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Joseph v The Attorney General (Criminal Appeal No. 36/99) [2000] BWCA 4 (1 January 2000)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
COURT OF APPEAL CRIMINAL APPEAL NO. 36/99
HIGH COURT CRIMINAL APPEAL NO. (F) 104/98
In the matter between:
AMEN JOSEPH Appellant
And
THE ATTORNEY GENERAL Respondent
Mr. P. Kgalemang for the Appellant Ms. T.T. Monyeki for the Respondent
JUDGME NT
CORAM: T.A AGUDA JA
P.H. TEBBUTT JA LORD WEIR JA
TEBBUTT JA:

At the conclusion of the argument by counsel in this appeal, the court upheld the appeal and set aside the appellant's convictions and sentences, intimating that it would in due course file its reasons for so doing. These are the reasons.

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The appellant was charged before a Senior Magistrate with
eleven counts of stealing stock contrary to Section 3(1) of
the Stock Theft Act No. 21 of 1996 (the Act). He was found
guilty on the first ten but acquitted on the eleventh. Of
the first ten, on each of counts 1 to 4 he was convicted of
stealing one ox at Radisele railway loading pens in the
Central Administrative District on 10 March 1997. On
counts 1, 2 and 3 the owners of the oxen identified them
from the brand marks on the oxen as being their property.
On count 4, there was no evidence of the ownership of the
ox. On each of counts 5 to 10 the appellant was convicted
of stealing at Lose Cattle Post in the Central
Administrative District between August 1996 and March 1997,
a cow and a calf. The charge on count 11, on which he was
acquitted, alleged that between August 1996 and 10 March
1997 and at Lose Cattle post he stole 13 head of cattle.
On each of counts 1 to 10 the appellant was sentenced to
the minimum statutory sentence prescribed by the Act viz 5
years imprisonment, the sentences being ordered :o run
concurrently with each other. The magistrate also made
the following order:

"The exhibited cattle, the subject matter of counts 1 to X shall be returned to their lawful owners. However, those cattle represented by count XI it is ordered, that they be kept by the

Police for three (3) months to allow their rightful owners to claim them. Should they remain unclaimed by the expiration of the set period, it is ordered that they be forfeited to the state."

The appellant appealed to the High Court where the learned Judge held that insofar as counts 1 to 4 were concerned, there was an improper splitting of charges of what was in reality one charge of stealing four cattle from four different owners on the same day and at the same place, thereby involving one criminal transaction. He therefore amended the charge sheet so as to reflect one conviction on a single count of stealing four cattle from four persons, one of whom was unknown. On counts 5 to 10 the learned judge again found that there had been an improper splitting of charges and again amended them to reflect a conviction on one count of theft. Apart from making those amendments, the learned judge dismissed the appeal but varied the sentence to one of five years imprisonment on each of the two new counts to run concurrently with one another. He confirmed the magistrate's forfeiture order.

With the leave of the court a quo the appellant appealed to this court against both his convictions and sentences. He

also appealed against that portion of the trial court's order relating to the forfeiture of the cattle which were the subject matter of count XI.

As this court has found that the appeal against the
appellant's convictions should succeed, I need strictly not
say anything in regard to the sentences imposed. It is
however, I feel, necessary to point out that it was
incompetent both for the magistrate and for the court a quo
to order that the sentences should run concurrently with
one another, Section 3(5) of the Act providing that -

"Any sentence imposed in respect of an offence
under this section shall be consecutive to and
not concurrent with any sentence imposed on the
same accused person "

That provision is clearly mandatory.

I turn then to the counts on which appellant was convicted. On the first four of these, relating to the four oxen allegedly stolen by him at the railway pens on 10 March 1997, the evidence, in brief, was that on that day, appellant wished to transport nine oxen to the Botswana Meat Commission (BMC). From a number of cattle at the pens appellant selected as his nine oxen which a loading official marked with paint. The latter also recorded a

description of the cattle including a brand mark furnished to him by appellant and issued a certificate to the appellant in respect of them. The official saw such a mark on one of the cattle but did not look for it on all the cattle. The cattle were then loaded into a train truck for transportation to BMC. Later a senior police officer Sub-Inspector Chibuya arrived at the pens who stated that one ox among those of the appellant had been loaded illegally. This officer ordered that all the cattle then on the truck, 31 in number, be off-loaded and asked the appellant to separate his cattle from the rest. It was then found that four of the nine oxen did not bear the appellant's brand mark. It was largely on this evidence that the appellant was convicted on the counts relating to the oxen.

On the counts relating to the six cows and calves, the court a quo found that there was no evidence that the appellant had stolen the cows. The calves, however, bore the appellant's brand mark and the magistrate inferred from this that appellant would have stolen the cows as well. The court a quo found that the magistrate erred in so doing and I agree.

In regard to the calves, Sub-Inspector Chibuya said that at the appellant's cattle post at Lose he found six calves bearing appellant's brand mark, suckling from cows branded differently. The appellant told him, said Sub-inspector Chibuya, that he had bought the cows from BLDC.

