Kobedi v The State (Criminal Appeal No. 25 of 201) [2003] BWCA 22 (19 March 2003)

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

You are here: SAFLII >> Databases >> Botswana: Court of Appeal >> 2003 >> [2003] BWCA 22

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

Kobedi v The State (Criminal Appeal No. 25 of 201) [2003] BWCA 22 (19 March 2003)

.PDF of original document

.RTF of original document

\ \
y

IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
Court of Appeal Criminal Appeal No. 25 of 2001 High Court Criminal Trial No. F.29 of 1997
In the matter between:
LEHLOHONOLO BERNARD KOBEDI Appellant
Vs.
THE STATE Respondent
For Appellant: Advocate B. Spilg, S.C. with Mr. U Mack For Respondent: Mr. L. Z. Ngcongco with Mrs. M.M. Abram
and Ms. T. Mobea

JUDGMENT
CORAM: TEBBUTTJ.P. KORSAH J.A. ZIETSMAN J.A. PLEWMAN J.A. LORD SUTHERLAND J.A.
TEBBUTT J.P.

The appellant who is, according to him, a citizen of Lesotho, has engaged the attention of the courts of Botswana since November 1997. It all began on 21 May 1993 when Kagiso Bene Mmolawa, a bank manager, was robbed at gunpoint of his motor vehicle. On 22 May 1993 Kebotsetswe Goepamang, a sergeant in the Botswana Police, was one of a body of policemen who were investigating the robbery and were following

the spoors of the suspected robbers when they heard of the presence of three unknown persons in the vicinity. The police encountered the three men and in their attempt to apprehend these men, Goepamang, to whom I shall refer as the deceased, was shot. He died about 36 hours later in hospital.

The appellant was alleged to have been the person who shot the deceased, using a 9 mm Makarov pistol for which he had no licence. He was also alleged to have robbed one Ralph Monchusi of his 4x4 vehicle, using the pistol to do so, in attempting to get away from the police.

The appellant was charged before Gittings J in the High Court with the murder of the deceased, with the armed robberies of Mmolawa and of Monchusi of their motor vehicles, and with being in unlawful possession of the pistol. On 7 September 1998, Gittings J. found the appellant not guilty of robbing Mmolawa of his vehicle but found him guilty of the murder of the deceased and, finding no extenuating circumstances to be present, on 14^th October 1998 sentenced him to death. He also found the appellant guilty of the armed robbery of Monchusi for which he was sentenced to 15 years imprisonment, and of being in unlawful possession of a firearm for which a fine of P250.00 was imposed.

The appellant appealed against his convictions and sentences to this Court and on 22 January 1999 the Court (Steyn J.A., with Aguda J.A. and Friedman J.A. concurring) dismissed the appeal and confirmed the convictions and sentences. I shall refer to the proceedings before GittinRS J. and in the appeal before this Court in more detail later herein.

There, one would have thought, the matter would have rested. But no. On 9 November 1999 a notice of motion, supported by a founding affidavit by the appellant, was launched in the High Court on behalf of the appellant in which the following relief was sought viz. an order:
1.

directing that the execution of the death sentence imposed on the appellant be stayed pending finalisation of the matter;
2. directing that the trial in the High Court was a mistrial and unfair and that he be discharged and tried afresh.

alternatively, declaring that the execution of the death sentence, was unfair and unreasonable by reason of delay (i.e. from September 1998 to November 1999.)

That application came before Kirbv J where it was contended on the appellant's behalf that he had not had a fair trial because (i) he was not provided with an interpreter in his own language, Sesotho (ii) he was not given the opportunity to be represented by an attorney of his own choice.

Kirbv, J immediately queried whether he, as one High Court Judge, was empowered to review the decision of another High Court Judge, viz.

Gittings J, or of the Court of Appeal in dismissing the appellant's appeal to it. He also queried whether both Courts were not functus officio. The response by the appellant's then counsel, Mr. Joina, was that Section 18 of the Constitution of Botswana conferred upon the High Court jurisdiction additional to its original jurisdiction contained in Section 95 (1) of the Constitution enabling the High Court to hear the application before it, even though the High Court and the Court of Appeal had given judgments in the matter. He submitted further that the Courts, in deciding constitutional issues raised in terms of Section 18 of the Constitution, were not functus officio.

In a very full, comprehensive, closely reasoned and careful judgment, Kirby J held that there was no merit in the appellant's contention that he had not had a fair trial because he did not have an interpreter. It was clear from the record of the trial that he understood and spoke English. Kirby J. dismissed his contention as an "opportunistic afterthought." The learned judge also found that he had been adequately represented at the trial first by an attorney of his own choice and later, when the latter ceased to represent him, by pro deo counsel. Finally, the learned judge found that no unreasonable delay had occurred between the passing of the death sentence and the appellant's application before him. The application was accordingly dismissed on all grounds. It is against that decision that the appellant now comes on appeal to this Court.

