аЯрЁБс>ўџ %ўџџџѕіїјљњћќ§ўџ     џџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџьЅСM №ПGhbjbjт=т= .і€W€WGdџџџџџџl       ДаЄаЄаЄаЄ мЄ$ДСЭЖ З З З З З З З З@ЭBЭBЭBЭBЭBЭBЭ$wЮ —аЂfЭ  З З З З ЗfЭDЬ   З З{ЭDЬDЬDЬ ЗJ   З  З@ЭDЬ З@ЭDЬќDЬ@Э  @Э ЗЗ  слН%ШДЄаЄVТю @Э@Э‘Э0СЭ@Э9бDЬ9б@ЭDЬДД    йSTATUTES JUDICIALLY CONSIDERED 1964 - 2005v2 Constitution - Ntesang v. The State [1995] B.L.R. 151 (CA) s. 3 Attorney-General v. Dow [1992] B.L.R. 119 (CA) Media Publishing (Pty) Ltd v. The Attorney-General and Another [2001] 2 B.L.R. 485 (HC) Kanane v. The State [2003] 2 B.L.R. 67 (CA) s. 3 (a) Mzwinila v. The State [1989] B.L.R. 357 (HC) ss. 3 (a) and 5 (1) (c) Botswana Co-operative Bank Ltd. v. Noor and Others [1999] 1 B.L.R. 248 (HC) ss. 3 (a) and 5 (1) (c) Noor and Others v. Botswana Co-operative Bank Ltd. (Full Bench) [1999] 1 B.L.R. 443 (CA) s. 3 (b) Botswana Power Corporation Workers' Union v. Botswana Power Corporation [1998] B.L.R. 159 (IC) s. 4 (2) (a) State v. Noti [1995] B.L.R. 325 (HC) s. 4 (2) (a) and (d) State v. Ndiwenyu [1990] B.L.R. 409 (HC) s. 5 Kandu and Others v. Director of Veterinary Services and Another [1996] B.L.R. 618 (HC) Salvado v. The State [2001] 2 B.L.R. 411 (HC) Kebafetotse v. The Attorney-General [2004] 1 B.L.R. 419 (HC) s. 5 (1) Mzwinila v. The State [1989] B.L.R. 357 (HC) Manthe v. The Attorney-General and Others [1997] B.L.R. 1170 (HC) s. 5 (3) Mogotsi v. The State [1990] B.L.R. 142 (HC) s. 5 (3) and 10 (1) Loso and Another v. The State [1998] B.L.R. 518 (HC) s. 5 (3) (a) Tlhogo v. The State [1993] B.L.R. 287 (CA) Tshekonyane v. The State (1) [1993] B.L.R. 173 (HC) s. 5 (3) (b) Attorney General's Reference: In re The State v. Marapo [2002] 2 B.L.R. 26 (CA) Marapo v. The State [2001] 2 B.L.R. 632 (HC) s. 6 (2) Botswana Railways' Organisation v. Setsogo [1995] B.L.R. 758 (HC) Botswana Railways' Organisation v. Setsogo and Others [1996] B.L.R. 763 (CA) s. 6 (3) (a) Botswana Railways' Organisation v. Setsogo and Others [1996] B.L.R. 763 (CA) Botswana Railways' Organisation v. Setsogo [1995] B.L.R. 758 (HC) s. 7 Petrus v. The State [1984] B.L.R. 14 (CA) Mzwinila v. The State [1989] B.L.R. 357 (HC) Mzwinila v. The State [1989] B.L.R. 610 (CA) s. 7 (1) Desai v. The State [1987] B.L.R. 55 (CA) Tlhabiwa and Another v. The State [2003] 2 B.L.R. 39 (CA) Moatshe and Another v. The State [2003] 1 B.L.R. 65 (HC) Moatshe v. The State; Motshwari and Another v. The State (Full Bench) [2004] 1 B.L.R. 1 (CA) s. 7 (2) Kgomanyane v. The State [1986] B.L.R. 62 (HC) Ditshwanelo v. The Attorney-General [1999] 2 B.L.R. 56 (HC) Moatshe and Another v. The State [2003] 1 B.L.R. 65 (HC) s. 8 Azad Hauliers (Pty.) Ltd. v. Attorney-General [1985] B.L.R. 144 (HC) s. 8 (1) and (5) Kablay v. Attorney-General [1985] B.L.R. 20 (HC) s. 10 Mzwinila v. The State [1989] B.L.R. 357 (HC) Mzwinila v. The State [1989] B.L.R. 610 (CA) Huma v. The State [1996] B.L.R. 40 (CA) Moroka v. The State [2001] 1 B.L.R. 134 (CA) Mpitse and Another v. The State [2003] 1 B.L.R. 185 (HC) Charles v. The State [2005] 1 B.L.R. 421 (HC) s. 10 (1) Maphane v. The State [1991] B.L.R. 60 (HC) Kgolagano v. The State [1997] B.L.R. 914 (HC) Rabana v. The Attorney-General and Another [2003] 1 B.L.R. 330 (HC) s. 10 (1) and (2) Maauwe and Another v. The Attorney General and Another [1999] 1 B.L.R. 275 (HC) s. 10 (1) and (2) (d) Samaribela v. The State [1987] B.L.R. 37 (HC) s. 10 (1) (f) Masango v. The State [2001] 2 B.L.R. 616 (HC) s. 10 (2) State v. Noti [1995] B.L.R. 325 (HC) Mazibuko v. The State [1994] B.L.R. 460 (HC) Mosala and Others v. State [1996] B.L.R. 978 (HC) Bojang v. The State [1994] B.L.R. 146 (HC) Mmesetse v. The State (Full Bench) [1999] 1 B.L.R. 14 (CA) Dikgang v. The State [1999] 2 B.L.R. 154 (HC) s. 10 (2) (a) Kaang v. The State [1991] B.L.R. 39 (HC) Marapo v. The State [2001] 2 B.L.R. 632 (HC) Standard Chartered Bank of Botswana Ltd. v. Jotia [1999] 2 B.L.R. 1 (HC) s. 10 (2) (b) and (f) Nguasena v. The State [2001] 1 B.L.R. 61 (HC) s. 10 (2) (c) Ahmed v. The Attorney-General [2002] 2 B.L.R. 431 (HC) Marumo v. The State [1990] B.L.R. 659 (HC) Motshwane and Others v. The State [2002] 2 B.L.R. 368 (HC) s. 10 (2) (d) Basima v. The State [1999] 1 B.L.R. 202 (HC) Makhura v. The State [1991] B.L.R. 104 (HC) Maphane v. The State [1991] B.L.R. 304 (CA) Maphane v. The State [1991] B.L.R. 60 (HC) Kaang v. The State [1991] B.L.R. 39 (HC) Tshukudu v. The State [2000] 1 B.L.R. 400 (HC) s. 10 (2) (e) Ahmed v. The Attorney-General [2002] 2 B.L.R. 431 (HC) Motshwane and Others v. The State [2002] 2 B.L.R. 368 (HC) s. 10 (5) State v. matere [1993] B.L.R. 465 (HC) s. 10 (7) Nkwe v. The State [1991] B.L.R. 18 (HC) s. 10 (8) Kang v. The State [2000] 1 B.L.R. 313 (HC) s. 10 (9) to (11) Direng v. Furniture Mart (Pty.) Ltd. [1995] B.L.R. 826 (HC) s. 11 (1) Media Publishing (Pty) Ltd v. The Attorney-General and Another [2001] 2 B.L.R. 485 (HC) Zachariah and Another v. Botswana Power Corporation [1996] B.L.R. 710 (CA) s. 12 Khimbele v. Sebonego and Others; Caphers v. Sebenego and Others [2001] 2 B.L.R. 105 (HC) s. 12 (1) Media Publishing (Pty) Ltd v. The Attorney-General and Another [2001] 2 B.L.R. 485 (HC) Zachariah and Another v. Botswana Power Corporation [1996] B.L.R. 710 (CA) s. 13 Students' Representative Council of Molepolole College of Education v. The Attorney-General [1995] B.L.R. 178 (CA) Botswana Power Corporation Workers' Union v. Botswana Power Corporation [1998] B.L.R. 159 (IC) Botswana Power Corporation Workers' Union v. Botswana Power Corporation (Full Bench) [1999] 1 B.L.R. 73 (CA) s. 13 (1) Zachariah and Another v. Botswana Power Corporation [1996] B.L.R. 710 (CA) s. 15 Dow v. Attorney-General [1991] B.L.R. 233 (HC) Attorney-General v. Dow [1992] B.L.R. 119 (CA) s. 15 (1) Media Publishing (Pty) Ltd v. The Attorney-General and Another [2001] 2 B.L.R. 485 (HC) s. 15 (4) (e) Makuto v. The State. (Full Bench) [2000] 2 B.L.R. 130 (CA) s. 18 Motshegwa Busang v. The State 1982 (1) B.L.R. 10 (CA) Attorney-General v. Dow [1992] B.L.R. 119 (CA) Kobedi v. The State [2002] 2 B.L.R. 502 (HC) s. 18 (1) Ditshwanelo v. The Attorney-General [1999] 2 B.L.R. 56 (HC) Ditshwanelo v. The Attorney-General (No. 2) [1999] 2 B.L.R. 222 (HC) Motshwane and Others v. The State [2002] 2 B.L.R. 368 (HC) Kelaotswe v. The Attorney-General [2005] 1 B.L.R. 306 (HC) Kobedi v. The State [2002] 2 B.L.R. 502 (HC) Moatshe and Another v. The State [2003] 1 B.L.R. 65 (HC) s. 18 (2) (a) Motshwane and Others v. The State [2002] 2 B.L.R. 368 (HC) s. 18 (3) State v. Powe Molefhe 1974 (1) B.L.R. 75 (HC) Botswana Railways' Organisation v. Setsogo and Others [1996] B.L.R. 763 (CA) Moatshe and Another v. The State [2003] 1 B.L.R. 65 (HC) s. 19 (2) Manthe v. The Attorney-General and Others [1997] B.L.R. 1170 (HC) s. 50 (4) Lesetedi v. The Attorney-General [1999] 2 B.L.R. 45 (HC) s. 51 (3) Mphusu and Another v. The State [1997] B.L.R. 845 (HC) s. 51 (4) Attorney-General v. Mafojane. (Full Bench) [2000] 2 B.L.R. 74 (CA) s. 51 (4) Mphusu and Another v. The State [1997] B.L.R. 845 (HC) s. 76 (1) Mzwinila v. The Attorney-General [2003] 1 B.L.R. 554 (HC) s. 78 Kamanakao I and Another v. Attorney-General [2002] 1 B.L.R. 110 (HC) s. 83 (2) (a) Kamanakao I and Another v. Attorney-General [2002] 1 B.L.R. 110 (HC) s. 95 Direng v. Furniture Mart (Pty.) Ltd. [1995] B.L.R. 826 (HC) Kelapile v. The State [1985] B.L.R. 113 (HC) Serurubele v. The Attorney-General [1998] B.L.R. 661 (HC) s. 95 (1) Martex Trading (Pty.) Ltd. t/a Bernco v. Yannoulis [1991] B.L.R. 330 (HC) Ditshwanelo v. The Attorney-General [1999] 2 B.L.R. 56 (HC) Ditshwanelo v. The Attorney-General (No. 2) [1999] 2 B.L.R. 222 (HC) Mafokate v. Mafokate [2000] 2 B.L.R. 430 (HC) s. 95 (1) and (5) State v. Moyo [1988] B.L.R. 113 (HC) s. 95 (5) Boakgomo v. The State [1999] 1 B.L.R. 309 (HC) s. 97 Diboneng and Others v. The State [1997] B.L.R. 675 (CA) s. 102 (a) Marapo v. The State [2001] 2 B.L.R. 632 (HC) s. 104 Direng v. Furniture Mart (Pty.) Ltd. [1995] B.L.R. 826 (HC) s. 104 (2) (c) Direng v. Furniture Mart (Pty.) Ltd. [1995] B.L.R. 826 (HC) Botswana Railways' Organisation v. Setsogo and Others [1996] B.L.R. 763 (CA) s. 105 (2) Botswana Railways' Organisation v. Setsogo and Others [1996] B.L.R. 763 (CA) s. 110 (1) Botswana Teachers' Union v. The Director of Teaching Service Management and Another [2002] 2 B.L.R. 311 (HC) s. 112 (2) (f) Kalabeng v. Attorney-General [1985] B.L.R. 20 (HC) s. 127 (1) Botswana Railways' Organisation v. Setsogo and Others [1996] B.L.R. 763 (CA) Cap. 01:01 Citizens Act ss. 4 and 5 Dow v. Attorney-General [1991] B.L.R. 233 (HC) Cap. 01:02 (1973 Rev.) Interpretation and General Provisions Act ss. 28 and 29 Williams v. The State [1990] B.L.R. 289 (CA) s. 53 (2) State v. Makhubala [1983] B.L.R. 33 (HC) Proclamation 19 of 1961 s. 10 (e) Torpedo Mookodi v. The Senior Ngwaketse Kgotla 1968-1970 B.L.R. 293 (HC) Proclamation 24 of 1961 s 22 Mzwinila v. The Attorney-General [2003] 1 B.L.R. 554 (HC) Cap. 01:04 Interpretation Act s. 24 (1) Good v. The Attorney-General [2005] 1 B.L.R. 462 (HC) s. 26 Sebudi v. Botswana Beverages and Allied Workers' Union [1997] B.L.R. 12 (HC) Obopile v. The Attorney-General and Others [2005] 1 B.L.R. 86 (CA) s. 27 Sebudi v. Botswana Beverages and Allied Workers' Union [1997] B.L.R. 12 (HC) Obopile v. The Attorney-General and Others [2005] 1 B.L.R. 86 (CA) s. 29 (1) Motsumi v. First National Bank of Botswana [1995] B.L.R. 713 (HC) s. 41 (1) Nettey v. Kgalagadi Resources Development Co. (Pty.) Ltd. [1997] B.L.R. 1137 (HC) s. 41 (2) Nettey v. Kgalagadi Resources Development Co. (Pty.) Ltd. [1997] B.L.R. 1137 (HC) s. 45 Kono and Others v. Lekgari and Others In re Lekgari and Others v. Independent Electoral Commission and Others [2001] 2 B.L.R. 325 (CA) s. 45 Gumbo v. Yorkdon Electrical (Pty) Ltd [2003] 1 B.L.R. 1 (IC) Cap. 02:04 Ministers and National Assembly Gratuities and Pensions Act s. 5 Gabaake and Others v. The Accountant-General and Another [2001] 2 B.L.R. 563 (HC) Gabaake and Others v. Accountant General and Another [2002] 2 B.L.R. 36 (CA) Cap. 02:07 Electoral Act ss. 47 and 68 Pilane v. Molomo [1990] B.L.R. 214 (HC) s. 115 Kono and Others v. Lekgari and Others In re Lekgari and Others v. Independent Electoral Commission and Others [2001] 2 B.L.R. 325 (CA) s. 115 (d) Dipate v. Mmusi [1990] B.L.R. 153 (HC) Kgoadi v. Ramatsebe; Tlhokwane v. Thuku [1996] B.L.R. 574 (HC) s. 115 (e) Kgoadi v. Ramatsebe; Tlhokwane v. Thuku [1996] B.L.R. 574 (HC) s. 116 Dipate v. Mmusi [1990] B.L.R. 153 (HC) Kgoadi v. Ramatsebe; Tlhokwane v. Thuku [1996] B.L.R. 574 (HC) Kono and Others v. Lekgari and Others In re Lekgari and Others v. Independent Electoral Commission and Others [2001] 2 B.L.R. 325 (CA) s. 119 Dithebe v. Mafoko [1990] B.L.R. 173 (HC) s. 132 Marobela and Others v. Moatlhodi and Others [2001] 2 B.L.R. 72 (HC) s. 148 Botswana Peoples' Party v. Botswana Alliance Movement and Others [2002] 2 B.L.R. 333 (HC) Cap. 02:07 (1973 Rev.) Electoral Act s. 115 (b) Sethantsho v. Jankie [1984] B.L.R. 304 (HC) Cap. 02:08 House of Chiefs (Powers and Privileges) Act s. 12 Kamanakao I and Another v. Attorney-General [2002] 1 B.L.R. 110 (HC) s. 15 Kamanakao I and Another v. Attorney-General [2002] 1 B.L.R. 110 (HC) Cap. 04:01 Court of Appeal Act s. 10 Matlapeng v., The State (Practice Direction) [1991] B.L.R. 369 (CA) First National Bank of Botswana Ltd. v. Khan [1994] B.L.R. 213 (HC) s. 10 (a) Vos v. National Development Bank [1996] B.L.R. 854 (HC) s. 11 Matlapeng v., The State (Practice Direction) [1991] B.L.R. 369 (CA) First National Bank of Botswana Ltd. v. Khan [1994] B.L.R. 213 (HC) s. 12 State v. Desha. [1992] B.L.R. 199 (CA) s. 12 (5) Re Attorney-General's Reference; State v. Malan [1990] B.L.R. 32 (HC) Attorney-General v. Ishmael [2002] 1 B.L.R. 10 (CA) Monnanyana v. The State [2002] 1 B.L.R. 72 (CA) s. 13 (3) Molefe v. The State [1999] 1 B.L.R. 471 (CA) Bosch v. The State. [2001] 1 B.L.R. 71 (CA) Mogatla v. The State. [2001] 1 B.L.R. 192 (CA) s. 13 (4) Makwapeng v. The State (Full Bench) [1999] 1 B.L.R. 48 (CA) s. 14 The State v. Kennedy Sephiri; Kehumile Kgoroba 1982 (1) B.L.R. 211 (HC) s. 14 (1) Bontlha Cattle Marketing (Pty.) Ltd. v. Barclays Bank of Botswana Ltd. [1998] B.L.R. 642 (HC) s. 15 Botswana Railways' Organisation v. Setsogo and Others [1996] B.L.R. 763 (CA) s. 15 Williams v. The State [1990] B.L.R. 289 (CA) Cap. 04:01 (1973 Rev.) Court of Appeal Act s. 13 (1) (b)and (3) Basson v. The State [1989] B.L.R. 217 (CA) s. 13 (3) Mashabile v. The State [1984] B.L.R. 96 (CA) s. 15 Mzwinila v. The State [1989] B.L.R. 610 (CA) Mokgadi v. The State [1988] B.L.R. 435 (CA) s. 19 Mosweunyane v. The State [1986] B.L.R. 308 (CA) Cap. 04:02 High Court Act s. 8 (1) Morewane v. Tainton [2005] 1 B.L.R. 336 (HC) s. 10 Mphusu and Another v. The State [1997] B.L.R. 845 (HC) Boakgomo v. The State [1999] 1 B.L.R. 309 (HC) s. 10 (1) Makgolwane v. The State [2003] 1 B.L.R. 179 (HC) s. 10 (1) (c) Ngwenya v. The State [2001] 2 B.L.R. 204 (HC) Haskins v. The State [2003] 2 B.L.R. 353 (HC) s. 10 (1) (d) Ikgopoleng v. The State [1992] B.L.R. 68 (HC) s. 10 (1), proviso Toto v. The State [1990] B.L.R. 440 (HC) Maiphetlho v. The State [1990] B.L.R. 580 (HC) Motshegare v. The State [1999] 1 B.L.R. 437 (CA) Mosala v. The State [1999] 2 B.L.R. 405 (HC) Nguasena v. The State [2001] 1 B.L.R. 61 (HC) Modise v. The State [2001] 1 B.L.R. 380 (HC) s. 10 (2) State v. Moilwe [1994] B.L.R. 232 (HC) s. 12 (d) Big Game Development Company Botswana (Pty.) Ltd. and Another v. De Kock and Another [1996] B.L.R. 145 (CA) s. 23 Botswana Co-operative Bank Ltd. v. Noor and Others [1999] 1 B.L.R. 248 (HC) Noor and Others v. Botswana Co-operative Bank Ltd. (Full Bench) [1999] 1 B.L.R. 443 (CA) s. 28 Botswana Co-operative Bank Ltd. v. Noor and Others [1999] 1 B.L.R. 248 (HC) Cap. 04:02 (1973 Rev.) High Court Act s. 9 Mbalambi v. The State [1986] B.L.R. 366 (HC) s. 9 (1) (b) Tumetsane v. The State [1985] B.L.R. 119 (HC) s. 9 (1) (c) Mosweuyane v. The State [1986] B.L.R. 308 (CA) s. 9 (2) State v. Mbaiwa [1988] B.L.R. 314 (HC) ss. 23 and 26 Ngope v. O'Brien Quinn [1986] B.L.R. 335 (CA) Cap. 04:04 Magistrates' Courts Act s. 38 Segopolo & Co v. Moobankwe [2001] 2 B.L.R. 274 (HC) s. 42 Monageng v. Botswana Telecommunications Corporation and Another [2002] 2 B.L.R. 196 (HC) s. 60 (2) Kotase v. The State [1990] B.L.R. 86 (HC) Cap. 04:04 (1973 Rev.) Magistrates' Courts Act s. 3 Rakhudu v. The State [1988] B.L.R. 237 (HC) s. 6 (1) and (2) State v. Tokwe (Practice Note) [1984] B.L.R. 162 (HC) s. 60 Attorney-General v. Phute [1987] B.L.R. 460 (HC) s. 60 (2) Nkola v. The State [1989] B.L.R. 500 (HC) State v. Vissagie [1983] B.L.R. 138 (HC) s. 60 (2) and (5) Rakhudu v. The State [1988] B.L.R. 237 (HC) s. 61 Attorney-General v. Phute [1987] B.L.R. 460 (HC) Rakhudu v. The State [1988] B.L.R. 237 (HC) s. 61 (2) (b) State v. Lee [1985] B.L.R. 345 (HC) s. 67 (1) Rakhudu v. The State [1988] B.L.R. 237 (HC) Cap. 04:05 Customary Courts Act s. 6 Lesego Joan Chiepe v. Aubrey Obed Sago 1982 (1) B.L.R. 25 (HC) s. 10 (1) (a) (ii) Metswinyane v. Metswinyane [2004] 1 B.L.R. 47 (CA) s. 11 (1) Obopile v. The Attorney-General and Others [2005] 1 B.L.R. 86 (CA) s. 19 Mogatwe v. The State [2004] 1 B.L.R. 389 (HC) s. 21 Paki v. The State [2005] 1 B.L.R. 479 (HC) Cap. 04:05 (1973 Rev.) Customary Courts Act ss. 11 and 14 Kweneng Land Board v. Madisakwane and Others [2001] 1 B.L.R. 246 (CA) s. 14 State v. Molomo [1984] B.L.R. 108 (HC) s. 17 Kgalaeng v. Attorney-General [1988] B.L.R. 21 (HC) s. 37 Motsopa v. Obakeng [1987] B.L.R. 278 (HC) s. 38 Mphafe v. The State [2000] 2 B.L.R. 239 (HC) s. 38 (a) (i) Motsaatosi v. The State [2000] 1 B.L.R. 198 (HC) s. 41 Molatlhiwa v. Gasemokwena [2000] 1 B.L.R. 70 (CA) Cap. 04:06 Judges (Retiring Age) Act s. 2 Diboneng and Others v. The State [1997] B.L.R. 675 (CA) Cap. 05:02 Commissions of Enquiry Act s. 4 Kwelagobe v. Kgabo (No. 2) [1994] B.L.R. 347 (HC) Cap. 06:01 Arbitration Act s. 6 (1) Glendinning Botswana (Pty) Ltd v. Portion 122 Millenium (Pty) Ltd [2005] 1 B.L.R. 282 (HC) s. 16 (2) Attorney General v. Ishmael [2002] 1 B.L.R. 221 (HC) s. 16 (2) (f) Attorney General v. Ishmael [2002] 1 B.L.R. 221 (HC) Botswana Ash (Pty) Ltd v. Zuzumbe (Pty) Ltd [2003] 1 B.L.R. 58 (HC) Cap. 06:01 (1973 Rev.) Arbitration Act s. 6 B.M. Packaging (Pty.) Ltd. v. P.P.C. Botswana (Pty.) Ltd. [1998] B.L.R. 309 (HC) s. 6 (1) Becco Botswana (Pty.) Ltd. v. Diamond Manufacturing Botswana (Pty.) Ltd. [1983] B.L.R. 288 (HC) Ropace Botswana (Pty) Ltd v. Dawson and Fraser (Pty) Ltd [2001] 1 B.L.R. 479 (HC) Cap. 07:01 Inquests Act s. 5 Kehupetse v. The Attorney-General [2003] 2 B.L.R. 316 (HC) s. 6 Kehupetse v. The Attorney-General [2003] 2 B.L.R. 316 (HC) s. 6 (1) (d) Kehupetse v. The Attorney-General [2003] 2 B.L.R. 316 (HC) Cap. 08:01 Penal Code - State v. Galekuelwe [1996] B.L.R. 373 (HC) - Attorney-General, Wright v. (Attorney-General's Reference, In Re:) [1996] B.L.R. 689 (CA) - Ntesang v. The State [1995] B.L.R. 151 (CA) s. 2 Masilompane and Others v. The State [1997] B.L.R. 1201 (HC) Sibanda and Another v. The State [2002] 1 B.L.R. 194 (HC) s. 3 Kgang v. The State [2000] 1 B.L.R. 313 (HC) s. 4 Mohalenyane v. The State [1985] B.L.R. 542 (HC) s. 5 Kgomanyane v. The State [1986] B.L.R. 62 (HC) State v. Vivier (No. 2) [1988] B.L.R. 371 (HC) State v. Ntsobi [1985] B.L.R. 173 (HC) State v. Baiphethi (Practice Note) [1984] B.L.R. 232 (HC) Mpofu v. The State [1986] B.L.R. 351 (HC) Selebogo v. The State [1987] B.L.R. 320 (HC) ss. 5 and 352 Moruti v. The State [1990] B.L.R. 89 (HC) Mosiiwa Seheru v. The State 1982 (1) B.L.R. 159 (HC) s. 8 (1) Leshage v. The State [1997] B.L.R. 1193 (HC) s. 9 Manjesa v. The State [1991] B.L.R. 391 (HC) State v. Ntsima [1991] B.L.R. 251 (HC) s. 9 (1) Kgogwane v. The State [2003] 1 B.L.R. 239 (HC) Kgogwane v. The State (2) [2003] 1 B.L.R. 244 (HC) s. 10 State v. Gaopatwe [1997] B.L.R. 522 (HC) s. 11 State v. Bolelang [2002] 2 B.L.R. 213 (HC) State v. Mogampana [1990] B.L.R. 534 (HC) s. 12 State v. Molaakgosi [1994] B.L.R. 135 (HC) State v. Gaopatwe [1997] B.L.R. 522 (HC) State v. Masinga [1990] B.L.R. 47 (HC) s. 12 (2) State v. Masupe [1992] B.L.R. 1 (HC) s. 12 (2) (b) State v. Letsholathebe [2001] 1 B.L.R. 42 (HC) s. 13 State v. Saamu [1989] B.L.R. 191 (HC) s. 13(R) State v. Masinga [1990] B.L.R. 47 (HC) s. 14 Mokgalagadi v. The State [1985] B.L.R. 48 (HC) State v. Saamu [1989] B.L.R. 191 (HC) s. 14 (4) State v. Lekolwane [1985] B.L.R. 94 (HC) s. 15 Matlapeng v. The State (Practice Direction) [1991] B.L.R. 369 (CA) s. 16 Kenosi v. The State [1993] B.L.R. 268 (CA) State v. Noti [1995] B.L.R. 325 (HC) State v. Motlhono [1991] B.L.R. 66 (HC) State v. Ndiwenyu [1990] B.L.R. 409 (HC) State v. Molaakgosi [1994] B.L.R. 135 (HC) State v. Pinto [2003] 1 B.L.R. 600 (HC) ss. 16, 205and 206 State v. Lesogo [1999] 1 B.L.R. 506 (HC) s. 17 Manyaka v. The State [1984] B.L.R. 185 (HC) s. 17 Sekgee v. Attorney General [1993] B.L.R. 315 (HC) s. 18 State v. Gakebafe [1986] B.L.R. 429 (HC) Mosweu v. The State [1987] B.L.R. 220 (HC) State v. Mhlanga [1986] B.L.R. 149 (HC) s. 18 (2) State v. Mpofu [1986] B.L.R. 487 (HC) s. 21 Toteng v. The State [1994] B.L.R. 188 (HC) s. 22 State v. Thebe [1993] B.L.R. 484 (HC) Toteng v. The State [1994] B.L.R. 188 (HC) State v. Matthys and Others [2003] 1 B.L.R. 528 (HC) s. 22 (a) State v. Otloleng [1989] B.L.R. 40 (HC) s. 24 State v. Basson [1988] B.L.R. 452 (HC) Lesogoro v. The State [1986] B.L.R. 311 (CA) s. 24 Wright v. The Attorney-General [1996] B.L.R. 405 (HC) Makgekgenene v. The State [1997] B.L.R. 630 (HC) s. 26 (2) State v. Mojaki [2005] 2 B.L.R. 106 (CC) s. 27 State v. Ndlovu (Practice Note) [1989] B.L.R. 10 (HC) s. 28 (2) State v. Mothokgo [1989] B.L.R. 247 (HC) s. 30 Nguriwa v. The State [1984] B.L.R. 8 (HC) s. 30 (1) and (4) Steady v. The State [1983] B.L.R. 153 (HC) s. 30 (3) (c) State v. Maruapula (Practice Note) [1988] B.L.R. 434 (HC) s. 33 (2) Temane v. The State [1987] B.L.R. 81 (HC) s. 35 Habangana v. The State [1986] B.L.R. 479 (HC) s. 36 (1) (e) State v. Vivier (No. 2) [1988] B.L.R. 371 (HC) s. 39 State v. Beyleveld (II) 1978 B.L.R. 59 (HC s. 40A (1) (a) State v. Vivier (No. 2) [1988] B.L.R. 371 (HC) s. 41 (2) State v. Vivier (No. 2) [1988] B.L.R. 371 (HC) s. 47 Makwati v. The State [1996] B.L.R. 682 (CA) s. 59 State v. Mbaiwa [1988] B.L.R. 314 (HC) s. 64 (1) Sibanda and Another v. The State [2002] 1 B.L.R. 194 (HC) s. 64 (2) Sibanda and Another v. The State [2002] 1 B.L.R. 194 (HC) s. 75 State v. Motholosi and Others 1968-1970 B.L.R. 382 (HC) s. 89B (i) State v. Arnold 1975 (1) B.L.R. 93 (HC) s. 90 (1) State v. Ntsobi [1985] B.L.R. 173 (HC) Keatsutswe v. The State [1990] B.L.R. 176 (HC) Legwaila v. The State [1990] B.L.R. 260 (HC) s. 93 Mokgothu v. The State [1986] B.L.R. 34 (HC) s. 99 (a) Autlwetse v. The State [2001] 2 B.L.R. 464 (HC) s. 99 (b) Haffejee v. The State [1994] B.L.R. 336 (HC) State v., Matere [1991] B.L.R. 359 (HC) s. 111 (1) (a) Serole v. The State [1985] B.L.R. 571 (CA) s. 119 State v. Vivier (No. 2) [1988] B.L.R. 371 (HC) s. 123 (c) Kgomanyane v. The State [1986] B.L.R. 62 (HC) s. 123 (1) Mathumo v. The State [1997] B.L.R. 623 (HC) s. 123 (2) Mathumo v. The State [1997] B.L.R. 623 (HC) s. 123 (3) Mathumo v. The State [1997] B.L.R. 623 (HC) s. 128 State v. Ace Sikwa 1974 (1) B.L.R. 116 (HC) Haffejee v. The State [1994] B.L.R. 336 (HC) s. 129 Haffejee v. The State [1994] B.L.R. 336 (HC) s. 131 Mphusu and Another v. The State [1997] B.L.R. 845 (HC) s. 131 (a) Segobaetsho v. The State [1988] B.L.R. 306 (HC) s. 141 Moatlhodi v. The State [1995] B.L.R. 265 (HC) Mompati v. The State [1995] B.L.R. 258 (HC) State v. Sejo [2002] 1 B.L.R. 488 (HC) Chanda v. The State [2004] 1 B.L.R. 285 (HC) Boitumelo v. The State [2005] 1 B.L.R. 317 (HC) s. 142 State v. Gabaakanye [1986] B.L.R. 437 (HC) S. 142 State v. Maruapula (Practice Note) [1988] B.L.R. 434 (HC) Mompati v. The State [1995] B.L.R. 258 (HC) Moatlhodi v. The State [1995] B.L.R. 265 (HC) State v. Sejo [2002] 1 B.L.R. 488 (HC) Monnaemang v. The State [2003] 1 B.L.R. 222 (HC) Boitumelo v. The State [2005] 1 B.L.R. 317 (HC) s. 142 (1) Serurubele v. The Attorney-General [1998] B.L.R. 661 (HC) Nonane v. The State [2004] 2 B.L.R. 461 (HC) s. 142 (1) (i) Attorney General's Reference: In re The State v. Marapo [2002] 2 B.L.R. 26 (CA) State