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Seloka v The State (Criminal Appeal No 34 of 202) [2003] BWCA 21 (31 January 2003)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
Court of Appeal Criminal Appeal No 34 of 2002 High Court Criminal Case No 26 of 2000
In the matter between;
M0LATLHEGI SEL0KA        APPELLANT
Vs
THE STATE        RESPONDENT
Mr Attorney Y. S Moncho for the Appellant Mrs Attorney S. Mangori for the State
JUDGMENT
CORAM:   P. H. TEBBUTT, J. P.
J. M. NGANUNU, CJ (J. A.) A. M. AKIWUMI J. A.
AKIWUMI. J. A
The Appellant in this appeal was convicted of the offence of threat to kill his previous girl friend, Lesego Moreriwa, and her father, Kempe Boiki Moreriwa, brought under Section 220 (1) of the Penal Code. He was then sentenced to a conditional suspended two years imprisonment.
The evidence before the trial court was that Boiki who was, not surprisingly, against the ongoing love affair between his then sixteen years old school going daughter, Lesego, and the much older
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Appellant, had sternly brought an end to this affair and in the course of which, he had assaulted the Appellant. It is also not surprising that the Appellant took offence to this treatment and had subsequently in 1996, beaten Lesego and threatened that he would kill her and her father. Lesego did not then take this threat seriously as she thought the Appellant was joking and did not tell her father about it.
In the evening on Good Friday in 1997, Lesego had gone to the public telephone booth at Mochudi to make a telephone call. There, she found the Appellant in the telephone queue who asked her to dial his number for him as he could not see very well. Lesego obliged and the Appellant spoke on the telephone. He did not, however, go away after he had finished. When Lesego dialed the number she wanted to call, and by this time, they were the only two people at the telephone booth, the Appellant snatched the telephone from her and slammed it down wanting to know whom Lesego was calling. The Appellant then tried to hit her and she ran away. When she stopped, the Appellant came to her and threatened to kill her and her father in the following words as contained in the charge;
"I will kill you and your father as your father has bewitched me. I have even told Digai that I am going to kill you and your father as your father had bewitched me, I was even helped by Zimbabwean doctors.
I am going to kill you because you are refusing to fall back in love with me".
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This time, Lesego took the Appellant's threat seriously and reported it to her mother as soon as she got home. In answer to a question in cross-examination which could only have been to the effect that the Appellant did utter the threatening words but was only joking when he did so, Lesego said that;
"Accused was not smiling when he uttered those words",
The Appellant in his evidence said that on the fateful evening, he had gone with a friend, Ishmael, to the public phone booth to make a telephone call. Then and rather strangely, and suspiciously avoiding to name Lesego whom he knew very well and intimately, he said that:
"On arrival at the booth we found a number of people waiting ie 6 to 8. They were chatting and they looked as if they were waiting for the call I then went to the booth. That is when I noticed the woman waiting next to tried (sic) to phone and since it was during the night I could not see the numbers. I asked her if she could see the numbers and I gave her the numbers and she dialed for me. I spoke to the person I wanted to talk to.
We started chatting and she asked me where I had been. The other people were there not far from us and still around, never had any confrontation with Lesego she was chatting loudly and I had to laugh. She is the one who came up with jokes which caused us to laugh. I did not utter any words which were threatening to Lesego. Ishmael was a distance away from us when I made a call. (200m = away) Ishmael never commented. After calling I took my friend and we went away to Ishmael's place where we spent the night together".
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Ishmael was not near the Appellant and Lesego and as the learned
Magistrate said in his judgment:

