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IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA HELD AT LOBATSE
Court of Appeal No. CACLB-033-07
In the matter between:
KABELO G. THAKE APPELLANT
And
ATTORNEY GENERAL RESPONDENT
For Appellant: In Person
For the Respondent: Mr. I. Kamwendo
JUDGMENT
CORAM: ZIETSMAN JA
RAMODIBEDI JA
TWUM JA
RAMODIBEDI JA
[1] This appeal which originated in a claim for damages for unlawful detention essentially raises the question of a correct interpretation of the date
of commencement of a concurrent sentence within the meaning of sections 300 and 309 of the Criminal Procedure and Evidence Act, (Cap. 08:02). The point is short and will not bear any elaboration.
[2] The appellant’s claim in this matter originated by way of an action in the High Court. He sought damages against the respondent in an incredible sum of P56, 845, 046. 40 for alleged unlawful detention covering a period of 32 days.
[3] At the risk of overburdening this judgment, it is necessary, I think, to set out the bizarre nature of the appellant’s particulars of claim in the first place. They are reproduced verbatim as follows:-
“8. Plaintiff’s 24 hours a day freedom of movement throughout Botswana or 582 000 km² was violated. He chooses 350 000 km². At P0.04 per hour per km² for 32 days. = P10 752 000.00.
9. Plaintiff’s right for 24 hours a day freedom to speak to civilians was violated for 32 days. He chooses 1 000 000 people out of over 1 600 000 million Botswana population. At P0.02 per hour per person for 32 days. He needs P15 360 000.00.
10. For violation of 24 hours a day freedom to get news or information from 1 000 000 people/Botswana population for 32 days at P0.02 per Hour, per person =P15 360 000.00.
11. For violation of 24 hours a day freedom to receive ideas from 1 000 000 people out of Botswana population for 32 days. At P0.02 per hour per person =P15 360 000.00.
12. Plaintiff did not have 24 hours a day freedom to spend time with a lady on romance issues for 32 days. At P0.25 per hour =P192.00.
13. Putting on Prisoners clothing against his will for 10 hours per day for 32 days. At P0.50 per hour. =P160.00.
14. For denied 24 hours a day freedom to use his property for 32 days at P0.60 per hour. =P460.80.
15. For denied 24 hours a day freedom to be home for 32 days at P0.45 per hour =P460.60.
16. Plaintiff’s 24 hours a day Isolation from his 17 home people for 32 days at P0.60 per hour per person. =P7 833.60.
17. For denied 24 hours a day freedom to have cash on himself for 32 days at P0.30 per hour =P230.40.
18. For denied 24 hours a day freedom to learn how to drive for 32 days. At P0.30 per hour =P230.40.
19. For denied 24 hours a day freedom to tour for 32 days. At P0.30 per hour. =P230.40.
20. For denied 24 hours a day freedom to rest within a park for 32 days. At P0.30 per hour. =P230.40.
21. For denied 24 hours a day freedom to stroll within the Gaborone main mall for 32 days. At P0.30 per hour. =P230.40.
22. For denied 24 hours a day freedom to view cars on show for 32 days. At P0.30 per hour. =P230.40.
23. For denied 24 hours a day freedom to see what happens within the society for 32 days. At P0.30 per hour. =P230.40.
24. For denied 24 hours a day freedom to carry an Identity card on himself for 32 days. At P0.30 per hour. =P230.40.
25. For denied 24 hours a day freedom to carry a passport on himself for 32 days. At P0.30 per hour =P230.40.
26. 25 people could see plaintiff naked every time taking a shower for 64 times. At P0.95 per person per happening. =P1 520.00.
27. For denied 24 hours a day freedom to get off a letter not censored for 32 days. At P0.30 per an hour. =P230.40.
28. For denied 24 hours a day freedom to do eyeshopping on boutiques for 32 days. At P0.30 per an hour. =P230.40.”
[4] In her plea, the respondent averred that the appellant was lawfully detained at all material times. The High Court (Dow J) held that the appellant was indeed lawfully detained. The court accordingly dismissed the appellant’s claim with costs. Hence this appeal.
[5] The parties are on common ground that the appellant was convicted by Mochudi Magistrates Court and sentenced in two separate trials as follows:-
On 24 April 1997, he was sentenced to ten (10) years imprisonment for robbery. The trial court specifically ordered that no part of the sentence was to be suspended.
