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S v Mzwinila (CLCLB-030-08) [2008] BWCA 33 (24 April 2008)
.RTF of original document
IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Criminal Application No. CLCLB-030-08
(High Court Criminal Appeal No. 00005 of 2006)
In the matter between:
EDWARD MZWINILA
Appellant
v.
THE STATE
Respondent
D. Diba for the Appellant
P. K. Israel for the Respondent
J U D G M E N T
CORAM:
TEBBUTT, J. P
ZIETSMAN, J.A.
FOXCROFT, J.A.
ZIETSMAN, J.A.:
The appellant was convicted of armed robbery and was sentenced to 10 years’ imprisonment. The allegation against the appellant
was that he, together with another person, robbed Subhabash Arora and Sunil Sharma at Pula Sales Dairy of diamond rings and money
on 31 October 2002. It was the appellant’s defence that he took no part in the robbery and that at the time of the robbery
he was in Mafikeng in South Africa.
In arguing the appeal before us two main points were taken by appellant’s counsel, Mr. Diba. The first point referred to the
period of time that elapsed between the time when the appellant was charged with the offence, and the time when the trial started.
Mr. Diba submitted that the appellant’s constitutional right to be brought to trial within a reasonable time had been violated
and that for that reason his conviction and sentence should be set aside. In view of our finding in respect of the other point raised
by Mr. Diba it is not necessary that this point be dealt with.
The other point raised by Mr. Diba concerns the identity of the persons who robbed the complainants, and an alibi raised by the appellant.
The robbery was committed on 31 October 2002. The appellant alleged at his trial that on that date he left Botswana and traveled to
Mafikeng. He alleges further that he returned to Botswana on 3 November 2002. The robbery is alleged to have taken place at approximately
12h00 on 31 October. The appellant alleges that he left for Mafikeng at approximately 08h30 and that he arrived in Mafikeng at around
09h30. His reason for going to Mafikeng was to attend the funeral of a friend’s mother, the friend being Thato Modise. He alleges
that he stayed with another friend, Daniels, in Mafikeng.
The most important witness called by the State was Handy Kebonye Thebe who gave evidence as PW3. She was employed as a receptionist
at the dairy. She stated that at around 12h00 she left Mr. Arora’s office and walked past a gentleman who was standing in the
passage. She did not immediately recognize this person, but when asked who he was she walked back to Mr. Arora’s office. She
then saw that the said person had a gun and he ordered her to put her head under a desk in Mr. Arora’s office. Mr. Sharma arrived
and he was also ordered by the same person to enter Arora’s office. Two more robbers armed with guns then entered the office
and the robbery was committed.
PW3 and the other members of the dairy staff were instructed to go into a storeroom and their hands were tied behind their backs.
Thereafter the robbers left the premises.
Sharma and Arora were not called to give evidence, but statements made by them were admitted as evidence. Margaret Matshidiso, who
also worked as a receptionist at the dairy, confirmed the evidence given by PW3. She stated that she and a person called Claire were
also in Arora’s office when the robbery took place. Claire did not give evidence.
Sharma and Arora could not identify any of the robbers. Margaret Matshidiso could also not identify them. She stated, however, that
PW3 said she could identify one of them, and she mentioned the appellant’s name. This was confirmed by PW3 when she gave evidence.
In her evidence PW3 stated that she had attended the same school as the appellant in 1996 and she insisted that she had positively
and correctly identified him as one of the robbers who robbed the dairy on 31 October 2002 and as the man she had first seen standing
in the passage near Mr. Arora’s office.
Evidence was given by Elijah Meleko Motlhabi, the deputy school head at the Ledumang Senior Secondary School. He was able to confirm
from his records that PW3 and the appellant both attended the school in 1996. There were many students at the school with several
blocks of buildings each accommodating 12 classes. The appellant and PW3 were not in the same class and their classes, it appears,
were not in the same block. The appellant denied that he knew PW3. PW3 stated that the appellant’s brother was in her class.
She stated that she got to know the appellant by sight but admitted that she had never spoken to him.
