Magotho v S (CLCGB-007-13) [2013] BWCA 27 (26 February 2013)





26 FEBRUARY 2013

In the matter




Applicant in

Ms Attorney L.S.
Ramotsoko for the Respondent



1. The applicant
seeks leave to appeal to this court against his conviction on a
charge of robbery, for which he received the statutory
sentence often years imprisonment.

2. He was originally
charged with two counts of robbery, and had a stroke of good fortune
on the second count when, after being
properly identified as one of
the robbers, he was acquitted because the wrong person had been named
as the complainant in the charge
sheet. It was open to the Magistrate
to amend the charge sheet at any time before conviction, but he did
not do so. That charge
is not before the court, and must be regarded
as water under the bridge.

3. The applicant
appealed against his conviction and sentence, and his appeal was
dismissed in a reasoned judgment by Tafa J. He
applied to the High
Court for leave to appeal further, and that application was dismissed
by Solomon J, again with full reasons.
He now hopes for such leave in
the present application.

4. His grounds of
appeal have been the same in essence throughout, although this time
he added more detailed grounds dealing with
a proposed reconciliation
of the case in terms of section 321 of the Criminal Procedure and
Evidence Act Cap 08:02.

5. The complaints of
the applicant are (and were) that:

(a) He should have
been charged with (or convicted of) Assault with Intent to Steal c/s
294 of the Penal Code, rather than Robbery
c/s 292 of the Penal Code,
since the elements of theft and actual violence were not proven;

(b) He was not
properly identified as one of the robbers;

(c) The State case
was invalidated by contradictory evidence, and should not have
prevailed over the defence case, since he was
framed; and

(d) That the
Magistrate erred in not prompting and accepting reconciliation
between the parties.

6. The facts of the
case were comprehensively dealt with by the Magistrate and by both
Judges of the High Court. Briefly, they were
as follows:

7. On 11th March
2008 there was drinking at a shebeen in Serowe run by the girlfriend
of Special Constable Itshwareleng Mothoka
(the complainant). Among
the patrons were the applicant and his two friends, later to be his
co-accused in this case. All of them
were known to the complainant.
At about 7.00 pm the complainant left to see another police officer.
Shortly thereafter the applicant
and his two friends left as well.

8. According to the
complainant, he was accosted in a dark alley beside the Flames Bar by
a man wearing a black cap and a khakhi
dust coat. The man seized him
by the neck and demanded his cellular telephone. When he resisted,
his assailant whistled, and others
came to join him. They wrestled
him to the ground, kicked him about his body, and stole his cell
phone and his wrist watch before
fleeing the scene.

9. He returned to
the shebeen for reinforcements and set out to look for his attackers.
In due course they came across the man in
the cap and dust coat
astride a woman whom he was apparently in the process of robbing. He
tried to flee but was felled by a stone
from one of the complainant’s
companions. As they overpowered him, a phone fell from his pocket,
which turned out to be the complainant’s
stolen phone, although it
was missing its sim card. When his cap was removed, the complainant
recognized him as being the applicant
whom he knew well. The
applicant apologized, saying that if he had known it was the
complainant, he would not have robbed him,
and he promised to return
the missing sim card.

10. The
complainant’s version of events was corroborated in material respects
by Constable Mokgalo, who joined the complainant in
seeking out his
attackers. In particular, he confirmed that it was the applicant who
wore the khakhi dust coat, and that the stolen
cell phone fell from
his person when they apprehended him. That it was the applicant who
was apprehended and that he was wearing
the khakhi dust coat was
confirmed by a third State witness, Pollen Tlokweng, as well. Pollen
was a friend to the applicant, and
he confirmed that the applicant
was beaten by the others when they caught him. The cell phone was
produced in court and was proved
to belong to the complainant, its
security code reflecting the numbers of his National Identity Card.

11. The version of
the applicant was that he and the complainant fought that night over
a girl. He denied robbing the complainant
of the cell phone, or that
he wore a dust coat that

night. He did
extract some telling information in cross- examination, namely that
they had tried to resolve the case, as they knew
each other; that the
applicant had sent an emissary to direct the complainant to his
girlfriend, a certain Ms

Gulubane, to
negotiate compensation for the cell phone; that she had only given
him P400 out of a promised P800 in order to withdraw
the charge. None
of this is consistent with innocence. As part of his evidence he also
tendered a note

signed by the
complainant, in which he acknowledged receipt from Ms Gulubane. The
note recorded that:

“I Itshwareleng
Mothoka accepted P350-00 only from Bagele Gulubane as compensation
for my cell phone Nokia 2310 which was stolen
from me. She will pay
the balance of P450-00 on the end of April 2008.”

12. Under
cross-examination the applicant admitted that he did not deny taking
the phone, but claimed that he organized payment
of the compensation
only to secure his release from prison.

13. I am satisfied,
as the two other Judges were, that the applicant was properly charged
with and convicted of robbery. The theft
was proved, and it was
accomplished by the applicant and his two friends by the use of
actual violence. There was no room for a
lesser charge of assault
with intent to steal. That disposes of the appeal against sentence
too, since the applicant conceded that
he was properly sentenced if
the conviction for robbery was correct.

14. As regards
identification of the applicant as the robber, I am satisfied that
that too was proved beyond any doubt. The robber
wore a khakhi dust
coat and a black cap. Shortly after the robbery a man wearing a
khakhi dust coat and black cap was caught robbing
another lady. When
the cap was removed, the wearer was found to be the applicant, who
was well known to the complainant. He expressed
his regret for the
robbery. As he was apprehended, the stolen phone fell from his
pocket. On the doctrine of recent possession
he was also directly
linked to the robbery. His action in organizing his girlfriend to pay
compensation is also inconsistent with
innocence, as was his prayer
in mitigation, when he told the Magistrate “The complainant is
my friend, and we had consumed
alcohol when this offence was

15. It is true that
there were minor inconsistencies in the evidence of the State
witnesses, but that is to be expected when those
present try to
recall the details of what precisely happened during an eventful
evening fuelled by alcohol. It is also true that
the Magistrate
failed to analyze the version put forward by the applicant, but he
was not prejudiced by that since the evidence
of his guilt was so
overwhelming as to demonstrate beyond doubt that his denials were

16. Finally, the
applicant’s complaint that the Magistrate failed to promote a
reconciliation is also without merit. In terms of
section 321 of the
Criminal Procedure and Evidence Act Cap 08:02

“… a
Magistrates Court may, with the consent of the prosecutor, promote
reconciliation, and encourage and facilitate the
settlement, in an
amicable way, of proceedings for assault or for any other offence of
a personal and private nature, not aggravated
in degree, on terms of
payment of compensation or other terms approved by such court, and
may thereupon order the proceedings to
be stayed.”

17. The complainant
did address the court, when the applicant had already been convicted
and was awaiting sentencing, and said that:

“I have been
approached by my parents and the accused’s parents. They have
requested that the case be withdrawn, and I agree
with them.”

18. The Magistrate
quite rightly said that it was too late in the day to do that, and
the case was in any event too serious for
reconciliation to be
allowed. The prosecutor also objected to that course. It was not a
case in which section 321 could be relied
upon, and that final ground
of appeal could also not succeed.

19. In sum,
therefore, the applicant has no reasonable hope of success on any of
the grounds raised by him.


Leave to appeal
further is refused.



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