It is convenient at this stage to refer to the legal representation of the appellant at the various stages of his appearances before the Courts, including his representation before this Court. At his trial before Gittings J, the appellant was represented at his own expense by a legal practitioner of his own choice, viz Attorney A. M. Marumo, from the commencement of the trial on the 4^th November 1997 until the close of the State case on 27^th February 1998. Thereafter Mr. Marumo who was removed from the roll of legal practitioners, was no longer available to continue with the trial and attorney M. Dikgokgwane was appointed by the State to represent him on a pro deo basis. The trial Judge allowed the recall of three key state witnesses and their further cross examination by Mr. Dikgokgwane. The appellant then gave full evidence on oath and called one defence witness and lengthy final submissions were made by counsel for the State and by Mr. Dikgokgwane. The appellant was accordingly legally represented at all stages of the trial albeit not for part of it by a practitioner of his own choice but by pro deo counsel. I agree with Kirby J. that the record shows that the latter adequately represented him. The appellant apparently wanted , at the latter stage of the trial, to be represented by another attorney Mr. K. Yoganathan, but did not have the funds to engage his services.

However, when the matter came before this court on appeal from the trial court, the appellant had secured the services of Mr. Yoganathan, who argued the appeal on his behalf. When the proceedings were brought before Kirbv J in the High Court the appellant again had the services of a practitioner of his own choice viz Mr. T. Joina.

In the appeal to this Court from the proceedings before Kirbv J., the appellant was again provided with pro deo counsel to represent him. Dissatisfied with the attorney who had thus been assigned to him, however, the appellant requested this Court to appoint someone else in whom he would have the necessary confidence. The Court accordingly requested Mr. U. Mack to do so, who willingly accepted the task. The appellant was, however, still not happy with that arrangement. He wanted senior counsel to appear for him, preferably Mr. B. Spilg S.C. of the Johannesburg Bar. To accommodate the appellant, the Court approached Mr. Spilg who agreed to represent him on a pro deo basis, with Mr. Mack to assist him as his attorney.

Their path with the appellant was not always smooth, being "fired" by him on one occasion. Despite this, however, Mr. Spilg and Mr. Mack have represented the appellant with diligence, efficiency and energy in the preparation of their argument, where they occasionally found it necessary to use their own resources, both financial and otherwise; in

the written heads of argument and the compilation of the documents, often most voluminous, in support of them; and in their oral submissions before this Court. The Court expresses its thanks and appreciation to them for the manner in which they carried out their tasks, which was in the best traditions of the Bar and of the legal profession.

Reverting then to the present appeal, in the course of his judgment in the Court a quo Kirby J. expressed the following opinion:

"Once the Court of Appeal has adjudicated his case, however, it is not open to this Court to interfere whether under Section 18 of the Constitution or under any other law, in any manner which would amount in substance, even if not in form, to a review of the decision of another High Court Judge of equal jurisdiction, or a decision of the Court of Appeal."

He also opined that -

"To allow a High Court Judge to gainsay or second guess a decision of the Court of Appeal would undermine the whole structure of the administration of justice and would open the door to protracted criminal litigation against the spirit of the Constitution."

Save for the question of the interpreter, which was not persisted with before this Court, I shall in due course deal in detail with the various aspects raised before Kirby J, albeit in different form to that in which they were argued before him.

I must, however, before doing so, set out that although this purported to be an appeal, counsel for the appellant travelled far beyond the issues raised in the Court a quo and in effect widened, on appeal, the grounds of the appellant's original application. This, of course, is not strictly permissible but as this is a death sentence case, the Court adopted a liberal stance in the matter. The indulgence granted to counsel must, however, not be regarded as a precedent for future matters. Each case will depend upon its own merits.

The issues, as they presently appear in the appellant's revised notice of
application, are in summary now the following:

1. Whether sections 203 (1) (2) and (3) of the Penal Code (Cap 08.01), which prescribe an obligatory sentence of death if no extenuating circumstances are present, are unconstitutional in that they contravene the provisions of Section 3 of the Constitution, and also the following sections of the Constitution viz Section 4 (1) (prohibition against the intentional deprivation of life); Section 7(1) (prohibition against the imposition of inhuman or degrading punishment); and Section 10 (1) (right to a fair trial). The further question is whether the said sections are arbitrary and therefore contravene the separation of powers doctrine, the independence of the judiciary and the provisions of section 95 of the Constitution.

Whether section 26 (1) of the Penal Code, which provides the method of execution of the death sentence by hanging, is unconstitutional in that it contravenes section 7 (1) of the constitution which prohibits the imposition of inhuman and degrading punishments.

Whether the death sentence was unlawfully imposed at a trial where

(i) The appellant was not afforded his legal representative

of choice, but where under the pro deo system, a legal representative was assigned to him who, it was contended, did not always have the necessary skills and resources to engage the criminal justice system adequately.

(ii) The court was precluded from having regard to

mitigating factors as distinct from extenuating circumstances including the appellant's personal factors.