v. Dintwa. (Full Bench) [2000] 2 B.L.R. 72 (CA) Marapo v. The State [2001] 2 B.L.R. 632 (HC) s. 142 (2) Ikakanyeng v. The State [2004] 2 B.L.R. 414 (HC) Nonane v. The State [2004] 2 B.L.R. 461 (HC) s. 142 (4) Nonane v. The State [2004] 2 B.L.R. 461 (HC) s. 142 (4) (a) Makuto v. The State. (Full Bench) [2000] 2 B.L.R. 130 (CA) David v. The State. (Full Bench) [2000] 2 B.L.R. 142 (CA) Matlapeng v. The State. [2001] 1 B.L.R. 161 (CA) s. 142 (5) Ntwayamakgalagadi v. The State [2002] 1 B.L.R. 325 (HC) s. 143 State v. Gabaakanye [1986] B.L.R. 437 (HC) s. 146 (1) Molokwane v. The State [1993] B.L.R. 66 (HC) s. 147 Masupatsele v. The State [1987] B.L.R. 96 (HC) s. 147 Boitumelo v. The State [2005] 1 B.L.R. 317 (HC) s. 147 (1) Kgopodithata v. The State [1990] B.L.R. 663 (HC) Ramabe v. The State [2002] 1 B.L.R. 523 (HC) Matlakadibe v. The State [2004] 1 B.L.R. 44 (CA) s. 147 (3) State v. Boikanyo [1986] B.L.R. 131 (HC) Madume v. The State [1986] B.L.R. 49 (HC) State v. Ralengabi [1988] B.L.R. 1 (HC) s. 147 (3) Moetedi v. The State [1997] B.L.R. 285 (HC) s. 147 (3) (a) State v. Lejony [2000] 1 B.L.R. 326 (HC) s. 147 (3) (a)and (5) Lejony v. The State. (Full Bench) [2000] 2 B.L.R. 145 (CA) s. 147 (5) Gare v. The State. [2001] 1 B.L.R. 143 (CA) Gaosenkwe v. The State [2001] 1 B.L.R. 324 (HC) Galebonwe v. The State [2002] 1 B.L.R. 46 (CA) Matlakadibe v. The State [2004] 1 B.L.R. 44 (CA) Manewe v. The State [2005] 1 B.L.R. 276 (HC) s. 164 The State v. Gabobewe Molatlhegi 1982 (1) B.L.R. 209 (HC) s. 164 (a) State v. Rantorobane [1985] B.L.R. 37 (HC) s. 164 (a) Gaolete v. The State [1991] B.L.R. 325 (HC) s. 164 (c) Kanane v. The State [2003] 2 B.L.R. 67 (CA) s. 165 Gaolete v. The State [1991] B.L.R. 325 (HC) s. 167 Kanane v. The State [2003] 2 B.L.R. 67 (CA) s. 168 (1) State v. Ngwako [1984] B.L.R. 156 (HC) s. 171 State v. Ngwako [1984] B.L.R. 156 (HC) s. 172 The State v. Timithy Zikhale and Others 1968-1970 B.L.R. 337 (HC) s. 174 Morwalela v. The State [1985] B.L.R. 50 (HC) s. 179 State v. Ozias Lebuku 1975 (1) B.L.R. 46 (HC) s. 184 Dintwe v. The State [1983] B.L.R. 159 (HC) s. 187 State v. Baphari [1991] B.L.R. 343 (HC) s. 200 State v. Rachata [1995] B.L.R. 498 (HC) Manjesa v. The State [1991] B.L.R. 391 (CA) s. 200 (1) State v. Ntwayamodimo [1996] B.L.R. 497 (HC) s. 201 Mosala v. The State [1991] B.L.R. 212 (HC) s. 202 State v. Noti [1995] B.L.R. 325 (HC) State v. Kobedi [1990] B.L.R. 458 (HC) State v. Magazine [2004] 2 B.L.R. 432 (HC) s. 202 (1) State v. Pheto [2003] 1 B.L.R. 400 (HC) s. 202 (2) State v. Pheto [2003] 1 B.L.R. 400 (HC) s. 203 Kelaletswe v. The State [1995] B.L.R. 100 (CA) Puso v. The State [1998] B.L.R. 421 (CA) State v. Bosch [2000] 1 B.L.R. 180 (HC) State v. Bojelo [2000] 1 B.L.R. 331 (HC) s. 203 (2) Mminakgomo v. The State [1996] B.L.R. 655 (CA) s. 204 State v. Noti [1995] B.L.R. 325 (HC) s. 204 (a) State v. Ramaisho [2001] 1 B.L.R. 14 (HC) State v. Mongae [2001] 2 B.L.R. 312 (HC) s. 204 (b) State v. Maripane [1991] B.L.R. 151 (HC) State v. Ntesang [1990] B.L.R. 396 (HC) State v. Magazine [2004] 2 B.L.R. 432 (HC) s. 205 Kenosi v. The State [1993] B.L.R. 268 (CA) State v. Motlhono [1991] B.L.R. 66 (HC) State v. Maripane [1991] B.L.R. 151 (HC) State v. Molaakgosi [1994] B.L.R. 135 (HC) State v. Sibanda [2002] 2 B.L.R. 386 (HC) Ndlovu v. The State [1995] B.L.R. 432 (CA) State v. Tumotumo [1997] B.L.R. 30 (CA) State v. Nkatswe [2000] 2 B.L.R. 441 (HC) s. 205 (1) Kebonye Baoteleng v. The State 1972 (2) B.L.R. 82 (CA) State v. Kgatso [1995] B.L.R. 663 (HC) State v. Monato [1995] B.L.R. 628 (HC) s. 205 (2) Kebonye Baoteleng v. The State 1972 (2) B.L.R. 82 (CA) State v. Ndiwenyu [1990] B.L.R. 409 (HC) s. 206 State v. Motlhono [1991] B.L.R. 66 (HC) State v. Molaakgosi [1994] B.L.R. 135 (HC) Ndlovu v. The State [1995] B.L.R. 432 (CA) Totowe v. The State. [2001] 1 B.L.R. 166 (CA) s. 207 State v. Ramathaka [1989] B.L.R. 265 (HC) Ramphanana v. The State [1984] B.L.R. 83 (HC) State v. Moyo [1985] B.L.R. 239 (HC) State v. Mothelesi [1989] B.L.R. 78 (HC) s. 208 State v. Bolelang [2002] 2 B.L.R. 213 (HC) State v. Sefelani [1996] B.L.R. 259 (HC) State v. Othusitse [2001] 2 B.L.R. 394 (HC) State v. Magazine [2004] 2 B.L.R. 432 (HC) s. 209 State v. Mhlanga [1986] B.L.R. 149 (HC) s. 209 (b) Molefi v. The State [1986] B.L.R. 452 (CA) s. 209 (c) State v. Oxho and Another [2002] 1 B.L.R. 284 (HC) s. 210 State v. Jacob [1989] B.L.R. 443 (HC) State v. Marema [1989] B.L.R. 562 (HC) s. 211 (1) State v. Mpofu [1986] B.L.R. 487 (HC) State v. Gakebafe [1986] B.L.R. 429 (HC) s. 213 State v. Moyo [1985] B.L.R. 239 (HC) State v. Ramathaka [1989] B.L.R. 265 (HC) State v. Gola [1988] B.L.R. 73 (HC) State v. Mosiapeto [1984] B.L.R. 194 (HC) s. 214 State v. Chibidu [1988] B.L.R. 467 (HC) State v. Mositne [1985] B.L.R. 355 (HC) State v. Keleemetse [1985] B.L.R. 365 (HC) s. 214 (d)and (e) Seboni v. The State [1984] B.L.R. 69 (CA) s. 216 Kashweka v. The State [1989] B.L.R. 211 (CA) s. 217 State v. William Mosarwana 1968-1970 B.L.R. 302 (HC) Manjesa v. The State [1991] B.L.R. 391 (CA) State v. Magubane [1990] B.L.R. 332 (HC) s. 217 (a) State v. Ngwenya [1997] B.L.R. 466 (HC) State v. Matthys and Others [2003] 1 B.L.R. 528 (HC) State v. Magazine [2004] 2 B.L.R. 432 (HC) s. 217 (b) State v. Bolelang [2002] 2 B.L.R. 213 (HC) State v. Kgoroba [1996] B.L.R. 290 (HC) s. 220 (1) State v. Kasama [1993] B.L.R. 1 (HC) State v. Sam [1990] B.L.R. 482 (HC) Seloka v. The State [2002] 1 B.L.R. 381 (HC) Molefi v. The State [2004] 1 B.L.R. 49 (CA) s. 222 (a) State v. Motlhabane alias Matswinyane [1984] B.L.R. 180 (HC) State v. Gogannekgosi [1989] B.L.R. 133 (HC) s. 222 (a)and (b) State v. Gola [1988] B.L.R. 73 (HC) State v. Basson [1988] B.L.R. 452 (HC) s. 222 (b) State v. Bogosi [1986] B.L.R. 95 (HC) s. 223 State v. Mosebeke [1990] B.L.R. 363 (HC) s. 225 Bok v. The State [1983] B.L.R. 184 (HC) s. 225 (1) State v. Ramatlhomane [1989] B.L.R. 370 (HC) State v. Ngope [1985] B.L.R. 408 (HC) s. 228 (1) (ii) State v. Noti [1995] B.L.R. 325 (HC) s. 228 (2) Modhale v. The State [1985] B.L.R. 330 (HC) s. 230 State v. Maphorisa [1995] B.L.R. 568 (HC) George v. The State [2000] 1 B.L.R. 365 (HC) s. 232 State v. Lesowa [2003] 1 B.L.R. 580 (HC) s. 235 Mosiiwa Seheru v. The State 1982 (1) B.L.R. 159 (HC) s. 235 kola v. The State [1989] B.L.R. 500 (HC) Basson v. The State [1989] B.L.R. 217 (CA) Rakhudu v. The State [1988] B.L.R. 237 (HC) Re Attorney-General's Submission; State v. Dinoko [1989] B.L.R. 619 (CA) Mabi v. The State (Practice Note) [1988] B.L.R. 94 (HC) State v. Gasebame [1988] B.L.R. 446 (HC) State v. Basson [1988] B.L.R. 452 (HC) s. 238 State v. Baiphethi (Practice Note) [1984] B.L.R. 232 (HC) s. 239 Mosala v. The State [1991] B.L.R. 212 (HC) s. 239 (1) State v. Ntwayamodimo [1996] B.L.R. 497 (HC) s. 244 Mbaki Mbulawa v. The State 1982 (2) B.L.R. 42 (HC) s. 244 Chabaesele v. The State [1986] B.L.R. 375 (HC) s. 244 (i) State v. Modhabakgorno [1985] B.L.R. 91 (HC) s. 251 Selebogo v. The State [1987] B.L.R. 320 (HC) s. 252 Mosiiwa Seheru v. The State 1982 (1) B.L.R. 159 (HC) s. 252 State v. Baiphethi (Practice Note) [1984] B.L.R. 232 (HC) State v. Seleka (Practice Note) [1984] B.L.R. 13 (HC) State v. Hirschfeldt [1987] B.L.R. 344 (HC) s. 254 Kgosiemang v. The State [1989] B.L.R. 12 (HC) State v. Baliki [1983] B.L.R. 156 (HC) s. 255 The State v. George Khoza; Daniel Thommboya Kazeru; David Johannes Letswalo 1982 (1) B.L.R. 197 (HC) s. 258 The State v. George Khoza; Daniel Thommboya Kazeru; David Johannes Letswalo 1982 (1) B.L.R. 197 (HC) s. 263 Kobe v. The State [1995] B.L.R. 37 (HC) s. 263 (3) Keobokile v. The State [2001] 2 B.L.R. 696 (HC) s. 264 State v. Mosala [1990] B.L.R. 588 (HC) Kobe v. The State [1995] B.L.R. 37 (HC) State v. Moilwe [1994] B.L.R. 232 (HC) s. 264 (1) State v. Pilane [1990] B.L.R. 669 (HC) s. 264 (2) Keobokile v. The State [2001] 2 B.L.R. 696 (HC) s. 264 (2) (a) Nnoane v. The State [1990] B.L.R. 237 (HC) s. 264 (2) (e) Rankgathi v. The State [2001] 1 B.L.R. 495 (HC) s. 269 Mokgalagadi v. The State [1985] B.L.R. 48 (HC) Mahlage v. The State [1983] B.L.R. 294 (HC) s. 269 (1) Tshabatau v. The State [1987] B.L.R. 282 (HC) s. 271 State v. Mosala [1990] B.L.R. 588 (HC) Nthawe v. The State [1991] B.L.R. 375 (CA) Motsumi v. The State [1993] B.L.R. 131 (HC) Garakwe v. The State [1993] B.L.R. 94 (HC) Ndubiwa v. The State [1994] B.L.R. 30 (CA) Bojang v. The State [1994] B.L.R. 146 (HC) Kobe v. The State [1995] B.L.R. 37 (HC) Johnson v. The State [1996] B.L.R. 636 (HC) ss. 271 and 277 Sabone v. The State [2001] 1 B.L.R. 538 (HC) s. 275 (c) Kepaletswe v. The State [1990] B.L.R. 554 (HC) s. 275-280 Motsumi v. The State [1993] B.L.R. 131 (HC) Garakwe v. The State [1993] B.L.R. 94 (HC) s. 276 Nguriwa v. The State [1984] B.L.R. 8 (HC) s. 276 Ndubiwa v. The State [1994] B.L.R. 30 (CA) Bojang v. The State [1994] B.L.R. 146 (HC) s. 277 Motswagole v. The State [1997] B.L.R. 761 (CA) Mmolotsi v. The State [2001] 2 B.L.R. 621 (HC) s. 280 (a) Kgosi v. The State C.A. [1989] B.L.R. 213 (CA) s. 280 (c) Tshumunya Masie and Another v. The State 1977 B.L.R. 47 (HC) s. 280 (c) Motswiri v. The State [1984] B.L.R. 286 (CA) State v. Thamage [1985] B.L.R. 35 (HC) Masalila v. The State (Practice Note) [1984] B.L.R. 215 (HC) s. 282 Radikolobe v. The State [1985] B.L.R. 600 (HC) s. 290 Pholo v. The State [2005] 1 B.L.R. 228 (HC) s. 291 George and Another v. The State [1997] B.L.R. 856 (HC) Sokwe v. The State [2002] 1 B.L.R. 308 (HC) Mabutho v. The State [2002] 1 B.L.R. 67 (CA) Mokone and Another v. The State [2003] 2 B.L.R. 225 (HC) ss. 291 and 292 George and Another v. The State [1999] 1 B.L.R. 379 (CA) Mogale v. The State [2001] 1 B.L.R. 427 (HC) s. 292 State v. Maphorisa [1995] B.L.R. 568 (HC) George and Another v. The State [1997] B.L.R. 856 (HC) Omar v. The State [1998] B.L.R. 237 (HC) s. 292 (1) State v. Maphorisa [1995] B.L.R. 568 (HC) s. 292 (2) State v. Maphorisa [1995] B.L.R. 568 (HC) Gabanakgang and Another v. The State [1996] B.L.R. 670 (CA) Sokwe v. The State [2002] 1 B.L.R. 308 (HC) Solomon and Another v. The State [2002] 1 B.L.R. 273 (HC) Moatshe and Another v. The State [2003] 1 B.L.R. 65 (HC) Sekga v. The State [1997] B.L.R. 972 (HC) s. 296 Thebe v. The State [1989] B.L.R. 167 (HC) State v. Baliki [1983] B.L.R. 156 (HC) Kgosi v. The State [1989] B.L.R. 213 (CA) s. 297 (1) Kgosi v. The State [1989] B.L.R. 213 (CA) s. 299 Radithotse v. The State [1990] B.L.R. 166 (HC) s. 300 (1) (a) Nthawe v. The State [1991] B.L.R. 375 (CA) Dube v. The State [2001] 2 B.L.R. 312 (CA) s. 302 Kobe v. The State [1995] B.L.R. 37 (HC) s. 302 (a) Monnanyana v. The State [2001] 2 B.L.R. 309 (CA) s. 303 State v. Mosala [1990] B.L.R. 588 (HC) s. 304 (1) State v. Maluba [1997] B.L.R. 893 (HC) s. 304 (3) State v. Otsogile [1985] B.L.R. 347 (HC) s. 305 Tlounyane v. The State [1989] B.L.R. 552 (CA) Re Attorney-General's Submission; State v. Dinoko [1989] B.L.R. 619 (CA) s. 305 (1) Petrus v. The State [1984] B.L.R. 14 (CA) State v. Maphorisa [1988] B.L.R. 65 (HC) s. 305 (1) (b) Chipeta and Another v. The State [2002] 1 B.L.R. 339 (HC) s. 306 (1) State v. Basupi [1985] B.L.R. 603 (HC) s. 307 Mphusu and Another v. The State [1997] B.L.R. 845 (HC) s. 307 (a) State v., Moko [1986] B.L.R. 235 (HC) State v. Mabaka (Practice Note) [1984] B.L.R. 12 (HC) s. 308 Mphusu and Another v. The State [1997] B.L.R. 845 (HC) Attorney-General v. Bateng's Building Construction and Others [1999] 1 B.L.R. 169 (HC) s. 311 (4) Anneng and Another v. The State [2002] 2 B.L.R. 209 (HC) s. 311 (5) Anneng and Another v. The State [2002] 2 B.L.R. 209 (HC) s. 311 (6) Anneng and Another v. The State [2002] 2 B.L.R. 209 (HC) s. 316 Blind Toteng v. The State 1968-1970 B.L.R. 14 (HC) Molefe v. The State [1992] B.L.R. 242 (CA) s. 317 State v. Moitumelo Molefe 1968-1970 B.L.R. 100 (HC) s. 317 (1) Stoddart v. The State [1990] B.L.R. 371 (HC) Nthawe v. The State [1991] B.L.R. 375 (CA) s. 318 Kepaletswe v. The State [1990] B.L.R. 554 (HC) Nchindo v. The State [1996] B.L.R. 927 (HC) Nchindo v. The State [1997] B.L.R. 519 (HC) s. 320 Diphoko v. The State [1994] B.L.R. 377 (HC) s. 322 State v. Be-Corner Complex (Pty.) Ltd. [1992] B.L.R. 230 (HC) s. 324 The State v. Montshiwa Adam 1982 (1) B.L.R. 181 (HC) s. 324 Motswagole v. The State [1997] B.L.R. 761 (CA) Simon Ramontsho v. The State 1982 (1) B.L.R. 152 (HC) State v. Leeuw Bonders and Two Others 1982 (1) B.L.R. 189 (HC) s. 326 (a) State v. Kootshole [1990] B.L.R. 272 (HC) State v. Kobedi [1990] B.L.R. 458 (HC) State v. Twoboy Gavu [1997] B.L.R. 542 (HC) s. 330 (a) State v. Modhabane alias Matswinyane [1984] B.L.R. 180 (HC) s. 330 (a) Kotase v. The State [1990] B.L.R. 86 (HC) s. 333 (1) Raible v. The State [1991] B.L.R. 315 (HC) State v. Dithoriso Overall 1976 B.L.R. 80 (HC) s. 337 (1) State v. Ramatlhomane [1989] B.L.R. 370 (HC) s. 345 State v. Mashabila (Practice Note) [1984] B.L.R. 53 (HC) s. 345 (c) State v. Seleka (Practice Note) [1984] B.L.R. 13 (HC) s. 348 State v. Seleka (Practice Notes) [1984] B.L.R. 13 (HC) s. 348 Kesentse v. The State [1991] B.L.R. 327 (HC) The State v. Kabelo Nketso 1982 (2) B.L.R. 122 (HC) s. 349 (1) State v. Seleka (Practice Notes) [1984] B.L.R. 13 (HC) s. 382 The State v. Kabelo Nketso 1982 (2) B.L.R. 122 (HC) s. 383 (1) Tshipinare v. The State [1993] B.L.R. 434 (HC) ss. 384 (a)and 386 Paratram v. The State [1999] 1 B.L.R. 123 (CA) s. 386 Tshipinare v. The State [1993] B.L.R. 434 (HC) s. 388 State v. Magubane [1990] B.L.R. 332 (HC) State v. Ngwenya [1997] B.L.R. 466 (HC) s. 389 State v. Bolelang [2002] 2 B.L.R. 213 (HC) s. 392 State v. Gola [1988] B.L.R. 73 (HC) State v. Gogannekgosi [1989] B.L.R. 133 (HC) s. 392 (1) State v. Lepiritwa [1985] B.L.R. 598 (HC) s. 395 State v. Vivier (No. 2) [1988] B.L.R. 371 (HC) s. 397 Habangana v. The State [1986] B.L.R. 479 (HC) Cap. 08:02 Criminal Procedure and Evidence Act - Kwae v. The State [1996] B.L.R. 159 (CA) - Attorney-General, Wright v. (Attorney-General's Reference, In Re:) [1996] B.L.R. 689 (CA) - Mphusu and Another v. The State [1997] B.L.R. 845 (HC) - Useya v. The State [1995] B.L.R. 708 (HC) s. 5 Attorney-General v. Phute [1987] B.L.R. 460 (HC) Nkola v. The State [1989] B.L.R. 500 (HC) s. 6 (2) Kelapile v. The State [1985] B.L.R. 113 (HC) s. 7 Mphusu and Another v. The State [1997] B.L.R. 845 (HC) s. 8 Mphusu and Another v. The State [1997] B.L.R. 845 (HC) s. 10 Ntwa v. The State [2001] 2 B.L.R. 212 (HC) s. 10 (1) Ntwa v. The State [2001] 2 B.L.R. 212 (HC) s. 12 (5) Vissage and Others v. The State [1997] B.L.R. 819 (CA) s. 23 Lucky Komane v. The State 1982 (2) B.L.R. 106 (HC) s. 24 Re Attorney-General's Reference; State v. Malan [1990] B.L.R. 32 (CA) Tangane v. The State [1994] B.L.R. 325 (HC) s. 24 (2) Vissage and Others v. The State [1997] B.L.R. 819 (CA) s. 25 (1) Vissage and Others v. The State [1997] B.L.R. 819 (CA) s. 26 Ntwa v. The State [2001] 2 B.L.R. 212 (HC) s. 28 Kgosiemang v. The State [1989] B.L.R. 12 (HC) s. 28 Mosaninda v. The Attorney-General [1994] B.L.R. 411 (HC) Thokwane v. The Attorney-General [1998] B.L.R. 221 (HC) Sekobye v. The Attorney-General [2004] 2 B.L.R. 294 (HC) s. 28 (b) Aphiri v. The Attorney-General [2000] 1 B.L.R. 65 (CA) s. 31(1) State v. Leeuw Bonders and Two Others 1982 (1) B.L.R. 189 (HC) s. 34 (1) Kebafetotse v. The Attorney-General [2004] 1 B.L.R. 419 (HC) s. 36 (1) Tlharesegolo v. The Attorney-General [2001] 2 B.L.R. 730 (HC) s. 42 Aphiri v. The Attorney-General [1997] B.L.R. 192 (HC) Seeletso v. The State [1992] B.L.R. 71 (HC) s. 52 (2) Kenosi v. The State [1993] B.L.R. 329 (HC) s. 56A Attorney-General v. Dintwa [1987] B.L.R. 88 (HC) Kablay v. Attorney-General [1985] B.L.R. 20 (HC) Azad Hauliers (Pty.) Ltd. v. Attorney-General [1985] B.L.R. 144 (HC) s. 57 Gowon v. The Attorney-General [2001] 2 B.L.R. 191 (HC) ss. 98 and 99 State v. Fane [2001] 1 B.L.R. 319 (HC) s. 104 Marapo v. The State [2001] 2 B.L.R. 632 (HC) s. 106 Marumolo and Another v. The State [2005] 1 B.L.R. 474 (HC) s. 106 (2) Mamadi v. The State [2005] 1 B.L.R. 295 (HC) s. 112 Laing v. The State [1989] B.L.R. 54 (HC) s. 113 Charalambous v. The State [1990] B.L.R. 422 (HC) s. 114 Charalambous v. The State [1990] B.L.R. 422 (HC) Molosiwa v. The State [1999] 2 B.L.R. 427 (HC) Monnaesi v. The State [2000] 1 B.L.R. 302 (HC) Marapo v. The State [2001] 2 B.L.R. 632 (HC) s. 117 S v. Tawengwa 1981 B.L.R. 264 (HC) s. 119 Tangane v. The State [1994] B.L.R. 325 (HC) s. 127 Monageng v. The State [1987] B.L.R. 355 (CA) s. 128 State v. Seletse [1987] B.L.R. 11 (HC) s. 128 Ndubiwa v. The State [1994] B.L.R. 30 (CA) s. 129 Ramotswere v. The State [1990] B.L.R. 114 (HC) Ketshwanetse v. The State [1997] B.L.R. 1067 (HC) Sekga v. The State [1997] B.L.R. 972 (HC) s. 129 (1) Kesimolotse v. The State [1991] B.L.R. 279 (HC) s. 130 Kesimolotse v. The State [1991] B.L.R. 279 (HC) s. 130 (a) Kehuthilwe v. The State [1988] B.L.R. 401 (HC) s. 130 (a) Moatlhodi v. The State [1995] B.L.R. 265 (HC) s. 130 (c) (i) Nkgageng v. The State [1989] B.L.R. 305 (HC) s. 131 Ndubiwa v. The State [1994] B.L.R. 30 (CA) s. 131 (b) (i) Keatsutswe v. The State [1990] B.L.R. 176 (HC) s. 135 Nkola v. The State [1989] B.L.R. 500 (HC) s. 136 Nkola v. The State [1989] B.L.R. 500 (HC) s. 138 Reference by Attorney-General in Re: Dynamic Services (Pty.) Ltd. and The Attorney-General and Another [1996] B.L.R. 49 (CA) s. 140 Makaba v. State [1989] B.L.R. 574 (HC) Kgathwane v. The State [1989] B.L.R. 597 (HC) Nkola v. The State [1989] B.L.R. 500 (HC) s. 141 Mmatli and Another v. The State [1999] 1 B.L.R. 4 (CA) Basupi v. The State. [2000] 2 B.L.R. 1 (CA) Ramatebele v. The State [2003] 1 B.L.R. 120 (HC) s. 142 Kehuthilwe v. The State [1988] B.L.R. 401 (HC) s. 142 Tshekonyane v. The State (2) [1993] B.L.R. 206 (HC) s. 148 Rakhudu v. The State [1988] B.L.R. 237 (HC) Edward v. The State [1988] B.L.R. 187 (HC) s. 148 (1) Amogelang v. The State [1984] B.L.R. 201 (HC) s. 149 (1) State v. Masinga [1990] B.L.R. 47 (HC) s. 149 Mogale v. The State [2001] 1 B.L.R. 427 (HC) Modise v. The State [2001] 1 B.L.R. 380 (HC) s. 149 (4) Attorney-General v. Phenyo Pholoa 1976 B.L.R. 84 (HC) s. 149, proviso Monyamane v. The State [1985] B.L.R. 233 (HC) s. 150 (1) (e) Mogofu v. The State [2002] 2 B.L.R. 308 (HC) s. 150 (4) State v. Williams [1993] B.L.R. 69 (HC) Masakgona v. The State [1991] B.L.R. 199 (HC) State v. Ngwako [1990] B.L.R. 563 (CA) Ngwako v. The State [1990] B.L.R. 526 (HC) State v. Kgalaeng [1990] B.L.R. 119 (HC) State v. Seeletso [1991] B.L.R. 195 (HC) Busi v. The State [1997] B.L.R. 69 (CA) Attorney-General v. Mafojane. (Full Bench) [2000] 2 B.L.R. 74 (CA) s. 150 (4) Keybonye v. The State [2004] 1 B.L.R. 38 (CA) s. 155 Makaba v. The State [1989] B.L.R. 574 (HC) s. 156 Keybonye v. The State [2004] 1 B.L.R. 38 (CA) s. 159 (4) The State v. Ngwako Segai 1968-1970 B.L.R. 9 (HC) s. 160 (1) State v. Charles [2002] 1 B.L.R. 89 (CA) State v. Mogampana [1990] B.L.R. 534 (HC) State v. Gaopatwe [1997] B.L.R. 522 (HC) s. 163 Lekgotla v. The State [1990] B.L.R. 445 (HC) s. 171 Mbayi v. The State [1989] B.L.R. 527 (HC) s. 178 (1) Tshupo v. The State [1991] B.L.R. 230 (HC) Mafunye v. The State [1990] B.L.R. 474 (HC) Maiphetlho v. The State [1990] B.L.R. 580 (HC) s. 179 (3) State v. Peloewetse [1989] B.L.R. 327 (HC) s. 179 (3) Mbayi v. The State [1989] B.L.R. 527 (HC) State v. Vivier [1988] B.L.R. 327 (HC) State v. Kgaboetsile [1988] B.L.R. 396 (HC) s. 180 Chiwaura v. The State [1985] B.L.R. 201 (HC) s. 180 (3) State v. Pilane [1990] B.L.R. 669 (HC) Sesola v. The State [1991] B.L.R. 7 (HC) State v. Gabopye [1990] B.L.R. 646 (HC) State v. Dingaka [1990] B.L.R. 375 (HC) State v. Gura [1990] B.L.R. 102 (HC) Moetedi v. The State [1997] B.L.R. 285 (HC) State v. Basinyi [2000] 1 B.L.R. 172 (HC) State v. Moreki [2000] 1 B.L.R. 271 (HC) State v. Lekgowe and Others [2003] 1 B.L.R. 54 (HC) s. 180 (4) Nkwe v. The State [1991] B.L.R. 18 (HC) Lufu v. The State [1998] B.L.R. 562 (HC) Mhaladi v. The State [1990] B.L.R. 168 (HC) Moetedi v. The State [1997] B.L.R. 285 (HC) State v. Molatlhegi [1997] B.L.R. 911 (HC) s. 181 Moletsane v. The State [1995] B.L.R. 83 (HC) Moletsane v. The State [1996] B.L.R. 73 (CA) Makwapeng v. The State (Full Bench) [1999] 1 B.L.R. 48 (CA) Masina v. The State [2001] 1 B.L.R. 363 (HC) Chamaphati v. The State [2003] 1 B.L.R. 167 (HC) s. 182 Goletilweng v. The State [1998] B.L.R. 64 (CA) s. 186 Isaac Boikhutso Moima v. The State 1982 (1) B.L.R. 112 (HC) s. 187 State v. Gola [1988] B.L.R. 73 (HC) s. 187 Moeti v. The State [1998] B.L.R. 55 (HC) State v. Baphari [1991] B.L.R. 343 (HC) s. 188 State v. Gola [1988] B.L.R. 73 (HC) s. 188 (1) State v. Ramathaka [1989] B.L.R. 265 (HC) s. 191 Segametsi v. The State [1986] B.L.R. 441 (HC) s. 192 Nyathi v. The State [1991] B.L.R. 1 (HC) Tsunke v. The State [2004] 2 B.L.R. 155 (HC) s. 193 Chalaomane v. The State [1986] B.L.R. 84 (HC) Chalaomane v. The State [1986] B.L.R. 261 (HC) s. 193 Montshiwa v. The State [1989] B.L.R. 592 (HC) s. 200 Macheng v. The State [1985] B.L.R. 533 (CA) Koothepile v. The State [1985] B.L.R. 9 (HC) s. 200 The State v. Manyama B Lephephe; Gibson Kutjwe 1982 (1) B.L.R. 199 (HC) Biko Dube and Another v. The State 1982 (2) B.L.R. 57 (HC) s. 201 Keipheditse v. The State [1994] B.L.R. 204 (HC) State v. Thomas [1996] B.L.R. 860 (HC) s. 216 Kalabeng v. The State [1983] B.L.R. 106 (HC) s. 217 (1), (2) State v. Maripane [1991] B.L.R. 151 (HC) s. 218 The State v. Onkemetse Kegopotse 1982 (2) BLR 62 (HC) State v. Maripane [1991] B.L.R. 151 (HC) The State v. Onkemetse Kegopotse 1982 (2) B.L.R. 62 (HC) s. 219 The State v. Onkemetse Kegopotse 1982 (2) B.L.R. 62 (HC) Komanyane v. The State [1997] B.L.R. 11 (HC) Mogapi v. The State [2000] 1 B.L.R. 264 (HC) Haskins v. The State [2003] 2 B.L.R. 353 (HC) s. 220 The State v. Onkemetse Kegopotse 1982 (2) B.L.R. 62 (HC) s. 220 State v. Kaekwe [1984] B.L.R. 303 (HC) Komanyane v. The State [1997] B.L.R. 11 (HC) s. 220 (1) Haskins v. The State [2003] 2 B.L.R. 353 (HC) s. 221,proviso (i) Samuel v. The State [1990] B.L.R. 515 (HC) Isaac v. The State [1991] B.L.R. 248 (HC) s. 221 Tsuaneng v. The State [2003] 2 B.L.R. 60 (CA) s. 221 (4) Phillimon N Moyo v. The State 1982 (2) B.L.R. 112 (HC) s. 221 (4) Makuni v. The State [1984] B.L.R. 257 (HC) Nkgageng v. The State [1984] B.L.R. 230 (HC) Mogopodi v. The State [1989] B.L.R. 296 (HC) s. 222 State v. Gaselame 1977 