On 26 May 1997, he was convicted on two counts of robbery and sentenced to ten (10) years imprisonment on each count. However, the sentences in the two counts were ordered to “run concurrently to each other and to any [sentence] that [the] accused is presently serving.” The appellant was also convicted on count 3 of driving a motor vehicle without a driver’s licence. He was sentenced to P300.00 fine or three years imprisonment. This sentence was ordered to operate consecutively to the sentences recorded above. I may disgress there to point out that it is not competent in law to order sentences of a fine to run consecutively.
[6] It follows from the aforegoing permutations that the appellant was sentenced to an effective period of 10 years imprisonment on 24 April 1997 and to another effective period of 10 years imprisonment 32 days later, namely on 26 May 1997. It was ordered that the latter sentence would run concurrently with the sentence of 24 April 1997. The crisp question for determination is: what is the effective date of the commencement of the sentence of 26 May 1997? The appellant contends that the effective date is 24 April 1997. The respondent on the other hand contends for a contrary proposition, namely, that the effective date is 26 May 1997. The trial court favoured this view. It did so in a single sentence, namely;
“Had the trial court (the Magistrate’s Court) wished to order that computation of the served sentence (i.e. the sentence of 26 May 1997) be reckoned from an earlier date (i.e. 24 April 1997), he would have so ordered.”
[7] Section 300 of the Criminal Procedure and Evidence Act (Cap.08:02) (hereinafter referred to as “the Act”) provides as follows:-
“300. (1) When a person is convicted at one trial of two or more different offences, or when a person under sentence or undergoing punishment for one offence is convicted of another offence, the court may sentence him to such several punishments for such offences or for such last offence (as the case may be) as the court is competent to impose.
(2) Such punishments, when consisting of imprisonments, shall commence the one after the expiration, setting aside or remission of the other, in such order as the court may direct, unless the court directs that such punishments shall run concurrently.”
[8] The trial court has a judicial discretion under this section whether or not to order that sentences shall run concurrently. See for example MOATSHE v THE STATE; MOTSHWARI And ANOTHER v THE STATE 2004 (1) BLR (CA); LEONARD MABUTHO v THE STATE CA 69/07.
[9] It is important to emphasise, however, that the date of commencement of a sentence, concurrent or otherwise, is governed by section 309 of the Act. That section provides as follows:-
“309. Subject to the provisions of section 308, a sentence of imprisonment shall take effect from and include the whole of the day on which it is pronounced unless the court, on the same day that sentence is passed, expressly orders that it shall take effect from some day prior to that on which it is pronounced.”
[10] As this Court held in KOLOJANE v THE STATE 1999 BLR 70 (CA), the question of ante-dating a sentence is a matter which lies within the discretion of the trial court. In excersing its judicial discretion, the trial court takes into account all the relevant factors that have a bearing on the matter such as, for instance, the fact that the crimes under consideration are interrelated as in the instant case.
[11] In casu, it is common cause that the learned trial Magistrate did not “expressly” order that the sentence of 26 May 1997 shall take effect from the date of the prior sentence, namely, 24 April 1997. That being the case, the provisions of section 309 come into play. The sentence of 26 May 1997 took effect from the same day, being the day on which the sentence was pronounced. The appellant’s submission to the contrary is accordingly misconceived. It is hit squarely by section 309.
[12] While the appellant concedes that the learned trial Magistrate did not “expressly” order that the sentence of 26 May 1997 shall take effect from the earlier sentence of 24 April 1997, he has nevertheless sought to persuade this Court that, by necessary implication, this sentence commenced on the latter date. This is so because, so he argues, the two sentences in the matter were ordered to run concurrently. The fallacy of this submission lies in the fact that concurrent sentences do not necessarily have to commence or end on the same day. Nor do they necessarily have to be of the same duration. Indeed there may sometimes be an element of overlapping in concurrent sentences. It all depends on the particular circumstances of each case. It is for that reason that the Legislature in its wisdom has enacted that a sentence of imprisonment shall commence on the day on which it is pronounced unless the trial court expressly orders it to commence on a day prior to the prouncement. This applies equally to concurrent sentences.
[13] It follows in my judgment that this appeal has no merit. It is accordingly dismissed with costs.
DELIVERED IN OPEN COURT AT LOBATSE ON THIS 25TH DAY OF APRIL 2008.
____________________
M.M. RAMODIBEDI
JUDGE OF APPEAL
I AGREE ___________________
N.W. ZIETSMAN
JUDGE OF APPEAL
I AGREE ___________________
DR. SETH TWUM
JUDGE OF APPEAL
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