On behalf of appellant his counsel also sought to raise two further factors viz:
9

(a) that the execution of the appellant by hanging would
be inhuman and degrading having regard
(i) to the appellant's physical health and mental
state; and
(ii) the delay since the death sentence was
imposed in October 1998. (b) that the trial should be reopened because there is new evidence available to the appellant in the form of medical opinion, (i) which indicates that the deceased could not have been shot by a low velocity 9mm pistol, which was the firearm used by the appellant, but by a high velocity firearm such as an AK 47 rifle, (ii) that the treatment of the deceased in hospital had been grossly negligent and that the deceased, if properly treated, would not have died. This should be considered as an extenuating circumstance

Before considering all these issues, the first and most immediate question to be decided is whether this Court, having given in January 1999 a final judgment dismissing the appellant's appeal to it against his conviction and sentence in the High Court, is not functus officio and

therefore not able to adjudicate upon the appellant's present appeal and application before it. Mr Spilg has submitted that it is not, contending that the Court's power to adjudicate on the issues the applicant has now raised is to be found in the provisions of section 18 of the Constitution.

Chapter 2 of the Constitution, in sections 3 to 19 thereof, sets out the
fundamental rights and freedoms of the individual in Botswana and
provides for the protection of them. The relevant sections which are
germane to this matter are section 3, 4 (1), 7 (1), 10 (1) and 18 (1).
Section 3 provides that every individual is entitled to the right, whatever
his race, place of origin, political opinions, colour, creed or sex, inter
alia to "life, liberty, security of the person and the protection of the law"
but subject to such limitations-

"designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest"

Section 4(1) reads as follows:

"No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of an offence under the law in force in Botswana of which he has been convicted."

Section 7(1) reads thus:
11

"No person shall be subjected to torture or to inhuman or degrading punishment or other treatment."

Section 10 (1) provides that any person charged with a criminal offence -
"shall be afforded a fair hearing .... by an independent and impartial
court". Section 10 (1) (d) states that such person -

"shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice".

As section 18 (1) is of particular importance in this case, I quote it in
full. It reads as follows:

"(1) Subject to the provisions of subsection (5) of this section, if any person alleges that any of the provisions of sections 3 to 16 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress.

(2) The High Court shall have original jurisdiction -
(a) to hear and determine any application made by
any person in pursuance of subsection (1) of this section; or

(b) to determine any question arising in the case of any
person which is referred to it in pursuance of
subsection (3) of this section,

and may make such orders, issue such writs and give such direction as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 3 to 16 (inclusive) of this Constitution."

Do the provisions of Section 18(1) entitle this Court to re-visit a case after it has given a final judgment in the matter?

The question of when this Court is functus officio was decided by this Court in the case of Oduetse Monnanyana v. State Criminal Appeal No. 8 of 2001, a decision of a Full Court of five judges. In its judgment the Court referred to the now well-established general principle that once a court has pronounced a final judgment or order it has itself no authority to correct, alter or supplement it as the court is then functus officio, its jurisdiction in the case having been fully and finally exercised and its authority over the subject matter having ceased (See Firestone South Africa (Pty) Ltd. v. Genticuro A.G. 1977 (4) SA 298 (AD) at 306 F-G and cases there cited; Shubile Tlhalefang v. State Criminal Appeal No. 24 of 1994; Mminakgomo. Diboneng and Baliki all v. State Criminal Applications 8 and 9 of 1998.)

Save for certain exceptions, such as matters overlooked by the court, like costs or interest on a judgment debt; or in order to clarify any ambiguity

or uncertainty; or to correct a clerical or arithmetic error, a court cannot
reconsider a final judgment or re-open the case in which such judgment
has been given. In seeking to re-open a case an appellant is in reality
applying for restitutio in integrum (i.e. a restoration of matters to the
position before trial) which, while it is a well known civil remedy and may
be resorted to where a judgment has been obtained by fraud or perjured
evidence, is not an available procedure in criminal cases (see Mokoena v
Minister of Justice and Another (1968 (4) SA 708 (AD)
Monnanyana's case supra p 11 - 12.) In the Mokoena case the appeal
of an accused who had been sentenced to death for murder had been
dismissed by the Appellate Division, then the final Court of Appeal in
South Africa. He then issued a summons seeking to re-open his case
contending that his conviction had been obtained fraudulently by the
perjured evidence of certain State witnesses, which perjured evidence
had been obtained by the investigating officer in the case, and that such
evidence was so material that but for that evidence the trial court would
inevitably have acquitted him. The Appellate Division refused to allow a
re-opening of the case holding that what the appellant there was
seeking was restitutio in integrum which he could not obtain in a
criminal case. After an in- depth and detailed review of the Roman
Dutch authorities, Stevn C.J, said at 716 E:

"On these authorities I am not persuaded that our common law allows a convicted person whose case has been finally disposed of, by simply instituting an action for restitution, to

have his case re-opened to prove that he had been convicted on false evidence."

In Sefatsa and Others v Attorney General. Transvaal and Another 1989 (1) SA 815 (AD) the South African Appellate Division again had occasion to pronounce on when it was functus officio. In that case six petitioners had been convicted of murder and sentenced to death. They appealed to the Appellate Division against their conviction and sentence, which appeals had been dismissed in toto. They thereafter applied to the High Court to re-open their trial to further cross-examine certain State witnesses who, it was alleged, had given false and perjured evidence at the trial. This had resulted in a failure of justice. The Court dismissed the application holding that it was functus officio and refused leave to appeal to the Appellate Division. They then petitioned the latter court to go on appeal to it. Their petitions were dismissed. In an exhaustive judgment the Appellate Division held that it was a creature of statute and that its jurisdiction had to be found within the relevant statutory enactments relating to it. When the Appellate Division had dismissed an appeal against a conviction it had no further jurisdiction in the matter which would entitle it to re-open the case. The Court had no inherent jurisdiction to do so.