"...it is indeed the word of accused as against the word of the complainant - PW2. PW2 admits that initially when she met accused at the phone - booth, the mood appeared cordial and peaceful and that it appeared an insult enough to accused when she tried to dial the number for the person she had come all the way from home to phone. According to this witness, it was then that accused uttered the statement threatening to kill her and her father. On the other hand accused denied ever uttering such threatening statement".
The learned Magistrate then proceeded to consider, the evidence of
Lesego as well as that of the Appellant. As he did so, he also took into
consideration that Lesego had initially lied to her father about the love
affair that existed between her and the accused and the aggression
and arrogance of Lesego's father towards the Appellant, which must
have also contributed to the Appellant's threatening attitude. The
learned Magistrate in doing this, said:
"I must revisit the issue before this court - session because the determination of the first may render the determination of others otiose. In so doing I will closely look at the evidence of ... witness, i.e. responses during cross examination and able submission proffered by both Counsel. In my view a careful reflection of evidence in toto shows that PW2 and accused were almost ad idem save for two or so instances. Without repeating all the evidence, it is clear that accused admits most of PW2's evidence and only denies that he ever assaulted her; that he uttered statement threatening to kill her and her father.
Although the cross examination of State witnesses by Defence Attorney was long; at times sole - searching and simply repeatetive (sic) of what he would already asked witness differently, but evidence of PW2
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remained unshaken. I therefore believe and accept her evidence as the truth. ...
I am also prepared to accept state evidence that FW2 apprehended fear that the threat would be carried out I believe it was for this reason that she immediately reported to her parents of the earliest opportunity. In my view, although accused had no direct grudge against PW2 but he had been sickened by the PWl's aggression and arrogance which had in no doubt had him punished (unduly or excessively)".
As Tebbutt J.A. as he then was, observed in Monty Bogosi v The State CrA25/1996
"It is now well-established in the Court, as it is in the courts of other Commonwealth countries, such as the United Kingdom and South Africa, that an appeal court is very reluctant to upset the findings of fact of the trial Judge a quo and will do so only where it is convinced that he was wrong, the trial court having had the advantage of seeing and hearing the witnesses and observing their demeanour".
On a careful reading of the record of appeal, I am satisfied that the learned Magistrate, having regard to the particular circumstances of the matter before him and his consideration of the pertinent evidence adduced before him by Lesego and the Appellant, gave a fair and proper consideration of the pertinent evidence before him, including that of the Appellant, before concluding that the Appellant was guilty of the offence charged. The first ground of this Appeal that the learned Magistrate did not analyse, as he should have done, the evidence of the Appellant is without merit.
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The next ground of appeal argued on behalf of the Appellant is that since Section 220 (2) of the Penal Code mandatorily requires that a prosecution for the offence of threat to kill made otherwise than in writing, the offence with which the Appellant had been charged, shall not be instituted except with the written consent of the Attorney-General, and that such a written consent was not exhibited to the trial Magistrate's court, then the trial of Appellant was a nullity.
The prosecution of the Appellant was instituted according to the record of appeal, on the 17th of March, 1998, when the Appellant was arraigned before the learned Magistrate. It was on that date that the charge even though dated 6th day of February, 1998, was read over, and explained, to the Appellant who then pleaded not guilty to it. The 17th March 1998, was thus the date when the Appellant's prosecution was "instituted". And on that date, after the Appellant had pleaded not guilty, the Prosecutor informed the learned Magistrate that he had received the Attorney - General's consent to prosecute the Appellant. The Attorney General's written consent though not produced to the learned Magistrate, was later found in the Registrar's file sent for the purposes of the appeal. It was shown to this court, and is dated 24th February, 1998, a date which is prior to the institution of the prosecution which, as already indicated, was on 17th March, 1998.
It therefore cannot be denied that the Attorney - General's written consent had been given on 24th February, 1998 for the institution of the Appellant's prosecution which began on 17th March, 1998.
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Counsel for the Appellant has, however, submitted that failure to make the written consent a part of the proceedings of the trial of the Appellant or to exhibit it at the trial as was the case, rendered the trial a nullity. In support of this proposition, Counsel for the Appellant referred to two authorities, namely, State v Ngwako 1984 B.L.R 156 and State v Kasama 1993 B.L.R 1. In the Ngwako case, Chief Justice O'Brien Quinn took note of the decision in the English case of R v Angel (1968) 1 W.L.R. 669 C.A which he regarded as setting out the then existing practice in England. This English decision was to the effect that it should not be left to the accused to raise the point whether consent to prosecute had been given as it should be presumed that the clerk of assize would have ensured that such consent had been given. Though there is no clerk of assize in Botswana, the role of the Registrar in criminal cases would encompass that of the clerk of assize in England. Chief Justice O'Brien Quinn then considered the position in South Africa where it was held in R v Mintz (1923) B.P.H, K4 that a conviction under the Motor Vehicle Ordinance be set aside because the requirement under that Ordinance to give notice of the prosecution to the accused, had not been complied with. Asserting that he was following the then practice in England and South Africa as indicated above, Chief Justice O'Brien Quinn in my view, overstepped the ambit of these English and South African decisions when he held (and Section 220 (2) of the Penal Code does not like the South African Motor Vehicle Ordinance, mandatorily
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require that the accused person should be notified, or the trial court for that matter, of the written consent of the Attorney-General) that:

