court but in which he is not regarded as suffering any prejudice. An accused may feel discouraged when his counsel's application for his discharge at the end of the Crown case is dismissed by the court. He may also feel discouraged when the trial Judge admits a confession made by him and rejects his testimony that it was extracted from him by force. But it cannot be said that the accused has suffered any prejudice in either of these cases." (emphasis added)

It is contended by counsel for the appellant that implicit in the finding by the trial Judge that the accomplice witness answered all questions frankly and honestly is the finding that the trial court believed the accomplice witness. It was further contended that where, as in this case, the accused person's testimony directly contradicted the evidence of the accomplice witness, it is implicit in the finding prematurely made at the close of the State case that there has been a premature rejection of the honesty and frankness of the accused as well as the credibility of his evidence.

If the appellant's argument in this regard were sound, it would mean that whenever in a criminal trial the court rejects a submission of no case to answer, then the implication is that it believes as truthful the witnesses for the prosecution, and it has prejudiced the accused by pre-judging the veracity of the prosecution witnesses. But, as we all know, there can be nothing further from the truth than this assertion.

The rejection of a submission of no case to answer means nothing more than that if the evidence so far adduced were accepted, a court properly directing itself could convict, therefore, the evidence calls for rebuttal. It does not mean that the evidence of the witnesses for the prosecution is considered inviolate, but that if such evidence is not rebutted it is likely that a conviction would ensue. See Hoexter J.A.'s observation above quoted.

"...that notwithstanding that the court is of opinion that any point raised might be decided in favour of the accused, no conviction or sentence shall be set aside or altered by reason of any irregularity or defect in the record or proceedings unless it appears to the court that a failure of justice has in fact resulted therefrom."

In Mr. Bayford's Heads of Argument filed in the High Court, it was not suggested that the premature determination of the credibility of the accomplice witness had resulted in a failure of justice, but I am prepared to accept that he intended as much when he stated that the "immunity granted to PW1 (the accomplice witness) prior to the close of the defence case prejudiced the accused/appellant." Before us Mr. Du Toit submitted that a failure of justice resulted from the irregular premature finding on the credibility of the accomplice witness.

"Where the Court of Appeal, in an appeal against conviction considers that, notwithstanding the fact that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, there has been no substantial miscarriage of justice, it may dismiss the appeal."

These two provisions in the view of Aguda J.A. expressed in Nini Makwapeng v. The State Cr. A. 28/1998 at p. 10 are indicia "that what the courts are expected to do is not merely to follow the provisions of the law blindly, but to have their eye riveted on the achievement of justice whilst applying the provisions of the law."

It seems to me that for the appellant to succeed in establishing either that there has been a failure of justice or that there has been a substantial miscarriage of justice, he must be able to prove that, on the record, but for the irregularity complained of his conviction would be insupportable by the evidence adduced. Unless an irregularity or defect in the record goes to the very root of the matter and results in a substantial miscarriage of justice, a conviction is not to be set aside if there is ample evidence on the record to support it. Samuel Motshegare v. S. Cr. A. 6/1999. Marietta Bosch v. S. Cr. A. 37/1999.

The accomplice witness, Nicholas Zakhem, said he was employed by Zakhem Construction as a site engineer in 1990. In 1994 the company won a tender for the rehabilitation of the Rasesa-Monametsana Road. The contract price was P12 194 000.00. The period of the contract was 11 months and the stipulated date of completion was December 1995.

Zakhem Construction submitted two bids for the project. The main bid was for P12 786 832.96. The alternative bid was P12 194 000.00. The basis for the alternative bid was that Zakhem Construction would produce its own crushed base material at its own quarry to be set up at Pilane. In terms of the main bid Zakhem Construction would have to source its base material from Gaborone Commercial Quarries.