In the Monnanyana case this Court held that the decision in the Sefatsa case represented a correct reflection of the law as it should be applied in Botswana. The Court of Appeal in Botswana is also a creature of statute having been created by Section 99 of the Constitution. Its jurisdiction and powers are prescribed by the Court of Appeal Act (Cap 04:01). Section 7 of that Act, for the purpose of determining any appeal, cloaks it with the power, authority and jurisdiction vested in the High Court. Section 95 (1) of the Constitution gives the High Court "unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law and such other jurisdiction and powers as may be conferred on it by this Constitution or any other law" This court in Monnanyana considered these provisions and concluded that they did not serve to give rise to any inherent jurisdiction in the Court of Appeal to re-open a case once it has given a final judgment in an appeal before it, it having then become functus officio^ It also held that the principle of the finality of litigation applies. The remedy is to approach the Executive.

In the light of the Monnanyana decision, this court would in the present case be functus officio and have no power to consider the appellant's application. But what of the provisions of Section 18 of the Constitution? I have referred to Section 7 of the Court of Appeal Act and

to Section 95 (1) of the Constitution. I repeat what Section 7 says. It
reads:

"For all purposes of and incidental to the hearing and determination of any appeal, the Court of Appeal shall have, in addition to any other power, authority and jurisdiction conferred by this Act or the Constitution, the power, authority and jurisdiction vested in the High Court."

And Section 95(1) refers to such other jurisdiction and powers as may be conferred on the court "by this Constitution or any other law". It was contended by the appellant's counsel that Sections 7 and 95(1) conferred jurisdiction on this court to hear and determine any application by any person - in casu the appellant - brought under Section 18(1) who alleged that any of the provisions of Sections 3 and 19 of the Constitution had been contravened in relation to him. This, it was argued, made the functus officio doctrine inapplicable when such an application was brought before the court.

It deserves to be stated at this stage that certain of the issues which appellant now raises as breaches of his constitutional rights were raised by counsel appearing for him at his trial viz Mr. Dikgokgwane. These were that the death penalty is per se unconstitutional and that the execution of such sentence by hanging constituted inhuman and degrading punishment in contravention of Section 7(1) of the

Constitution. The argument was also raised that as the appellant had been awaiting trial for some four years and the trial had lasted a further year, he had been living in the fear of a possible sentence of death for over five years and for the trial court to impose it would, as a consequence, amount to inhuman and degrading punishment. Those issues were also dealt with by counsel for the State at the trial, Mr. Ngcongco, and were adverted to by Gittings J in his judgment on extenuating circumstances. He did not find it necessary to deal with them, however, because they were not persisted in by appellant's counsel at the trial. The reason for his not doing so was apparently because Mr. Ngcongco submitted that it was not competent for him to do so in that, in terms of Order 70 of the High Court Rules , an application for redress in terms of Section 18(1) of the Constitution must be brought by way of notice of motion and could not simply be raised in argument at a trial. I shall revert to this aspect later herein. Suffice to say now that Mr. Yoganathan also did not argue those points in the appeal to this court from the trial court.

I turn to the question of whether the functus officio doctrine is inapplicable where an appellant alleges that any of the provisions of Section 3 to 19 have been contravened in relation to him.

The question of raising constitutional issues after a court has dealt with
an appeal has been dealt with by the Privy Council in a number of
cases. It would seem that several of those cases have had their origin in
certain remarks made by Lord Diplock in one of the earliest cases in
which the question arose viz Maharaj v Attorney General of Trinidad
and Tobago (No.2) (1978) 2 A11ER 670 (PC). A similar provision to
Section 18(1) of the Botswana Constitution is to be found in the
Constitution of Trinidad and Tobago viz Section 6 thereof. A barrister
who was committed to prison for seven days by a judge for contempt of
court, applied on motion under Section 6 for redress claiming that his
right to liberty under the Constitution had been breached because due
process of law had not occurred, the judge not having specified
sufficiently the nature of the contempt he was alleged to have committed.
Following an unsuccessful appeal in the Court of Appeal, the matter
eventually came before the Privy Council. In the course of his judgment
there, Lord Diplock said the following:

"The right to apply to the High Court for redress conferred by Section 6(1) is expressed to be "without prejudice to any other action with respect to the same matter which is lawfully available.' (Compare the wording of Section 18(1) of the Botswana Constitution). The clear intention is to create a new remedy whether there was already some other existing remedy or not."

This prompted several attempts before the Privy Council to have matters already dealt with on appeal reopened on the basis that the appellants' constitutional rights had been infringed and that they sought redress for these infringements notwithstanding that their appeals had earlier been dismissed.

These attempts were characterised by counsel who appeared for the respondent against those appellants as collateral attacks on their criminal convictions on constitutional grounds. It was submitted by counsel in one such matter that if the appellant had wanted to attack his conviction on constitutional grounds the proper route was by appeal against his conviction when all such grounds were open to him. If he had appealed, but unsuccessfully, it was not open to him to return to the High Court and advance arguments which had been advanced or could or should have been advanced at the appeal stage.

