Mokgatle v Directorate of Public Prosecutions (CLCGB-006-13) [2013] BWCA 9 (26 March 2013)




Court Criminal Appeal No. CLHFT-000114-10

26 FEBRUARY 2013

In the matter




Applicant in

Ms. D. S. Gadise
for the Respondent



1. The Applicant was
convicted by the trial Magistrate for the offence of Robbery,
contrary to Section 291 as read with 292(2) of
the Penal Code. He was
sentenced to 10 years imprisonment.

2. His appeal to the
High Court was unsuccessful. A subsequent application for leave to
appeal to this Court was refused. He now
directly approaches this
Court for such leave.

3. As correctly
pointed out by the High Court Judge in his ruling on the application
for leave to appeal to this Court, for such
leave to be granted, the
Applicant must satisfy the Court that his appeal has prospects of
success. This means that he has to show
that he has a reasonably
arguable case upon which the Court of Appeal may uphold his appeal.

4. The evidence
presented before the trial court and upon which the Applicant was
convicted is fairly short and I will narrate it
in some detail before
adverting to the grounds advanced by the Applicant in support of this

5. The victim of the
robbery, a 27 year old woman, gave evidence as the first prosecution
witness. Her evidence was that on the
evening of the 5th November
2007, she left her yard walking to the shops to buy air time. Along
the way she came across two men
who she says had alcohol in their
possession. The first of them tried to talk to her but she did not
show interest in his overtures
and continued to walk on. The other
man then turned back and asked her where she was going. Upon hearing
that she was going to
the shops to buy air time, he first offered to
sell her the air time. It turned out however that he did not have any
air time.
He called out to his colleague who was now a bit far from
them and asked if he had air time on him. When the colleague answered

in the negative, PW1 realised the man was just wasting her time and
started moving on. It was then that the man who had been offering
sell her air time produced a knife and demanded that she give him
money. She gave him PI0.80 which she had in her possession.
He then
demanded a cell phone. When she told him she did not have a cell
phone he subjected her to a body search. Realizing that
indeed she
was not carrying any cell phone, he throttled her threatening to rape
her. He took her with him some distance before
she started fighting
back. During the struggle he tried to stab her. The knife cut her on
the hand as she was trying to block the
blow. The cut was serious
enough to later require several stitches at the hospital. PW1 broke
loose from the assailant and ran
towards her home which was not far
from the scene of the incident. As she did so, she screamed for help
calling out the name of
one of her neighbours, a man named Michael.
He gave evidence as PW2.

6. PWl’s
evidence, fully supported by that of Michael, was that when she made
the report to him, she fully described how the
two men whom she had
met were dressed. She was able to see how they were dressed because
there was enough light from street lighting
in the area. She
described one of the men, later identified as the Applicant, as
putting on a pair of black trousers, a black sweater
with white
stripes and a woolen hat. She said the other man was putting on a
long khakhi coat.

7. Michael’s
evidence was that based on PWl’s description of the two men, he
and some other people set out in search
of the men. Because PW1 said
the men were carrying alcohol, the search team first went to the
shops nearby and on enquiry from
people at a bar there, they were
informed that the two described men had been at the bar and had left
going either to a shebeen
or to their home. The two men were
apparently known in the area. PW3 and his group went to the men’s
home. When they did
not find the men there, they went to the shebeen.
At the shebeen they saw the two men dressed as described by PW1. They
the police. When the police arrived, the man in a khakhi
overcoat was arrested but the other ran away.

8. The man in a
khakhi overcoat gave evidence as PW3. His testimony was that he and
the Applicant were friends; that they were together
on that evening
at that place; that both of them were dressed as described by PW1. He
confirmed PW1 ’s evidence in material
respects that it was the
Applicant who was dressed in black trousers, black sweater with white
stripes and a woolen hat. His evidence
supported that of PW2
regarding his arrest. He also confirmed that the Applicant ran away
when the police approached.

9. The last
prosecution witness was the investigating officer who arrested the
Applicant some days after the incident. His evidence
was that after
arrest, the Applicant denied the robbery but made certain admissions
regarding the knife and later led him to a
certain yard where he
alleged to have given the knife to one Godfrey. However upon arrival
at the said yard they found that no
person with such a name or
description resided there.

10. The Applicant
cross-examined PW1, PW3 and PW4 ably and extensively. The pith of his
defence was alibi, he asserting that he
was in Palapye on the said
date and time and that for that reason he could not conceivably have
committed the offence in Mahalapye
as alleged.

11. The learned
Magistrate, after a proper evaluation of the evidence and having
found that there were a number of material contradictions
between the
Applicant’s testimony and that of his witness, rejected the
defence of alibi as being a fabrication. He on the
other hand found
material consistency in the evidence of the prosecution witnesses of
fact. The learned Magistrate properly considered
the correct
principles on onus and the offence. Having evaluated and accepted the
prosecution evidence, the trial Magistrate convicted
the Applicant as

12. In filing this
application, the Applicant has raised a number of grounds which he
asserts have prospects of success in the quashing
of the conviction.