B.L.R. 35 (HC) s. 222 State v. Obusitswe Mosala 1982 (1) B.L.R. 129 (HC) Moiya v. The State [1984] B.L.R. 234 (HC) Monageng v. The State [1983] B.L.R. 254 (CA) s. 222, proviso Koothepile v. The State [1985] B.L.R. 9 (HC) s. 223 Moatlhodi v. The State [1995] B.L.R. 265 (HC) Ross v. The State [2003] 1 B.L.R. 563 (HC) s. 227 State v. Honka [1985] B.L.R. 121 (HC) State v. Malebadi [1986] B.L.R. 405 (HC) s. 227 (1) Mashabile v. The State [1984] B.L.R. 96 (CA) s. 227 (2) State v. Mponda [1986] B.L.R. 286 (HC) s. 227 State v. Mokwena. [1990] B.L.R. 1 (HC) s. 228 State v. Honka [1985] B.L.R. 121 (HC) s. 228 (2) Nkgatogang v. The State [1988] B.L.R. 219 (CA) s. 228 Moloi v. The State [1997] B.L.R. 260 (HC) Mpharitlhe v. The State [2003] 1 B.L.R. 153 (CA) Mpharitlhe v. The State [2004] 1 B.L.R. 53 (CA) s. 228,proviso (ii) Moje v. The State [1999] 1 B.L.R. 38 (CA) s. 228 (1),proviso (i) Keikabile and Others v. The State (Practice Note) [2001] 1 B.L.R. 301 (HC) s. 228 (1),proviso (ii) State v. Nkali [2001] 1 B.L.R. 397 (HC) s. 228 (1) Kablay v. The State [1990] B.L.R. 279 (HC) Moseki v. The State [1995] B.L.R. 690 (HC) Kgaodi v. The State [1996] B.L.R. 23 (CA) State v. Kobedi [1990] B.L.R. 458 (HC) Tsholofelo v. The State [1992] B.L.R. 282 (CA) s. 228 (1),proviso (ii) State v. Khama [2000] 1 B.L.R. 209 (HC) s. 229 The State v. Joseph Murunzi Ncube 1982 (2) B.L.R. 73 (CA) Basson v. The State [1989] B.L.R. 217 (CA) Seeletso v. The State [1992] B.L.R. 71 (HC) s. 229A State v. Mokwena [1990] B.L.R. 1 (HC) Mokwena v. The State [1992] B.L.R. 14 (CA) s. 231 State v. Saulo [1999] 2 B.L.R. 176 (HC) s. 235 (1) (a) (i) Palazi Madongo v. The State 1968-1970 B.L.R. 15 (HC) s. 235 Van Niekerk and Another v. The State 1968-1970 B.L.R. 60 (CA) s. 237 State v. Vivier (No. 2) [1988] B.L.R. 371 (HC) s. 238 Lucky Komane v. The State 1982 (2) B.L.R. 106 (HC) State v. Charlie [1986] B.L.R. 145 (HC) Mothoemang v. The State [1989] B.L.R. 44 (HC) s. 239 (1) State v. Sibanda [1984] B.L.R. 4 (HC) Ramaloko v. The State [1983] B.L.R. 204 (CA) Makuni v. The State [1984] B.L.R. 257 (HC) State v. Mothelesi [1989] B.L.R. 78 (HC) State v. Ramathaka [1989] B.L.R. 265 (HC) s. 239 (2) State v. Kgaboetsile [1988] B.L.R. 396 (HC) s. 239 (2) (R) State v. Mokwena [1990] B.L.R. 1 (HC) s. 240 Toteng v. The State [1994] B.L.R. 188 (HC) State v. Maphorisa [1995] B.L.R. 568 (HC) Moumakwa v. The State [1997] B.L.R. 1010 (HC) Ikutlweng v. The State [2001] 1 B.L.R. 367 (HC) s. 250 (1) David v. Barclays Bank of Botswana and Another [2001] 2 B.L.R. 340 (HC) s. 265 State v. Matlapeng [1986] B.L.R. 123 (HC) s. 270 Sehoni v. The State [1984] B.L.R. 69 (CA) s. 270 (1) Pule v. The State [1986] B.L.R. 320 (HC) State v. Malebadi [1986] B.L.R. 405 (HC) Mogopodi v. The State [1989] B.L.R. 296 (HC) s. 271 Moseki v. The State [1995] B.L.R. 690 (HC) s. 272 Ramokate v. The State [2004] 2 B.L.R. 93 (CA) s. 273 State v. Same alias Tshetilta [1984] B.L.R. 64 (HC) Koothepile v. The State [1985] B.L.R. 9 (HC) Kalabeng v. The State [1983] B.L.R. 106 (HC) s. 276 Moseki v. The State [1995] B.L.R. 690 (HC) s. 275 (1) Nwezi Nzehengwa v. The State 1982 (2) B.L.R. 15 (HC) s. 278 (3) Attorney-General v. Mafojane. (Full Bench) [2000] 2 B.L.R. 74 (CA) s. 284 (3) Ngwenya v. The State [1983] B.L.R. 187 (HC) Komboni v. The State [1983] B.L.R. 163 (HC) ss. 286 and 287 Tlhalefang v. The State [1999] 1 B.L.R. 555 (CA) s. 288 (1) Jenkison v. The State (Practice Note) [1985] B.L.R. 275 (HC) State v. Thamage [1985] B.L.R. 35 (HC) s. 288 (2) State v. Ntumisang [1989] B.L.R. 590 (HC) Mokgadi v. The State [1988] B.L.R. 435 (CA) s. 290 (1) (iii) State v. Morapedi and Others [1996] B.L.R. 1003 (HC) s. 291 (1) Motshegare v. The State [1999] 1 B.L.R. 437 (CA) State v. Morapedi and Others [1996] B.L.R. 1003 (HC) s. 292 (2) State v. Morapedi and Others [1996] B.L.R. 1003 (HC) s. 294 (1) Mosime v. The State [1985] B.L.R. 54 (HC) s. 295 Kenosi v. The State [2004] 2 B.L.R. 51 (CA) s. 296 Makuto v. The Attorney-General. (Full Bench) [2000] 2 B.L.R. 130 (CA) State v. Ramatswidi [2005] 1 B.L.R. 452 (HC) s. 296 (3) State v. Montsho [2003] 1 B.L.R. 230 (HC) Kenosi v. The State [2004] 2 B.L.R. 51 (CA) s. 296 (4) Moruakgomo v. The State [1994] B.L.R. 25 (CA) State v. Montsho [2003] 1 B.L.R. 230 (HC) s. 297 (1) State v. Morapedi and Others [1996] B.L.R. 1003 (HC) s. 297 (3) State v. Morapedi and Others [1996] B.L.R. 1003 (HC) s. 300 Gupter v. The Attorney-General [1994] B.L.R. 209 (HC) s. 300 (1)and (2) Ramotswere v. The State [1990] B.L.R. 114 (HC) s. 300 (1) Mooka and Another v. The State [2003] 1 B.L.R. 347 (HC) s. 300 (2) Moatshe v. The State; Motshwari and Another v. The State (Full Bench) [2004] 1 B.L.R. 1 (CA) s. 301 (3) Petrus v. The State [1984] B.L.R. 14 (CA) s. 304 State v. Bambo [1988] B.L.R. 431 (HC) State v. Mokwena [1988] B.L.R. 423 (HC) Staff v. The State [1984] B.L.R. 220 (HC) Baleseng v. The State [1988] B.L.R. 59 (HC) Kwenamore v. The State [1983] B.L.R. 208 (CA) s. 305 Kgosiemang v. The State [1989] B.L.R. 12 (HC) Seakwa and Others v. The State [1984] B.L.R. 226 (HC) s. 305 Thabo Mosweu v. The State 1982 (1) B.L.R. 132 (HC) s. 307 State v. Mokwena [1988] B.L.R. 423 (HC) Baleseng v. The State [1988] B.L.R. 59 (HC) s. 308 Kablay v. The State [1990] B.L.R. 279 (HC) Magosi v. The Attorney-General [1994] B.L.R. 241 (HC) s. 308 (2) Malikongwa v. The State [2000] 2 B.L.R. 12 (HC) s. 309 Kolojane v. The State [1999] 1 B.L.R. 70 (CA) Thwane v. The State [2003] 2 B.L.R. 256 (HC) s. 311 Magosi v. The Attorney-General [1994] B.L.R. 241 (HC) s. 311 (1) Tshalibe v. The State [1990] B.L.R. 522 (HC) State v. Lello [1992] B.L.R. 46 (HC) s. 311 (4) to (6) Thlogo v. The State [1995] B.L.R. 142 (CA) s. 312 Keatlaretse Gosiame v. State 1982 (1) B.L.R. 76 (HC) s. 312 State v. Ditlhare and Another [1986] B.L.R. 134 (HC) s. 312 Attorney-General v. Moswang [1987] B.L.R. 377 (CA) Keomantse v. Teisa [1987] B.L.R. 470 (HC) Dintwe v. The State [1983] B.L.R. 159 (HC) Staff v. The State [1984] B.L.R. 220 (HC) Ditlotio v. The State [1985] B.L.R. 317 (HC) State v. Mokwena [1988] B.L.R. 423 (HC) s. 312 (1) State v. Mothobi (Practice Note) [1985] B.L.R. 19 (HC) s. 312 (3) Vissage and Others v. The State [1997] B.L.R. 819 (CA) s. 312 (3) Re Attorney-General's Reference; State v. Malan [1990] B.L.R. 32 (CA) s. 315 (1) Kereng v. The State [1986] B.L.R. 495 (HC) The State v. Mmipi 1968-1970 B.L.R. 32 (HC) s. 315 (2) Matshwenyego Moyo and Another v. The State 1982 (2) B.L.R. 85 (HC) Moneth v. The State [1989] B.L.R. 188 (HC) s. 315 (2) Basson v. The State [1989] B.L.R. 217 (CA) s. 316 Maswikiti v. The State [1999] 1 B.L.R. 334 (HC) s. 318 Laing v. The State [1989] B.L.R. 54 (HC) s. 318A State v. James Seven 1972 (2) B.L.R. 59 (HC) s. 319 (1) Seikanelo and Others v. The State [2002] 2 B.L.R. 1 (HC) s. 319 Seikanelo and Others v. The State [2003] 2 B.L.R. 45 (CA) s. 321 Lucky Komane v. The State 1982 (2) B.L.R. 106 (HC) s. 321 Kelapile v. The State [1985] B.L.R. 113 (HC) s. 321 (d) Mbalambi v. The State [1986] B.L.R. 366 (HC) s. 321, proviso State v. Fihlani [1987] B.L.R. 225 (HC) s. 323 Ramotswere v. The State [1990] B.L.R. 114 (HC) Fanilo v. The State [2003] 1 B.L.R. 197 (HC) s. 325 (d) Ditshwanelo v. The Attorney-General [1999] 2 B.L.R. 56 (HC) s. 328 Bank of Botswana v. R.M. Sikwane Enterprises [1985] B.L.R. 134 (HC) s. 328 (1) Hafferjee v. The State [1983] B.L.R. 18 (HC) s. 332 (1) Wright v. The Attorney-General [1996] B.L.R. 405 (HC) Makgekgenene v. The State [1997] B.L.R. 630 (HC) s. 336 Botswana Railways' Organisation v. Setsogo and Others [1996] B.L.R. 763 (CA) s. 336 State v. Desha [1992] B.L.R. 199 (CA) s. 336 (1) Attorney General's Reference: In re The State v. Marapo [2002] 2 B.L.R. 26 (CA) Sched. 3,Form 9 State v. Khupe (Practice Note) [1985] B.L.R. 129 (HC) State v. Lesheto [1985] B.L.R. 127 (HC) Sched. II Makara v. The State [1983] B.L.R. 59 (HC) Kwenamore v. The State [1983] B.L.R. 208 (CA) Cap. 09:01 Stock Theft Act s. 2 Keobokile v. The State [2001] 2 B.L.R. 696 (HC) s. 3 Serole v. State 1976 B.L.R. 82 (HC) Mapotsane v. The State [2003] 1 B.L.R. 512 (HC) Palai v. The State [2004] 2 B.L.R. 495 (HC) s. 3 (1) Keobokile v. The State [2001] 2 B.L.R. 696 (HC) Gaebolae v. The State [2002] 1 B.L.R. 506 (HC) Harrison v. The State [2003] 1 B.L.R. 584 (HC) Keosaletse v. The State [2004] 1 B.L.R. 409 (HC) s. 3 (5) Tlhabiwa and Another v. The State [2003] 2 B.L.R. 39 (CA) Keosaletse v. The State [2004] 1 B.L.R. 409 (HC) Mooketsi v. The State [2004] 1 B.L.R. 18 (CA) s. 4 State v. Gadileswe Tekae 1971 (2) B.L.R. 64 (HC) Palai v. The State [2004] 2 B.L.R. 495 (HC) s. 4 (a) Otlhomile v. The State [2002] 2 B.L.R. 295 (HC) Attorney-General v. Otlhomile [2004] 1 B.L.R. 21 (CA) s. 10 (2) (a) Otlhomile v. The State [2002] 2 B.L.R. 295 (HC) s. 13 Thuso Rankhudunyana v. The State 1982 (1) B.L.R. 156 (HC) Cap. 09:01 (1973 Rev.) Stock Theft Act s. 3 Ditiotio v. The State [1985] B.L.R. 317 (HC) Sebetela v. The State [1987] B.L.R. 134 (HC) Keboletse v. The State [1984] B.L.R. 280 (CA) s. 4 Mosanana v. The State [1985] B.L.R. 29 (HC) Kehuthilwe v. The State [1988] B.L.R. 401 (HC) ss. 4 and 12 Ditiotlo v. The State [1985] B.L.R. 317 (HC) Cap. 09:03 Extradition Act - Alfred and Others v. The Republic of Namibia [2002] 2 B.L.R. 393 (HC) s. 7 (1) (b) Republic of Namibia v. Alfred and Others [2004] 2 B.L.R. 101 (CA) Cap. 09:04 Motor Vehicle Theft Act s. 3 Pholo v. The State [2005] 1 B.L.R. 228 (HC) s. 3 (2) Seikanelo and Others v. The State [2002] 2 B.L.R. 1 (HC) Cap. 10:01 State Proceedings (Civil Actions by or against Government or Public Officers) Act - Nasha v. The Attorney-General [1999] 2 B.L.R. 430 (HC) - Sejamitlwa and Others v. The Attorney-General and Others [2001] 2 B.L.R. 201 (HC) s. 2 Kamanakao I and Another v. Attorney-General [2002] 1 B.L.R. 110 (HC) s. 3 (1) Lesetedi v. The Attorney-General [1999] 2 B.L.R. 45 (HC) s. 3 (5) Moatshe v. The State; Motshwari and Another v. The State (Full Bench) [2004] 1 B.L.R. 1 (CA) s. 4 Gaborone Dairy Marketing Cooperative Society Ltd. v. Collins Newman & Company and Others [1996] B.L.R. 329 (HC) Kobedi v. The State [2002] 2 B.L.R. 502 (HC) Moremi and Others v. The Attorney-General and Another [2000] 1 B.L.R. 280 (HC) Mushingi v. The Attorney-General and Another [2001] 1 B.L.R. 49 (HC) Sethie v. Commander, Botswana Defense Force [2002] 2 B.L.R. 163 (HC) African Holdings (Pty) Ltd v. Solomon and Others: In re Tawana Land Board and Another v. Mopalo and Others [2003] 2 B.L.R. 189 (HC) Tim's Lock and Key (Pty) Ltd v. The Attorney-General [2003] 1 B.L.R. 283 (HC) s. 9 Kandu and Others v. Director of Veterinary Services and Another [1996] B.L.R. 618 (HC) A.V. Communications (Pty.) Ltd. v. The Attorney-General [1995] B.L.R. 739 (HC) Chicole v. The Attorney-General [1997] B.L.R. 244 (HC) Kobedi v. The State [2002] 2 B.L.R. 502 (HC) Moremi and Others v. The Attorney-General and Another [2000] 1 B.L.R. 280 (HC) Merafhe v. Botswana Defence Force and Another [2000] 1 B.L.R. 284 (HC) Pinks Family Outfitters (Pty.) Ltd. v. The Attorney-General [1997] B.L.R. 1379 (HC) ss. 3 and 4 Molapisi v. The Attorney-General and Another [1999] 1 B.L.R. 519 (HC) Cap. 10:03 (1973 Rev.) Evidence (Commonwealth and Foreign Acts of State and Judgments) Act - T. Schouten's Imports (Pty.) Ltd. v. Wintercom Botswana (Pty.) Ltd. [1984] .B.L.R. 111 (HC) Cap. 10:04 Local Authority Proceedings Act - Mokgalagadi v. Kweneng Land Board [1994] B.L.R. 65 (CA) s. 3 Chicole v. Francistown Town Council [2000] 2 B.L.R. 171 (CA) African Holdings (Pty) Ltd v. Solomon and Others: In re Tawana Land Board and Another v. Mopalo and Others [2003] 2 B.L.R. 189 (HC) Motor Vehicle Accident Fund v. Marumo and Another [2003] 2 B.L.R. 244 (HC) African Holdings (Pty) Ltd v. Solomon and Others [2005] 1 B.L.R. 47 (CA) s. 4 Modise and Others v. Southern District Council [2005] 2 B.L.R. 489 (HC) Cap. 11:04 International Judgments (Enforcement) Act - Barclays Bank of Swaziland v. Koch [1997] B.L.R. 1294 (CA) s. 2 (2) Mtui v. Mtui [2000] 1 B.L.R. 406 (HC) s. 323 Mthethwa v. Lebang (Practice Note) [1990] B.L.R. 615 (HC) Cap. 12:01 Tacit Hypothecs Act s. 5 Ausbrit Hotel (Pty.) Ltd. v. Lobatse Hotel (Pty.) Ltd. [1984] B.L.R. 49 (HC) s. 8 Whitacon (Pty.) Ltd. v. Botswana Building Society [1995] B.L.R. 537 (HC) Cap. 13:01 Prescriptions Act - Chicole v. Chatsama [1995] B.L.R. 485 (CA) - Modise and Others v. Southern District Council [2005] 2 B.L.R. 489 (HC) s. 4 Ntlhaakgosi v. Madibo Clothing [1995] B.L.R. 849 (HC) Ditsele v. BCL Ltd. [1995] B.L.R. 838 (HC) Everest Mills Ltd. and Others v. Standard Chartered Bank of Botswana Ltd. [1998] B.L.R. 440 (CA) s. 4 (2) (a) Gofitile v. Botswana Building Society [2001] 2 B.L.R. 744 (HC) s. 4 (2) (b) Mbaakanyi v. Vize [1992] B.L.R. 110 (CA) s. 4 (2) (b) (i) Mokgosana v. Matlakane [2005] 1 B.L.R. 302 (HC) s. 4 (2) (b) (ii) Ntumisang v. Botswana Power Corporation [2000] 2 B.L.R. 385 (IC) s. 4 (2) (b) (ii) Gofitile v. Botswana Building Society [2001] 2 B.L.R. 744 (HC) s. 4 (2) (b) (vi) Molele v. The Attorney-General [1994] B.L.R. 301 (CA) s. 4 (2) (c) Citadel Consultants v. Wayguard Security [1995] B.L.R. 218 (CA) African Office Machinery Co. (Pty.) Ltd. v. The Attorney-General [1997] B.L.R. 867 (HC) s. 4 (2) (c) Mokgosana v. Matlakane [2005] 1 B.L.R. 302 (HC) s. 5 Citadel Consultants v. Wayguard Security [1995] B.L.R. 218 (CA) Letsebe v. Water Utilities Corporation [1998] B.L.R. 4 (CA) s. 6 Ditsele v. BCL Ltd. [1995] B.L.R. 838 (HC) s. 6 (1) Ntlhaakgosi v. Madibo Clothing [1995] B.L.R. 849 (HC) s. 6 (1) (b) Standard Chartered Bank of Botswana Ltd. v. Everest Mills Ltd. and Others [1997] B.L.R. 1159 (HC) s. 7 Ditsele v. BCL Ltd. [1995] B.L.R. 838 (HC) s. 7 (1) Ntlhaakgosi v. Madibo Clothing [1995] B.L.R. 849 (HC) National Development Bank v. Kombani [1999] 1 B.L.R. 1 (HC) s. 7 (1) (a) (iv) Standard Chartered Bank of Botswana Ltd. v. Everest Mills Ltd. and Others [1997] B.L.R. 1159 (HC) s. 7 (1) (b)and (c) Ntumisang v. Botswana Power Corporation [2000] 2 B.L.R. 385 (IC) s. 8 Ntlhaakgosi v. Madibo Clothing [1995] B.L.R. 849 (HC) Cap. 14:02 Documents Authentication Act - Chalira v. The Republic of Malawi [1998] B.L.R. 256 (HC) Cap. 16:01 (1973 Rev.) Insolvency Act s. 43 (3) T. Schouten's Imports (Pty.) Ltd. v. Wintercom Botswana (Pty.) Ltd. [1984] B.L.R. 111 (HC) s. 88 (1) Bank of Credit and Commerce Ltd. v. Builders' Merchants Botswana (Pty.) Ltd. [1986] B.L.R. 220 (HC) Sched. 1,Form C T. Schouten's Imports (Pty.) Ltd. v. Wintercom Botswana (Pty.) Ltd. [1984] B.L.R. 111 (HC) Cap. 21:01 Police Act s. 29 Matsheka v. Attorney-General [1993] B.L.R. 354 (HC) s. 61 Tidimane v. Attorney-General [1990] B.L.R. 540 (HC) Molefe v. The Attorney-General [1994] B.L.R. 301 (CA) ss. 8 (1), 14 (1)and 15 (1) Rebatenne v. The Attorney-General [1998] B.L.R. 616 (HC) Cap. 21:03 Prisons Act s. 52 Osupile v. Commissioner of Prisons [1993] B.L.R. 295 (CA) Osupile v. Attorney-General [1993] B.L.R. 122 (HC) ss.116 (1)and 146 (p) Maauwe and Another v. The Attorney-General and Another [1999] 1 B.L.R. 275 (HC) Cap. 21:03 (1973 Rev.) Prisons Act s. 96 State v. Makomo [1987] B.L.R. 494 (HC) Cap. 21:04 Local Police Act s. 18 (1) Morake v. The Attorney-General [1996] B.L.R. 970 (HC) Cap. 21:05 Botswana Defence Force Act - Manthe v. The Attorney-general and Others [1997] B.L.R. 1170 (HC) s. 65 Letsatsi v. The State [1993] B.L.R. 11 (HC) s. 129 Ramotswere v. The State [1990] B.L.R. 114 (HC) Solomon v. The State [1991] B.L.R. 86 (HC) Cap. 21:05 (1973 Rev.) Botswana Defence Force Act ss. 104 and 132 Kelapile v. The State [1985] B.L.R. 113 (HC) Cap. 21:05 Defence Force Act s. 32 (d) Mogaladi v. The Attorney-General and Another [2002] 2 B.L.R. 140 (HC) s. 70 (4) Molefe v. The Attorney-General and Others [2001] 2 B.L.R. 550 (HC) s. 131 Mogaladi v. The Attorney-General and Another [2002] 2 B.L.R. 140 (HC) Cap. 22:01 Public Order Act s. 6 (b) Badi and Others v. The State [1997] B.L.R. 538 (HC) Cap. 23:01 National Security Act s. 3 (c) State v. Matere [1991] B.L.R. 359 (HC) Cap. 24:01 Arms and Ammunition s. 2 Zitha v. The State [1992] B.L.R. 9 (CA) State v. Magubane [1990] B.L.R. 332 (HC) Phinias Molale v. The State 1982 (1) BLR 123 (HC) s. 9 State v. Magubane [1990] B.L.R. 332 (HC) s. 9 (1) and (5) Zitha v. The State [1992] B.L.R. 9 (CA) s. 9 (1) July and Another v. The State [2002] 2 B.L.R. 42 (CA) State v. Nkwali [2001] 1 B.L.R. 397 (HC) s. 9 (4) State v. Maphorisa [1995] B.L.R. 568 (HC) s. 9 (5) July and Another v. The State [2002] 2 B.L.R. 42 (CA) s. 10 State v. Magubane [1990] B.L.R. 332 (HC) s. 23 Phinias Molale v. The State 1982 (1) B.L.R. 123 (HC) Cap. 24:01 (1973 Rev.) Arms and Ammunition Act s. 2 Maberly v. The State [1986] B.L.R. 386 (HC) State v. Ntuane [1986] B.L.R. 469 (HC) Tsekane v. The State [1988] B.L.R. 95 (CA) Ngugu v. The State, [1989] B.L.R. 116 (HC) Tshite v. The State (Practice Note) [1989] B.L.R. 386 (HC) s. 9 Maberly v. The State [1986] B.L.R. 386 (HC) s. 9 (1) and (5) Garmroudi v. The State [1987] B.L.R. 409 (HC) Majila and Others v. The State [1987] B.L.R. 123 (HC) Tsekane v. The State [1988] B.L.R. 95 (CA) Ngugu v. The State, [1989] B.L.R. 116 (HC) Tshite v. The State (Practice Note) [1989] B.L.R. 386 (HC) Cap. 25:02 Immigration Act s. 7 (f) Good v. The Attorney-General [2005] 1 B.L.R. 462 (HC) Good v. The Attorney-General (2) [2005] 2 B.L.R. 337 (CA) s. 11 (6) Good v. The Attorney-General [2005] 1 B.L.R. 462 (HC) Good v. The Attorney-General (2) [2005] 2 B.L.R. 337 (CA) s. 36 Good v. The Attorney-General [2005] 1 B.L.R. 462 (HC) Good v. The Attorney-General (2) [2005] 2 B.L.R. 337 (CA) Cap. 25:04 (1973 Rev.) Immigration Act ss. 7 (f) and 11 (1) Essack v. Attorney-General [1985] B.L.R. 479 (HC) s. 14 (1) Eworho v. The Attorney-General [1986] B.L.R. 359 (HC) s. 17 (5) State v. Dlodlo [1988] B.L.R. 419 (HC) s. 26 Majiet v. The State [1983] B.L.R. 297 (HC) Cap. 26:01 Public Service Act - Botswana Teachers' Union v. The Director of Teaching Service Management and Another [2002] 2 B.L.R. 311 (HC) ss. 7 (f) and 11 (1) Kalabeng v. Attorney-General [1985] B.L.R. 1 (HC) s. 14 Paya v. Director of Public Service Management and Another [2003] 1 B.L.R. 439 (HC) s. 15 (3) Mothusi v. Attorney-General [1993] B.L.R. 391 (HC) Kewagamang v. The Permanent Secretary, Ministry of Local Government and Another [2004] 1 B.L.R. 344 (HC) s. 23 (4) Ketshwanetse v. The Attorney-General [2000] 1 B.L.R. 1 (HC) Cap. 26:03 Promissory Oaths Act s. 2 State v. Gadiwe [2003] 2 B.L.R. 214 (CC) s. 9 State v. Gadiwe [2003] 2 B.L.R. 214 (CC) Cap. 28:01 Adoption of Children Act - Montshiwa v. Montshiwa [1999] 2 B.L.R. 216 (HC) s. 4 Mbambo and Others v. Ndlovu [2001] 2 B.L.R. 611 (HC) Cap. 28:02 Affiliation Proceedings Act - Magibisela v. Mogobe [2002] 2 B.L.R. 53 (CA) - Mzangezulu and Another v. Mokgetse [1997] B.L.R. 171 (HC) - Moremi v. Mesotlho [1997] B.L.R. 7 (HC) - Mogobe v. Magibesela [2001] 2 B.L.R. 500 (HC) s. 2 Mashabane, v. Molosankwe [2000] 1 B.L.R. 185 (HC) s. 3 Kalyvas v. Dire 1975 (1) B.L.R. 51 (HC) Boiteko Mosakwe v. Gaofi Maseba 1982 (2) B.L.R. 70 (HC) Mauwe v. Taolo [2000] 1 B.L.R. 297 (HC) s. 4 Mpolokang v. Mafokeng [2005] 1 B.L.R. 262 (HC) s. 4(1) McPherson Sichinga v. Annah Phumetse 1982 (1) B.L.R. 161 (HC) s. 6 Moremi v. Mesotlho [1997] B.L.R. 7 (HC) s. 6 (2) Boiteko Mosakwe v. Gaofi Maseba 1982 (2) B.L.R. 70 (HC) Cap. 28:02 (1973 Rev.) Affiliation Proceedings Act s. 3 Mothibi v. Kgaboesele [1989] B.L.R. 181 (HC) s. 4 Kgamane v. Diteko [1983] B.L.R. 232 (HC) Mothibi v. Kgaboesele [1989] B.L.R. 181 (HC) s. 4 (1) (b) Modise v. Jannie [1989] B.L.R. 464 (HC) Barei v. Montsheng [1987] B.L.R. 178 (HC) s. 6 (2) Barei v. Montsheng [1987] B.L.R. 178 (HC) ss. 9 and 10 Mothibi v. Kgaboesele [1989] B.L.R. 181 (HC) Cap. 28:03 Deserted Wives and Children Protection Act - Mogobe v. Magibesela [2001] 2 B.L.R. 500 (HC) s. 2 (2) (a) Malonjane v. Malonjane [1985] B.L.R. 74 (HC) s. 5 Ramontsho v. Ramontsho [1985] B.L.R. 69 (HC) Cap. 28:04 Children's Act s. 28 Mogodu v. The State [2005] 1 B.L.R. 384 (HC) ss. 28 and 29 Dikgang v. The State [1990] B.L.R. 329 (HC) Cap. 29:01 Marriage Act s. 15 (2) Gasemokwena v. Molatlhiwa [1999] 2 B.L.R. 26 (HC) Miziyonke v. Miziyonke [1999] 2 B.L.R. 396 (HC) Cap. 29:03 Married Persons Property Act - Thebe v. Kemodisa and Another [2001] 2 B.L.R. 263 (HC) Cap. 29:04 Maintenance Orders Enforcement Act - Mogobe v. Magibesela [2001] 2 B.L.R. 500 (HC) Cap. 29:05 (1973 Rev.) Maintenance Orders Enforcement Act s. 4 Kalabeng v. The State [1983] B.L.R. 106 (HC) s. 4 (1) and (4) Baleseng v. The State [1988] B.L.R. 59 (HC) s. 4 (1) Jimmy Mabua v. The State 1982 (2) B.L.R. 82 (HC) s. 4 (4) State v. Boapotswe [1984] B.L.R. 62 (HC) Cap. 29:06 Matrimonial Causes Act s. 3 Mafokate v. Mafokate [2000] 2 B.L.R. 430 (HC) s. 7 (1) (a) Nku v. Nku [1998] B.L.R. 187 (HC) ss. 14 and 15 Mosienyane v. Mosienyane [1994] B.L.R. 217 (HC) s. 14 Molefe v. Molefe [2001] 2 B.L.R. 431 (HC) s. 15 Moreti v. Moreti [2000] 1 B.L.R. 175 (HC) Baipidi v. Baipidi [2000] 1 B.L.R. 370 (HC) Molefe v. Molefe [2003] 2 B.L.R. 157 (HC) s. 15 (1) Baitsile v. Baitsile 1979-1980 B.L.R. 111 (HC) Raoganne v. Raoganne [1997] B.L.R. 1255 (HC) s. 15 (3) Masithe v. Masithe [1997] B.L.R. 1047 (HC) s. 22 (1) Gaobotse v. Gaobotse (Practice Note) [1995] B.L.R. 549 (HC) s. 22 (2) Gaobotse v. Gaobotse (Practice Note) [1995] B.L.R. 549 (HC) s. 22 (3) Gaobotse v. Gaobotse (Practice Note) [1995] B.L.R. 549 (HC) s. 22 (3) (f) Borotho v. Borotho [1995] B.L.R. 359 (HC) s. 25 (1) Louw v. Ogilvie [2000] 1 B.L.R. 355 (HC) s. 25 (6) Borotho v. Borotho [1995] B.L.R. 359 (HC) s. 28 (1) Sello v. Sello [1998] B.L.R. 502 (HC) Cap. 29:07 (1973 Rev.) Matrimonial Causes Act s. 15 (1) Mabutho v. Mabutho [1988] B.L.R. 407 (HC) Dibotelo v. Dibotelo [1988] B.L.R. 353 (HC) s. 15 (1) (b) Tshireletso v. Tshireletso [1983] B.L.R. 26 (HC) Kalabeng v. Kalabeng [1983] B.L.R. 106 (HC) s. 19 (2) Mabutho v. Mabutho [1988] B.L.R. 407 (HC) s. 21 (1) and (2) Ritcher v. Ritcher [1985] B.L.R. 46 (HC) Cap. 31:01 Administration of Estates Act s. 3 Mmereki v. Seleke and Another [2001] 2 B.L.R. 601 (HC) s. 3 Obopile v. The Attorney-General and Others [2005] 1 B.L.R. 86 (CA) s. 6 Mmereki v. Seleke and Another [2001] 2 B.L.R. 601 (HC) s. 15 (3) Chindy v. Phala N.O. [1993] B.L.R. 126 (HC) s. 27 (1) Botswana Building Society v. Nkawana NO [2005] 1 B.L.R. 434 (HC) Cap. 31:01 (1973 Rev.) Administration of Estates Act s. 61 (10) Haselen v. Wetterings [1985] B.L.R. 188 (HC) Cap. 31:03 Succession (Rights of the Surviving Spouse and Inheritance Family Provisions) Act - Thebe v. Kemodisa and Another [2001] 2 B.L.R. 263 (HC) Cap. 32:02 Trade Disputes Act s. 39 (1) (b) Debswana Diamond Company (Pty) Ltd v. Botswana Mining Workers' Union (2) [2004] 2 B.L.R. 161 (IC) s. 42 (1) (a) (i) Debswana Diamond Company (Pty) Ltd v. Botswana Mining Workers' Union (2) [2004] 2 B.L.R. 161 (IC) Cap. 32:02 Tribal Land Act Sched. 