Lord Diplock himself obviously realised that his remarks in the Maharaj
case had given rise to a misconception for soon afterwards he amplified
that statement in the case of Chokolingo v Attorney General of
Trinidad and Tobago (1981) 1) 1 All ER 244 at 248 where he said the
following:

"Acceptance of the appellant's argument would have the consequence that in every criminal case in which a person who had been convicted alleged that the judge had made an

error of substantive law as to the necessary characteristics of the offence there would be parallel remedies available to him: one by appeal to the Court of Appeal, the other by originating application under Section 6(1) of the Constitution to the High Court with further rights of appeal to the Court of Appeal and to the (Privy Council). These parallel remedies would also be cumulative since the right to apply for redress under Section 6(1) is stated to be Svithout prejudice to any other action with respect to the same matter which is lawfully available.' The convicted person having exercised unsuccessfully his right of appeal to a higher court, the court of appeal, he could nevertheless launch a collateral attack (it may be years later) upon a judgment that the court of appeal had upheld, by making an application for redress under Section 6(1) to a Court of coordinate jurisdiction, the High Court. To give Chapter 1 of the Constitution an interpretation which would lead to this result would, in their Lordships' view, be quite irrational and subversive of the rule of law which it is a declared purpose to enshrine."

Chokolingo's case was cited with approval in the further Privy Council case of Hinds v Attorney General and Another (2002) 4 LRC 287 (PC),

an appeal from the Court of Appeal of Barbados. In relation to a similar provision in the Constitution of Barbados (Section 24) as Section 18(1) of the Botswana Constitution, the appellant had complained in an appeal to the Court of Appeal in Barbados that he had been refused legal representation in his trial on a charge of arson in the High Court and that accordingly his constitutional rights to a fair trial had been

infringed. His appeal was dismissed by the Court of Appeal. He then
applied to the High Court for redress under Section 24 of the
Constitution. This was dismissed as was a further appeal to the Court
of Appeal of Barbados. An appeal to the Privy Council was similarly
dismissed. In dismissing the appeal Lord Bingham said the following at
p303 para 24.

"It would be undesirable to stifle or inhibit the grant of constitutional relief in cases where a claim to such relief is established and such relief is unavailable or not readily available through the ordinary avenue of appeal. As it is a living, so must the constitution be an effective instrument. But Lord Diplock's salutary warning remains pertinent: a claim for constitutional relief does not ordinarily offer an alternative means of challenging a conviction or a judicial decision, nor an additional means where such a challenge had been made and rejected. The appellant's complaint was one to be pursued by way of appeal against his conviction, as it was, his appeal having failed, the Barbadian courts were right to hold that he could not try again in fresh proceedings based on Section 24 (i.e. a breach of his Constitutional rights.)"

Although in the Hinds case and in certain of the others, the constitutional grounds which the appellant's sought to raise under the provisions of their respective Constitutions had been raised and rejected in their previous unsuccessful appeals, differing from the position in casu, nevertheless the principle remains the same: no collateral

challenge to a conviction based on constitutional grounds can exist where that conviction has been upheld by a final judgment of the Court of Appeal. The principle of finality in litigation, as emphasised in the Monnanvana case (supra), must apply.

That principle also finds expression in the doctrine of res judicata i.e. where a final judgment has already been given between the same parties (in casu the State and the appellant) on the same question by a competent court, it is conclusive between the parties (see Voet 44.2.1) . It has been held in South Africa that the doctrine of res judicata also applies in criminal matters ( See Rex v Manasewitz 1933 AD 165; Rex v Pope and Le Roux 1952 (3) SA 409 (CPD) at 413; Voet 44.2.1) It would also apply in criminal matters in Botswana as well, which also follows the Roman Dutch law

In one of the cases before the Privy Council, the right to claim redress under a Constitution following an unsuccessful appeal was denied on the basis of the doctrine of res judicata. In Thomas v Attorney General (No.2) (1991) LRC (Const) 1001 (PC), a similar argument was raised as that in the previous matters referred to viz that a previous decision of a Court of Appeal was no bar to a claim for redress under the Constitution. Lord Jauncev of Tullichettle, who gave the judgment of the Privy Council, said the following:

"The principles applicable to a plea of res Judicata are not in doubt and have been considered in detail in the judgment of the Court of Appeal. It is in the public interest that there should be finality in litigation and that no person should be subjected to action at the instance of the same individual more than once in relation to the same issue. The principle applies not only where the remedy sought and the grounds therefor are the same in the second action as the first but also where the subject matter of the two actions being the same, it is sought to raise in the second action matters of fact or law directly related to the subject matter which could have been but were not raised in the first action."

Lord Jauncey referred to what he described as the classic statement on
res judicata in the judgment of Wigram V.C. in Henderson v
Henderson (1843 - 1860) All ER 378 at 381 - 382 who said:

"I believe I state the rule of the court correctly, when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was

actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time."