Nicholas Zakhem got to know about the tender evaluation in August 1994 from Alemayehou. This was not in keeping with tender protocol as the results of tender evaluation were supposed to be a secret and should have been communicated only to the Roads Department at that stage. As a result of what he was told Nicholas Zakhem visited Alemayehou's office and Alemayehou advised him to go and see the Director of Roads (Appellant) in order to get his support for the award of the tender.

Bergman International, who were the consulting engineers, had recommended Concor for the project after paying a visit to Zakhem Construction to satisfy themselves of Zakhem Construction's capacity to carry out the work. They considered Concor's capacity to be superior to that of Zakhem Construction and recommended Concor.

Nicholas Zakhem approached the appellant on the same day that Alemayehou advised him to do so. The purpose of seeing the appellant was to impress upon him how rewarding it would be to the Roads Department if Zakhem Construction was awarded the tender. The appellant did not say yes or no but Nicholas got the impression that the appellant was interested. That same day Nicholas telephoned his superior, one Ibrahim Zakhem, in Kenya and briefed him about his meeting with the appellant. Ibrahim Zakhem told Nicholas to convey his (Ibrahim's) regards to the appellant and specifically ask for the appellant's support in securing the contract and to inform the appellant that he would be financially rewarded for this assistance. Nicholas duly

carried out Ibrahim's instructions and informed the appellant that Ibrahim Zakhem said the appellant would be financially rewarded if he gave Zakhem Construction his full support in obtaining the tender. The appellant's reaction was that he would be happy with the reward after an award of the Rasesa-Monametsana project to Zakhem Construction.

A day or so after the above conversation with the appellant, Ibrahim Zakhem telephoned Nicholas to inform him that he would be arriving in Gaborone on 16^th August 1994 and that Nicholas was to withdraw an amount of P100 000.00 from the bank account of Zakhem Construction. Ibrahim's instruction was that the amount was to be withdrawn by making out three separate cheques. Ibrahim indicated that his trip to Botswana was intended to "finalise the award of the said road project."

Nicholas, in the company of the Chief Administrator Elie Eid and accountant Tebogo Notha went to the Standard Chartered Bank where the amount of P100 000.00 made up of three separate cheques for P30 000.00; P30 000.00 and P40 000.00 respectively, were withdrawn. All three cheques were dated 16^th August 1994, and were signed by Nicholas and Tebogo Notha.

This piece of evidence received corroboration from Tebogo Notha who testified that on 16^th August 1994 he visited the bank accompanied by Nicholas Zakhem and Elie Eid; that they withdrew cash PI00 000.00 on three cheques made out for P30 000.00; P30 000.00 and P40 000.00

After the amount of PlOO 000.00 was withdrawn from the bank, it was taken to the house of Nicholas for safe-keeping. Tebogo Notha confirmed that the withdrawal was effected at about 11.00 am and that from the bank they drove to the house of Nicholas, where Nicholas and Elie Eid took the money into the house and returned empty-handed.

Later in the day of 16^th August 1994, Nicholas said he collected Ibrahim Zakhem from the airport and took him to the Gaborone Sun Hotel. Bruce H. Page-Wood, the General Manager of the Gaborone Sun Hotel testified that he can say from records in his possession at the hotel that a man who gave his name as Mr. I. S. Zakhem of Zakhem Construction stayed at the Gaborone Sun Hotel between 16^th and 18^th August 1994.

Samia Nicholas Zakhem is the wife of Nicholas Zakhem. She said she knows Ibrahim Zakhem and that he is a cousin to her husband. She testified that on 16^th August 1994, her husband arrived home in the late hours of the morning with Elie Eid and Tebogo Notha. Her husband called her into the bedroom and asked her to put some money, which was in two Standard Chartered Bank bags, in a safe place. She complied with his request and hid the money after she had counted it. There was PlOO 000.00.

Nicholas Zakhem said later in the day Ibrabhim Zakhem told him that he had spoken to the appellant; and instructed Nicholas to communicate with the appellant to arrange where and when the PI00 000.00 could be handed over. On the afternoon of that day Nicholas visited the appellant who said Nicholas should telephone him later to set up the venue and the time.