1, para 3 (f) Masimolole v. The Attorney-General and Another [1997] B.L.R. 142 (CA) Sched. 1,para. 3 (f) Morewang v. The Attorney-General and Others [2000] 1 B.L.R. 22 (HC) ss. 10 (1), 13and 38 De Graaf v. Ramokwena [2000] 1 B.L.R. 224 (HC) s. 10 Kweneng Land Board v. Selaki [2004] 1 B.L.R. 154 (HC) Mpofu and Another v. Kweneng Land Board [2004] 1 B.L.R. 213 (HC) Phumaphi v. Ngwato Land Board [2005] 2 B.L.R. 318 (CA) s. 10 (1) Kweneng Land Board v. Bosele Syndicate and Others. [2001] 1 B.L.R. 208 (CA) s. 10 (2) Kweneng Land Board v. Mpofu and Another [2005] 1 B.L.R. 3 (CA) s. 11 (i) Kweneng Land Board v. Bosele Syndicate and Others; Kweneng Land [1997] B.L.R. 1366 (HC) s. 13 Kweneng Land Board v. Selaledi and Another [2004] 1 B.L.R. 340 (HC) ss. 14 and 15 Spanadokis v. Ngwato Land Board [1994] B.L.R. 296 (CA) s. 14 Attorney-General v. Seifoolia Khan and Two Others 1982 (1) B.L.R. 5 (HC) s. 15 (b) Kweneng Land Board v. Selaledi and Another [2004] 1 B.L.R. 340 (HC) s. 15 (d) Kweneng Land Board v. Selaledi and Another [2004] 1 B.L.R. 340 (HC) s. 16 Boikago Borehole Syndicate and Others v. Ngwato Land Board and Others [2004] 1 B.L.R. 357 (HC) s. 38 Kgatleng Land Board v. Chelane and Others [2001] 2 B.L.R. 403 (HC) s. 39 Kweneng Land Board v. Madisakwane and Others. [2001] 1 B.L.R. 246 (CA) Kgatleng Land Board v. Chelane and Others [2001] 2 B.L.R. 403 (HC) s. 39 (1) Gofitile v. Botswana Building Society [2001] 2 B.L.R. 744 (HC) s. 40 (3) (a) Magwaza Family and Another v. Kweneng Land Board and Others [2002] 1 B.L.R. 254 (HC) s. 40 (4) Magwaza Family and Another v. Kweneng Land Board and Others [2002] 1 B.L.R. 254 (HC) Cap. 32:02 (1973 Rev.) Tribal Land Act ss. 24 and 26 Moller v. Derek Brink Holdings (Pty.) Ltd. [1984] B.L.R. 148 (HC) Cap. 32:09 Town and Country Planning Act s. 17 Tawana Land Board v. Kamanakao Association [2004] 2 B.L.R. 178 (HC) Cap. 32:10 Acquisition of Property Act ss. 3, 5, 7 and 9 President of Republic of Botswana v. Bruwer [1998] B.L.R. 86 (CA) s. 9 Bruwer and Another v. President of the Republic of Botswana and Others [1997] B.L.R. 477 (HC) Cap. 33:02 Deeds Registry Act s. 17 De Graaf v. Ramokwena and Others [2000] 1 B.L.R. 224 (HC) s. 18 (5) Sekga v. Pule and Others [2000] 1 B.L.R. 16 (HC) s. 38 Gaborone Dairy Marketing Cooperative Society Ltd. v. Collins Newman & Company and Others [1996] B.L.R. 329 (HC) s. 40 Gaborone Dairy Marketing Cooperative Society Ltd. v. Collins Newman & Company and Others [1996] B.L.R. 329 (HC) s. 93 Gaborone Dairy Marketing Cooperative Society Ltd. v. Collins Newman & Company and Others [1996] B.L.R. 329 (HC) Cap. 33:03 (1973 Rev.) Deeds Registry Act s. 84 Pelwan v. Pelwan [1986] B.L.R. 498 (HC) Cap. 38:01 Wildlife Conservation and National Parks Act s. 19(1) State v. Matthys and Others [2003] 1 B.L.R. 528 (HC) s. 19(3) State v. Matthys and Others [2003] 1 B.L.R. 528 (HC) s. 72(4) State v. Matthys and Others [2003] 1 B.L.R. 528 (HC) s. 72(5) State v. Matthys and Others [2003] 1 B.L.R. 528 (HC) s. 82(1) The State v. Gabaitumele Modibetsane and Gareotelwe Modibetsane 1982 (1) B.L.R. 208 (HC) Cap. 38:01 (1973 Rev.) Fauna Conservation Act s. 2 (b) Pelaelo Mosheti v. The State 1982 (2) B.L.R. 77 (HC) s. 7 (1) Kruger Monnapula v. The State 1982 (2) B.L.R. 36 (HC) s. 15 (1) Maghori v. The State [1983] B.L.R. 44 (HC) s. 15 (4) Pelaelo Mosheti v. The State 1982 (2) B.L.R. 77 (HC) s. 16 Michael Slogrove & Others v. Director of Wildlife and Another 1982 (1) B.L.R. 164 (CA) s. 59 (2) State v. Selokela [1984] B.L.R. 60 (HC) s. 82 Habangana v. The State [1986] B.L.R. 479 (HC) s. 82 (1)and (2) (b) Chase v. The State [1990] B.L.R. 67 (HC) s. 82 (2) Gaboekae v. The State [1983] B.L.R. 94 (HC) s. 84 (5)and (7) Martin v. The State [1987] B.L.R. 83 (HC) s. 89 Mpinyane v. The State [1985] B.L.R. 529 (CA) s. 89 (4) Pelaelo Mosheti v. The State 1982 (2) B.L.R. 77 (HC) ss. 14 (1)and (2) (a)and 15 (2) (b) State v. Diseko [1986] B.L.R. 409 (HC) Cap. 40:01 Local Government (District Councils) Act s. 28 Rapid Master Construction (Pty.) Ltd. v. Kgalagadi District Council and Another [1997] B.L.R. 1323 (HC) Cap. 40:06 Unified Local Government Service Act s. 12 (3) Simonda v. The Attorney-General [1998] B.L.R. 654 (HC) Cap. 41:01 Chieftainship Act s. 2 Kamanakao I and Another v. Attorney-General [2002] 1 B.L.R. 110 (HC) s. 3 (a) Kamanakao I and Others v. The Attorney-General and Another [2001] 2 B.L.R. 654 (HC) s. 12 Gaseitsiwe v. The Attorney-General. [1996] B.L.R. 54 (CA) s. 15 Kamanakao I and Others v. The Attorney-General and Another [2001] 2 B.L.R. 654 (HC) s. 15 (9) Kamanakao I and Others v. The Attorney-General and Another [2001] 2 B.L.R. 654 (HC) s. 18 Kamanakao I and Others v. The Attorney-General and Another [2001] 2 B.L.R. 654 (HC) s. 18 (1) Kamanakao I and Others v. The Attorney-General and Another [2001] 2 B.L.R. 654 (HC) s. 19 Leipego v. Moapare [1993] B.L.R. 229 (CA) s. 25 Sechele v. The Attorney-General and Another [2002] 2 B.L.R. 94 (HC) s. 25 Gofitile v. Botswana Building Society [2001] 2 B.L.R. 744 (HC) Cap. 42:01 Companies Act - Malido (Pty.) Ltd. v. The Attorney-General and Others [1999] 1 B.L.R. 141 (CA) s. 3 Gaborekwe v. Supreme Construction (Pty) Ltd [2001] 2 B.L.R. 521 (HC) s. 5 Gaborekwe v. Supreme Construction (Pty) Ltd [2001] 2 B.L.R. 521 (HC) s. 32 Solar, Sewage & Steam Services (Pty) Ltd v. Corby [2003] 1 B.L.R. 290 (HC) s. 93 Etosha Technical Services Botswana (Pty) Ltd and Another v. Faziri [2004] 2 B.L.R. 358 (HC) s. 107 Roadcorp Ltd (In Liquidation) v. Roadprop Botswana (Pty) Ltd [2002] 1 B.L.R. 482 (HC) s. 139 (3) Big Game Development Company Botswana Ltd. v. De Kock [1995] B.L.R. 788 (HC) s. 157 (2) Big Game Development Company Botswana Ltd. v. De Kock [1995] B.L.R. 788 (HC) s. 161 (1) In re Hugo Strachan 1977 B.L.R. 63 (HC) Ex Parte Gay N O 1977 B.L.R. 82 (HC) s. 172 Enamcor (Botswana) (Pty.) Ltd. v. Dynasty Ventures (Pty.) Ltd. t/a A to Z [1993] B.L.R. 217 (HC) Molefhi v. Academy of Business Management (Pty.) Ltd. [1994] B.L.R. 1 (HC) Roadcorp Ltd (In Liquidation) v. Roadprop Botswana (Pty) Ltd [2002] 1 B.L.R. 482 (HC) s. 172 (a) Roadcorp Ltd (In Liquidation) v. Roadprop Botswana (Pty) Ltd [2002] 1 B.L.R. 482 (HC) s. 173 Botswana Development Corporation Ltd v. Cresta Marakanelo (Pty) Ltd and Another [2001] 2 B.L.R. 126 (HC) s. 173 (1) Roadcorp Ltd (In Liquidation) v. Roadprop Botswana (Pty) Ltd [2002] 1 B.L.R. 482 (HC) s. 174 Molefhi v. Academy of Business Management (Pty.) Ltd. [1994] B.L.R. 1 (HC) s. 180 Ogilvie N O and El Centre (Pty) Ltd and Another 1982 (2) B.L.R. 22 (HC) s. 202 Air Botswana v. Thiro N.O [1995] B.L.R. 315 (HC) s. 204 (i) Swart and Another v. Klerck and Another 1979-1980 B.L.R. 156 (HC) s. 224 Ex Parte Capital Motors and Tractors (Pty) Ltd 1982 (1) B.L.R. 19 (HC) s. 261 Air Botswana v. Thiro N.O [1995] B.L.R. 315 (HC) s. 262 Schwarz v. Pax Trading Company (Pty) Ltd (in liquidation) 1972 (2) B.L.R. 21 (HC) s. 264 Ex parte Soft Drink Distributors [1992] B.L.R. 63 (HC) s. 274 (1) First National Bank of Botswana t/a WesBank v. Maseko and Others [2002] 1 B.L.R. 1 (HC) Cap. 42:01 (1973 rev.) Companies Act s. 6 (1) Kalabeng v. Attorney-General [1985] B.L.R. 1 (HC) s. 33 T.L. Investments (Pty.) Ltd. v. Molefe [1985] B.L.R. 222 (HC) s. 173 (f) Botswana Insurance Co. (Pty.) Ltd. v. L.M. Publishing Co. (Pty.) Ltd. [1989] B.L.R. 508 (HC) s. 180 (a)and (b) Ex Parte M. & P. Trikam: In re Manica Freight Services (Pty.) Ltd. and Others v. Peak Clothing (Botswana) (Pty.) Ltd. [1986] B.L.R. 1 (HC) Cap. 42:02 Insolvency Act s. 13 Botswana Housing Corporation v. Estate Letsholo [1995] B.L.R. 363 (HC) s. 84 Ogilvie N O and El Centre (Pty) Ltd and Another 1982 (2) B.L.R. 22 (HC) s. 109 Ex parte Tamocha [2000] 2 B.L.R. 422 (HC) Cap. 42:04 Co-Operative Societies Act s 119 Swaneng Consumers Co-Operative Society v. Ganga and Another [2003] 1 B.L.R. 106 (HC) Cap. 42:05 Registration of Business Names Act s. 18 Rapid Master Construction (Pty.) Ltd. v. Kgalagadi District Council and Another [1997] B.L.R. 1323 (HC) s. 22 (1) Rapid Master Construction (Pty.) Ltd. v. Kgalagadi District Council and Another [1997] B.L.R. 1323 (HC) Cap. 42:09 Tourism Act s. 4 (2) (a) Ker & Downey (Botswana) (Pty) Ltd v. The Land Tribunal and Another [2001] 2 B.L.R. 47 (HC) Cap. 43:02 Trade and Liquor Act s. 57 Selebi-Phikwe Town Council v. The Attorney-General and Another [2004] 2 B.L.R. 453 (HC) Cap. 43:02 (1973 Rev.) Trading Act s. 44 Tsogang Investments (Pty.) Ltd. t/a Tsogang Supermarket v. Phoenix Investments (Pty.) Ltd. t/a Spar Supermarket [1989] B.L.R. 512 (HC) Cap. 46:02 Bills of Exchange Act s. 22 Barclays Bank of Botswana Ltd. v. Kikia [1990] B.L.R. 54 (HC) s. 42 (2) Barclays Bank of Botswana Ltd. v. Kikia [1990] B.L.R. 54 (HC) s. 45 (2) (c),(e) Naledi Motors (Pty.) Ltd. v. Denco (Pty.) Ltd. [1997] B.L.R. 365 (HC) s. 49 (2) (c)(iv) & (d) (iii) Barclays Bank of Botswana Ltd. v. Kikia [1990] B.L.R. 54 (HC) Cap. 46:02 (1973 Rev.) Bills of Exchange Act ss. 47 and 49 Marobela v. Jamor (Pty.) Ltd. t/a Steel King [1983] B.L.R. 83 (HC) Cap. 46:03 Hire Purchase Act s. 2 Stanbic Bank Botswana Ltd. v. Mhaladi [1996] B.L.R. 269 (HC) Cap. 46:04 Financial Institutions Act s. 26 (8) Stanbic Bank Botswana Ltd. v. Mhaladi [1996] B.L.R. 269 (HC) Cap. 46:04 (1973 Rev.) Financial Institutions Act ss. 2, 5, 7 and 40 (2) Bank of Botswana v. R.M. Sikwane Enterprises [1985] B.L.R. 134 (HC) Cap. 46:05 Hypothecation Act s. 3 (4) Botswana Development v. Corbie Investments and Another [1996] B.L.R. 401 (HC) Cap. 47:01 Employment Act s. 2 Masepe v. Hi-Tech Cleaning Services (Pty.) Ltd. [1995] B.L.R. 811 (HC) s. 3 Diau v. Botswana Building Society [2003] 2 B.L.R. 409 (IC) s. 5 (2) Sebudi v. Botswana Beverages and Allied Workers' Union [1997] B.L.R. 12 (HC) s. 7 Botswana Mining Workers Union and Another v. Debswana Diamond Company (Pty.) Ltd. [1997] B.L.R. 228 (HC) s. 7 (1) Diau v. Botswana Building Society [2003] 2 B.L.R. 409 (IC) s. 7 (1) (c) Botswana Building Society v. Seemule [2002] 1 B.L.R. 34 (CA) s. 9 (1) Diau v. Botswana Building Society [2003] 2 B.L.R. 409 (IC) s. 15 (2) Diau v. Botswana Building Society [2003] 2 B.L.R. 409 (IC) s. 16 Sekwakwa v. Air Botswana [1998] B.L.R. 31 (IC) Mbaakanyi v. Botswana Meat Commission [1999] 1 B.L.R. 286 (IC) Mogotho and Others v. Security Systems [2003] 1 B.L.R. 202 (IC) s. 16 (1) Gumbo v. Yorkdon Electrical (Pty) Ltd [2003] 1 B.L.R. 1 (IC) s. 16 (2) Gumbo v. Yorkdon Electrical (Pty) Ltd [2003] 1 B.L.R. 1 (IC) Ratsie and Others v. Truckafrica Botswana [2004] 1 B.L.R. 178 (IC) ss. 18, 19,20 (2) Mosedame v. Institute of Development Management [1998] B.L.R. 72 (CA) s. 18 Mosedame v. Institute of Development Management [1997] B.L.R. 1 (HC) s. 18 (1) Kanokang v. T.K. Trading (Pty.) Ltd. [1995] B.L.R. 389 (HC) s. 18 (1) (b) Morwaanare and Others v. Security Systems (Pty.) Ltd. [1996] B.L.R. 211 (IC) Tshebo v. Botswana Breweries Ltd. [1995] B.L.R. 752 (HC) Molapi v. Electroflex (Pty.) Ltd. [1995] B.L.R. 734 (HC) Motsumi v. First National Bank of Botswana [1995] B.L.R. 713 (HC) Tshebo v. Botswana Breweries Ltd. [1995] B.L.R. 752 (HC) s. 18 (3) Kanokang v. T.K. Trading (Pty.) Ltd. [1995] B.L.R. 389 (HC) s. 18 (5) Nettey v. Kgalagadi Resources Development Co. (Pty.) Ltd. [1997] B.L.R. 1137 (HC) Matsheng v. Steel Bas (Pty) Ltd [2001] 1 B.L.R. 412 (IC) s. 19 Mosedame v. Institute of Development Management [1997] B.L.R. 1 (HC) s. 19 (a) Tshebo v. Botswana Breweries Ltd. [1995] B.L.R. 752 (HC) Ngambela v. JP Print Production (Pty) Ltd [2001] 1 B.L.R. 484 (IC) s. 19 (b) Molapi v. Electroflex (Pty.) Ltd. [1995] B.L.R. 734 (HC) s. 20 (1), (2)and (3) Anthony v. Clothing Manufacturers (Pty.) Ltd. [2000] 2 B.L.R. 29 (IC) s. 20 (1) Diau v. Botswana Building Society [2003] 2 B.L.R. 409 (IC) s. 20 (2) Kgeste v. Ital-Tswana Construction Co [1995] B.L.R. 855 (HC) Bagai and Others v. Green Industrial Enterprises Corporation [1996] B.L.R. 252 (IC) Motsumi v. First National Bank of Botswana [1995] B.L.R. 713 (HC) Mosedame v. Institute of Development Management [1997] B.L.R. 1 (HC) Gaopotlake v. Dulux Botswana (Pty.) Ltd. [2000] 1 B.L.R. 458 (HC) Abas v. White Dove (Pty) Ltd [2001] 1 B.L.R. 58 (IC) Chinhema v. Consolidated Contractors Company (Kuwait) (Pty) Ltd [2004] 1 B.L.R. 147 (IC) Bamalete Lutheran Hospital v. Emodek [2005] 2 B.L.R. 20 (HC) s. 21 Kenosi v. Westhynd Security [1994] B.L.R. 440 (IC) s. 21 (2) Matumo v. News Company (Botswana) t/a The Gazette [1997] B.L.R. 43 (HC) s. 21 (2) Kgosiareng v. Wayguard Security (Pty.) Ltd. [2000] 2 B.L.R. 262 (IC) s. 22 Kenosi v. Westhynd Security [1994] B.L.R. 440 (IC) s. 23 Zachariah and Another v. Botswana Power Corporation [1996] B.L.R. 710 (CA) s. 23 (d) Moatswi and Another v. Fencing Centre (Pty) Ltd [2002] 1 B.L.R. 262 (IC) s. 25 Motlhale and Others v. Goldhill Industries (Pty) Ltd t/a Pioneer Quarries [2005] 1 B.L.R. 142 (HC) s. 26 (1) Mfaladi v. Kgalagadi Resources Development Co. (Pty.) Ltd. trading as Solar Power [1996] B.L.R. 239 (IC) Kanokang v. T.K. Trading (Pty.) Ltd. [1995] B.L.R. 389 (HC) Dintwe v. Kudu Service Station [1995] B.L.R. 869 (HC) Ditoro v. Gaborone Private Hospital [1998] B.L.R. 469 (IC) Olebile v. Collect-A-Can Botswana (Pty.) Ltd. [2000] 2 B.L.R. 397 (IC) s. 26 (1) (d) Mafifi v. Tex (Pty.) Ltd. [1998] B.L.R. 193 (IC) s. 26 (4) Motsumi v. First National Bank of Botswana [1995] B.L.R. 713 (HC) Kanokang v. T.K. Trading (Pty.) Ltd. [1995] B.L.R. 389 (HC) Dintwe v. Kudu Service Station [1995] B.L.R. 869 (HC) Uyapo v. Tristar Enterprises (Pty.) Ltd. t/a Tristar Service Station [1995] B.L.R. 747 (HC) s. 26 (4) Mfaladi v. Kgalagadi Resources Development Co. (Pty.) Ltd. trading as Solar Power [1996] B.L.R. 239 (IC) s. 26 (4) (c) Molosiwa v. Westhynd Security (Pty.) Ltd. [2000] 2 B.L.R. 284 (IC) s. 26 (4) (j) Apps v. Dallas (Pty) Ltd t/a Diggers Pub & Grill [2002] 2 B.L.R. 174 (IC) s. 27 Mmolawa v. Lobatse Clay Works [1996] B.L.R. 1 (IC) s. 27 (3) Botswana Mining Workers Union and Another v. Debswana Diamond Company (Pty.) Ltd. [1997] B.L.R. 228 (HC) s. 27 (8) Mogana v. Botswana Meat Commission [1995] B.L.R. 353 (HC) s. 28 Mfaladi v. Kgalagadi Resources Development Co. (Pty.) Ltd. trading as Solar Power [1996] B.L.R. 239 (IC) Botswana Building Society v. Seemule [2002] 1 B.L.R. 34 (CA) Masebedi v. Cox [2003] 2 B.L.R. 197 (IC) s. 28 (1) Green Industrial Enterprises Corporation (Pty.) Ltd. v. Ben and Another [1997] B.L.R. 99 (CA) Mfaladi v. Kgalagadi Resources Development Co. (Pty.) Ltd. trading as Solar Power [1996] B.L.R. 239 (IC) s. 28 (1) Pogiso v. PEP Botswana Holdings Ltd [2002] 2 B.L.R. 10 (IC) s. 28 (1) (ii) PEP Botswana Holdings t/a PEP Stores v. Letsema [2002] 2 B.L.R. 121 (CA) s. 28 (2) Green Industrial Enterprises Corporation (Pty.) Ltd. v. Ben and Another [1997] B.L.R. 99 (CA) s. 33 (1) (a)and (2)and 38 Martex Trading (Pty.) Ltd. t/a Builders Merchants Botswana Ltd. v. Lloyd [1998] B.L.R. 201 (HC) s. 38 Gumbo v. Yorkdon Electrical (Pty) Ltd [2003] 1 B.L.R. 1 (IC) s. 75 Bunjun and Another v. New Era Secondary School [2003] 2 B.L.R. 282 (IC) s. 77 (1) Ramasamy v. TTCS Consulting Engineers (Pty) Ltd [2005] 1 B.L.R. 196 (IC) s. 79 Bunjun and Another v. New Era Secondary School [2003] 2 B.L.R. 282 (IC) s. 79 (1) Ramasamy v. TTCS Consulting Engineers (Pty) Ltd [2005] 1 B.L.R. 196 (IC) s. 80 Malomo v. Daisy Loo Botswana [2002] 2 B.L.R. 289 (IC) s. 80 (1) Mfaladi v. Kgalagadi Resources Development Co. (Pty.) Ltd. trading as Solar Power [1996] B.L.R. 239 (IC) Gumbo v. Yorkdon Electrical (Pty) Ltd [2003] 1 B.L.R. 1 (IC) Ramasamy v. TTCS Consulting Engineers (Pty) Ltd [2005] 1 B.L.R. 196 (IC) s. 80 (1)and 81 (1) Kayemba v. Pioneer Engineering and Consultancy (Pty.) Ltd. [1998] B.L.R. 486 (IC) s. 81 Malomo v. Daisy Loo Botswana [2002] 2 B.L.R. 289 (IC) s. 81 Mfaladi v. Kgalagadi Resources Development Co. (Pty.) Ltd. trading as Solar Power [1996] B.L.R. 239 (IC) Bunjun and Another v. New Era Secondary School [2003] 2 B.L.R. 282 (IC) s. 81 (1) Gumbo v. Yorkdon Electrical (Pty) Ltd [2003] 1 B.L.R. 1 (IC) s. 81 (1) (b) (i) Gumbo v. Yorkdon Electrical (Pty) Ltd [2003] 1 B.L.R. 1 (IC) s. 96 (2) Morwaanare and Others v. Security Systems (Pty.) Ltd. [1996] B.L.R. 211 (IC) s. 96 (10) Masepe v. Hi-Tech Cleaning Services (Pty.) Ltd. [1995] B.L.R. 811 (HC) Morwaanare and Others v. Security Systems (Pty.) Ltd. [1996] B.L.R. 211 (IC) s. 97 (2) Matlale and Another v. Air Botswana Corporation [2003] 2 B.L.R. 218 (HC) s. 98 (9) Ramasamy v. TTCS Consulting Engineers (Pty) Ltd [2005] 1 B.L.R. 196 (IC) s. 99 Botswana Power Corporation v. Moaneng and Others [2005] 2 B.L.R. 312 (CA) s. 99 (3) Moaneng and Others v. Botswana Power Corporation [2005] 1 B.L.R. 409 (HC) s. 99 (4) Moaneng and Others v. Botswana Power Corporation [2005] 1 B.L.R. 409 (HC) s. 117 (1) Ramoswetsi v. Mpepu Private Secondary School (Pty.) Ltd. [1999] 2 B.L.R. 243 (IC) ss. 142 and 143 Metswe and Another v. Thata Save (Pty.) Ltd. [2000] 2 B.L.R. 198 (IC) Cap. 47:02 Employment of Non-Citizens Act s. 4 Musonza v. J & P Security Services (Botswana) (Pty.) Ltd. [1997] B.L.R. 274 (HC) Karoro v. Job-Trans and Plant Hire (Pty) Ltd [2002] 1 B.L.R. 131 (IC) s. 4 (1) (a)and (3) Hattas v. Kim's Auto (Pty.) Ltd. [1998] B.L.R. 338 (IC) Cap. 47:03 Workmen's Compensation Act s. 3 Truck Africa (Pty.) Ltd. v. Botzam Services (Pty.) Ltd. [1990] B.L.R. 607 (HC) s. 11 (1) Gogannekgosi v. Commissioner for Workmen's Compensation [1993] B.L.R. 360 (HC) s. 43-45 Truck Africa (Pty.) Ltd. v. Botzam Services (Pty.) Ltd. [1990] B.L.R. 607 (HC) Cap. 48:01 Trade Union and Employer's Organisation Act s. 50 (1) Botswana Breweries Distribution Staff v. Botswana Breweries (Pty.) Ltd. [1997] B.L.R. 312 (HC) s. 61 (2) (a),(b) and (c) Botswana Power Corporation Workers' Union v. Botswana Power Corporation [1998] B.L.R. 159 (IC) Botswana Power Corporation Workers' Union v. Botswana Power Corporation (Full Bench) [1999] 1 B.L.R. 73 (CA) Cap. 48:02 Trade Disputes Act - Moroka and Others v. Feedem Catering Services Botswana (Pty.) Ltd. [1996] B.L.R. 935 (HC) - Modise v. Botswana Building Society [1994] B.L.R. 427 (IC) - Morake v. Security Services (Botswana) (Pty.) Ltd. [1996] B.L.R. 480 (IC) - National Amalgamated Local and Central Government and Parastatal Manual Workers' Union v. The Attorney-General [1995] B.L.R. 48 (CA) s. 2 Bank of Botswana v. Dineo [1995] B.L.R. 645 (HC) Morupule Colliery v. Botswana Mining Workers' Union [1995] B.L.R. 224 (HC) Sigwele v. Botswana Life Insurance Ltd. [2000] 2 B.L.R. 331 (IC) Kgosietsile v. Botswana Power Corporation [2000] 2 B.L.R. 424 (IC) s. 2 (1) Botswana Commercial and General Workers' Union v. Sefalana SA Botswana Ltd [2002] 2 B.L.R. 232 (IC) s. 2 (1) Financial Network and Auto Management Systems (Pty.) Ltd. v. Grace [1996] B.L.R. 512 (IC) Nettey v. Kgalagadi Resources Development Co. (Pty.) Ltd. [1997] B.L.R. 1137 (HC) s. 4 Moroka and Others v. Feedem Catering Services Botswana (Pty.) Ltd. [1996] B.L.R. 935 (HC) s. 5 (1) Botswana Diamond Sorters' and Valuators' Union v. Botswana Diamond Valuing Co. (Pty.) Ltd. [1997] B.L.R. 1225 (HC) s. 5 (1) to (5) Bank of Botswana v. Dineo [1995] B.L.R. 645 (HC) s. 5 (2) (d) Botswana Diamond Sorters' and Valuators' Union v. Botswana Diamond Valuing Co. (Pty.) Ltd. [1997] B.L.R. 1225 (HC) s. 5 (3) Botswana Diamond Sorters' and Valuators' Union v. Botswana Diamond Valuing Co. (Pty.) Ltd. [1997] B.L.R. 1225 (HC) s. 5 (6) (b) Botswana Mining Workers' Union and Another v. Debswana Diamond Company (Pty.) Ltd. [1997] B.L.R. 228 (HC) s. 5 (6) (d) Gaboitaolelwe v. Kgalagadi Breweries [1996] B.L.R. 394 (IC) Mmolawa v. Lobatse Clay Works [1996] B.L.R. 1 (IC) s. 6 Moroka and Others v. Feedem Catering Services Botswana (Pty.) Ltd. [1996] B.L.R. 935 (HC) s. 6A Seone v. Botswana Mining Workers' Union [2000] 2 B.L.R. 61 (IC) s. 6A Mogotho and Others v. Security Systems [2003] 1 B.L.R. 202 (IC) s. 6B Mogotho and Others v. Security Systems [2003] 1 B.L.R. 202 (IC) s. 6A (1) and (3) Lekate v. Automated Security (Pty.) Ltd. [1998] B.L.R. 668 (IC) McLean v. Consolidated Contractors Co. (Pty.) Ltd. [1999] 1 B.L.R. 223 (IC) Thopego v. Botswana Power Corporation [1999] 1 B.L.R. 236 (IC) s. 6A (3) Modise v. Trade World (Pty) Ltd [2002] 2 B.L.R. 189 (IC) s. 7 Botswana Bank Employees Union v. Barclays Bank of Botswana Ltd. [1995] B.L.R. 459 (CA) s. 7 Botswana Commercial and General Workers' Union v. Sefalana SA Botswana Ltd [2002] 2 B.L.R. 232 (IC) s. 7 Chibonga v. Chemdol (Pty) Ltd [2002] 2 B.L.R. 255 (IC) Jeremiah v. Diamond Creek Spur [1996] B.L.R. 297 (IC) Rokos v. Global Resorts (Botswana) (Pty) Ltd t/a The Grand Palm Hotel Casino Resort [2002] 1 B.L.R. 388 (IC) Chinu and Others v. Pelican Moving Co (Pty) Ltd and Another [2005] 1 B.L.R. 159 (IC) s. 7 (2) Mundow v. Italtswana Construction Co (Pty) Ltd [2004] 1 B.L.R. 96 (IC) s. 7 (5) Lesenda v. Debswana Mining Co (Pty) Ltd [2004] 1 B.L.R. 255 (IC) s. 8 Moarabi v. Score Supermarket (Trading) (Pty) Ltd. [2001] 2 B.L.R. 581 (IC) Rokos v. Global Resorts (Botswana) (Pty) Ltd t/a The Grand Palm Hotel Casino Resort [2002] 1 B.L.R. 388 (IC) Mundow v. Italtswana Construction Co (Pty) Ltd [2004] 1 B.L.R. 96 (IC) Lesenda v. Debswana Mining Co (Pty) Ltd [2004] 1 B.L.R. 255 (IC) s. 9 Botswana Mining Workers Union v. BCL Limited [2004] 1 B.L.R. 82 (IC) s. 9 (1) Debswana Mining Co. Ltd. v. Mapitse [1990] B.L.R. 241 (HC) s. 17 (1) Botswana Railways' Organisation v. Setsogo [1995] B.L.R. 758 (HC) Botswana Diamond Sorters' and Evaluators' Union v. Botswana Diamond Valuing Company [1998] B.L.R. 319 (IC) Dube v. Fedex Express and Another [2003] 1 B.L.R. 37 (IC) s. 18 Botswana Commercial and General Workers' Union v. Sefalana SA Botswana Ltd [2002] 2 B.L.R. 232 (IC) Kgosietsile v. Botswana Power Corporation [2000] 2 B.L.R. 424 (IC) Sigwele