Lord Jauncey also referred to what Lord Shaw said in Hoystead v
Taxation Commissioner (1925) All ER 56 (PC) at 62

"Parties are not permitted to begin fresh litigation because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted, litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted and there is abundant authority reiterating that principle."

And he referred further to what Lord Somerville said in Greenhalgh v Mallard (1947) 2 All ER 255 at 257 H viz

"....res judicata., is not confined to the issues which the court is actually asked to decide but... it covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them."

Lord Jauncey referred to the argument, relying upon the statement of
Lord Diplock in the Maharaj case (supra) that constitutional
contraventions conferred on the High Court a new and original
jurisdiction and gave the appellant a separate and distinct right of
application which rendered res judicata inapplicable and stated at 1007

"Their Lordships are satisfied that the existence of a constitutional remedy such as that upon which appellant relies does not affect the principle of res judicata"

For support for this he cited a decision of the Supreme Court of India in Daryao and Others v. State of UP and Others (1961) 1 SCR 574

where the Court rejected a submission that res judicata did not apply to
a petition for redress in respect of an infringement of fundamental rights
under the Constitution. In its judgment the Court said the following:

"But is the rule of res judicata merely a technical rule or is it based on high public policy?...the basis on which the rule is founded are considerations of public policy. It is in the interests of the public at large that a finality should attach to the binding decisions pronounced by courts of competent jurisdiction."

The Privy Council further stated that although it was normal practice in Trinidad to raise constitutional matters by way of originating motion, it would have been possible for them to have been raised in the Court of Appeal. Lord Jauncey referred to the dictum of Lord Kilbrandon in the Privy Council case of Yat Jung Investment Co, Ltd v Dao Heng Bank

Ltd 1975 AC 581 (PC) at 590 E in regard to res judicata where he
said, after referring to the statement of Wigram V.C. quoted above:

"The shutting out of a 'subject of litigation'....is limited to cases where reasonable diligence would have caused a matter to be earlier raised; moreover, although negligence, inadvertence or even accident will not suffice to excuse, nevertheless 'special circumstances' are reserved in case justice should be found to require the non- application of the rule ."

Lord Jauncey went on to say

"Their Lordships therefore have no doubt that no special circumstances exist in this case for not giving effect to the plea of res judicata^ No valid reason for not raising the constitutional issues in the first action (the appeal) has been advanced by the appellant. Those issues clearly should have been raised and to allow them to be raised now would be little short of an abuse of process."

W Finally, on this aspect, the Constitutional Court of South Africa has held

that the principle of finality in litigation, which underlies the common law rules applicable to the doctrine of functus offico, are also relevant to constitutional matters. The Court emphasized what Trollip J.A. said in Firestone South Africa (Pty) Ltd v Genticuro AG supra (cited with approval by this Court in Monnanyana's case (supra)) that even if it could be assumed that a court might have a discretionary power to revisit a final judgment such

"assumed discretionary power is obviously one that should be very sparingly exercised, for public policy demands that the principle of finality in litigation should generally be preserved rather than eroded." See Minister of Justice v. Ntuli (1999) LRC422.

In the present case, as I have stated above, the appellant's counsel at his trial raised but then abandoned submissions that the death penalty and the method of carrying it out by hanging were unconstitutional and that it would be an inhuman and degrading punishment in breach of his constitutional rights to impose the death sentence due to the lengthy period he had been awaiting trial. None of these issues nor the issue of the lack of an interpreter or the alleged inadequacy of pro deo counsel were raised before the Court of Appeal. That the Court of Appeal did not deal with them was therefore due entirely to the failure by the appellant, or his legal representatives on his behalf, to raise them. They could have done so. Although an application for redress under Section 18(1) should, in terms of Order 70 of the High Court Rules, be brought by way of notice of motion there is nothing to prevent such redress being sought in an appeal before the Court of Appeal. To insist on Order 70 being complied with would give rise to absurd results. As an example, if an appellant who could speak no English were tried in a court where the proceedings were conducted entirely in English, without being afforded an interpreter, this would be a clear breach of his constitutional right to

a fair trial, as would his not being allowed to be represented at his own expense by a legal practitioner of his own choice. To suggest that he could not raise these issues in an appeal but that in order to have these breaches corrected he would first have to bring an application in the High Court, with thereafter a possible appeal to the Court of Appeal, would be totally ridiculous. The fact that the issues mentioned were not raised before the Court of Appeal in casu was therefore due either to inadvertence or negligence or to their having been overlooked.

This Court unreservedly accepts that the persuasive statements in the judgments of the Privy Council cited above represent the law as it should be applied in Botswana. The principle of finality in litigation is also one of the cornerstones of our legal system. It is to be preserved and cherished and not eroded. And it would be eroded if there were to be recognised a collateral right of attack on the final judgments of our courts, and particularly those of the Court of Appeal, based on constitutional grounds by litigants, who, dissatisfied with those judgments, thereafter sought to circumvent or overthrow them by claiming that their constitutional rights had been infringed. If permitted, such attacks could be made months and even years later. They need also not all be brought at once but could be raised piecemeal, arguing one or more and, if unsuccessful, raising others later. As stated by Lord

Shaw, in his remarks set out above, if this were to be permitted litigation would have no end except when legal ingenuity was exhausted. Mr. Spilg conceded that this may well be the effect of his argument. This, in this Court's view, would amount to an abuse of the provisions of Section 18(1) of the Constitution and subversive of judicial process of this country and of the rule of law.