Nicholas testified that on the evening of 16^th August 1994, he and his wife had dinner with Ibrahim Zakhem at the Gaborone Sun Hotel. This dinner was also attested to in the testimony of Samia, who said that at that dinner she heard Ibrahim Zakhem say to her husband that "we must be sure that by tomorrow the P100 000.00 is given to the Director of Roads and that everything would be okay."

Nicholas testified that prior to that dinner he and the appellant had agreed on the time and venue of a meeting. Initially the time agreed upon was 12.30 pm on 17^th August 1994. The venue was Gilick Motors. Before 12.30 pm on 17^th August 1994, Nicholas and Elie Eid drove to Gilick Motors but the appellant did not show up. At about 2.30 pm Nicholas telephoned the appellant who apologised for not honouring the appointment, and 5.00 pm was agreed upon for the time of the delivery.

Samia gave him back the P100 000.00 which he put into the black Pierre Cardin bag. He said he drove to Gilick Motors at about 5.00 pm as arranged with the appellant. He saw the appellant who waved at him to follow him. He did so. When he got to the appellant's car, Nicholas opened his car window and handed over to the appellant the black Pierre Cardin bag containing the PI00 000.00, without getting out of his car. He said the appellant was sitting in his car and did not get out of his car either.

The black Pierre Cardin bag is one that can be obtained from any other place, but the direct evidence of Nicholas associating the PI00 000.00 and the black Pierre Cardin bag with the appellant received support from the testimonies of other witnesses. Christopher Valkenburg testified that he was the Sales Manager for Interbrand in South Africa. Interbrand has a licence to distribute Pierre Cardin luggage in South Africa, Botswana, Lesotho and Swaziland. In 1994 they supplied Game Botswana with bags under the brand name Pierre Cardin.

the appellant the PI00 000.00 in a black Pierre Cardin bag purchased from Game on 17^th August 1994. Mrs. Zakhem witnessed the PI00 000.00 being put into a black Pierre Cardin bag. The bag and money never came back. William Matlhabaphiri, who searched the appellant's house in the presence of the appellant, his wife and his lawyer, Mr. Tafila, said he recovered a black Pierre Cardin bag fitting the description given by Nicholas Zakhem from the appellant's wardrobe.

The appellant said he got the black bag from one of the conferences he attended without specifying which. Unless Nicholas Zakhem was clairvoyant he would not know that the appellant had a black Pierre Cardin bag in his house if he, Nicholas Zakhem, had not given it to him. Furthermore, the appellant correctly accounted for where and when he received all other bags found in his house, except for the black Pierre Cardin bag. There was evidence from his colleagues to establish at which conference other bags were obtained, except the black Pierre Cardin bag.

As mentioned earlier, the learned trial magistrate applied the cautionary rule in his judgment. He contrasted the testimony of Nicholas Zakhem with that of the appellant and found that Nicholas Zakhem was a credible witness. The magistrate looked for corroboration and found that his testimony was amply corroborated by other witnesses. The appellant's testimony contrasted with that of the evidence given by the prosecution witnesses shows that all he did was to deny everything that

ought no longer to be the guiding principle in deciding whether a conviction should stand. This argument was advanced on the basis that section 10(1) of the Constitution of Botswana provides that a person charged with a criminal offence is entitled to a fair hearing. It was submitted that to the extent that section 10(1) of the Constitution of Botswana requires a fair hearing, it is analogous to section 25(3) of the South African Constitution which requires a fair trial. It was contended that the cases of R. v. McMillan and Another 1958 (4) S.A. 461 (A): S. v. Dlamini 1978 (4) S.A 917 and S. v. Lubbe 1981 (2) S.A. 854 on which Chatikobo J. relied to found a judgment that no failure of justice had resulted from the conviction in this case were all decided prior to the advent of section 25(3) of the South African Constitution. It was submitted that since section 25(3) of the South African Constitution came into force the test to apply is that of a "fair trial" rather than that of a "failure of justice." In consequence the South African court could not

have declared a procedure whereby an accomplice witness is found by a trial court to have answered all questions frankly and honestly before the accused gives evidence, to be "fair." Therefore, in the light of section 10(1) of the Botswana Constitution, it was erroneous for the High Court to import into this country the ratio in South African decisions delivered before the Constitution and relied on by the High Court to conclude that there was no failure of justice.