v. Botswana Life Insurance Ltd. [2000] 2 B.L.R. 331 (IC) s. 18 (1) Jeremiah v. Diamond Creek Spur [1996] B.L.R. 297 (IC) Direng v. Furniture Mart (Pty.) Ltd. [1995] B.L.R. 826 (HC) s. 18 (1) (a) Financial Network and Auto Management Systems (Pty.) Ltd. v. Grace [1996] B.L.R. 512 (IC) Debswana Diamond Co. (Pty.) Ltd. v. Botswana Mining Workers' Union [1995] B.L.R. 333 (HC) Botswana Bank Employees' Union v. Barclays Bank of Botswana Ltd.,C.A. [1995] B.L.R. 459 (CA) Dube v. Fedex Express and Another [2003] 1 B.L.R. 37 (IC) s. 18 (1) (b) Botswana Railways Organisation v. Setsogo [1995] B.L.R. 758 (HC) s. 18 (1) (b) Morupule Colliery v. Botswana Mining Workers' Union [1995] B.L.R. 224 (HC) s. 18 (1) (iv) Hirschfield and Another v. Management Associates (Pty) Ltd [2003] 1 B.L.R. 174 (IC) s. 18 (5) Direng v. Furniture Mart (Pty.) Ltd. [1995] B.L.R. 826 (HC) s. 18 (6) Seone v. Botswana Mining Workers' Union [2000] 2 B.L.R. 61 (IC) s. 19 (a) Lekoba v. Green Industrial Enterprises Corporation [1995] B.L.R. 845 (HC) s. 19 (1) Dube v. Fedex Express and Another [2003] 1 B.L.R. 37 (IC) s. 20 (2) Lekoba v. Green Industrial Enterprises Corporation [1995] B.L.R. 845 (HC) s. 24 Botswana Building Society v. Bolokwe [1999] 1 B.L.R. 459 (CA) s. 24 (1) (a) Tlhoiwa v. Tswana Construction (Pty.) Ltd. [1996] B.L.R. 461 (IC) s. 24 (1) (b) (ii) Moyo v. Kgolagano College [1995] B.L.R. 778 (HC) Mogale v. Water Utilities Corporation (Practice Note) [1995] B.L.R. 798 (HC) s. 24 (2) Moyo v. Kgolagano College [1995] B.L.R. 778 (HC) s. 24 (2) (a) Pogiso v. PEP Botswana Holdings Ltd [2002] 2 B.L.R. 10 (IC) Gumbo v. Yorkdon Electrical (Pty) Ltd [2003] 1 B.L.R. 1 (IC) s. 24 (2) (b) Gumbo v. Yorkdon Electrical (Pty) Ltd [2003] 1 B.L.R. 1 (IC) Pogiso v. PEP Botswana Holdings Ltd [2002] 2 B.L.R. 10 (IC) s. 24 (2) (c) Pogiso v. PEP Botswana Holdings Ltd [2002] 2 B.L.R. 10 (IC) Gumbo v. Yorkdon Electrical (Pty) Ltd [2003] 1 B.L.R. 1 (IC) s. 24 (2) (d) Pogiso v. PEP Botswana Holdings Ltd [2002] 2 B.L.R. 10 (IC) Gumbo v. Yorkdon Electrical (Pty) Ltd [2003] 1 B.L.R. 1 (IC) s. 24 (2) (e) Pogiso v. PEP Botswana Holdings Ltd [2002] 2 B.L.R. 10 (IC) Gumbo v. Yorkdon Electrical (Pty) Ltd [2003] 1 B.L.R. 1 (IC) s. 24 (2) (f) Pogiso v. PEP Botswana Holdings Ltd [2002] 2 B.L.R. 10 (IC) Gumbo v. Yorkdon Electrical (Pty) Ltd [2003] 1 B.L.R. 1 (IC) s. 24 (2) (g) Pogiso v. PEP Botswana Holdings Ltd [2002] 2 B.L.R. 10 (IC) Gumbo v. Yorkdon Electrical (Pty) Ltd [2003] 1 B.L.R. 1 (IC) s. 25 Mokaya v. Morteo Condotte (Pty.) Ltd. [1994] B.L.R. 394 (IC) s. 25 (1) Daka v. Five Star Enterprises (Pty.) Ltd. [2000] 2 B.L.R. 464 (IC) s. 28 (2) (a) (i) Ben v. Green Industrial Enterprises Corporation (Botswana) (Pty.) Ltd. [1995] B.L.R. 859 (HC) s. 34 Morupule Colliery v. Botswana Mining Workers Union [1995] B.L.R. 224 (HC) s. 37 Morupule Colliery v. Botswana Mining Workers Union [1995] B.L.R. 224 (HC) s. 43 Morupule Colliery v. Botswana Mining Workers Union [1995] B.L.R. 224 (HC) Cap. 50:01 Customs and Excise Duty Act s. 10 (1) Pan African Cargo (Pty.) Ltd. v. The Attorney-General [1995] B.L.R. 552 (HC) s. 17 (13) Kwan v. Director of Customs and Excise; M.M. Mobile Accounting Systems Ltd. v. Director of Customs and Excise [1995] B.L.R. 767 (HC) s. 87 Motshwane v. Attorney-General [1991] B.L.R. 336 (HC) s. 90 (1) Chiti v. The State [1997] B.L.R. 577 (HC) s. 90 (2) Chiti v. The State [1997] B.L.R. 577 (HC) s. 94 Motshwane v. Attorney-General [1991] B.L.R. 336 (HC) s. 121 (1) Pan African Cargo (Pty.) Ltd. v. The Attorney-General [1995] B.L.R. 552 (HC) Cap. 50:01 (1973 Rev.) Customs and Excise Duty Act s. 85 Majiek v. The State [1983] B.L.R. 12 (HC) Cap. 50:03 Value Added Tax Act s. 7 Botswana Bus Operators and Others v. The Attorney-General [2004] 1 B.L.R. 429 (HC) Cap. 52:01 Income Tax Act s. 9 Commissioner of Taxes v. Davies and O'Sullivan (Pty.) Ltd. [1997] B.L.R. 209 (HC) s. 10 (1) Commissioner of Taxes v. Davies and O'Sullivan (Pty.) Ltd. [1997] B.L.R. 209 (HC) Sched. 6,Part II,para. 3 Z. v. Commissioner of Taxes [1992] B.L.R. 35 (HC) Sched. 12,para. 6 Z. v. Commissioner of Taxes [1992] B.L.R. 35 (HC) ss. 2, 33 (1),38 and 84 Z. v. Commissioner of Taxes [1992] B.L.R. 35 (HC) s. 91 (3) Pink's Family Outfitters (Pty) Ltd v. The Attorney-General [2003] 2 B.L.R. 290 (HC) s. 125 Commissioner of Taxes v. Taxpayer 1982 (1) B.L.R. 33 (CA) Cap. 54:01 Finance and Audit Act s. 39 Seboni v. Attorney-General [1993] B.L.R. 159 (HC) Cap. 58:01 Education Act s. 3 (1) Students Representative Council of the Molepolole College of Education and Another v. The Attorney-General. [1996] B.L.R. 182 (CA) s. 4 Kgosidiile v. Attorney-General [1993] B.L.R. 372 (HC) s. 27 (1) Students' Representative Council v. The Attorney-General [1995] B.L.R. 510 (HC) Cap. 61:01 Legal Practitioners Act - Mutemachimwe v. Law Society of Botswana [2001] 2 B.L.R. 712 (HC) s. 5 Sibanda v. The Law Society of Botswana [2005] 1 B.L.R. 370 (HC) s. 5 (a) Mutemachimwe v. Law Society of Botswana [2002] 1 B.L.R. 50 (CA) s. 5 (e) Mutemachimwe v. Law Society of Botswana [2002] 1 B.L.R. 50 (CA) s. 5 (f) Mutemachimwe v. Law Society of Botswana [2002] 1 B.L.R. 50 (CA) s. 5 (g) Mutemachimwe v. Law Society of Botswana [2002] 1 B.L.R. 50 (CA) s. 7 (c) (1) Tafa v. Attorney-General [1991] B.L.R. 320 (HC) s. 10 Ex Parte Garekwe [2004] 2 B.L.R. 396 (HC) s. 11 Ex Parte Garekwe [2004] 2 B.L.R. 396 (HC) s. 26 Attorney-General v. Garekwe [1996] B.L.R. 554 (HC) s. 27 Attorney-General v. Garekwe [1996] B.L.R. 554 (HC) s. 28 (1) The Attorney-General v. Garekwe [1996] B.L.R. 554 (HC) s. 30 (1) Mutoriti v. Law Society of Botswana [2002] 2 B.L.R. 325 (HC) s. 30 (1) (e) Masoba v. The Attorney-General and Another [2003] 1 B.L.R. 319 (HC) s. 30 (5) Mutoriti v. Law Society of Botswana [2002] 2 B.L.R. 325 (HC) Cap. 62:01 United Teaching Service Act - Botswana Teachers' Union v. The Director of Teaching Service Management and Another [2002] 2 B.L.R. 311 (HC) s. 22 (4) Rebaeng v. Director of Teaching Service Management [2001] 2 B.L.R. 534 (HC) s. 22 (6) Rebaeng v. Director of Teaching Service Management [2001] 2 B.L.R. 534 (HC) Cap. 62:01 (1973 Rev.) Unified Teaching Service Act ss. 4 and 6 (2)-(4) Makgoeng v. Attorney-General [1987] B.L.R. 518 (CA) Cap. 63:04 Drugs and Related Substances Act s. 16 (1) (a) Matlou v. The State [2001] 2 B.L.R. 158 (HC) s. 16 (1) (b) Banda v. The State [2001] 2 B.L.R. 289 (CA) s. 16 (3) Banda v. The State [2001] 2 B.L.R. 289 (CA) s. 16 (a) Mokgatle v. The State [2003] 2 B.L.R. 210 (HC) Cap. 63:04 (1973 Rev) Habit-Forming Drugs Act s. 3 (1) (b) and (3), proviso Ikgopoleng v. The State [1992] B.L.R. 68 (HC) - Gabela v. The State [1983] B.L.R. 125 (HC) s. 3 State v. Makhubala [1983] B.L.R. 33 (HC) Mohalenyane v. The State [1984] B.L.R. 291 (HC) s. 3 (1) Mzwinila v. The State [1987] B.L.R. 382 (CA) Moatshe v. The State [1987] B.L.R. 139 (HC) s. 3 (1) (b) Mzwinila v. The State [1989] B.L.R. 357 (HC) Kalinga v. The State [1989] B.L.R. 490 (HC) s. 3 (2) (a)(b)& (c) Desai v. The State [1987] B.L.R. 55 (CA) s. 3 (4) Moatshe v. The State [1987] B.L.R. 139 (HC) s. 7 State v. Makhubala [1983] B.L.R. 33 (HC) s. 12 Mohalenyane v. The State [1985] B.L.R. 542 (CA) s. 12 (3) Kgomanyane v. The State [1986] B.L.R. 62 (HC) s. 15 Williams v. The State [1990] B.L.R. 289 (CA) Cap. 66:03 Precious and Semi-Precious Stones Act s. 6 (1) Ramokgwana v. The State [1996] B.L.R. 455 (HC) s. 6 (1) (c) Goabamodimo Silas Raditholo v. The State 1982 (2) B.L.R. 30 (CA) s. 6 (3) Goabamodimo Silas Raditholo v. The State 1982 (2) B.L.R. 30 (CA) Cap. 66:03 (1973 Rev.) Precious and Semi-Precious Stones (Protection) Act Monamodi v. The State [1984] B.L.R. 47 (HC) s. 6 Mpofu v. The State [1986] B.L.R. 351 (HC) s. 6 (1) (c) Motshwarakgole v. The State [1988] B.L.R. 68 (HC) s. 22 Motshwarakgole v. The State (HC) [1988] B.L.R. 68 (HC) s. 22 (a) Mogopodi v. The State [1989] B.L.R. 296 (HC) ss. 25 and 26 Mompati v. Debswana Diamond Co. (Pty.) Ltd. [2000] 1 B.L.R. 252 (HC) Cap. 68:01 Copyright Act ss. 4 (5) and (3) Botswana Football Association v. Kgamane [1998] B.L.R. 153 (CA) Cap. 69:01 Road Traffic Act s. 6 Leketo v. Earth Movers (Pty) Ltd and Another [2003] 2 B.L.R. 321 (HC) s. 8 Leketo v. Earth Movers (Pty) Ltd and Another [2003] 2 B.L.R. 321 (HC) s. 9 (1) Radebe v. The State [1996] B.L.R. 322 (HC) Leketo v. Earth Movers (Pty) Ltd and Another [2003] 2 B.L.R. 321 (HC) s. 9 (2) Leketo v. Earth Movers (Pty) Ltd and Another [2003] 2 B.L.R. 321 (HC) s. 10 Baoki v. The State [2001] 2 B.L.R. 164 (HC) s. 46 Sebenyane v. The State [1990] B.L.R. 549 (HC) s. 46 (1) State v. Batsile (Practice Note) [1991] B.L.R. 125 (HC) Nkwe v. The State [1991] B.L.R. 18 (HC) Tlhomelang v. The State [1991] B.L.R. 33 (HC) Mangole v. The State [1992] B.L.R. 80 (HC) Letsebe v. The State [1996] B.L.R. 895 (HC) Marupi v. The State [1997] B.L.R. 337 (HC) Selogilwe v. The State [2001] 2 B.L.R. 141 (HC) Kwenaetsile v. The State [2002] 1 B.L.R. 162 (HC) Hambundja v. The State [2002] 1 B.L.R. 186 (HC) Modisa v. The State [2004] 1 B.L.R. 401 (HC) Mahupela v. The State [2005] 1 B.L.R. 249 (HC) ss. 46 (1)and 47 (11) Phiri v. The State [2000] 2 B.L.R. 258 (HC) s. 46 (a) (3) Reetsang v. The State (Practice Note) [1996] B.L.R. 933 (HC) ss. 46Aand 46 (1) Kgang v. The State [2000] 1 B.L.R. 313 (HC) s. 46A (1) Bolekane v. The State (Practice Note) [1996] B.L.R. 871 (HC) ss. 46A (3)and 47 (11) Nkile v. The State [1999] 2 B.L.R. 312 (HC) s. 46 (A) (4) Gaamangwe v. The State [2003] 1 B.L.R. 198 (HC) s. 46 A) (5) Gaamangwe v. The State [2003] 1 B.L.R. 198 (HC) s. 46 (A) (6) Malomo v. The State [1997] B.L.R. 1271 (HC) s. 47 (1) Hambundja v. The State [2002] 1 B.L.R. 186 (HC) s. 47 (1) Nkwe v. The State [1991] B.L.R. 18 (HC) s. 47 (6) Kalane v. The State [1991] B.L.R. 11 (HC) Motsumi v. The State [2000] 1 B.L.R. 404 (HC) s. 47 (11) Attorney-General v. Odendaal 1982 (2) B.L.R. 194 (CA) State v. Batsile (Practice Note) [1991] B.L.R. 125 (HC) Tlhomelang v. The State [1991] B.L.R. 33 (HC) Ben v. The State [1990] B.L.R. 83 (HC) Nkwe v. The State [1991] B.L.R. 18 (HC) Mangole v. The State [1992] B.L.R. 80 (HC) Letsebe v. The State [1996] B.L.R. 895 (HC) Mahupela v. The State [2005] 1 B.L.R. 249 (HC) s. 48 Kgakge v. The State [1993] B.L.R. 145 (HC) Tshegofatso Maano v. The State 1982 (1) BLR 95 (HC) s. 48 (1) Gasenna v. The State [1996] B.L.R. 537 (HC) s. 48 (10) Modisa v. The State [2004] 1 B.L.R. 401 (HC) Mahupela v. The State [2005] 1 B.L.R. 249 (HC) s. 49 Motlhalefi Lentswe Mofswane v. The State 1982 (1) B.L.R. 119 (HC) s. 49 (1) Libengo v. The State [1999] 1 B.L.R. 213 (HC) Mabongo v. The State [1999] 1 B.L.R. 182 (HC) Seitshiro v. The State [2001] 2 B.L.R. 228 (HC) s. 49 (a) State v. Mazunga [1990] B.L.R. 426 (HC) Maposa v. The State [1990] B.L.R. 573 (HC) s. 49 (c) Ben v. The State [1990] B.L.R. 83 (HC) Mangole v. The State [1992] B.L.R. 80 (HC) s. 50 State v. Rachata [1995] B.L.R. 498 (HC) s. 50 (1) Maposa v. The State [1990] B.L.R. 573 (HC) Kgakole v. The State [1990] B.L.R. 70 (HC) Modisa v. The State [2004] 1 B.L.R. 401 (HC) s. 50 (1) Badiri v. The State [2004] 2 B.L.R. 443 (HC) s. 52 (2) State v. Batsile (Practice Note) [1991] B.L.R. 125 (HC) s. 52 (5) Van Zyl v. The State [1990] B.L.R. 234 (HC) s. 58 Makosana v. The State [2002] 1 B.L.R. 445 (HC) s. 58 (1) Makosana v. The State [2002] 1 B.L.R. 445 (HC) s. 58 (2) Makosana v. The State [2002] 1 B.L.R. 445 (HC) s. 58 (3) Makosana v. The State [2002] 1 B.L.R. 445 (HC) s. 58 (4) Makosana v. The State [2002] 1 B.L.R. 445 (HC) s. 60 (1) Mhaladi v. The State [1990] B.L.R. 168 (HC) Mhaladi v. The State [1990] B.L.R. 168 (HC) s. 84 (a) Van Zyl v. The State [1990] B.L.R. 234 (HC) s. 128 (1) Chicole v. The Attorney-General [1997] B.L.R. 831 (CA) Cap. 69:01 (1973 Rev.) Road Traffic Act s. 3 Steady v. The State [1983] B.L.R. 153 (HC) s. 7 Steady v. The State [1983] B.L.R. 153 (HC) s. 46 (1) State v. Masie [1983] B.L.R. 147 (HC) Masie v. The State [1983] B.L.R. 200 (CA) Thema v. The State [1984] B.L.R. 213 (HC) Duiker v. The State [1985] B.L.R. 196 (HC) Mathware v. The State [1985] B.L.R. 39 (HC) Matshego v. The State [1989] B.L.R. 106 (HC) s. 46 (2) and proviso State v. Wesson [1986] B.L.R. 357 (HC) s. 47 (1) Matshego v. The State [1989] B.L.R. 106 (HC) s. 47 (2) Matshego v. The State [1989] B.L.R. 106 (HC) s. 47 (3) Letsholo v. The State [1987] B.L.R. 99 (HC) Ramosweu v. The State [1986] B.L.R. 402 (HC) Matshidiso v. The State [1985] B.L.R. 552 (HC) Mathware v. The State [1985] B.L.R. 39 (HC) Koothepile v. The State [1985] B.L.R. 9 (HC) Tumpa v. The State [1987] B.L.R. 51 (HC) s. 47 (6) Ockhwizen v. The State [1998] B.L.R. 241 (HC) s. 47 (11) State v. Masie [1983] B.L.R. 147 (HC) Masie v. The State [1983] B.L.R. 200 (CA) Thema v. The State [1984] B.L.R. 213 (HC) Gaborone v. The State [1988] B.L.R. 210 (HC) s. 47 (11) Matshego v. The State [1989] B.L.R. 106 (HC) s. 48 (1) Kebinwe v. The State [1988] B.L.R. 102 (HC) Disaka v. The State [1983] B.L.R. 142 (HC) Madema v. The State [1985] B.L.R. 209 (HC) Molefe v. The State [1985] B.L.R. 213 (HC) Keaketswe v. The State [1986] B.L.R. 378 (HC) s. 49 (a) Monyamane v. The State [1989] B.L.R. 184 (HC) Montlane v. The State [1987] B.L.R. 286 (HC) Mophale v. The State [1987] B.L.R. 69 (HC) s. 50 Mahwbila v. The State [1984] B.L.R. 56 (HC) s. 50 (1) State v. Tshipo [1984] B.L.R. 165 (HC) s. (2) Mahwbila v. The State [1984] B.L.R. 56 (HC) s. 52 (2) Masie v. The State [1983] B.L.R. 200 (CA) State v. Masie [1983] B.L.R. 147 (HC) s. 56 (1) (b) Ditiker v. The State [1985] B.L.R. 196 (HC) s. 60 Nawa v. The State [1989] B.L.R. 582 (HC) s. 73 Nawa v. The State [1989] B.L.R. 582 (HC) s. 81 (1) Mothuti v. The State [1985] B.L.R. 85 (HC) s. 103 (1) Batshwenyo v. Attorney-General [1989] B.L.R. 75 (HC) Cap. 69:02 Motor Vehicle Insurance Fund Act - Chicole and Another v. The Attorney-General and Another [1996] B.L.R. 426 (IC) s. 2 (1) (d) Madikwe v. Motor Vehicle Insurance Fund [1995] B.L.R. 638 (HC) s. 11 (1) (b) Setumo v. Motor Vehicle Insurance Fund [2002] 1 B.L.R. 405 (HC) s. 15 (1) Mpelega v. Botswana Motor Vehicle Insurance Fund [1997] B.L.R. 130 (CA) Kuvarega v. Botswana Motor Vehicle Insurance Fund [2004] 2 B.L.R. 385 (HC) Tlhako v. Botswana Motor Vehicle Insurance Fund [2005] 2 B.L.R. 441 (HC) s. 15 (3) Mpelega v. Botswana Motor Vehicle Insurance Fund [1996] B.L.R. 919 (HC) s. 15 (4) (a) Madikwe v. Motor Vehicle Insurance Fund [1995] B.L.R. 638 (HC) s. 16 (1) Madikwe v. Motor Vehicle Insurance Fund [1995] B.L.R. 638 (HC) Josaya v. Attorney-General [1993] B.L.R. 472 (HC) s. 16 (2) (a) Mpelega v. Botswana Motor Vehicle Insurance Fund [1996] B.L.R. 919 (HC) s. 19 Majaha-Jartby v. Botswana Motor Vehicle Accident Fund [2003] 2 B.L.R. 81 (CA) s. 21 Majaha-Jartby v. Botswana Motor Vehicle Accident Fund [2003] 2 B.L.R. 81 (CA) s. 21 (3) Majaha-Jartby v. Botswana Motor Vehicle Accident Fund [2003] 2 B.L.R. 81 (CA) Cap. 69:02 (1973 Rev.) Motor Vehicle Insurance Fund Act - Steady v. The State [1983] B.L.R. 153 (HC) ss. 6 and 10 Botswana Motor Vehicle Insurance Fund v. Marobela [1999] 1 B.L.R. 21 (CA) s. 10 Manyeula v. Botswana Motor Vehicle Insurance Fund [1999] 2 B.L.R. 391 (HC) s. 10 (1) Marobela v. Botswana Motor Vehicle Insurance Fund [1998] B.L.R. 505 (HC) s. 11 Erasmus v. Botswana Insurance Co. (Pty.) Ltd. [1985] B.L.R. 107 (HC) Truck Africa (Pty.) Ltd. v. Botzam Services (Pty.) Ltd. [1990] B.L.R. 607 (HC) s. 11 (1) Lobatse Stone Crushers (Pty.) Ltd. v. I.G.I. Botswana Ltd. [1986] B.L.R. 87 (HC) s. 11 (1) (b) Ndlovu v. Motor Vehicle Insurance Fund [1999] 1 B.L.R. 304 (HC) s. 11 (2) (a) Hahn v. Botswana insurance Co. (Pty.) Ltd. [1983] B.L.R. 38 (HC) s. 12 (1) Hahn v. Botswana insurance Co. (Pty.) Ltd. [1983] B.L.R. 38 (HC) Rajah v. Botswana Insurance Co. Ltd. [1988] B.L.R. 141 (HC) s. 14 Truck Africa (Pty.) Ltd. v. Botzam Services (Pty.) Ltd. [1990] B.L.R. 607 (HC) s. 15 Mawerura v. Botswana Motor Vehicle Insurance Fund [1999] 2 B.L.R. 211 (HC) Mawerura v. Botswana Motor Vehicle Insurance Fund [2000] 1 B.L.R. 124 (CA) s. 15 (1) Lobatse Stone Crushers (Pty.) Ltd. v. I.G.I. Botswana Ltd. [1986] B.L.R. 87 (HC) s. 21 Botswana Motor Vehicle Insurance Fund v. Marobela [1999] 1 B.L.R. 21 (CA) Cap. 69:03 Road Transport (Permits) Act s. 5 Tiphe Transport Holdings (Pty) Ltd v. The Attorney-General and Others [2005] 2 B.L.R. 327 (CA) s. 18 Tiphe Transport Holdings (Pty) Ltd v. The Attorney-General and Others [2005] 2 B.L.R. 327 (CA) s. 21 (8) Tsayang Express Services (Pty) Ltd and Others v. Chairman, Transport Appeal Tribunal and Others [2001] 2 B.L.R. 18 (HC) -- Tiphe Transport Holdings (Pty) Ltd v. The Attorney-General and Others [2003] 2 B.L.R. 295 (HC) -- Botswana Bus Operators and Others v. The Attorney-General [2004] 1 B.L.R. 429 (HC) s. 11 TJ Motlogelwa's Express (Pty) Ltd v. The Attorney-General and Others [2004] 2 B.L.R. 465 (HC) Cap. 70:01 Botswana Railways Act s. 30 (2) Botswana Railway Workers Union v. Botswana Railways Organisation [1991] B.L.R. 113 (HC) Cap. 72:04 Broadcasting Act s 10(1)(b) Ntuane v. Your Friends (Pty) Ltd t/a Gabs FM 96.2 and Others [2003] 1 B.L.R. 49 (HC) s 19 Ntuane v. Your Friends (Pty) Ltd t/a Gabs FM 96.2 and Others [2003] 1 B.L.R. 49 (HC) Cap. 74:01 Botswana Power Corporation Act s. 11 (4) Zachariah and Another v. Botswana Power Corporation [1996] B.L.R. 710 (CA) s. 13 (1) Zachariah and Another v. Botswana Power Corporation [1996] B.L.R. 710 (CA) Law 35 of 1964 Botswana Teaching Service Law s. 15 Makgoeng v. Attorney-General [1987] B.L.R. 518 (HC) Legal Practitioners Act s. 30 (1) (e) Masoba v. The Attorney-General and Another [2003] 2 B.L.R. 92 (CA) Act No. 22 of 1978 Statute Law (Miscellaneous Amendment) Act s. 5 Kalabeng v. Attorney-General [1985] B.L.R. 1 (HC) Act No. 5 of 1981 Children's Act s. 2 Molaudi v. The State [1988] B.L.R. 48 (HC) s. 23 (3) Maleke v. The State [1988] B.L.R. 325 (HC) s. 28 State v. Lottering [1986] B.L.R. 444 (HC) State v. Masowa [1989] B.L.R. 24 (HC) State v. Molaudi [1988] B.L.R. 214 (CA) Molaudi v. The State [1988] B.L.R. 48 (HC) s. 29 State v. Molaudi [1988] B.L.R. 214 (CA) Act No. 17 of 1982 Citzenship (Amendment) Act ss. 4 and 5 Attorney-General v. Dow [1992] B.L.R. 119 (CA) Dow v. Attorney-General [1991] B.L.R. 233 (HC) Act No. 20 of 1982 Penal Code (Amendment) Act - Petrus v. The State [1984] B.L.R. 14 (CA) s. 3 State v. Gasebame [1988] B.L.R. 446 (HC) s. 6 Tlounyane v. The State [1989] B.L.R. 552 (CA) Act No. 21 of 1982 Criminal Procedure and Evidence (Amendment) Act - Petrus v. The State [1984] B.L.R. 14 (CA) Act No. 23 of 1982 Trade Disputes (Amendment) Act s. 1 Modise v. Botswana Building Society [1994] B.L.R. 427 (IC) Act No. 25 of 1982 Citzenship Act ss. 4 and 5 Attorney-General v. Dow [1992] B.L.R. 119 (CA) Dow v. Attorney-General [1991] B.L.R. 233 (HC) Act No. 11 of 1984 Habit-Forming Drugs (Amendment) Act s. 2 Desai v. The State [1987] B.L.R. 55 (CA) Act No. 17 of 1984 Citizenship (Amendment) Act ss. 4 and 5 Attorney-General v. Dow [1992] B.L.R. 119 (CA) Dow v. Attorney-General [1991] B.L.R. 233 (HC) Act No. 28 of 1984 Interpretation Act s. 38 (2) Lubala v. The State [1986] B.L.R. 237 (HC) Act No. 29 of 1984 Employment Act s. 38 Setilo v. Tswelelopele Brigade Centre [1988] B.L.R. 33 (HC) Act No. 22 of 1987 Botswana Postal Services Act s. 3 Botswana Postal Services Union v. Director General for Postal Services [1997] B.L.R. 459 (HC) Act No. 5 of 1989 Co-operative Societies Act, 1989 s. 5 (1) Kgamane v. Botswana Football Association and Another [1997] B.L.R. 1096 (HC) s. 5 (2) Kgamane v. Botswana Football Association and Another [1997] B.L.R. 1096 (HC) s. 50 (3) Kgamane v. Botswana Football Association and Another [1997] B.L.R. 1096 (HC) s. 97 (1) Botswana Co-Operative Bank Ltd. v. Charumbira [1997] B.L.R. 941 (HC) Act No. 18 of 1990 Extradition Act ss. 13, 14, and 15 Chalira v. The Republic of Malawi [1998] B.L.R. 256 (HC) Act No. 19 of 1990 Proceeds of Serious Crime Act s. 2 (5) Attorney-General v. Bateng's Building Construction (Pty.) Ltd. and Others [1999] 1 B.L.R. 431 (CA) s. 3 (1) Attorney-General v. Bateng's Building Construction and Others [1999] 1 B.L.R. 169 (HC) Attorney-General v. Bateng's Building Construction (Pty.) Ltd. and Others [1999] 1 B.L.R. 431 (CA) ss. 4 (2) (b)and 5 Attorney-General v. Bateng's Building Construction (Pty.) Ltd. [1999] 1 B.L.R. 431 (CA) Act No. 18 of 1992 Drugs and Related Substances Act, 1992 s. 16 (1) Moumakwa v. The State [1997] B.L.R. 1010 (HC) s. 16 (1) (b) Chukwu v. The State [2000] 2 B.L.R. 17 (CA) Useya v. The State [1995] B.L.R. 708 (HC) s. 16 (2) Moumakwa v. The State [1997] B.L.R. 1010 (HC) s. 16 (3) Ntetu v. The State [1997] B.L.R. 277 (HC) s. 16 (6) Moshokoa v. The State [1999] 1 B.L.R. 172 (HC) Part III Useya v. The State [1995] B.L.R. 708 (HC) s. 17 Useya v. The State [1995] B.L.R. 708 (HC) Act No. 25 of 1992 Public Service (Amendment) Act, 1992 - Ketshwanetse v. The Attorney-General [2000] 1 B.L.R. 1 (HC) Act No. 26 of 1992 Employment (Amendment) Act s. 20 (2) Mosedame v. Institute of Development Management [1998] B.L.R. 72 (CA) Act No. 28 of 1992 Wildlife Conservation and National Parks Act s. 2 Masilompane and Others v. The State [1997] B.L.R. 1201 (HC) s. 3 (b) Oatlhotse v. The State [1995] B.L.R. 381 (HC) s. 19 (1) Oatlhotse v. The State [1995] B.L.R. 381 (HC) s. 24 (1) Limpopo Safaris (Pty.) Ltd. v. The Director Of Wild Life and National Parks and Others [1996] B.L.R. 441 (HC) s. 24 (6) Limpopo Safaris (Pty.) Ltd. v. The Director Of Wild Life and National Parks and Others [1996] B.L.R. 441 (HC) s. 68 (2) State v. Akuje [1994] B.L.R. 475 (HC) s. 71 (1) (d) (3) Masilompane and Others v. The State [1997] B.L.R. 1201 (HC) s. 75 (1) Oatlhotse v. The State [1995] B.L.R. 381 (HC) Act No. 13 of 1993 Penal code Amendment Act - State v. Maphorisa [1995] B.L.R. 568 (HC) s. 230 George v. The State [2000] 1 B.L.R. 365 (HC) Act No. 14 of 1993 Tribal Land (Amendment) Act - Kweneng Land Board v. Madisakwane and Others. [2001] 1 B.L.R. 246 (CA) Act No. 18 of 1993 Road Traffic (Amendment) Act - Mogende v. The State (Practice Note) [2001] 1 B.L.R. 277 (HC) s. 6 Phiri v. The State [2000] 2 B.L.R. 258 (HC) s. 10 Mabongo v. The State [1999] 1 B.L.R. 182 (HC) s. 47 (6) Ockhuizen and Another v. The State [1998] B.L.R. 241 (HC) Act No. 13 of 1994 Corruption and Economic Crime Act No 13 of 1994 - Mphusu and Another v. The