On the authorities cited above, therefore, and in the light of the decision of this Court in the Monnanvana case, this Court is of the view that the appellant is precluded from now raising the constitutional issues which he seeks to argue, whether that preclusion is based upon the fact that this court is functus officio or is based on the doctrine of res judicata.

Do any special circumstances exist as to why the appellant should at this stage be allowed to deal with the various issues as he now wishes to do?

It must again be emphasized that the raising of special circumstances must be exceptional, be very sparingly exercised and, as stated in some of the Privy Council cases, be a very rare event indeed.

One can perhaps conceive of such a circumstance, as occurred in the South African case of S v. Augustine 1980 (1) SA 503 (AD) where an

accused was convicted in the High Court of culpable homicide arising from the death by stabbing of the deceased. Before sentence could be passed evidence was produced that the "deceased" was still alive., someone other than the person stabbed by the accused having been the one who had died. It is, however, not certain whether even in such event the court could alter its judgment. It was held that the High Court, having convicted the accused of culpable homicide, albeit incorrectly, was functus officio and could not correct its judgment, That was only done in an appeal to the Appellant Division. What if the fact that the "deceased" was still alive had only come to light after an appeal on the conviction had been dismissed by the Appeal Court? Would the latter not have been functus officio and therefore unable to correct its judgment? In the light of the judgments in the Mokoena case (supra) and the Sefatsa case (supra) it would seem that the Appeal Court would have also been held in South Africa to have been functus Officio and that the accused's only recourse would have been to the Executive.

Assuming, however, that the aforegoing may represent a special circumstance, it is difficult to envisage other circumstances as being so special or exceptional as to warrant the entertainment of an argument by an appellant based on a breach of constitutional rights where the Court of Appeal has already given a final judgment on an appeal by him. In the

view of this Court no such special or exceptional circumstances exist in this case.

In coming to this conclusion the Court has considered the various issues raised by the appellant but is of the opinion that the none of them warrant this Court's interference with its judgment already given in the appeal from the trial court. I shall deal with them seriatim:

1. The constitutionality of the death sentence;

This court has already, in a Full Bench decision of five judges, pronounced upon the constitutionality of the death sentence and has held that it is not unconstitutional and neither is its form of execution, i.e. by hanging, ultra vires the Constitution See Ntesang v The State 1995 BLR 151(CA).

Section 203 of the Penal Code provides as follows:

"(1.) Subject to the provisions of sub-sections 2, any person convicted of murder shall be sentenced to death.

(2.) Where a court in convicting a person of murder, is of the opinion that there are extenuating circumstances, the court may impose any sentence other than death."

The method for the execution of the death sentence by hanging is laid down by Section 26(1) of the Penal Code.

Apart from the fundamental right to life contained in Section 3 of the
Constitution, Section 4(1) provides that:

"1. No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of an offence under the law in force in Botswana of which he has been convicted."

The Penal Code was enacted into law as Law No. 2 of 1964 and came into effect on 10 June 1964. The Constitution came into operation as Legal Notice No. 83 of 1966, with effect from 30^th September 1966.

The death sentence and its method of carrying it out are therefore part of, and are enshrined in, the Constitution by Section 4(1) and can therefore not be said to be ultra vires it. This was so held in the Ntesang case. The argument that the method of execution by hanging represents torture or inhuman and degrading punishment and is therefore ultra vires Section 7(1) of the Constitution, was also considered by this Court in Ntesang. It was held that the argument overlooked the provisions of Section 7 (2) of the Constitution which saved any law which "authorises the infliction of any description of punishment that was lawful in the country immediately before the coming into operation of this Constitution." Death by hanging was such a punishment. It was lawful in terms of the Penal Code enacted in 1964

when the Constitution came into effect in 1966 and was preserved by Section 7(2) of the latter. It, too, was therefore held by the Court not to be ultra vires the Constitution.

Mr. Spilg, however, urged this Court to revisit its decision in the Ntesang case and particularly on two bases: (i) that the progressive trend throughout the civilised world and in liberal democracies such as Botswana, including its neighbour South Africa, has been to abolish the death penalty and (ii) that the views of writers, and international organisations and bodies, particularly those concerned with human rights, is that the execution of the death sentence by hanging is inhuman, brutal, barbaric and anachronistic, and in the light thereof this form of punishment should be declared by this Court to be unconstitutional. In support of his submissions, Mr. Spilg annexed to his heads of argument voluminous reports, papers, treaties, articles and opinions in which the inhumanity of death by hanging is stressed. Mr. Spilg submitted that popular opinion in regard to capital punishment and its execution by hanging had changed markedly in the almost 40 years since 1964 and 1966 and that they were now regarded as abhorrent and should be removed from the statute book .

He also placed great reliance on a recent decision of the Privy Council in the matter of Patrick Reyes v The Queen Privy Council Appeal No. 64

of 2001, delivered on 11 March 2002, being an appeal to the Privy Council from the Court of Appeal of Belize, where a mandatory death sentence for murder by shooting was held to be inhuman and degrading punishment and unconstitutional.