The cows did not, however, have BLDC s marking and they were later claimed as their property by the individual owners of each of the cows. This was not contested by appellant but as the calves of those cows were branded with his brand mark the magistrate found that he had stolen them.

The magistrate also, in finding appellant guilty on counts 1 to 4 and 5 to 10, rejected the explanation given by appellant in his evidence in regard to those charges as being false beyond reasonable doubt, holding that he was a completely unreliable witness who could not "make two sentences without telling a fib." The appellant's explanation in regard to the four oxen was that he did not know all his cattle. The cattle had been driven to the pens by his herdboys and when he selected from the 31 on the truck the nine oxen which bore the paint mark put on them by the loading official, he did not realise that four

of them were not his. Again, in regard to the calves, he said that he had a large number of calves which were due for branding. On 7 March 1997 he instructed his herdboys to brand all his calves and they had, in doing so, also branded with his brand mark the six calves which did not belong to him. As stated, the magistrate found both these theories to be false beyond reasonable doubt, a finding with which the court a quo agreed.

It must be constantly kept in mind that no onus rests on an accused person in a criminal case to convince the court of the veracity of his story. As has so often been held in our courts, following the dicta of the courts of England and South Africa in regard thereto, the court does net have to believe the story told by the accused, still less does it have to believe it in all its details. It is sufficient if his story may reasonably possibly be true and enough to raise a reasonable doubt in the mind of the court. (see WOOLMINGTON VS DIRECTOR OF PUBLIC PROSECUTIONS [1935] UKHL 1; (1935) AC 462; R VS DIFFORD 1937 AD 370 at 373; R V M 1946 AD 1023 at 1027; S VS KUBEKA 1982(1) SA 534 (W) at 537F-H; S VS JAFFER 1988(2) SA 84(C) at 89D-E).

It has also been emphasised that in stock theft cases the alleged stolen cattle should be traced from the possession of the owner or owners to the possession of the accused (see MOSUPI WEBB VS REGINA 1964 - 1967 BLR 127 at 128; SEKWAKWALALA VS STATE 1987 BLR 458) . In the present case this was not done. There is no evidence that prior to the driving of the cattle to the loading pens, the appellant had pointed out to the herdboys which cattle they had to drive to the pens and it is common cause that he was not present when they were driven there. The missing link in the evidential chain of the State connecting the deprivation of the owners of their oxen to the appellant in order to establish beyond reasonable doubt his theft of them, was the evidence of the herdboys. The failure of the State to call them leaves a lacuna in the State evidence which is fatal to the State's case in excluding the possibility that it was the herdboys who either mistakenly or deliberately included in the appellant's cattle destined for transportation to BMC, the four oxen which did not belong to him. They were material witnesses, essential to State's case and the State should have called them (see STATE VS MAKOMPO 1987 BLR 494 at 495 citing ADEL MUHAMMED EL DABBAH VS ATTORNEY GENERAL FOR PALESTINE (1944) AC 156 PC and SENEVIRATIE VS R (1936) 3 ALLER. 36 P.C.) Indeed Ms

Monyeki, who appeared for the State before this court, conceded as much, saying that as a result she could not support the conviction on the count involving the oxen.

The same considerations apply in regard to the calves. The issue of how they came to be bearing the appellant's brand mark could have been settled by the State's calling the herdboys. As it is, there is also a lacuna in the State's case in regard to the calves establishing the appellant's guilt beyond reasonable doubt by excluding the possibility that the six calves were branded by mistake by the herdboys. Again, Ms Monyeki conceded as much. It followed that the convictions could not be allowed to stand and were accordingly set aside.

On count XI, the evidence was that all the thirteen cattle concerned in that case bore the appellant's brand mark. Prima facie, therefore they belonged to him. The trial court found that the evidence did not support the State's allegation that appellant had fraudulently put his brand mark on them. Nobody else had claimed ownership of them. Upon his acquittal, therefore, the cattle were obviously to be regarded as belonging to him and should, at the conclusion of the trial, have been returned to him (see

REGINA VS TSHIITE 1964 - 1967 BLR 73) . Any other order in regard to the cattle, the subject of the charge on which the appellant was acquitted, would have been improper (see BLIND KEORAPETSE TOTENG VS REGINA 1964 - 1967 BLR 105 at 108-109).

The magistrate in making the forfeiture order he did in respect to the cattle on count XI and the court a quo in confirming it, therefore erred. Once again Ms Monyeki did not resist its being set aside.

In the result, therefore, the appeal succeeded. The convictions and sentences were set aside, as was the forfeiture order relating to the cattle on count XI. The cattle referred to in the count XI are to be returned to the appellant.

DELIVERED IN OPEN COURT THIS
DAY OF JANUARY 2000

P.H. TEBBUTT (JUDGE OF APPEAL)
T.A AGUDA (JUDGE OF APPEAL)

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LORD WEIR (JUDGE OF APPEAL)
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