(4)
There were numerous discrepancies and contradictions in the evidence of the State witnesses to which the Magistrate had not paid sufficient
heed and that he had therefore been wrongly convicted.
As to (1) the record shows that the charges were, at the start of the trial on 24th November 2003, read to the applicant – who at that stage was charged with three other persons, including his brother Peter
Seisa (I shall refer to him herein simply as “Peter”) – in Setswana and English. The charges were those in relation
to counts 1 and 2. To both charges the applicant was asked to plead and he pleaded not guilty. The record then shows that on 9th July 2004, before any evidence had been led, the following occurred:
“PP: For mention . Applying to substitute a new charge sheet with a third count which had been charged separately. Accused 4 absent”
The original record in the Magistrate’s handwriting, then continues
“Charges read – Setswana”
To the three charges ie the two on which he had pleaded “not guilty” on the 23rd November 2003 and the third count of removing evidence, the applicant replied “I understand”. The Magistrate then recorded,
no doubt because of the absence of Accused 4, “Pleas reserved”. It would thus appear that in relation to this count no
formal plea from the applicant was taken. Is this a fatal irregularity? In my view, it is not, for the following reasons.
In two decisions of this Court it has been held that the taking of an accused’s plea is an important feature of a criminal trial.
In both cases it was held, further, that
“the failure of a court to read the charge to the accused person in open court and interpreted to him in a language which he understands
and given an opportunity to plead to it is an irregularity which will render any conviction subsequently recorded there after null
and void”
(See Mmatli and Another v The State (1999), 1 BLR 4 C A; Rankalo v The state (2000) 2 BLR 164 CA)
Both those cases are distinguishable from the present. Here the applicant had the charges on counts 1 and 2 read to him in Setswana,
which he speaks, and English and he pleaded to them. The charge on count 3 was read to him in Setswana and he said he understood
it and while no formal plea was recorded it is obvious that he intended to plead not guilty to it for, in regard to it, he cross-examined
the witnesses, particularly PW6, challenging their testimony that he participated in the count and also in his own testimony he protested
his innocence in respect of it. He suffered no prejudice and there was no failure of Justice. His first contention must therefore
fail.
There is no substance in the applicant’s second contention. The original file shows that both the prosecution and the defence
were to file written submissions to the court before judgment – The defence ie the applicant, to file his by 5th April 2005. He did so on 4th April 2005, in Setswana. They were thus considered by the Magistrate. That they were not transcribed into the typed record is understandable
but the applicant has suffered no prejudice as a result.
The third and fourth contentions can be dealt with together. It is not necessary for me to set out in detail the evidence given for the State at the trial but the gist of that evidence was that the applicant had, on the morning of 16th November 2003, sold to a buyer, who testified as PW 2, a grey and a brown ox at a cattle post near Nata Village in Central Administrative
District. The grey ox was described as a tuba ox. The two oxen were slaughtered there and then at the cattle post and the buyer took
the meat and the heads, but the hides were left at the cattle post. The hides were later thrown away into the bush by PW 6 on the
instruction of Peter. At about 4 pm the same day, according to PW6, the applicant, who had by that time been detained by the Police,
told him (PW6) to show the Police where the hides had been dumped.
PW6 testified that during that night, the applicant, who was no longer detained by the Police, and Peter told him to accompany him
to the Police Station. There the applicant and Peter went into the Police Station where they fetched the skins and they and PW6 then
went and threw them into a pan about 7 kilometers from Nata. The applicant was found guilty on the stock theft count because although
the brand mark on the brown ox was undecipherable, the skin of the tuba ox, the subject of the count, bore a brand mark FV9, which
was the brand mark of the deceased father of one Robang, who was then the owner of the ox and who had the brand certificate for the
ox in his possession. The ox was also ear marked with Robang’s father’s earmark.
The applicant pointed to certain discrepancies in the State evidence. The buyer PW2, for example, said the oxen had earmarks but he
did not check the brand or earmarks. Robang said the head of the tuba ox was earmarked “lekeketo on the left and monwana on
the right”. A worker at the cattle post, Lefatshe Savior, said he helped to slaughter the animals, but he did not check if
they had any brand mark. He did not observe any brand on the grey ox. It had an earmark, a cut on the left ear.
PW6 said the grey ox had a brand but he had forgotten what it was. In regard to the skins, Lefatshe said that after he had helped
to slaughter the animals he did not know what happened to the skins.
PW6, however, stated that Lefatshe had seen Peter when he and Peter took the skins to throw away.
Most of the applicant’s criticisms of the witnesses are of little value. The fact that a witness may have seen but forgotten
a brand mark is but a reflection of common human experience viz that people forget things with the passage of time. Some said they either did not observe brand or ear marks or did not pay particular
attention to them. This is not surprising. They were either assisting to slaughter the oxen or buying them. They would have had no
reason to think the oxen were stolen so would not have had any cause to direct their attention specifically to the brand or earmarks.
The discrepancies too, were of minor nature and not material to the issue to be determined. As was stated by Gyeke-Dako J in State V Gogannekgosi 1989 BLR 133 (HC) at 140 B-D
“For an inconsistency to be material, such inconsistency must in my view, be of a material nature capable of turning the result of
a case one way or the other. For there could hardly be any witness of truth if the principle were otherwise, since in nine cases
out of ten, witnesses are called upon to give evidence touching upon matters about which they might have witnessed or given statements
months or even years before. In such cases, the possibility of their making a few minor slips which may be in conflict with their
previous statements cannot be ruled out. But that should not necessarily make them untruthful witnesses. Ceteris paribus, the human mind does not normally improve with the passage of time”.
The applicant also argued that PW6 was not a credible witness, whose evidence lacked corroboration. I cannot agree. His testimony
as to the dumping of the hides was amply corroborated by the Police witnesses who were called to testify and there is nothing in
the rest of his evidence to suggest that he was not being truthful. The Magistrate who heard his evidence and saw him in the witness
box had this to say about him:
“PW6 was a herd boy. Even though he was cross-examined at length, especially by (the applicant), his simple and straight forward testimony
could not be shaken ………… I considered these two witnesses (ie PW2 and PW6) to have been credible witnesses
and their evidence as true”.
It is well-established that a court on appeal will not lightly interfere with findings of credibility made by a trial court and will
only do so if it appears to the appeal court that the trial court was manifestly incorrect in its findings. I cannot find that in
this case. On the contrary, in my view they are clearly correct.
The applicant also submitted that he should have been taken to the scenes of the various places. Scant purpose would have been served
by doing so at the trial. The evidence about the places was clear and explicit. In any event he knew the cattle post well and, as
Detective Sergeant James testified, he was taken by the Police to the places where the hides were left in the bush and to where they
were dumped in the pan.
The applicant also complained that the hides were not produced as exhibits. Mosojane J dealt fully with this point, which was also
raised before him, and held that he did not see how their production would have enhanced the defence case. I agree.
The applicant has, in my view, advanced nothing before this Court to satisfy me that another Court, ie the Court of Appeal, would
reach any conclusion different from that of the Magistrate and of the High Court. His application fails and is dismissed and his
convictions and sentences are confirmed.
DELIVERED IN OPEN COURT AT LOBATSE ON THIS 14TH DAY OF JANUARY 2008
_________
P H TEBBUTT
JUDGE PRESIDENT
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