Reyes shot and killed one Garbutt and his wife. He was convicted on two counts of murder and sentenced to death on each count. In terms of the Criminal Code of Belize

"Every person who commits murder shall suffer death."
That provision was amended in 1994 to read as follows:

"Provided that in the case of a Class B murder (but not in the case of Class A murder), the court may, where there are special extenuating circumstances which shall be recorded in writing, and after taking into consideration any recommendations or plea for mercy which the jury hearing the case may wish to make in that behalf, refrain from imposing a death sentence and in lieu thereof shall sentence the convicted person to imprisonment for life."

A "Class A murder" included "any murder by shooting." Reyes having shot his two victims, the court was obliged to sentence him to death. An appeal to the Court of Appeal of Belize was dismissed but leave to appeal to the Privy Council was granted on two aspects -

(l) the constitutionality of the death penalty, where the constitutionality of that penalty was not challenged as such but only in relation to its being a mandatory one for shooting ; and

(ii) the constitutionality of hanging as a means of carrying out the sentence of death, (hanging is the means by which the death sentence is carried out in Belize)

The Constitution of Belize contained in Sections 3, 4 (1) 7, in almost exactly similar terms, the same provisions as are contained in Sections 3, 4 (1) and 7 of the Botswana Constitution. Section 3 is the right to life. Section 4 (1) reads thus:

"4 (1) A person shall not be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under any law of which he has been convicted.

Section 7 reads:
"No person shall be subjected to torture or to inhuman or degrading punishment or other treatment."

Delivering the judgment of the Privy Council, Lord Bingham said it was to be accepted that the terms of section 4(1) preclude a challenge to the constitutionality of the death sentence as such. He said -

"The Constitution of Belize plainly sanctions the death
penalty. The questions whether the passing and

implementation of sentence of death are themselves inhuman and degrading are questions which do not and cannot, under this Constitution , arise."

It had to be accepted that the death penalty is not itself inhuman and degrading. However, the Privy Council held that the mandatory nature of the penalty in respect of a murder by shooting i.e. that it was obligatory to impose the death sentence for such a murder, without any further consideration, rendered the imposition of the death penalty in such a case inhuman or degrading punishment. It was pointed out in argument before it that as murders differ so greatly from each other viz from the brutal and callous and those premeditated and carried out in cold blood to those which are human and understandable, calling more for pity than for censure, all killings which satisfy the definition of murder are not equally heinous. It was contended that a law which denies the defendant the opportunity, after conviction, to seek to avoid the imposition of the ultimate penalty, which he may not deserve, is incompatible with Section 7 as it failed to respect his basic humanity.

This argument found favour with the Privy Council. Lord Bingham referred to judgments in the courts of the United States, India and the Caribbean where similar sentiments had been expressed, and in one of

which it was stated that the dignity of human life was reduced by a law which compelled a court to impose the death sentence indiscriminately upon anyone convicted of murder without taking the individual circumstances of his case into consideration. As the death penalty had to be mandatorily imposed for a murder by shooting without affording the offender the opportunity to seek to persuade the court that in all the circumstances to condemn him to death would be disproportionate and inappropriate, it would offend against Section 7. The category was indiscriminate.

The Privy Council accordingly found that -
"It follows that any murder by shooting is to be treated as falling within Class B as defined in the Criminal Code."

The Privy Council was at pains to point out that it was not considering the constitutionality of any mandatory penalty other than death, nor the constitutionality of a mandatory death penalty imposed for any murder other than by shooting. It expressed no conclusion on Sections 3 and 4 of the Constitution. It also declined to rule on the constitutionality of hanging as a means of implementing a sentence of death properly imposed.

Reyes case therefore does not provide authority as to why this Court should revisit its decision in the Ntesang case. Indeed, it serves rather to

reinforce that decision, the Privy Council having held that, like Section 4(1) of the Constitution of Botswana, Section 4 of the Constitution of Belize plainly sanctions the death penalty and that the questions of whether the passing and implementation of sentence of death are themselves inhuman and degrading do not and cannot, under the Constitution - containing, as it does a section in like terms to Section 4 (1) of the Botswana Constitution - arise. This is what this Court held in the Ntesang case. Reyes case is also clearly distinguishable dealing, as it does, solely with murder by shooting in the Belize Criminal Code. However, in holding that murder by shooting should be treated as falling within Class B, the Privy Council impliedly considered that the category of Class B murders did not offend the Constitution. Section 203(2) of the Botswana Penal Code which likewise provides that where there are extenuating circumstances, a sentence other than death may be imposed, should therefore also be considered as not being unconstitutional. Indeed, section 203 (2) goes further. The Belize Criminal Code provides that for Class B murders, a sentence of life imprisonment is mandatory; no such limitation is imposed upon the Botswana courts by Section 203 (2), who may impose any appropriate punishment.

I can therefore find no reason why this court should revisit its decision in the Ntesang case. And it stands as our law.

In so far as the method of execution is concerned, I can do no better
than to repeat with approval what was said by Aguda JA in respect
thereof in the Ntesang case supra. As in the present appeal, the