PW3 appears to have been an honest witness who was convinced in her own mind that the appellant was one of the robbers. As stated
above, she mentioned his name to Margaret Matshidiso and it is clear from the evidence of Assistant Superintendent Megale that she
also gave his name to the police. The question that arises, however, is whether she could have been mistaken in her identification
of the appellant.
The appellant’s defence was that of an alibi. He stated that he was in Mafikeng on the day the robbery took place.
In his judgment the magistrate states that the appellant only let it be known that he relied upon an alibi well after the commencement of the trial and he refers to authorities which provide that such a defence should be disclosed by an
accused person early in the proceedings to enable the investigators of the crime to check his alibi. The credibility of the alibi is affected if this is not done.
The trial in the present case started on 9 June 2006 and it is clear from the record that the appellant indicated at an early stage
that he required his passport for purposes of the trial. His passport had apparently been seized by the police who were investigating
a different offence allegedly committed by the appellant. In his judgment the magistrate states the following:
“Throughout the case, the
accused has made
several pleas to be given his passport. At one
point, the court had to call in two officials who were
known to have handled the passport but such
endeavours bore no fruit. The court, this point,
(sic) agrees that accused was prejudiced in that he
was precluded from advancing his defence to the
fullest.”
The fact that the appellant considered his passport to be vital to his defence is a strong indication that he intended to try to show
that he was not in Botswana when the offence was committed. The prosecution must have known at an early stage that the appellant
intended to advance an alibi even if the details of that alibi had not yet been disclosed. Throughout the trial the appellant’s passport could not be found. After the conclusion of the trial
it was found, and at the hearing of the appeal in this Court application was made on behalf of the appellant to introduce, as additional
evidence, the relevant page from his passport. This application was not opposed by the State and the evidence was admitted. This
evidence shows that the appellant left Botswana via the Ramatlabama border post on 31 October 2002 and returned to Botswana on 3 November 2002. The endorsements on the passport do not
indicate the time when the appellant passed through the border post on 31 October 2002.
Mrs. Israel, for the State, has submitted that it is quite possible that the appellant left Botswana on the same day but after he
had committed the robbery. A further suggestion is that he might have left the country via the Ramatlabama border post and have then returned illegally into Botswana at an ungazetted point to commit the offence, and to have
then moved out of the country again illegally. Evidence that counters both of these suggestions is evidence given by the appellant’s
witness Lesego Poonyane. She stated that she was aware of the appellant’s trip to Mafikeng, and that at approximately 11h00
on 31 October 2002 she telephoned Daniel’s house on his landline to find out whether the appellant had arrived there safely,
and actually spoke to him. If the appellant was in Mafikeng at 11h00 he could not have been at the scene of the crime at 12h00. Lesego
Poonyane was living with the appellant at the time, and it has been suggested that her evidence should be rejected. Her evidence
about the telephone call was, however, not challenged or disputed.
The appellant did not call as witnesses any of the friends referred to by him who were living in Mafikeng. He was criticized by the
magistrate for not having done so. There was, however, no onus on the appellant to prove his alibi. The onus remained throughout on the State to prove that the appellant was at the scene of the crime and had committed the offence.
The magistrate found PW3 to be an honest and a reliable witness. There is no suggestion that she was giving false evidence. The question,
however, is whether there is a
reasonable possibility that she could have been mistaken in her belief that the person she saw at the scene of the crime was the person
she had known at her school six years previously.
PW3 was the only person who identified the appellant. She had not had any close association with him at the school. She admitted that
she had never spoken to him. They had been at the school together for a relatively short time.
Taking all of the facts into account, the honest but possibly mistaken identification by PW3 and the evidence of the appellant, supported
by the endorsements on his passport and the evidence of his witness Lesego Poonyane, it is our conclusion that the magistrate erred
in concluding that the appellant’s guilt had been proved beyond all reasonable doubt.
In the result the appeal succeeds and the conviction and sentence are set aside.
DELIVERED IN OPEN COURT AT THE COURT OF APEAL, LOBATSE, this day of April 2008.
……………………..
N. W. ZIETSMAN
JUDGE OF APPEAL
I agree
………………………..
P. H. TEBBUTT
JUDGE PRESIDENT
I agree
………………………..
J. G. FOXCROFT
JUDGE OF APPEAL.
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