State [1997] B.L.R. 845 (HC) Act No. 12 of 1995 Income Tax Act s. 108 Basuti v. The Attorney-General [1999] 1 B.L.R. 231 (HC) Act No. 17 of 1995 Motor Vehicle Theft Act s. 3 (1) Matomela v. The State [2000] 1 B.L.R. 396 (HC) Act No. 18 of 1995 Trade Disputes (Amendment) Act - Lekoba v. Green Industrial Enterprises Corporation [1995] B.L.R. 845 (HC) Act No. 13 of 1996 Legal Practitioners Act s. 5 (1) Bayford v. The Law Society of Botswana [2001] 1 B.L.R. 350 (HC) Act No. 21 of 1996 Stock Theft Act, 1996 s. 3 (5) Joseph v. The State [2000] 1 B.L.R. 93 (CA) s. 3 (1) Mphafe v. The State [2000] 2 B.L.R. 239 (HC) ss. 3 (1) and 4 (a) Mfetane v. The State [1998] B.L.R. 59 (HC) Act No. 22 of 1996 Deeds Registry (Amendment) Act s. 2 (c) Sekga v. Pule and Others [2000] 1 B.L.R. 16 (HC) Act No. 14 of 1997 Trade Disputes (Amendment) Act s. 6A (1) and (3) Lekate v. Automated Security (Pty.) Ltd. [1998] B.L.R. 668 (IC) s. 6A (1) and (3) McLean v. Consolidated Contractors Co. (Pty.) Ltd. [1999] 1 B.L.R. 223 (IC) Thopego v. Botswana Power Corporation [1999] 1 B.L.R. 236 (IC) s. 7 Seone v. Botswana Mining Workers' Union [2000] 2 B.L.R. 61 (IC) Act No. 5 of 1998 Penal Code (Amendment) Act s. 3 State v. Dintwa. (Full Bench) [2000] 2 B.L.R. 72 (CA) Act No. 8 of 1998 Penal Code (Amendment) Act, 1998 s. 147 (3) (a) State v. Lejony [2000] 1 B.L.R. 326 (HC) CRIMINAL PROCEDURE AND EVIDENCE PROCLAMATION (1964-1967) s. 158 Senamolela v. Regina 1964-1967 B.L.R. 89 (HC) s. 172 Ngakaemang v. Regina 1964-1967 B.L.R. 131 (HC) s. 179 (2) Toteng v. Regina 1964-1967 B.L.R. 105 (HC) s. 187 State v. Morapedi 1964-1967 B.L.R. 183 (HC) s. 197 Ramenteba v. Regina 1964-1967 B.L.R. 44 (HC) s. 223 Dabutha v. State 1964-1967 B.L.R. 189 (CA) Paledi v. Regina 1964-1967 B.L.R. 137 (CA) Van Niekerk v. State 1964-1967 B.L.R. 255 (HC) s. 234 Fourie v. Regina 1964-1967 B.L.R. 66 (HC) Mbenge v. State 1964-1967 B.L.R. 241 (HC) s. 235 Maretwang and Another v. Regina 1964-1967 B.L.R. 28 (CA) s. 272 Dabutha v. State 1964-1967 B.L.R. 189 (CA) s. 288 Regina v. Kobita 1964-1967 B.L.R. 40 (HC) s. 314 Regina v. Shamba 1964-1967 B.L.R. 65 (HC) Regina v. Lebekwe 1964-1967 B.L.R. 62 (HC) s. 317 State v. Morapedi 1964-1967 B.L.R. 183 (HC) s. 320 Van Niekerk v. State 1964-1967 B.L.R. 255 (HC) Haffejee v. State 1964-1967 B.L.R. 273 (HC) s. 335 Dabutha v. State 1964-1967 B.L.R. 189 (CA) PENAL CODE (1964-1967) s. 12 Regina v. Xukudi and Another 1964-1967 B.L.R. 61 (HC) s. 39 Senamolela v. Regina 1964-1967 B.L.R. 89 (HC) s. 118 (1) (f) Gomee v. State 1964-1967 B.L.R. 199 (CA) s. 129 Marupung v. Regina 1964-1967 B.L.R. 20 (HC) Monakwe v. Regina 1964-1967 B.L.R. 51 (HC) s. 136 Regina v. Masopo 1964-1967 B.L.R. 125 (HC) s. 177 Haffegee v. State 1964-1967 B.L.R. 273 (HC) s. 179 (1) Regina v. Morapedi 1964-1967 B.L.R. 183 (HC) s. 200 State v. Jewelb 1964-1967 B.L.R. 271 (HC) s. 202 Sejammu v. Regina 1964-1967 B.L.R. 153 (CA) s. 203 Sejammu v. Regina 1964-1967 B.L.R. 153 (CA) s. 204 Sejammu v. Regina 1964-1967 B.L.R. 153 (CA) s. 206 (3) Mokgwathi v. State 1964-1967 B.L.R. 263 (HC) s. 217 Mukano v. State 1964-1967 B.L.R. 259 (HC) s. 219 Senamolela v. Regina 1964-1967 B.L.R. 89 (HC) s. 221 Regina v. Mosiakgabo and Eight Others 1964-1967 B.L.R. 111 (HC) s. 229 (a) Malope v. Regina 1964-1967 B.L.R. 133 (CA) s. 271 Regina v. BosetIhe 1964-1967 B.L.R. 72 (HC) Mpuang v. State 1964-1967 B.L.R. 175 (HC) s. 274 Regina v. BosetIhe 1964-1967 B.L.R. 72 (HC) Regina v. Xiko 1964-1967 B.L.R. 60 (HC) s. 275 Fourie v. Regina 1964-1967 B.L.R. 66 (HC) s. 299 Regina v. Morapedi 1964-1967 B.L.R. 183 (HC) s. 302 Regina v. Rantololoktane 1964-1967 B.L.R. 76 (HC) Mpuang v. State 1964-1967 B.L.R. 175 (HC) State v. Morapedi 1964-1967 B.L.R. 183 (HC) s. 303 Mpuang v. State 1964-1967 B.L.R. 175 (HC) s. 316 Rakgome v. State 1964-1967 B.L.R. 177 (HC) Regina v. Abdul Carrim Khan 1964-1967 B.L.R. 83 (HC) s. 319 Senamolela v. Regina 1964-1967 B.L.R. 89 (HC) SUBSIDIARY LEGISLATION JUDICIALLY CONSIDERED 1964 - 2005v2 Cap. 04:01 (Sub. Leg.) Rules of the Appeal Court r. 8 (1) Solomon v. The Attorney-General [1997] B.L.R. 663 (CA) r. 12 (1) Bomo (Pty.) Ltd. v. Zakhem Construction Botswana (Pty.) Ltd. and Others [1996] B.L.R. 729 (CA) Attorney-General v. Weighbridge Staff [1995] B.L.R. 251 (CA) r. 12 (1), (2) and (4) Kgositau v. Serowe Brigades Development Trust. [2000] 2 B.L.R. 167 (CA) r. 12 (2) Bomo (Pty.) Ltd. v. Zakhem Construction Botswana (Pty.) Ltd. and Others [1996] B.L.R. 729 (CA) r. 12 (3) Bomo (Pty.) Ltd. v. Zakhem Construction Botswana (Pty.) Ltd. and Others [1996] B.L.R. 729 (CA) r. 13 C.F. Industries (Pty.) Ltd. v. The Attorney-General and Another [1997] B.L.R. 657 (HC) r. 13 Solomon v. The Attorney-General [1997] B.L.R. 663 (CA) r. 13 (1) Bomo (Pty.) Ltd. v. Zakhem Construction Botswana (Pty.) Ltd. and Others [1996] B.L.R. 729 (CA) r. 13 (2) Mtui v. Mtui [2001] 1 B.L.R. 29 (CA) r. 18 Bomo (Pty.) Ltd. v. Zakhem Construction Botswana (Pty.) Ltd. and Others [1996] B.L.R. 729 (CA) r. 19 Bomo (Pty.) Ltd. v. Zakhem Construction Botswana (Pty.) Ltd. and Others [1996] B.L.R. 729 (CA) r. 27 Big Game Development Company Botswana (Pty.) Ltd. and Another v. De Kock and Another [1996] B.L.R. 145 (CA) r. 29 (1) Phodisong Pharmacy (Pty) Ltd v. Barolong Shoe Wholesalers (Pty) Ltd [2002] 2 B.L.R. 56 (CA) r. 30 Lefatlho v. Mathe [1995] B.L.R. 453 (CA) r. 33 Matlapeng v. The State (Practice Note) [1991] B.L.R. 369 (CA) Cap. 04.02 (Sub. Leg.) Rules of the High Court Ord. 1, r. 3 Lefatlo v. Mathe [1996] B.L.R. 106 (CA) T. C. and Sons (Pty.) Ltd. v. Skanska A. B. [1991] B.L.R. 159 (HC) Ord. 4, r. 1 Regadas v. Martins [2001] 2 B.L.R. 361 (HC) Ord. 4, r. 1 Regadas v. Martins [2002] 2 B.L.R. 63 (CA) Ord. 4, r. 2 Regadas v. Martins [2001] 2 B.L.R. 361 (HC) Ord. 4, r. 3 Regadas v. Martins [2001] 2 B.L.R. 361 (HC) Ord. 5, r. 1 De Graaf v. Ramokwena [2000] 1 B.L.R. 224 (HC) U.L.C. (Pty) Ltd v. Rays Transport [2001] 2 B.L.R. 82 (HC) Regadas v. Martins [2002] 2 B.L.R. 63 (CA) Ord. 5, r. 2 First National Bank of Botswana Ltd. t/a Wesbank v. Ditshotlo (Practice Note) [2000] 2 B.L.R. 233 (HC) Ord. 5, r. 3 (1) Techmin Botswana (Pty.) Ltd. v. Semphete Cattle Agents and Auctioneers [1991] B.L.R. 127 (HC) Ord. 6 Botswana Unified Local Government Service Association v. The Attorney-General [1998] B.L.R. 495 (HC) Ord. 6 r. 3 Poloko v. Mmereki and Another [2005] 2 B.L.R. 64 (HC) Ord. 6, r. 4 (a) Sesai v. Madisa [1990] B.L.R. 109 (HC) Ord. 6, r. 4 (e) Lekone v. Mokibelo In Re Mokibelo v. Lekone [2004] 2 B.L.R. 482 (HC) Ord. 6, r. 5 Mafokate v. Mafokate [2000] 2 B.L.R. 430 (HC) Ord. 7, r. 2 (1) and (3) Chicole v. Francistown Town Council. [2000] 2 B.L.R. 171 (CA) Ord. 8, r. 1 (1) Sekoko v. Sekoko [1999] 1 B.L.R. 270 (HC) Ord. 8, r. 2 (2) (f) Daewood Corporation Ltd. v. Epang (Pty.) Ltd. [1991] B.L.R. 146 (HC) Ord. 8, r. 2 (2) Gaam Associates (Pty.) Ltd. v. Ogbugo [1995] B.L.R. 683 (HC) J.B. Services (Pty.) Ltd. v. Nomboio [1993] B.L.R. 156 (HC) Ord. 8, r. 8 Endura (Pty.) Ltd. v. Skansa A.B. [1992] B.L.R. 86 (HC) Ord. 9, r. 1 International Voluntary Service v. John Beck 1982 (2) B.L.R. 12 (HC) Ord. 9, r. 1 (2) Seiswane v. Central District Council [2004] 1 B.L.R. 108 (HC) Ord. 10, r. 13 Late Our Properties (Pty.) Ltd. and Another v. First National Bank of Botswana Ltd. and Another [1997] B.L.R. 618 (HC) Ord. 11, r. 1 (1) Pragassa v. Pragassa [2002] 2 B.L.R. 252 (HC) Ord. 12 Ketsahbile v. Information Trust Co. Botswana [1997] B.L.R. 1157 (HC) O'Reilly v. Gibbons and Another [2001] 2 B.L.R. 605 (HC) Ord. 12, r. 1 Midec (Pty.) Ltd. v. J.S. Industries (Pty.) Ltd. [1998] B.L.R. 248 (HC) Nyangabgwe Academy (Pty) Ltd v. Tati Company (Pty) Ltd [2001] 2 B.L.R. 359 (HC) Ord. 12, r. 2 The Evangelical Lutheran Church In Southern Africa v. Phillip Jeremiah Robinson & Another 1982 (1) B.L.R. 215 (CA) Ord. 12, r. 3 First National Bank of Botswana Ltd. t/a Wesbank v. Ditshotlo (Practice Note) [2000] 2 B.L.R. 233 (HC) Ord 12 r 4 (1) Mamadi v. The State [2005] 1 B.L.R. 295 (HC) Ord. 12, r. 6 Molapisi v. The Attorney-General and Another [1999] 1 B.L.R. 519 (HC) Ord. 12, r. 6 (1), 13, rr. 3 (2) and 10 Mogatusi v. Elma Building Construction (Pty.) Ltd. and Another [1998] B.L.R. 554 (HC) Ord. 12, r. 6 (1) Phumusa v. Orebotse [2001] 2 B.L.R. 233 (HC) AST Botswana (Pty) Ltd v. The Public Procurement and Asset Disposal Board and Others [2005] 1 B.L.R. 504 (HC) Ord. 12, r. 6 (2) Kgotso v. Botswana General Insurance Ltd. [1997] B.L.R. 1107 (HC) Ncube v. Tsetse [2001] 1 B.L.R. 287 (HC) Ord. 12 r. 6 (4) African Holdings (Pty) Ltd v. Solomon and Others: In re Tawana Land Board and Another v. Mopalo and Others [2003] 2 B.L.R. 189 (HC) Ord 12 r. (6) (5) Sesana and Others v. The Attorney-General [2002] 1 B.L.R. 452 (HC) Ord. 12, r. 6 (6) and (9) Ghanzi District Council v. A.K. Construction (Pty.) Ltd. [2000] 2 B.L.R. 362 (HC) Ord. 12, r. 6 (10) Ditshwanelo v. The Attorney-General (No. 2) [1999] 2 B.L.R. 222 (HC) Abdool v. Forchu [2000] 2 B.L.R. 226 (HC) Ord. 12, r. 11 Attorney-General v. Allen [1997] B.L.R. 1030 (HC) Ord. 12, r. 12 Attorney-General v. Allen [1997] B.L.R. 1030 (HC) Ord. 12, r. 13 Phumusa v. Orebotse [2001] 2 B.L.R. 233 (HC) Ord. 12, r. 13 (1) Big Game Development Company (Botswana) (Pty.) Ltd. v. De Kock [1997] B.L.R. 301 (HC) Ord. 12, r. 13 (2) Big Game Development Company (Botswana) (Pty.) Ltd. v. De Kock [1997] B.L.R. 301 (HC) Letsoalo v. Lesuma Trading Co. (Pty.) Ltd. [1993] B.L.R. 214 (HC) Ord. 12, r. 14 Attorney-General v. Allen [1997] B.L.R. 1030 (HC) Ord. 12, r. 15 Attorney-General v. Allen [1997] B.L.R. 1030 (HC) Ord. 13, r. 5 E. K. M. Enterprises v. Silongo and Another [1997] B.L.R. 1002 (HC) Ord. 13, r. 12 Kgotso v. Botswana General Insurance Ltd. [1997] B.L.R. 1107 (HC) Auto Rhine (Pty.) Ltd. v. Zentek Electronics Botswana (Pty.) Ltd. and Another [1997] B.L.R. 1309 (HC) Ord. 13, r. 12 Seretse v. Begwe [1990] B.L.R. 559 (HC) Ord 13 r. 12 (1) Sesana and Others v. The Attorney-General [2002] 1 B.L.R. 452 (HC) Ord. 13, r. 14 (1) Thamatlhogo Training and Conference Centre (Pty.) Ltd. v. Botswana Development Corporation [1999] 1 B.L.R. 94 (CA) Ord. 15, r. 1 (1) Vuma v. Makota [1992] B.L.R. 31 (HC) Ord. 16, r. 9 (2) Moorad v. Mochudi Wholesalers (Pty) Ltd [2001] 2 B.L.R. 193 (HC) Ord. 18, r. 2 Students' Representative Council of Molepolole College of Education v. The Attorney-General [1995] B.L.R. 178 (CA) Masowe Syndicate v. Motladiile [2001] 2 B.L.R. 751 (HC) Chintala v. Mater Spei College [2003] 2 B.L.R. 348 (HC) Patson and Others v. Botswana National Front and Others [2004] 2 B.L.R. 478 (HC) Ord. 18, r. 7 Masowe Syndicate v. Motladiile [2001] 2 B.L.R. 751 (HC) Chintala v. Mater Spei College [2003] 2 B.L.R. 348 (HC) Ord. 19, r. 3 Lepane v. Chimidza [2004] 1 B.L.R. 42 (CA) Ord. 20 Mosaninda v. The Attorney-General [1994] B.L.R. 411 (HC) Ord. 20, r. 1 Moesi v. Elma Buildings (Pty) Ltd and Another [2003] 2 B.L.R. 400 (HC) Ord. 20, r. 3 (1) Raju Paunikar v. The Spiritual Assembly of the Bahais [1995] B.L.R. 729 (HC) Maleka v. Maleka and Another [1997] B.L.R. 1078 (HC) Selebi-Phikwe Town Council v. Milanda [2002] 1 B.L.R. 495 (HC) Thusang Investments (Pty) Ltd v. Lion Properties (Pty) Ltd [2004] 1 B.L.R. 171 (HC) Ord. 20, r. 4 (1) Bruwer and Another v. Commonwealth Development Corporation [1997] B.L.R. 954 (HC) Ord. 20, r. 4 (2) Bruwer and Another v. Commonwealth Development Corporation [1997] B.L.R. 954 (HC) Martex Trading t/a Builders Merchants Botswana v. Llyod [1998] B.L.R. 201 (HC) Ord. 20, r. 5 (1) Bruwer and Another v. Commonwealth Development Corporation [1997] B.L.R. 954 (HC) Ord. 20, r. 5 (2) Bruwer and Another v. Commonwealth Development Corporation [1997] B.L.R. 954 (HC) Ord. 20, r. 17 (2) Ketsahbile v. Information Trust Co. Botswana [1997] B.L.R. 1157 (HC) Ord. 20, r. 19 (1) Desai v. Madisa [1990] B.L.R. 109 (HC) Matenge v. Mugaza [1991] B.L.R. 164 (HC) Raju Paunikar v. The Spiritual Assembly of the Bahais [1995] B.L.R. 729 (HC) Liberty Manufacturers (Pty) Ltd v. Botswana Development Corporation [2001] 2 B.L.R. 478 (HC) Male v. Regent Insurance Botswana (Pty) Ltd [2002] 2 B.L.R. 243 (HC) Ord. 20, r. 20 Western Industrial Estate (Pty) Ltd v. Maxi Save (Pty) Ltd [2001] 1 B.L.R. 406 (HC) Ord. 20, r. 20 (2) Leketo v. Earth Movers (Pty) Ltd [2001] 1 B.L.R. 278 (HC) Ord. 20, r. 20 (1) (b) Mogorosi v. Bukinemu Enterprises (Pty) Ltd t/a Sunday Tribune and Another [2003] 2 B.L.R. 360 (HC) Ord. 23, r. 3 Botipeng v. Healthcare Holdings (Pty.) Ltd. t/a Gaborone Private Hospital. [2000] 2 B.L.R. 112 (CA) Ord. 25, r. 3 (1) Lekoto v. Earth Movers (Pty) Ltd [2001] 1 B.L.R. 278 (HC) Ord. 25, r. 4 Western Industrial (Pty) Ltd v. Maxi Save (Pty) Ltd [2001] 1 B.L.R. 406 (HC) Ord 25, r 12 Singh v. Merwitz and Others [2005] 1 B.L.R. 378 (HC) Ord. 26 Stardust (Pty) Ltd t/a Rohn Industrial Education Supplies v. Drewett t/a National Fire Protection Services [2004] 1 B.L.R. 118 (HC) Ord 27, r. 2 Western Industrial Estates (Pty) Ltd v. Maxi Save (Pty) Ltd [2002] 1 B.L.R. 104 (CA) Ord. 27, r. 4 Chicole v. Francistown Council [1994] B.L.R. 95 (CA) Ord. 28, r. 11 Kwelagobe v. Kgabo [1994] B.L.R. 129 (HC) Ord. 30 Mahajan v. Trans Lobatse (Pty.) Ltd. [1995] B.L.R. 772 (HC) Ord. 30, r. 2 Chicole v. Attorney-General [1993] B.L.R. 257 (CA) Moshapa v. Kgosi. [2000] 2 B.L.R. 90 (CA) Ord. 30, r. 9 (2) Molapisi v. Akambakamba (Practice Note) [1991] B.L.R. 357 (HC) Ord. 30, r. 2 Kgosi v. Moshapa [2000] 1 B.L.R. 442 (HC) Ord. 30, r. 7(1)(a) Legase v. Legase [2003] 2 B.L.R. 383 (HC) Ord. 30, r. 7(1)(b) Legase v. Legase [2003] 2 B.L.R. 383 (HC) Ord. 30, r. 7(1)(c) Legase v. Legase [2003] 2 B.L.R. 383 (HC) Ord. 31, r. 2 Whitaker and Others v. O & W Construction (Pty) Ltd [2001] 2 B.L.R. 1 (HC) Ord. 31, r. 4 Nkgoweng and Another v. The Attorney-General [2000] 1 B.L.R. 446 (HC) Sun International Botswana (Pty.) Ltd. v. Fairdeal Botswana (Pty.) Ltd. [1991] B.L.R. 378 (CA) Chicole and Others v. The Attorney-General [1996] B.L.R. 89 (CA) Multi Construction Building and Engineering v. Water Engineering [2000] 1 B.L.R. 430 (HC) Ord. 31, r. 13 Kgote N.O. v. Pilane; Kgote N.O. v. Pilane and Associates [1995] B.L.R. 279 (HC) Ord. 31, r. 13 (1) Mahajan v. Trans Lobatse (Pty.) Ltd. [1995] B.L.R. 772 (HC) Ord. 31, r. 13 (1) Dikeledi v. Matlapeng [1998] B.L.R. 372 (HA) Mokganedi v. Jawe [2000] 1 B.L.R. 439 (HC) Ord 31, r. 13 (1) Moatswi v. BGI Liquor (Pty) Ltd [2002] 1 B.L.R. 534 (HC) Ord 31, r. 13 (2) Moatswi v. BGI Liquor (Pty) Ltd [2002] 1 B.L.R. 534 (HC) Mahajan v. Trans Lobatse (Pty.) Ltd. [1995] B.L.R. 772 (HC) Mathabela and Another v. Mogobe and Others [1996] B.L.R. 750 (CA) Ord. 32 Commonwealth Development Corporation v. Bruwer and Another [2000] 1 B.L.R. 415 (HC) Ord. 33, (1) Bigzy Holdings (Pty) Ltd v. ESO Management Services (Pty) Ltd and Others [2001] 2 B.L.R. 722 (HC) Ord. 34 Botswana Co-Operative Bank Ltd. v. Charumbira [1997] B.L.R. 941 (HC) Attorney-General v. Allen [1997] B.L.R. 1030 (HC) First National Bank of Botswana Ltd. v. Airmaster Air Conditioning (Pty.) Ltd. [2000] 1 B.L.R. 116 (CA) Tawana Land Board v. Ker and Downey (Botswana) (Pty.) Ltd.. [2000] 2 B.L.R. 183 (CA) Ord. 34, r. 1 Botswana Housing Corporation v. Letsholo [1993] B.L.R. 399 (HC) Moshawa Holdings (Pty.) Ltd. v. John Burrows and Partners (Botswana) Ltd. [1994] B.L.R. 70 (CA) Fashion Enterprises (Pty.) Ltd. v. Image (Botswana) (Pty.) Ltd. [1994] B.L.R. 288 (CA) Phodisong Pharmacy (Pty) Ltd v. Barolong Shoe Wholesalers (Pty) Ltd [2002] 2 B.L.R. 56 (CA) Ord. 34, r. 1 (b) Barclays Bank of Botswana Ltd. v. Ebrahim [1995] B.L.R. 298 (HC) First National Bank of Botswana (Pty.) Ltd. v. Tshimotharo Supermarket (Pty.) Ltd. [1994] B.L.R. 369 (HC) Klette v. Dick Drilling Services [1994] B.L.R. 432 (HC) Blade Services (Pty.) Ltd. v. G.I.E.C. (Pty.) Ltd. [2000] 2 B.L.R. 311 (HC) Ord. 34, r. 2 Shell Oil Botswana (Pty.) Ltd. v. Mulder [1993] B.L.R. 62 (HC) Fashion Enterprises (Pty.) Ltd. v. Image (Botswana) (Pty.) Ltd. [1993] B.L.R. 419 (HC) Economy Investments v. First National Bank of Botswana [1996] B.L.R. 828 (CA) Eire Contractors (Pty) Ltd v. Bateleur Mining & Exploration [2005] 2 B.L.R. 56 (HC) Ord. 34, r. 2 (1) Liquidator, Botswana Co-Operative Bank Ltd. v. Moisakamo [1997] B.L.R. 965 (HC) Barclays Bank of Botswana Ltd. v. Kala [1997] B.L.R. 1101 (HC) Thamatlhogo Training and Conference Centre (Pty.) Ltd. v. Botswana Development Corporation [1999] 1 B.L.R. 94 (CA) Mesotlo v. Davies [2000] 1 B.L.R. 376 (HC) PMG Building Construction (Pty) Ltd and Another v. Barclays Bank of Botswana Ltd [2001] 1 B.L.R. 266 (CA) BP Botswana v. Estate Construction [2001] 2 B.L.R. 224 (HC) Ord 34, r. 2 (1) Point Trading (Pty) Ltd v. Fencing Centre (Pty) Ltd [2002] 1 B.L.R. 530 (HC) Ord. 34, r. 2 (3) Marketing (Pty) Ltd v. Mosarwe [2001] 1 B.L.R. 302 (HC) Barolong Shoe Wholesalers (Pty) Ltd v. Phodisong Pharmacy (Pty) Ltd [2002] 1 B.L.R. 436 (HC) Botswana Telecommunications Corporation v. Othusitse [2003] 1 B.L.R. 548 (HC) Ord. 34, r. 3 Letsholo v. Botswana Housing Corporation [1994] B.L.R. 87 (CA) First National Bank of Botswana (Pty.) Ltd. v. Tshimotharo Supermarket (Pty.) Ltd. [1994] B.L.R. 369 (HC) Botswana Co-Operative Bank Ltd. v. Charumbira [1997] B.L.R. 941 (HC) Ord. 34, r. 3 (b) Barclays Bank of Botswana Ltd. v. Kala [1997] B.L.R. 1101 (HC) Bathusi Transport (Pty.) Ltd. v. Akanya (Pty.) Ltd. [1996] B.L.R. 522 (HC) Brickforce Botswana (Pty) Ltd t/a Kwena Brickforce v. M A D Motors (Pty) Ltd [2002] 1 B.L.R. 344 (HC) Du Setto (Sunnyside II) (Pty.) Ltd. v. Financial Services Co. of Botswana [1994] B.L.R. 274 (CA) Ord 34, r. 3 (b) Klette v. Dick Drilling Services [1994] B.L.R. 432 (HC) Liquidator, Botswana Co-Operative Bank Ltd. v. Moisakamo [1997] B.L.R. 965 (HC) Calgen Car Clinic (Pty.) Ltd. v. Wesley Moemedi Seleka t/a Uncle Wes Gas Supply and Cement [2000] 2 B.L.R. 438 (HC) Ord 34 r. 3 (b) Moatswi v. BGI Liquor (Pty) Ltd [2002] 1 B.L.R. 534 (HC) Ord. 34, r. 5 Tamlac (Pty.) Ltd. v. Dijeng [1999] 1 B.L.R. 84 (CA) Ord. 34, r. 9 (1) Sebusi v. Metro Cash & Carry Ltd. [1997] B.L.R. 886 (HC) Ord. 35, r. 1 Kwelagobe v. Kgabo [1994] B.L.R. 129 (HC) Ord. 36, r. 2 Moshapa v. Kgosi. [2000] 2 B.L.R. 90 (CA) Ord. 36, r. 4 Nkgoweng and Another v. The Attorney-General [2000] 1 B.L.R. 446 (HC) Ord. 36, r. 5 Faziri v. Faziri and Others [2003] 1 B.L.R. 605 (HC) Ord. 36, r. 11 (1) Mehtar v. Deputy-Sheriff (Gaborone) [1985] B.L.R. 348 (HC) Ord. 39, r. 1 (1) Mphusu and Another v. The State [1997] B.L.R. 845 (HC) Ord. 39, r. 5 Seitshiro v. The Attorney-General [1999] 1 B.L.R. 127 (CA) Viljoen v. Du Plessis [2004] 1 B.L.R. 141 (HC) Ord 42 Mase v. Nkomo [2002] 1 B.L.R. 491 (HC) Ord. 42, r. 1 (3) S v. Sejabope 1981 B.L.R. 257 (HC) Ord 43 Seroke v. The Attorney-General [2002] 1 B.L.R. 546 (HC) Thaba v. Mafoko [2001] 2 B.L.R. 701 (HC) Ord. 47, r. 4 Senabye v. Senabye [2004] 1 B.L.R. 110 (HC) Ord. 48 Mahajan v. Trans Lobatse (Pty.) Ltd. [1995] B.L.R. 772 (HC) Botipeng v. Healthcare Holdings (Pty.) Ltd. t/a Gaborone Private Hospital. [2000] 2 B.L.R. 112 (CA) Ord. 48, r. 1 National Development Bank v. Mogatwane [1996] B.L.R. 755 (CA) Bophelo Bakery (Pty.) Ltd. v. Cargo Monnanyana v. The State [2002] 1 B.L.R. 72 (CA) Ord. 48, r. 1 (a) Romela Internet Communications (Pty) Ltd & Another v. IBM Botswana (Pty) Ltd [2003] 1 B.L.R. 260 (HC) Bagidi v. Oketsang and Another [2003] 1 B.L.R. 571 (HC) Bophelo Bakery (Pty.) Ltd. v. Cargo Carriers (Pty.) Ltd. [2000] 2 B.L.R. 235 (HC) Attorney-General v. Allen [1997] B.L.R. 1030 (HC) Ndjodze v. Kuteeue and Others [1997] B.L.R. 1111 (HC) Ncube v. Tsetse [2001] 1 B.L.R. 287 (HC) Ngubo v. Ngubo [2002] 2 B.L.R. 204 (HC) Moorad v. Mochudi Wholesalers (Pty) Ltd [2001] 2 B.L.R. 193 (HC) Lekone v. Mokibelo In Re Mokibelo v. Lekone [2004] 2 B.L.R. 482 (HC) In Re: Racewood Investments (Pty) Ltd v. The Attorney-General and Others [2005] 2 B.L.R. 413 (HC) Ord. 48, r. 1 (a) and (b) Ghanzi District Council v. A.K. Construction (Pty.) Ltd. [2000] 2 B.L.R. 362 (HC) Ord 48 r. (1) (b) Kangootui v. Kasume and Others [2002] 1 B.L.R. 7 (HC) Ord. 48, r. 1 (b) and (c) Keothepile v. Keothepile and Another [2001] 1 B.L.R. 34 (HC) Ord. 48, r. 1 (c) Multi Construction Building and Engineering v. Water Engineering [2000] 1 B.L.R. 430 (HC) Ord. 50 Mahajan v. Trans Lobatse (Pty.) Ltd [1995] B.L.R. 772 (HC) Nkgoweng and Another v. The Attorney-General [2000] 1 B.L.R. 446 (HC) Moshapa v. Kgosi. [2000] 2 B.L.R. 90 (CA) Ord. 52 Segopolo & Company v. Moabankwe [2003] 1 B.L.R. 623 (HC) Ord. 52, r. 2 (2) Student Representative Council v. Mpotokwane [1988] B.L.R. 276 (HC) Ord. 52, r. 7 (1) Letegele v. Chocoloza Building and Construction (Pty.) Ltd. [1995] B.L.R. 289 (HC) r. 3 (b) Barclays Bank of Botswana Ltd. v. Ebrahim [1995] B.L.R. 298 (HC) Ord 52, r. 12 Tswelelo (Pty) Ltd v. Rysana Construction (Pty) Ltd and Another [2005] 1 B.L.R. 396 (HC) Ord. 52, r. 12 (9) Leeba (Pty.) Ltd. v. First National Bank of Botswana Ltd. and Others [1997] B.L.R. 134 (CA) Ord. 52, rr. 1, 3 (1) (a), (b) and (c), and 12 (1), (2) and (3) Happy Acres (Pty.) Ltd. v. Gaborone City Council [1999] 2 B.L.R. 261 (HC) Ord. 52, rr. 1, 8 (a) (ii), 12 (3), (6), (9) and (18) De Graaf v. Ramokwena [2000] 1 B.L.R. 224 (HC) Ord. 52, rr. 3 and 4 Ngwato v. Monarch Steel (Pty.) Ltd. [1998] B.L.R. 77 (CA) Ord. 52, rr. 3 (1) and 4 Mpuchane v. Metro Sefalana Cash and Carry Ltd [2001] 1 B.L.R. 467 (HC) Ord. 53 Botswana Co-operative Bank Ltd. v. Noor [1999] 1 B.L.R. 248 (HC) Noor and Others v. Botswana Co-operative Bank Ltd. (Full Bench) [1999] 1 B.L.R. 443 (CA) Ord. 55, r. 2 (1) Thipe v. Moirapula and Others [1999] 1 B.L.R. 266 (HC) Ord. 57, r. 3 MSP Africa Export C.C. v. Sunrise Imports Exports (Pty.) Ltd. t/a Chanway Impex Importers & Exporters [1997] B.L.R. 878 (HC) First National Bank of Botswana Ltd t/a Wesbank v. Buberwa [2001] 2 B.L.R. 34 (HC) Ord. 58 Permanent Secretary, Ministry of Health and Another v. Acquah-Dadzie and Another [2003] 1 B.L.R. 270 (HC) Akanya (Pty.) Ltd. v. Bathusi Transport (Pty.) Ltd. [1997] B.L.R. 168 (HC) Ord. 59, rr. 1 and 9 Mass Foods & Chemical Industries (Pty) Ltd v. Jalal and Others, In re Jalal and Another v. Khan and Others [2001] 1 B.L.R. 454 (HC) Ord. 60, r. 1 (1) Mphusu and Another v. The State [1997] B.L.R. 845 (HC) Boakgomo v. The State [1999] 1 B.L.R. 309 (HC) Ord. 61 Keatsutswe v. The State [1990] B.L.R. 176 (HC) Akanya (Pty.) Ltd. v. Bathusi