This view, as pointed out by Mrs. Dambe, is not supported by the decision of the Constitutional Court in S. v. Mvelase 1996 (8) BCLR 1055; where the court cited with approval the following passage from the judgment of Nienaber J. in the State v. Dladla 1989 14) S.A 172 at 193 D-

"For criminal proceedings to be vitiated and a conviction to be quashed there must first be an irregularity. An irregularity occurs ^whenever there is a departure from those formalities, rules and principles of procedure with which the law requires such a trial to be initiated or conducted'. {S. v. Xaba 1983 (3) SA 717 (A) at 728D.) An irregularity will thus be committed if a rule of practice, procedure or evidence, or a precept of natural justice recognised in our law, is disregarded.

Not every irregularity, however, is fatal. To be fatal to the proceedings the irregularity must result in a failure of justice; There will be no failure of justice if there is no prejudice to an accused, and there will be no prejudice to him if he would have been convicted in any event, irrespective of the irregularity. Prejudice must, in principle, be proved. But there is this qualification: if the irregularity impairs a facet of the proceedings which is fundamental to a proper administration of justice, the proceedings as a whole are tainted; when, as a result there is a failure of proceedings as a whole, there is by the same token a failure of justice; it would then be idle to speculate, in addition, on what, but for the irregularity, the fate of the accused would

have been. A failure of justice will thus be taken for granted whenever the irregularity compromises, for instance, (a) the eligibility, competence, integrity or impartiality of the tribunal; or (b) the competence or ability of the accused to follow the proceedings; or (c) his prerogative to present his defence; or (d) his right to arrange legal representation; or (e) the propriety of the prosecution as a whole; or (f) the reliability of the evidence as a whole, for instance, when the testimony in its entirety was not properly sworn, affirmed or duly interpreted; when the record of the proceedings cannot be traced or reconstructed; or when the accused's selected or assigned counsel is afterwards found not to have been legally qualified to act as such."

"210. (1) Whenever in the course of a trial, preparatory examination or any other criminal proceedings it appears to a court that the examination of a witness is necessary for the ends of justice and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience, which under the circumstances of the case would be unreasonable, such court may dispense with such attendance and may issue a commission to any magistrate or, where the witness is resident outside Botswana, to any person authorized by such court to take evidence on commission in civil cases outside Botswana, within the local limits of whose jurisdiction such witness resides: Provided that -

A formal application to have the evidence of Ibrahim Zakhem taken on oath was made at the close of the prosecution case and before the appellant testified. The prayer of the appellant was that the court should issue a commission to record the evidence of Ibrahim Zakhem in Kenya. Ibrahim Zakhem, it was said, had indicated that he was unwilling to travel to Botswana to give evidence on behalf of the appellant because there was a warrant of arrest extant against him for his alleged complicity in the offence for which the appellant was on trial.

The application, which was opposed, was argued after the appellant had given evidence. The learned trial magistrate, without assigning reasons therefor, dismissed the application on the ground, firstly, that the reasons advanced for the reluctance of the witness to come to Botswana were not adequate; and secondly, that the ends of justice would not be defeated by the non-attendance of Ibrahim Zakhem.