13. The first ground
is that the trial court erred in failing to comply with section 221
of the Criminal Procedure and Evidence
Act by not first satisfying
itself that the witnesses understood and recognized the religious
obligation of oath so as to determine
whether the witnesses, PW1 and
PW3 were competent to take an oath or had to be admonished to speak
the truth.

14. Section 221 of
the Criminal Procedure and Evidence Act (Cap. 08:02 of the Laws of
Botswana) in so far as it is relevant to illuminate
the merits or
demerits of this ground of appeal reads:

“Any person
produced for the purpose of giving evidence who, from ignorance
arising from youth, defective education, or other
cause, is found not
to understand the nature, or to recognize the religious obligations,
of an oath or affirmation, may be admitted
to give evidence in any
court without being sworn or being upon oath or affirmation: ”

15. All the
prosecution witnesses were sworn on the Bible. PW3 was at the time of
his testimony aged 32 years old. PW1 as indicated,
was 27 years old.
They were mature adults not children. There was nothing on the record
to show that at their ages the two witnesses
were not mature enough,
or, that due to any other cause they were unable to understand the
nature of the oath they were to take
before. Nor did the Applicant
himself point to any. This ground of appeal is baseless.

16. The second
ground of appeal is that the trial court misdirected itself in
accepting the dock identification of the Applicant
by PW1. There is
completely nothing on record to show that the trial Magistrate, in
evaluating the prosecution case, made any reliance
on PWl’s
pointing at the Applicant in court as the person who robbed her. In
the circumstances, this ground too, is a non-starter.

17. The third ground
advanced was that the prosecution case was weakened by a failure to
call bar attendants and people who were
at the shebeen to come and
support the prosecution case regarding the Applicant’s alleged
presence at both places on the
date and at the relevant time. This
argument too is unmeritorious in the face of the clear evidence of
PW1, PW2 and PW3. The Applicant
chose not to cross-examine PW2 and it
was PW2’s evidence which had a bearing on him being traced from
the description provided
by PW1 up to the time when the police
arrived at the shebeen and arrested PW3.

18. The fourth
ground o appeal was that the trial court erred in not assessing the
demeanor of PW3 whose evidence was suspicious.
The thrust of this
argument as expanded during the hearing was that PW3 should have been
treated as an accomplice witness and that
the cautionary rules
relating to treating the evidence of accomplice witnesses should have
been applied to his evidence. On both
PW1 and PW3’s testimony,
PW3 was never involved in the robbery either as a principal or
accessory (See, Section 237(1) of
the Criminal Procedure and Evidence
Act). He was at the material time a distance away from the Applicant
and PW1. He was merely
minding the company of his alcoholic
beverages. He saw a struggle between the Applicant and PW1 from a
distance and did not even
see that PW1 had been robbed of money. When
he saw the Applicant draw out a knife, witness asked the Applicant to
desist. When
the Applicant brushed the plea aside, the witness took
his alcohol and moved on before seeing PW1 run away. He does not even
to have been aware that PW1 had been injured. His mere failure
to actually take positive action in intervening on PWl’s behalf

does not render him an accomplice.

19. The final ground
advanced in the notice of application was that the trial court did
not interrogate the inconsistencies and
contradictions in PW3’s
evidence before entering a conviction. No material inconsistencies or
contradictions as alleged were
placed before this Court. Nor do any
such appear on the court record.

20. When asked to
expand on his grounds of appeal as contained in the application, the
Applicant pleaded a number of times during
the hearing that the
grounds were prepared by a Ndebele speaking inmate who had little
understanding of Setswana and that he himself
did not understand
Ndebele. There was as a result, so said the Applicant, a problem of
communication between the two such that
he was not fully briefed by
his benefactor on a number of the grounds advanced. That
notwithstanding, the Applicant, a clever person,
tried his best to
wiggle any argument he could to bolster his application. He clearly
understood more than he was letting on. The
facade of ignorance was a

21. During the
hearing of the application, the Applicant also raised two new
grounds. Firstly, that PW1 materially contradicted
herself by first
saying she was robbed by two men and later stating that it was only
one person, this resulting in him being wrongfully
prosecuted for the

22. There is
completely no merit in this ground in that PWl’s evidence was
clear that the robbery was committed by one man
while the other one
was a distance away from where the robbery was taking place.

23. The second
ground raised at the hearing was that the Applicant was not advised
by the trial court of the purpose of cross-examination.
As correctly
pointed out by Counsel for the Respondent, the record shows at page
24 of the transcript that he was so advised by
the learned Magistrate
before the commencement of the trial. Even if he had not been advised
of such purpose, he cross-examined
PW1, PW3 and 4 quite extensively
and to the point. He was able to bring his defence to the attention
of the witnesses and to challenge
the veracity of their testimony in
minute detail. He deliberately chose not to cross-examine PW2 even
when invited to do so by
the Court. He would thus not have suffered
any prejudice even if the trial court had not advised him of the
right to cross- examine.

24. This is an
application without merit and upon which no prospects exist upon
which the Appeal Court properly assessing the evidence
can reach a
different verdict. The case against him was overwhelming.

25. The application
for leave to appeal to the Court of Appeal is therefore refused.

Delivered in open
court at Gaborone this 26th day of February 2013.

Judge of Appeal

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