Transport (Pty.) Ltd. [1997] B.L.R. 168 (HC) Ditswane v. Botswana Railways [1997] B.L.R. 1088 (HC) Botswana Unified Local Government Service Association v. The Attorney-General [1998] B.L.R. 495 (HC) Gulubane v. The Attorney-General and Others [2002] 2 B.L.R. 224 (HC) Molapisi v. The Attorney-General and Another [1999] 1 B.L.R. 519 (HC) Nyoni v. Chairman, Air Botswana Disciplinary Committee [1999] 2 B.L.R. 15 (HC) Ord. 61, r. 1 Maygillip v. Mfolwe and Others [1997] B.L.R. 1263 (HC) Mogaladi v. The Attorney-General and Another [2002] 2 B.L.R. 140 (HC) Mokotedi v. The Attorney-General [1998] B.L.R. 645 (HC) Ord. 61, r. 2 Maygillip v. Mfolwe and Others [1997] B.L.R. 1263 (HC) Ord. 61, r. 8 (d) State v. Lello [1992] B.L.R. 46 (HC) Ord. 61, r. 20 Mosebi v. The Attorney-General and Others [2001] 2 B.L.R. 349 (HC) Ord. 64, r. 5 Kirkbright v. ULC (Pty.) Ltd. and Others [2000] 1 B.L.R. 322 (HC) Ord. 71 T. C. and Sons (Pty.) Ltd. v. SKanska A. B. [1991] B.L.R. 159 (HC) Ord. 71, r. 2 (1) PG Glass (Pty) Ltd v. Skepcon (Pty) Ltd [2005] 2 B.L.R. 66 (HC) Ord. 71, r. 4 Transcontinental Import & Export Company (Pty) Ltd and Another v. Building Concepts (Pty) Ltd and Others [2004] 2 B.L.R. 512 (HC) Form 28 Barclays Bank of Botswana v. Mokopotsa t/a Boikhutso Small General Dealer [2002] 1 B.L.R. 419 (HC) r. 8 Anaesthesia Intensive Care & Emergency Medical (Pty) Ltd v. MRI Botswana Ltd [2002] 1 B.L.R. 432 (HC) Schedule Form 27 Segopolo & Company v. Moabankwe [2003] 1 B.L.R. 623 (HC) Cap. 04:02 (Sub. Leg.) (1973 Rev.) Rules of the High Court Ord. 4, r. 2 (1) Scotsca v. Tswapong Engineering [1989] B.L.R. 35 (HC) Ord. 4, r. 3 Paradzayi v. Paradzayi [1988] B.L.R. 183 (HC) Ord. 4, r. 3 (c) Kgwasiwa v. Mello [1987] B.L.R. 1 (HC) Ord. 4, r. 14 Ngope v. O'Brien Quinn [1986] B.L.R. 335 (CA) Ord. 4, r. 6 Kgwasiwa v. Mello [1987] B.L.R. 1 (HC) Ord. 4, r. 8 Kgwasiwa v. Mello [1987] B.L.R. 1 (HC) Ord. 5, r. 3 (2) (b) Mhlaudi v. Pame Construction (Pty.) Ltd. [1989] B.L.R. 16 (HC) Ord. 5, r. 3 (2) (b) 4 Pillar v. A and S Manufactures (Practice Note) [1988] B.L.R. 430 (HC) Ord. 5, r. 3 (2) (v) Hahn v. Botswana Insurance Co. (Pty.) Ltd. [1983] B.L.R. 38 (HC) Ord. 5, r. 3 (e) Cachalia v. Maun Bakery and Butchery (Pty.) Ltd. [1988] B.L.R. 3 (HC) Ord. 6, r. 2 Ucanda v. Ucanda [1989] B.L.R. 21 (HC) Ord. 7, r. 12 (1) and (2) Incorporated General Insurance Ltd. v. Attorney-General [1988] B.L.R. 45 (HC) Ord. 7A, r. 14 (1) and (2) Mokone v. Mokone [1989] B.L.R. 323 (HC) Ord. 8, r. 11 Marobela v. Jamor (Pty.) Ltd. t/a Steel King [1983] B.L.R. 83 (HC) Ord. 14, r. 3 Mhiemang v. Pilane [1989] B.L.R. 364 (HC) Kebatsholetse v. Madzonga [1989] B.L.R. 414 (HC) Ord. 14, r. 4 Kgopo v. Ketsitlile [1988] B.L.R. 283 (HC) Ord. 14, r. 7 Kablay v. Attorney-General [1985] B.L.R. 20 (HC) Ord. 14, r. 8 Van Der Colf v. Sebusi [1989] B.L.R. 281 (HC) Ord. 14, r. 26 Ngope v. O'Brien Quinn [1987] B.L.R. 300 (HC) Ord. 15 Paradzayi v. Paradzayi [1988] B.L.R. 183 (HC) Ord. 19, r. 5 Pillar v. A and S. Manufactures (Practice Note) [1988] B.L.R. 430 (HC) Ord. 19, r. 11 Tladi v. Kuhlman [1983] B.L.R. 171 (HC) Lahri v. Botswana Liquor Manufacturers (Pty.) Ltd. [1988] B.L.R. 361 (HC) Mhlaudi v. Pame Building Construction (Pty.) Ltd. [1989] B.L.R. 16 (HC) Ord. 22, r. 2 Kgalagadi Breweries (Pty.) Ltd. t/a Segwana Liquor Distributors v. Jack Frost (Pty.) Ltd. [1989] B.L.R. 100 (HC) Ord. 22, r. 2, 3 Kgalagadi Breweries (Pty.) Ltd. t/a Segwana Liquor Distributors v. Jack Frost (Pty.) Ltd. [1989] B.L.R. 100 (HC) Ord. 22, r. 3 (b) Construction Supplies and Service (Pty.) Ltd. v. Greenwood [1987] B.L.R. 479 (HC) Ord. 22, r. 5 Kgalagadi Breweries (Pty.) Ltd. t/a Segwana Liquor Distributors v. Jack Frost (Pty.) Ltd. [1989] B.L.R. 100 (HC) Ord. 30, r. 13 Ghanzi Hotel (Pty.) Ltd. v. Attorney-General [1985] B.L.R. 192 (HC) Ord. 33, r. 1 Tladi v. Kuhlman [1983] B.L.R. 171 (HC) Ord. 33, r. 1 (a) Lahri v. Botswana Liquor Manufacturers (Pty.) Ltd. [1988] B.L.R. 361 (HC) Marobela v. Jamor (Pty.) Ltd. t/a Steel King [1983] B.L.R. 83 (HC) Ord 33 r. (5) Mase v. Nkomo [2002] 1 B.L.R. 491 (HC) Ord. 42, r. 1 Gabela v. The State [1983] B.L.R. 125 (HC) Ord. 43 Khoza v. Gaborone Chief Magistrate [1983] B.L.R. 22 (HC) Student Representative Council v. Mpotokwane [1988] B.L.R. 276 (HC) Cap. 04:04 (Sub. Leg.) Magistrates' Courts Rules Ord. 14, r. 1 (2) Mokgwathi v. Standard Chartered Bank [1997] B.L.R. 1385 (HC) Ord. 39, r. 1 (1) Mphusu and Another v. The State [1997] B.L.R. 845 (HC) Cap. 04:04 (Sub. Leg.) (1973 Rev.) Magistrates' Courts Rules Ord. 10, r. 3 Phemelo v. Readani [1983] B.L.R. 234 (HC) Ord. 30, r. 3 Ramodia v. Gosiame [1988] B.L.R. 30 (HC) Ord. 37, r. 4 Phemelo v. Readani [1983] B.L.R. 234 (HC) Cap. 04:05 (Sub. Leg.) Customary Court of Appeal Rules r. 14 Setsogo v. Sabubi [2002] 1 B.L.R. 142 (HC) Cap. 04:05 Customary Court (Procedure) Rules r 18 Mapiwa v. The State [2003] 1 B.L.R. 92 (HC) Gopolang Marule v. The State 1982 (1) B.L.R. 110 (HC) Cap. 21:03 (Sub. Leg.) Prisons Regulations reg. 75 (1) Maauwe and Another v. The Attorney-General [1999] 1 B.L.R. 275 (HC) Cap. 21:05 (Sub. Leg.) Defence Force (Regular Force) (Officers) Regulations reg. 4 Mokokonyane v. Commander of Botswana Defence Force and Another [2000] 1 B.L.R. 341 (HC) regs. 4 (4) and (5) (b), 8 and 9 Mokokonyane v. Commander of Botswana Defence Force. [2000] 2 B.L.R. 102 (CA) reg. 5 (6) (b) Merafhe v. Botswana Defence Force and Another [2000] 1 B.L.R. 284 (HC) Cap. 21:05 (Sub. Leg.) Defence Force (Regular Force) Discharge Regulations s 2 (6) (c) Chepete v. The Attorney-General and Another [2005] 1 B.L.R. 351 (HC) Cap. 21:05 (Sub. Leg.) (1973 Rev.) Defence Force (Procedure) Rules r. 74 (4) Kelapile v. The State [1985] B.L.R. 113 (HC) Cap. 24:01 (Sub. Leg.) Arms and Ammunition Regulations Regulation 21 Ramokate v. The State [2004] 2 B.L.R. 93 (CA) Regulation 22 Ramokate v. The State [2004] 2 B.L.R. 93 (CA) Cap. 25:04 (Sub. Leg.) (1973 Rev.) Immigration Regulations r. 09 Essack v. Attorney-General [1985] B.L.R. 479 (HC) Cap. 26:01 (Sub. Leg.) Public Service Regulations r. 11 Moupo v. The Attorney-General [1997] B.L.R. 810 (CA) r. 28 Moupo v. The Attorney-General [1997] B.L.R. 810 (CA) Cap. 26:01 (Sub. Leg.) (1973 Rev.) Public Service Regulations r. 15 (1) Baleseng v. Attorney-General [1988] B.L.R. 195 (HC) r. 29 Baleseng v. Attorney-General [1988] B.L.R. 195 (HC) r. 30 Baleseng v. Attorney-General [1988] B.L.R. 195 (HC) Cap. 32:02 (Sub. Leg.) Statutory Instrument 59 of 1995 s 6 (11) Magwaza Family and Another v. Kweneng Land Board and Others [2002] 1 B.L.R. 254 (HC) Cap. 32:02 (Sub. Leg.) Tribal Land Act - Keabetswe and Others v. Ngwato Land Board [2002] 2 B.L.R. 320 (HC) Cap. 37:01 (Sub. Leg.) Diseases of Animal Act r. 24 Kandu and Others v. Director of Veterinary Services and Another [1996] B.L.R. 618 (HC) Cap. 38:01 (Sub. Leg.) Fauna Conservation (Unified Hunting) Regulations r. 11 (1) Molosiwa v. The State [1990] B.L.R. 511 (HC) Cap. 47:01 (Sub. Leg.) Regulation of Wages (Building, Construction and Quarrying Industries) Order reg. 7 (3) Powe v. Van and Truck Hire (Pty.) Ltd [2000] 2 B.L.R. 270 (IC) Cap. 47:01 (Sub. Leg.) Employment (Miscellaneous Provisions) Regulations r. 2A Ben v. Green Industrial Enterprises Corporation (Botswana) (Pty.) Ltd [1995] B.L.R. 859 (HC) Cap. 58:01 Education (Government and Aided Secondary Schools) Regulations reg. 13 Kgosidiile v. Attorney-General [1993] B.L.R. 372 (HC) reg. 28 (3) Madimabe and Others v. The Attorney-General [2001] 2 B.L.R. 419 (HC) reg. 31 Mbisana v. The Attorney-General [1999] 1 B.L.R. 189 (HC) Cap. 62:01 (Sub. Leg.) (1973 Rev.) Unified Teaching Service Regulations r. 10 Makgoeng v. Attorney-General [1987] B.L.R. 518 (HC) r: 17-19 Mosebola v. Attorney-General [1988] B.L.R. 159 (HC) r: 28 Mosebola v. Attorney-General [1988] B.L.R. 159 (HC) r: 29 Mosebola v. Attorney-General [1988] B.L.R. 159 (HC) Cap. 63:01 (Sub. Leg.) Public Health Regulations Selebi-Phikwe Town Council v. The Attorney-General and Another [2004] 2 B.L.R. 453 (HC) Cap. 69:01 (Sub. Leg.) Road Traffic (Breathalyser) Regulations S. I. 18 of 1995 Reetsang v. State (Practice Note) [1996] B.L.R. 933 (HC) Cap. 69:01 (Sub. Leg.) Road Traffic (Limit of Alcohol) Regulations reg 2 Hambundja v. The State [2002] 1 B.L.R. 186 (HC) G.N. 444 of 1976 Increased Jurisdiction - State v. Vissagie [1983] B.L.R. 138 (HC) - Rakhudu v. The State [1988] B.L.R. 237 (HC) General Orders - Bakwena and Others v. The Attorney-General [2000] 1 B.L.R. 138 (CA) Ord. 615 (1) Lebogang v. The Attorney-General [1999] 2 B.L.R. 51 (HC) s. 309 Baleseng v. Attorney-General [1988] B.L.R. 195 (HC) S.I. 147 of 1974 Road Traffic (Limit of Alcohol) Regulations - State v. Masie [1983] B.L.R. 147 (HC) S.I. 110 of 1976 Exchange Control Regulations r. 23 State v. Nicolau [1985] B.L.R. 492 (HC) S.I. 106 of 1980 Regulation of Wages (Manufacturing Service and Repair Trades Order) - Sawdye v. The State [1983] B.L.R. 166 (HC) S.I. 16 of 1982 Rules of the High Court (Review Procedure) Rules r. 03 Masie v. The State [1983] B.L.R. 200 (CA) S.I. 37 of 1982 Declaration (Extension of List) of Habit-Forming Drugs order - Maten v. The State [1989] B.L.R. 240 (HC) - Mzwinila v. The State [1987] B.L.R. 382 (CA) S.I. 58 of 1982 Control of Goods, Prices and Other Charges (Petrol) r. 3 (d) Joubert v. The State [1983] B.L.R. 117 (HC) S.I. 66 of 1982 Rules of the High Court (Review Procedure) Rules, r. 3 Sawdye v. The State [1983] B.L.R. 166 (HC) State v. Charlie [1986] B.L.R. 145 (HC) S.I. 121 of 1983 Magistrates' (Increased Powers of Punishment) Order - Rakhudu v. The State [1988] B.L.R. 237 (HC) S.I. 146 of 1983 Corporal Punishment (Designation of Places for Adm) - Petrus v. The State [1984] B.L.R. 14 (CA) S.I. 157 of 1983 Motor Vehicle Insurance (Claim Form), 1983 r. 2 Rajah v. Botswana Insurance Co. Ltd. [1988] B.L.R. 141 (HC) S.I. 63 of 1994 Tribal Land (Amendment of Schedule Order) para. 3 (f) Morewang v. The Attorney-General and Others [2000] 1 B.L.R. 22 (HC) S.I. 76 of 1996 Defence Force (Officers) (Amendment) Regulations - Mokokonyane v. Commander of Botswana Defence Force and Another [2000] 1 B.L.R. 341 (HC) S.I. 12 of 1997 Transfer of Powers - Williams v. The State [1990] B.L.R. 289 (CA) FOREIGN LEGISLATION JUDICIALLY CONSIDERED SOUTH AFRICA Attorneys Act 53 of 1979 s. 15 Bayford v. The Law Society of Botswana [2001] 1 B.L.R. 350 (HC) WORDS AND PHRASES 1964 - 2005v2 A 'a liquidated amount in money' (Rules of the High Court (Cap. 04:02) (Sub. Leg.), Ord. 34, r. 1(b)). Blade Services (Pty.) Ltd. v. G.I.E.C. (Pty.) Ltd [2000] 2 B.L.R. 311 (HC) Horn A.J. 'absent for any reason for any part of a hearing' Meaning of. (Trade Disputes Act (Cap 49:02) s 17(6)) Masepe v. Hi-Tech Cleaning Services [1995] B.L.R. 811 (IC) De Villiers J. 'abusive or insulting' (Penal Code (Cap. 08:02), s. 190(1)). Legwaila v. The State [1990] B.L.R. 260 (HC) Gyeke-Dako J. 'action' Meaning of.( Local Authority (Proceedings) Act (Cap 10:04) s 3). African Holdings (Pty) Ltd v. Solomon and Others [2005] 1 B.L.R. 47 (CA) Grosskopt J.A. 'actual violence' (Penal Code (Cap. 08:01), s. 291). George v. The State [1999] 1 B.L.R. 379 (CA) Tebbutt J.A. 'aids or abets' State v. Bantumetse Lobi and Another (2) 1974 (1) B.L.R. 24 (HC) Rooney J. 'ammunition of war' (Arms and Ammunition Act (Cap. 24: 01) (1973 Rev), ss. 2 , 9(1) and (5)). Ngugu v. The State. [1989] B.L.R. 116 (HC) Aboagye J. (Arms and Ammunition Act (Cap. 24:01) (1973 Rev), s. 2) Maberly v. The State [1986] B.L.R. 386 (HC) Barrington-Jones J. 'an interim injunction or similar relief' Meaning of. (Arbitration Act (Cap 06:01) s 16(2)(f)). BCL Ltd v. Trengove NO and Another [2002] 1 B.L.R. 221 (HC) Collins A.J. 'any building or structure whatever' (Penal Code (Cap. 08:01) (1973 Rev), s. 330(a)) State v. Motlhabane alias Matswinyane [1984] B.L.R. 180 (HC) O'Brien Quinn C. J. 'any interest' (Acquisition of Property Act (Cap. 32:10) s 9). Bruwer and Another v. President of the Republic of Botswana and Others [1997] B.L.R. 477 (HC) Nganunu J. 'any party affected' Meaning of in Order 48 rule 1. National Development Bank v. Mogatwane [1996] B.L.R. 755 (CA) Steyn J.A. 'any person' (Penal Code (Cap. 08:01) (1973 Rev), s. 225(1)) State v. Ngope [1985] B.L.R. 408 (HC) Murray J. 'any trade dispute' Meaning of. (Trade Disputes Act (Cap 48:02), s 5(1)(a)) Bank of Botswana v. Dineo, [1995] B.L.R. 645 (IC), De Villiers J. 'arbitration' Motswagae v. Bergers Stores (Pty) Ltd [1999] 2 B.L.R. 91 (HC) Mwaikasu J. 'arms of war' (Arms and Ammunition Act (Cap. 24:01) (1973 Rev), s. 2) State v. Ntuane [1986] B.L.R. 469 (HC) Murray J. (Arms and Ammunition Act (Cap. 24:01), s.2). Zitha v. The State [1992] B.L.R. 9 (CA) Amissah P. (Arms and Ammunition Act (Cap. 24:01), s.2, s. 9(1) and s. 9(5)). Tsekane v. The State [1988] B.L.R. 95 (CA) Amissah P. 'arrha' Defined. Van Der Colf v. Sebusi [1989] B.L.R. 281 (HC) Livesey Luke CJ 'as soon as possible' (Rule 4(2) Rules for the Conduct of Proceedings in the Industrial Court). Chibonga v. Chemdol (Pty) Ltd [2002] 2 B.L.R. 255 (IC) De Villiers J. 'assessed loss' (Companies Act (Cap. 42:01), ss. 2 and 84)). Z. v. Commissioner of Taxes [1992] B.L.R. 35 (HC) Martin Horwitz A.J. 'at any material time' (Road Traffic Act (Cap. 69:01), s. 47(1)). Nkwe v. The State [1991] B.L.R. 18 (HC) Gyeke-Dako J. 'at any time' As used in section 18(5) of the Employment Act. Nettey v. Kgalagadi Resources Development Co. (Pty.) Ltd. [1997] B.L.R. 1137 (IC) De Villiers J. 'at the relevant time' (Road Traffic Act (Cap. 69:01) (1973 Rev) s. 47 (11)). Gaborone v. The State [1988] B.L.R. 210 (HC) Goldblatt A.J. 'attempt' Meaning of. (Penal Code (Cap. 08:01) (1973 Rev), s. 392). State v. Gola [1988] B.L.R. 73 (HC) Livesey Luke C.J. 'assault occasioning actual bodily harm' (Penal Code (Cap. 08:01) (1973 Rev), s. 252. State v. Hirschfeldt [1987] B.L.R. 344 (HC) Hallchurch J. B 'being in possession' (Penal Code (Cap. 08:01) (1973 Rev), s. 322). Moruti v. The State [1990] B.L.R. 89 (HC) Gyeke-Dako J. 'banking business' (Financial Institutions Act (Cap. 46:04) (1973 Rev), s. 2) Bank of Botswana v. R. M. Sikwane Enterprises [1985] B.L.R. 134 (HC) Hannah J. 'breaking in' (Penal Code (Cap. 08:01) (1973 Rev) s. 304(3)) State v. Otsogile [1985] B.L.R. 347 (HC) Murray J. C 'carnal knowledge against the order of nature' (Penal Code (Cap 08:01). Gaolete v. State [1991] B.L.R. 325 (HC) Livesey Luke C.J. 'charge' (Constitution of Botswana s 10(1). Criminal Procedure Evidence Act (Cap 08:02) s 26). Ntwa v. The State [2001] 2 B.L.R. 212 (HC) Marumo J; Sejammitlwa and Others v. The Attorney-General and Others [2002] 2 B.L.R. 75 (CA) Tebbutt A.J.P. 'Claim of right' (Penal Code (Cap. 08:01), s. 264). State v. Moilwe [1994] B.L.R. 232 (HC) Nganunu J. 'Commercial activity' Meaning of. (Botswana Postal Services Act (Cap 72:01) s. 3). Botswana Postal Services Union v. Director General for Postal Services [1997] B.L.R. 459 (HC) Nganunu J. 'confirm' (Rules of the High Court (Cap. 04:02) (Sub. Leg.) (1973 Rev), Ord. 22, r. 2). Kgalagadi Breweries (Pty.) Ltd. t/a Segwana Liquor Distributors v. Jack Frost Ltd. [1989] B.L.R. 100 (HC) Livesey Luke C.J. 'court' Whether Industrial Court a subordinate court in terms of ss. 6(2) and 6(3)(a) of Constitution. Botswana Railways' Organisation v. Setsogo and Others [1995] B.L.R. 758 (HC) Gaefele A.J. Whether Industrial Court a subordinate court in terms of s. 6(3)(a) of Constitution. Botswana Railways' Organisation v. Setsogo and Others [1996] B.L.R. 763 (CA) Amissah J.P. 'court day' (Rules of the High Court (Cap. 04:02) (Sub. Leg.), Ords, 1, r. 3 and 71). T.C. and Sons (Pty.) Ltd. v. Skanska A.B. [1991] B.L.R. 159 (HC) Barrington-Jones J. 'cultivate' (Drugs and Related Substances Act (Cap 63:04) s. 16(6)). Moshokoa v. The State [1999] 1 B.L.R. 172 (HC) Aboagye J; Mokgatle v. The State [2003] 2 B.L.R. 210 (HC) Molokomme J. D 'dangerous driving' Meaning of. (Road Traffic Act (Cap. 69:01), s. 49(1)). Mabongo v. The State [1999] 1 B.L.R. 182 (HC) Mosojane J. 'dealing in' (Drugs and Related Substances Act (Cap 63:04) s. 16(6)). Moshokoa v. The State, [1999] 1 B.L.R. 172 (HC) Aboagye J; (Habit-Forming-Drugs (Cap. 63:04) (1973 Rev)) Mudzingwa v. The State [1985] B.L.R. 465 (HC) O'Brien Quinn C. J. Meaning of. (Drugs and Related Substances Act (cap 63:04) s. 16(6)) 1992. Moumakwa v. The State [1997] B.L.R. 1010 (HC) Gyeke-Dako J. 'despite due demand' Meaning of. Fashion Enterprises (Pty) Ltd v. Image (Botswana) (Pty) Ltd [1993] B.L.R. 419 (HC) Gyeke-Dako J. 'deposits' (Financial Institutions Act (Cap. 46:04) (1973 Rev), s. 2) Bank of Botswana v. R. M. Slkwane Enterprises [1985] B.L.R. 134 (HC) Hannah J. 'determines' (Immigration Act (Cap. 25:04) (1973 Rev), s. 11(1)) Essack v. Attorney-General [1985] B.L.R. 479 (HC) O'Brien Quinn C.J. 'dishonestly' (Penal Code (Cap. 08:01) (1973 Rev), s. 174) Morwatela v. The State [1985] B.L.R. 50 (HC) Hannah J. 'Domicilium citandi et executandi' Meaning of. Kudu Properties (Pty) Ltd v. Spark Sound (Pty) Ltd [2001] 2 B.L.R. 647 (HC) Chatikobo J. 'duty Station' Meaning of - Evidence of surrounding circumstances to be used. Jansen and Others v. The Attorney-General [1996] B.L.R. 847 (CA) Schreiner J.A. E 'evidence' (Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev), s. 179 (3)). State v. Vivier [1988] B.L.R. 327 (HC) Livesey Luke C.J. 'employee' (Trade Disputes Act (Cap. 48:01), s. 2(1)). Sigwele v. Botswana Life Insurance Ltd [2000] 2 B.L.R. 331 (IC) De Villiers J. 'employees in the industry' Meaning of. (Regulation of Wages (Manufacturing, Service and Repair Trades) Order (Cap 47:01) (Sub. Leg.)). Sawdye v. The State [1983] B.L.R. 166 (HC) Hannah J. 'erroneously sought' (Rules of the High Court (Cap. 04:02) (Sub. Leg.) Ord. 48, r. 1(a)). Ghanzi District Council v. A.K. Construction (Pty.) Ltd [2000] 2 B.L.R. 362 (HC) Kirby J; Kooreng v. Matlakele [2004] (2) B.L.R. 1 (HC) Chinhengo J. 'established resident' Meaning of. (Immigration Act (Cap 25:02) ss 3, 4 and 19). State v. Justinus Bolly Makhale 1964-1967 B.L.R. 237 (HC) Weston C.J. F 'false representation' Meaning of. Olatotse v. Makhala [1986] B.L.R. 322 (HC) Barrington-Jones J. 'failure of justice' (High Court Act (Cap. 04:02), s. 10, proviso). Maiphetlho and Others v. The State [1990] B.L.R. 580 (HC) Livesey Luke C.J. 'first time' Meaning of. (Legal Practitioners Act (Cap 61:01), s 30(1)(e)). Masoba v. The Attorney-General and Another [2003] 1 B.L.R. 319 (HC) Monthe J; Masoba v. The Attorney-General and Another [2003] 2 B.L.R. 92 (CA) Grosskopf J.A. 'forced labour' Meaning of. (Constitution of Botswana s 6(2); Trade Disputes Act (Cap 48:02), ss. 17(1), 18(1)(b)). Botswana Railways' Organisation v. Setsogo and Others [1995] B.L.R. 758 (HC) Gaefele A.J.; Botswana Railways' Organisation v. Setsogo and Others [1996] B.L.R. 763 (CA) Amissah J.P. 'found in possession' (Penal Code (Cap. 08:01) (1973 Rev), s. 322). Moruti v. The State [1990] B.L.R. 89 (HC) Gyeke-Dako J. (Wildlife Conservation and National Parks Act (Cap 38:01), s. 68(2)). State v. Akuje [1994] B.L.R. 475 (HC) Gyeke-Dako J. 'fraudently' (Penal Code (Cap. 08:01) (1973 Rev), s. 174) Morwaleta v. The State [1985] B.L.R. 50 (HC) Hannah J. 'fringe benefit' Botswana Bank Employees' Union v. Standard Chartered Bank Botswana [1996] B.L.R. 9 (IC) De Villiers J. 'fully' Meaning of. (Rules of the High Court (Cap. 04:02) (Sub. Leg.) (1973 Rev), Ord. 22, r. 3(b). Construction Supplies and Service (Pty.) Ltd. v. Greenwood [1987] B.L.R. 479 (HC) Lawrence A.J. Meaning of. (Rules of the High Court (Cap. 04:02), (Sub. Leg.), Ord. 34, r. 3(b)). Letsoalo v. First National Bank of Botswana Ltd [1998] B.L.R. 385 (CA) Tebbutt J.A. G 'good and sufficient cause' (Rules of the High Court (Cap. 04:02) (Sub. Leg.) (1973 Rev), Ord. 19, r. 11.). Lahri v. Botswana Liquor Manufacturers (Pty.) Ltd [1988] B.L.R. 361 (HC) Livesey Luke C.J. 'good cause' (Rules of the High Court (Cap. 04:02) (Sub. Leg.), Ord. 48, r. 1(a)). Ghanzi District Council v. A.K. Construction (Pty.) Ltd., [2000] 2 B.L.R. 362 (HC) Kirby J. Meaning of. (Trade Disputes Act (Cap. 48:02), s. 6A(1) and (3)). Lekate v. Automatred Security (Pty) Ltd [1998] B.L.R. 668 (IC) De Villiers J. 'government' Meaning of. (State Proceedings (Civil Action by or against Government or Public Officers) Act (Cap 10:01)). Sethie v. Commander, Botswana Defence Force [2002] 2 B.L.R. 163 (HC) Marumo J. 'gross negligence' (Rules of the High Court. (Cap. 04:02) (Sub. Leg.), Ord. 31, r. 131). Dikeledi v. Matlapeng [1998] B.L.R. 372 (HC) Reynolds J. H 'had reasonable cause to believe' (Penal Code (Cap. 08:01), s. 147 (1)). Kgopodithata v. The State [1990] B.L.R. 663 (HC) Gyeke-Dako J. 'has a bearing on value' (Customs and Excise Act (Cap. 50:01) s 90(2)). Chiti v. The State [1997] B.L.R. 577 (HC) Nganunu J. I 'investment' State v. Srour and Another 1977 B.L.R. 70 (HC) Edwards J. 'immediate' (Fauna Conservation Act (Cap. 38:01) (1973 Rev), s. 59(2)). State v. Selokela [1984] B.L.R. 60 (HC) Hannah A.C.J. 'improvement' Ahmed Essack v. Cornelius Johannes Van Greune 1964-1967 B.L.R. 115 (HC) Weston C.J. 'in error' (Rules of the High Court (Cap. 04:02) (Sub. Leg.), Ord. 48, r. 1 (a)). Ghanzi District Council v. A.K. Construction (Pty.) Ltd [2000] 2 B.L.R. 362 (HC) Kirby J. J 'judicial proceeding' (Penal Code (Cap. 08:01) (1973 Rev), s. 5) Kgomanyane v. The State [1986] B.L.R. 62 (HC) O'Brien Quinn C.J. 'jurisdiction' Sello v. Sello and Another (2) [1999] 2 B.L.R. 104 (HC) Dow J. L 'laceration' Meaning of. (Penal Code (Cap. 08:01) (1973 Rev), ss. 5, 238 and 252). State v. Baiphethi (Practice Note) [1984] B.L.R. 232 (HC) O'Brien Quinn C.J. 'liable' (Immigration Act (Cap. 25:04) (1973 Rev), s. 17 (5)). State v. Dlodlo [1988] B.L.R. 419 (HC) Livesey Luke C.J. (Penal Code (Cap. 08:01) (1973 Rev), s. 235). State v. Gasebame [1988] B.L.R. 446 (HC) Livesey Luke C.J. (Penal Code (Cap. 08:01) (1973 Rev), ss. 235 and 305). Re Attorney-General's Submission; State v. Dinoko [1989] B.L.R. 619 (CA) (Full Bench) 'living apart' Meaning of. Noke v. Noke 1979-1980 B.L.R. 109 (HC) Hayfron-Benjamin C.J. 'loan' State v. Srour and Another 1977 B.L.R. 70 (HC) Edwards J. M 'material' Meaning of. (Immigration Act (Cap. 25:04) (1973 Rev), s. 26). Majiet v. The State [1983] B.L.R. 297 (HC) Hannah J. 