"Both textbook writers and judges have repeatedly held that in cases where the court's findings will turn on credibility, the demeanour of the witness whose evidence is to be obtained on commission is of crucial importance to the trier of fact. In the context of this case, Ibrahim Zakhem had as much interest to serve as his cousin, Nicholas Zakhem. He would want for obvious reasons, to deny that he instructed Nicholas Zakhem to offer the appellant a bribe in as much as Nicholas Zakhem would want to convince the court that he is the one telling the truth. The court would be forced to choose who to believe between the two Zakhems, and, without the advantages of seeing Ibrahim Zakhem giving evidence the court would not place much weight on his evidence. This much is apparent from the authorities. See S v. French Beytagh 1971 (4) S.A 426 (T); S v. Hassim & Others 1972 (2) S.A. 448 (N); S v. Hassim & Others 1973 (3) S.A. 443 (A); S v. Nyamayemu 1978 (2) S.A. 684 (R); S v. Hoare & Others 1982 (3) S.A. 306 (N) and Robinson v. Randfontain Estates Gold Mining Co. Ltd 1918 T.P.D 420, 442. In the latter of these cases, Wessels J. said:-

The person who produces on paper the evidence of a witness is as a rule at a disadvantage, because the court will pay more attention to the evidence of witnesses who appear before it, who are examined and cross-examined before it, than to those witnesses whom it has not had an opportunity of seeing and, if a question arises as to the credibility of such a witness, or whether the court ought to accept his testimony, it would prefer to base its judgment on what it has seen

Ibrahim Zakhem's refusal to come to Botswana and testify was because there was a warrant of arrest against him. In opposition to the application for a commission to issue, the Deputy Attorney General offered to have the warrant of arrest lifted to enable the witness to travel to Botswana to give evidence. After giving evidence the witness could leave this country without an arrest being effected on his person. The source of Ibrahim Zakhem's fears was going to be removed to enable him to enter the country and testify without let or hindrance.

In the reply of Counsel for the appellant in the court of first instance, no mention whatsoever was made to the offer by the prosecution to have the warrant of arrest lifted. Instead, Counsel in his reply averred that the evidence which they seek to adduce on commission relates to the fraudulent activities of Nicholas Zakhem of siphoning funds out of the coffers of Zakhem Construction Botswana. Such evidence is hardly crucial to the determination of whether or not on 17^th August 1993, the appellant did receive a sum of PI00 000.00 from Nicholas Zakhem.

Mrs. Dambe submitted, quite rightly, that the lack of genuineness about calling Ibrahim Zakhem as a witness was further demonstrated by the approach adopted by the defence after the ruling by the court dismissing the application for evidence to be taken on commission. Immediately

"The criticism which is now made betrays a fundamental misunderstanding of the role of the magistrate. It was not for the court to pursue the issue of the cancellation of the warrant. It is the appellant who wanted Ibrahim Zakhem to give evidence on his behalf. He it is who should have obtained a satisfactory undertaking, in proper form, from the Attorney-General. He it is who should have, when armed with such undertaking, conveyed it to Ibrahim Zakhem and asked him to come to Botswana. All these were administrative matters to be ironed out between the state and defence. The undertaking was made twice on record by the Deputy Attorney-General, not by a junior prosecutor. The Attorney General is the sole authority who makes decisions about when to prosecute and when not to. Once he made his decision the appellant and his legal team should have respected that decision. Only in the event that Ibrahim Zakhem persisted in his refusal to come to Botswana regardless of the undertaking, would the appellant have been

The issue was not whether there was a duty on the prosecution to secure the attendance of Zakhem at the trial. The onus of securing the attendance of the witnesses lay on the party intending to call him. The function of the State was to ensure that any impediment which could have prevented the defence from calling the witness was removed. This the State did. The point made concerning section 10(2) (e) of the Constitution does not arise. There was never a failure by the State to afford the appellant facilities for defending himself. A decision by a court to refuse to issue a commission cannot amount to a violation of section 10(2) (e) of the Constitution and as far as the State was concerned, it did everything possible to assist the appellant though the State's overtures of assistance were rebuffed."

Botswana: Court of Appeal

Kemokgatla v The State (Criminal Appeal No. 43 of 202) [2003] BWCA 19 (31 January 2003)