"I consider that where a prosecution is commenced in a case where the written consent of the Attorney-General to such prosecution is required by law, and such written consent has not been procured and exhibited to the court of trial then any trial ... commenced without such a written consent properly before the court must be deemed to be a nullity. In the present case, therefore, I hold that the trial of the accused... was a nullity in the absence of the written consent of the Attorney-General and I quash the conviction and sentence".
It is my view that Chief Justice O'Brien Quinn went too far in insisting
that the written consent of the Attorney-General must not only be
procured but also that it be exhibited to the court. In any case, in the
present appeal, the written consent was found contained in the file
sent to the Registrar who is more than the local equivalent of the clerk
of assize, and which may thus be regarded as exhibiting or notifying it
to the court..
In the more recent local decision on this issue of State v Kasana, Gyeke Dako J, (and the Ngwako case was not drawn to his attention) took in my view, a more realistic and less restrictive stand on the issue which is in consonance with the following provisions of Section 26 and 27 of the Interpretation Act:
"Every enactment shall be deemed remedial and for the public good and shall receive such fair and liberal construction as will best attain its object according to its true intent and spirit.
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In the construction of an enactment, an interpretation which would render the enactment ineffective shall be disregarded in favour of an interpretation which will enable it to have effect".
This is what Gyke Darko J pronounced:
"It is to be observed that where such consent is given by the Attorney-General, it must be brought to the attention of the trial Court and the fiat made part of the proceedings even before the accused is called upon to plead. The language of the subsection is clear and devoid of ambiguity. It states in categorical terms that subject to the limitations therein stated, the prosecution shall not be instituted under the section, except with the consent of the Attorney-General.... In the instant case, even though counsel for the prosecution omitted to draw the Court's attention to the existence of such fiat given by the Attorney General, I see one dated 14 July 1992 in file. I am satisfied that these proceedings were conducted on the basis of the maxim omnia praesumuntur rite et solemniter esse acta: (All acts are presumed to have been done rightly and regularly)".
On 17th March, 1998, when the Appellant appeared before the learned Magistrate, he pleaded not guilty to the charge and the Prosecutor informed the learned Magistrate that the consent of the Attorney -General to prosecute the Appellant had been received. But this is not a fault that should render the trial of the Appellant a nullity. Indeed, even if the Prosecutor had failed to draw the attention of the learned Magistrate to the Attorney-General's consent, it would not have mattered since the Attorney-General's fiat dated before the trial of the Appellant, was in existence. And if I may employ the maxim referred to by Gyeke Dako J, and unless otherwise established: omnia
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praesetnuntur rite et solemniter esse acta. The Appellant s second ground of appeal also fails.
In the result, the Appellant's appeal is dismissed.
It is so ordered.
DELIVERED IN OPEN COURT AT LOBATSE ON THE „(...: DAY OF JANUARY 2003.

Ci^fri^?

I agree,
A. M. AKIWUMI JUDGE OF APPEAL
P. H. TEBBUTT JUDGE PRESIDENT


I agree,
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J. M. NGANUNU (CHIEF JUSTICE) JUDGE OF APPEAL

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