'making a false document' (Penal Code (1973 Rev), s. 345). State v. Mashabila (Practice Notice) [1984] B.L.R. 53 (HC) O'Brien Quinn C.J. 'mandarx' (Declaration Extension of List) of Habit-Forming Drugs Order, 1982 (S.I.37)) Mzwinila v. The State [1987] B.L.R. 382 (CA) Doyle J.A. 'member of management' (Trade Unions and Employers' Organisation Act (Cap. 48:01), s 61(2). Botswana Power Corporation Workers' Union v. Botswana Power Corporation [1998] B.L.R. 159 (IC) De Villiers J. 'methaqualone' (Declaration of Habit-Forming Drugs Order (Cap 63:04) (Sub. Leg.)) Mazwinila v. The State [1987] B.L.R. 382 (CA) Doyle J.A. 'minor offence' (Criminal Procedure and Evidence Act (Cap. 08:02), s. 187(1). Moeti v. The State [1998] B.L.R. 55 (HC) Nganunu C.J. N 'nearest labour officer' Meaning of. (Trade Disputes Act (Cap. 48:02), s. 6A(1) and (3)). McLean v. Consolidated Contractors Co. (Pty.) Ltd. [1999] 1 B.L.R. 223 (IC) De Villiers J. 'no evidence' Meaning of. (Criminal Procedure and Evidence Act (Cap. 08:02) s. 180(3)). State v. Gabopye [1990] B.L.R. 646 (HC) Gyeke-Dako J.; State v. Lekgowe and Others [2003] 1 B.L.R. 54 (HC) Lisimba J.; State v. Gura [1990] B.L.R. 102 (HC) Gyeke-Dako J. 'noxious' Meaning of. (Penal Code (Cap 08:01) s 232). State v. Lesowa [2003] 1 B.L.R. 580 (HC) Chatikobo J. O 'On or about' Meaning of in particulars of claim. Ramosu v. Ntsimanyana [2002] 2 B.L.R. 344 (HC) Kirby J. 'or' Meaning of. (Trade Unions and Employers' Organisations Act (Cap. 48:01), s. 61(2)). Botswana Power Corporation Workers' Union v. Botswana Power Corporation [1998] B.L.R. 159 (IC) De Villiers J; (Trade Disputes Act (Cap 48:02) s 6A(3)). Modise v. Trade World (Pty) Ltd [2002] (2) B.L.R. 189 (IC) De Villiers J; (Road Traffic Act (Cap. 69:01) s 49(1)). Seitshiro v. The State [2001] 2 B.L.R. 228 (HC) Kirby J. 'otherwise than by an attorney' (Rules of the High Court (Cap 04:02) (Sub Leg), Order 1 rule 3; Order 9 rule 1(1), (2); Court of Appeal Act (Cap 04:01) s 7). Water Engineering (Pty) Ltd v. Murray & Roberts (Botswana) (Pty) Ltd (formerly Multi Construction Building & Engineering (Pty) Ltd) [2002] 2 B.L.R. 68 (CA) Kovsah J.A. 'own use' Meaning of. (Livestock Industry Proclamation (Cap 109) s. 4). Archie Solomon v. The State 1968-1970 B.L.R. 106 (HC) Dendy-Young C.J. P 'peace officer' (Penal Code (Cape 08:01) s 317). State v. Samuel Nkomo 1968-1970 B.L.R. 366 (HC) Dendy Young C.J. 'permanent residence' Meaning of. (Immigration Act (Cap 25:02) ss 3, 4 and 19). State v. Justinus Bolly Makhale 1964-1967 B.L.R. 237 (HC) Weston C.J. 'person' (Section 18 Constitution of Botswana). Kamanakao I and Others v. The Attorney-General and Another [2001] 2 B.L.R. 654 (HC) Nganunu C.J. 'persons' (Police Act (Cap. 21:01), s. 61). Molefe v. The Attorney-General and Another [1994] B.L.R. 301 (CA) Aguda J.A. 'person who can swear positively to the facts verifying the cause of action' (Rules of the High Court (Cap 04:02) (Sub. Leg.), Ord. 34, rule 2(1)). Thamatlhogo Training and Conference Centre (Pty) Ltd v. Botswana Development Corporation [1999] 1 B.L.R. 94 (CA) Tebbutt J.A. 'policeman' Meaning of. (Criminal Procedure and Evidence Act (Cap. 08:02) s. 228). Moloi v. The State [1997] B.L.R. 260 (HC) Aboagye A.C.J. 'possession' Meaning of. (Arms and Ammunition Act (Cap. 24:01), s. 9). Phiri vThe State [1992] B.L.R. 317 (CA) Amissah P. (Wildlife and National Parks Act (Cap 38:01) ss. 2 and 71(1)(d)(3); Penal Code (Cap. 08:01) s 2). Masilompane and Others v. The State, [1997] B.L.R. 1201 (HC) Gyeke-Dako J. (Penal Code (Cap. 08:01) (1973 Rev), s. 5) Mpofu v. The State [1986] B.L.R. 351 (HC) Barrington-Jones J. (Penal Code (Cap. 08:01) (1973 Rev), s. 5). Majila and Others v. The State [1987] B.L.R. 123 (HC) Barrington-Jones J. (Precious Stones Industry (Protection) Act (Cap. 66:03). State v. Mafutaka 1979-1980 B.L.R. 31 (HC) Edwards J. 'possible' meaning 'reasonably possible' in context of finding of fact. Gaolatlhe v. The State [1987] B.L.R. 362 (CA) Maisels P. 'public authority' National Development Bank v. Thothe [1994] B.L.R. 98 (CA) Aguda J.A. 'public place' (Penal Code (Cap. 08:01) (1973 Rev), s. 5) State v. Ntsobi. [1985] B.L.R. 173 (HC) O'Brien Quinn C.J 'public gathering' (Penal Code (Cap. 08:01) (1973 Rev), s. 93) Mokgothu v. The State [1986] B.L.R. 34 (HC) O'Brien Quinn C.J. 'public place' (Penal Code (Cap. 08:01) (1973 Rev), s. 93) Mokgothu v. The State [1986] B.L.R. 34 (HC) O'Brien Quinn C.J. R 'reasonable time' (Constitution, ss. 5(3) and 10(1)). Loso v. The State [1998] B.L.R. 518 (HC) Mosojane J. (Constitution s 10(1)). Charles v. The State [2005] 1 B.L.R. 421 (HC) Mosojane J. 'reckless' (Penal Code (Cap. 08:01) (1973 Rev), s. 244). Chabaesele v. The State [1986] B.L.R. 375 (HC) O'Brien Quinn C.J. 'reckless driving' What constitutes. State v. Joseph Jonas 1971 (1) B.L.R. 21 (HC) Young C.J. 'Refer' Meaning of. (Criminal Procedure and Evidence Act (Cap. 08:02) s 336). Botswana Railway's Organisation v. Setsogo and Others [1996] B.L.R. 763 (CA) Amissah J.P. 'remuneration' (Prescriptions Act (Cap. 13:01), s. 4(2)(b)(ii)). Ntumisang v. Botswana Power Corporation [2000] 2 B.L.R. 385 (IC) De Villiers J. 'reponsible employee' (Rules of the High Court (Cap. 04:02) Sub. Leg.), Ord. 8. r. 2(2) (f)). Daewoo Corporation Ltd. v. Epang (Pty.) Ltd [1991] B.L.R. 146 (HC) Livesey Luke C.J. 'Reserve' Meaning of. (Court of Appeal Act (Cap. 04:01) s 15). Botswana Railways' Organisation v. Setsogo and Others [1996] B.L.R. 763 (CA) S 'safety of accused' (Criminal Procedure and Evidence Proclamation (Cap. 18) s. 166H). State v. Segana Ntibi 1968-1970 B.L.R. 330 (HC) Dendy Young C.J. 'serious crime' (Proceeds of Serious Crime Act, (Cap 08:03), s. 2(1) and s. 3(1)). Attorney-General v. Bateng's Building Construction and Others [1999] 1 B.L.R. 169 (HC) Reynolds J. 'serious misconduct' Meaning of. (Employment Act (Cap 47:01), s 26(1) and (4). Kanokang v. T K Trading (Pty.) Ltd, [1995] B.L.R. 389 (IC) De Villiers J. 'shall be deemed' Meaning of. (Trade Disputes Act (Cap. 48:02 subs 5(6)(d); Employment Act (Cap. 47:01) s. 27). Mmolawa v. Lobatse Clay Works [1996] B.L.R. 1 (IC) De Villiers J; Gaboitaolelwe v. Kgalagadi Breweries, [1996] B.L.R. 394 (IC) De Villiers J. 'shall be deemed to have been terminated with just cause' (Employment Act (Cap 47:01) s 20(2)). Bagai and Others v. Green Industrial Enterprises Corporation [1996] B.L.R. 252 (IC) De Villiers J 'shall be liable' Meaning of. (Immigration Act (Cap. 25:04) (1973 Rev), s. 17 (5)). State v. Dlodlo [1988] B.L.R. 419 (HC) Livesey Luke C.J. 'shift allowance' (Prescriptions Act (Cap. 13:01), s. 4(2)(b)(ii)). Ntumisang v. Botswana Power Corporation [2000] 2 B.L.R. 385 (IC) De Villiers J. 'sodomy' Kanane v. The State [2003] 2 B.L.R. 67 (CA) Tebbutt J.P. 'special owner' (Penal code (Cap.08:01) (1973 Rev), s. 269(1)). Tshabatau v. The State [1987] B.L.R. 282 (HC) Murray J. 'specified Minister' (Interpretation and General Provisions Act (Cap. 01:02) (1973 Rev), s. 28). Williams v. The State [1990] B.L.R. 289 (CA) (Full Bench) 'stop' (Road Traffic Act (Cap. 69:01) (1973 Rev), s. 81(1)). Mothuti v. The State [1985] B.L.R. 85 (HC) O'Brien Quinn C.J. 'submission' (Arbitration Act (Cap. 06:01), ss.2 and 11(b). Abletrade (Pty) Ltd v. Itireleng Community Junior Secondary School [2001] 1 B.L.R. 283 (HC) Nganunu C.J. 'substantial miscarriage of justice' (Court of Appeal Act (Cap. 04:01) (1973 Rev), s. 13(3)). Mashabile v. The State [1984] B.L.R. 96 (CA) Maisels P. 'syndicate' Locus standi of. Masowe Syndicate v. Motladiile [2001] 2 B.L.R. 751 (HC) Collins A.J. T 'taking' (Penal Code (Cap. 08:01) (1973 Rev) s. 269) Mahlaje v. The State [1983] B.L.R. 294 (HC) Hannah J. 'taking . . . steps in the proceedings' (Arbitration Act (Cap. 06:01) (1973 Rev), s. 6(1)). Becco Botswana (Pty.) Ltd. v. Diamond Manufacturing Botswana Pty. Ltd [1983] B.L.R. 288 (HC) O'Brien Quinn C.J. 'threat' (Penal Code (Cap. 08:01) (1973 Rev), s. 225(1)) State v. Ngope [1985] B.L.R. 408 (HC) Murray J. (Penal Code (Cap. 08:01) (1973 Rev), s. 225 (1)). State v. Ramatlhomane [1989] B.L.R. 370 (HC) Gyeke-Dako J. 'trade dispute' Meaning in section 2(1) of Trade Disputes Act. Nettey v. Kgalagadi Resources Development Co. (Pty.) Ltd [1997] B.L.R. 1137 (IC) De Villiers J. 'treated' Meaning of. (Road Traffic Act (Cap. 69:01) (1973 Rev), s. 47(3)) Matshidiso v. The State; Simela v. The State [1985] B.L.R. 552 (CA) Murray J. 'threat to kill' (Penal Code (Cap. 08:01)), s. 220(1)). State v. Sam [1990] B.L.R. 482 (HC) Gyeke-Dako J. 'trapping' (Precious Stones Industry (Protection) Act (Cap 66:03). State v. Rosinah Mamitwa 1973 (1) B.L.R. 2 (HC) Aguda C.J. 'trial' Meaning of. (Rules of the High Court (Cap 04:02) (Sub Leg) Order 36 rule 5). Faziri v. Faziri and Others [2003] 1 B.L.R. 605 (HC) Molokomme J. V 'verify' (Rules of the High Court (Cap. 04:02) (Sub. Leg.) (1973 Rev), Ord. 22, rule 2). Kgalagadi Breweries (Pty.) Ltd. t/a Segwana Liquor Distributors v. Jack Frost (Pty.) Ltd. [1989] B.L.R. 100 (HC) Livesey Luke C.J. W 'waiver' Meaning of. Kuvarega v. Botswana Motor Vehicle Insurance Fund [2004] 2 385 (HC) Masuku J 'will afford evidence as to the commission of any offence' (Constitution of Botswana subs 8(1) and (5); Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev) s. 56A.). Kablay and Others v. Attorney-General and Others [1985] B.L.R. 20 (HC) Murray J. 'wilful' (Penal Code (Cap. 08:01) (1973 Rev). s. 337 (1)). State v. Ramatlhomane [1989] B.L.R. 370 (HC) Gyeke-Dako J. 'wilfully' and 'unlawfully' (Penal Code (Cap. 08:01), s. 333 (1)). Raible v. The State [1991] B.L.R. 315 (HC) Livesey Luke C.J. 'without due care and attention' (Road Traffic Act (Cap. 69:01)), s. 50(1). Kgakole v. The State [1990] B.L.R. 70 (HC) Livesey Luke C.J. 'wrongly' (Rules of the High Court (Cap. 04:02) (Sub. Leg.), Ord. 48, r. 1(a)). Ghanzi District Council v. A.K. Construction (Pty.) Ltd [2000] 2 B.L.R. 362 (HC) Kirby J. INDEX OF SUBJECT MATTER 1964 - 2006v1 A ACCOUNTANT Offences by Disciplinary proceedings Rules for holding of disciplinary proceedings - Effect of failure to observe. COETZEE v. BAROT and Another [1996] B.L.R. 872 (HC), Amissah JP, Schreiner and Hoexter JJA ACCOUNTS Debatement of Who is entitled to Debtor and creditor relationship - No claim for statement and debatement justified. SEKGOMA v. STANDARD CHARTERED BANK (BOTSWANA) and Another [1997] B.L.R. 1121 (HC), Levy A J ACQUISITION OF LAND - see LAND LAW AND CONVEYANCING ADMINISTRATION OF ESTATES Curator bonis Locus standi of Administration of Estates Act (Cap 31:01), s 27(1). BOTSWANA BUILDING SOCIETY v. NKAWANA NO [2005] 1 B.L.R. 434 (HC), Lesetedi J Deceased estate Claim against estate Determination of distribution of deceased's property - Place of burial and persons conducting same irrelevant features in such determination - Applicant having cohabited with deceased and having claim in respect of her contribution to joint property, whether universal partnership existing between her and deceased or not. OMPHILE v. RASEKAWANA and Others [2003] 1 B.L.R. 394 (HC), Collins J For vindicatory or possessory rights based on duty of support - Parties not married but co - habiting. SAMSAM v. SEAKAREA [2004] 1 B.L.R. 378 (HC), Lesetedi J Gratuity from deceased's employer - Whether falling into estate where deceased had nominated person as beneficiary. SAMSAM v. SEAKAREA [2004] 1 B.L.R. 378 (HC), Lesetedi J Intestate estate - Claim by child born out of wedlock - Right to support not giving rise to possession or occupation of property of estate. SAMSAM v. SEAKAREA [2004] 1 B.L.R. 378 (HC), Lesetedi J Onus of proof - No special onus on person making claim - Duty of court to exercise more than ordinary care in arriving at decision - Failure of claimant to give satisfactory explanation of basis of his claim - Failure to produce documentary evidence reasonably expected to be in possession of claimant - Claim to be viewed with suspicion. HASELEN v. WETTERINGS and Another [1985] B.L.R. 188 (HC), Hannah J Parties co - habiting without formal marriage. SAMSAM v. SEAKAREA [2004] 1 B.L.R. 378 (HC), Lesetedi J Liquidation and distribution account Objection of person claiming against estate - Refusal of Master to sustain objection - Application by claimant to set aside decision of Master - Notice of motion issued 30 days after decision of Master - Whether application maintainable - Administration of Estates Act (Cap. 31:01) (1973 Rev.), s. 61(10). HASELEN v. WETTERINGS and Another [1985] B.L.R. 188 (HC), Hannah J Succession Intestate succession - Deceased's terminal benefits - Deceased survived by wife and children - Application by deceased's father for terminal benefits of deceased son to be paid to him for maintenance of minor children of deceased - First respondent deceased in course of proceedings - First respondent nominated by deceased as beneficiary of terminal benefits - Person entitled to succeed to estate of first respondent and her deceased husband - Whether children rightful persons to succeed to estate of parents. VUBU v. VUBU and Another [1999] 2 B.L.R. 343 (HC), Gaefele J Whether deceased a tribesman Deceased owning livestock but otherwise living a modern life. SAMSAM v. SEAKAREA [2004] 1 B.L.R. 378 (HC), Lesetedi J Deceased estates Shares Citizenship of shares - Deceased citizen shareholder bequeathing shares to non - citizen - Non - citizen appointed executrix of deceased shares - Consequences of share ownership on death of shareholder - Whether deceased estate a person under company law - Whether deceased estate can own shares - Whether deceased estate continued with citizenship of deceased shareholder. MALIDO (PTY) LTD v. THE ATTORNEY - GENERAL and Others [1999] 1 B.L.R. 141 (CA), Amissah P. J, Lord Allanbridge J and Lord Morison JA Estate assets Choice of law for estate of tribesman who died intestate Administration of Estates Act (Cap. 51:01), s. 3, s. 6. MMEREKI v. SELEKE and Another [2001] 2 B.L.R. 601 (HC), Chatikobo J Locus standi Only a curator bonis or appointed executor can sue for recovery of estate assets. KGWANENG and Others v. BOGOSING and Another [1994] B.L.R. 381 (HC), Aboagye J Motor vehicle Proof of ownership - Whether registration book conclusive proof. MMEREKI v. SELEKE and Another [2001] 2 B.L.R. 601 (HC), Chatikobo J Executor Administrator Appointment - Whether office of executor recognised under customary law. TEAPOT v. THE ATTORNEY - GENERAL [1998] B.L.R. 515 (HC), Gaefele J Testator's expressed directions that certain estate property not to be sold Circumstances permitting executor to disregard. Ex parte NORMAN BURNE DELL NO: In re ESTATE STEINBERG 1964 - 1967 B.L.R. 181 (HC), Thompson ACJ Where estate falls under Administration of Estates Act (Cap 31:01) only its executors act for it Estate can only sue through executors appointed in terms of Act. CHINDY and Another v. PHALA N O and Another [1993] B.L.R. 126 (HC), Nganunu J Will Application to have will declared invalid Citation of parties - Not all parties cited and not specified whether deceased's children were minors or not - If children were minors a curator ad litem had to be appointed. TIMBE v. MOTSEKO and Another [2002] 1 B.L.R. 198 (HC), Lesetedi J ADMINISTRATIVE LAW Validity of Statutory Instrument issued under the hand of the Permanent Secretary to the President and not under the hand of the President himself. STATE v. AKAMBAKAMBA 1972 (2) B.L.R. 27 (HC), Aguda CJ Audi alteram partem principle When applicable Closure of university - Reliance by authorities on events beyond university walls. STUDENTS' REPRESENTATIVE COUNCIL OF THE UNIVERSITY OF BOTSWANA and Others v. THE ATTORNEY - GENERAL [1995] B.L.R. 469 (CA), Amissah JP Aguda JA, Lord Wylie JA, Steyn JA and Hoexter JA Declaratory order To set aside results of sports event Sports body setting requirement that participants' age to be verified by passport - Applicant's son's passport expired and birth date had been tampered with - Court not able to interfere with power of administrative organ to make it own rules - Application dismissed. KOOSIMILE v. BOTSWANA INSTITUTES SPORTS ASSOCIATION and Another [2001] 2 B.L.R. 120 (HC), Lisimba J Discretionary powers Delegation of Whether discretionary power conferred on Minister by Parliament can be exercised by a person delegated by him - Education Act (Cap 58:01), ss.3(1). STUDENTS' REPRESENTATIVE COUNCIL OF THE MOLEPOLOLE COLLEGE OF EDUCATION and Another v. THE ATTORNEY - GENERAL [1996] B.L.R. 182 (CA), Amissah JP, Lord Wylie and Hoexter JJ.A. Doctrine of legitimate expectation When applicable Reversal of decision to pay overtime - Such decision affecting applicants adversely - Applicants entitled to be heard before decision taken. GOVERNMENT SECURITY OFFICERS v. THE ATTORNEY - GENERAL [1997] B.L.R. 646 (HC), Dibotelo J Doctrine provides protection to those who led by written undertaking or previous practice of public authority to expect certain benefits or subsequent conduct, but benefits have been withdrawn or expected conduct departed from, either unfairly or without giving them right to make representations. MOLEMOENG and Others v. BOTSWANA MEAT COMMISSION [2005] 2 B.L.R. 118 (HC), Kirby J Fair administrative action Duty to give reasons Principles of fairness implying duty to give reasons - Being told why something not able to be done important element in fairness of decision and helping to inspire confidence in decision. NLEYA v. THE ATTORNEY - GENERAL [2003] 2 B.L.R. 278 (HC), Gaongalelwe J Failure to give notice and give applicant hearing Decision taken to dismiss applicant from civil service without her being tried or convicted of offence - Failure to give notice and hear applicant breach of rules of natural justice and applicable statute - Decision void - Public Service Act, s 14 (Cap 26:01). PAYA v. DIRECTOR OF PUBLIC SERVICE MANAGEMENT and Another [2003] 1 B.L.R. 439 (HC), Lisamba J Failure to observe Relegation of applicant in his membership of respondent - Applicant not accorded a hearing before relegation - Respondent had erroneously admitted applicant to fellow membership when he should only have been admitted to licentiate membership - Whether the council acted unreasonably or unfairly - Generally speaking, a person to whom a statutory power is entrusted is functus officio once he has exercised that power. SETHANTSHO v. BOTSWANA INSTITUTE OF ACCOUNTANTS [1994] B.L.R. 449 (HC), Barrington - Jones J Job evaluation exercise Whether evaluation exercise undertaken in violation of court order and establishment secretary exercising his powers - Appellant meaningfully represented in exercise - Establishment secretary substantially complying with court order. BOTSWANA UNIFIED LOCAL GOVERNMENT SERVICE ASSOCIATION v. THE ATTORNEY - GENERAL [2005] 2 B.L.R. 230 (CA), Korsah, Grosskopf and Moore JJA Judicial review Administrative action Applicant charged with and convicted of abuse of office - Applicant resigning - Application to have decision of disciplinary committee set aside and nullified - Whether application of academic interest only, applicant having resigned - Whether any effective relief grantable. NYONI v. THE CHAIRMAN, AIR BOTSWANA DISCIPLINARY COMMITTEE and Another [1999] 2 B.L.R. 15 (HC), Reynolds J Administrative action - Application to review action of administrator - Respondents opposing - Unreasonable delay - Prejudice - Scurrilous allegations - Application brought more than a year after events giving rise to cause of action - Reasons for delay - Tardiness of respondents - Applicant having been abroad for study - Counsel being too busy to attend to matter - Whether application brought less than promptly - Whether delay to be condoned. PELOEWETSE v. THE PERMANENT SECRETARY TO THE PRESIDENT and Others [1999] 2 B.L.R. 164 (HC), Williams AJ Natural justice - Opportunity to meet charges - Right to be heard - Presidential order of partial remission of sentences of certain categories of prisoners adjudged to be of good conduct - Appellant adjudged not to be of good conduct - Refusal to grant remission - Appellant not apprised of reasons for refusal to grant remission nor opportunity to be heard - Whether decision not to grant remission reviewable. ARBI v. COMMISSIONER OF PRISONS and Another [1992] B.L.R. 246 (CA), Amissah P, Aguda JA, and Puckrin JA Natural justice - Teacher applying to have her transfer by authorities to another school declared unlawful - Not business of courts to create employment positions in public service or anywhere else - In public service, that duty falling within scope of administrative arm of government and legislature - Court would not interfere with exercise of administrative discretion except upon review grounds properly established. GAEBUSETSE v. DIRECTOR OF TEACHING SERVICES [2003] 1 B.L.R. 355 (HC), Marumo J Administrative authority Decision of - Mode of challenging decision - Application for judicial review - Application to be brought within reasonable time - Public Service Management Directive - Introduction of new scheme of service - Challenge of Directive - Inordinate delay in making application - Whether application sustainable - Rules of the High Court (Cap. 04:02) (Sub. Leg.), Ord. 61, r. 1. MOKOTEDI and Others v. THE ATTORNEY - GENERAL [1998] B.L.R. 645 (HC), Aboagye J Administrative decision Audi alteram partem rule - Legitimate expectation - Allocation of external study slots to government employees to undergo training at specified institutions - Applicant allocated external study slot for training within SADC region - Change of external study slot allocated to applicant from SADC region to Australia by PS in Ministry of Labour and Home Affairs - Reversal of decision of change of external study slot by DPSM - Applicant not given hearing before reversal of decision - Whether denial of legitimate expectation of being afforded hearing before reversal of decision. RAPITSENYANE v. THE ATTORNEY - GENERAL and Others [2000] 1 B.L.R. 474 (HC), Horn AJ Delay in applying for review - Condonation - Application for condonation - Factors for consideration in granting condonation - Merits of the application - Case of sufficient public importance - Wrong committed being a continuing one - Proceeding with case likely to cause prejudice to respondent and third parties and to good administration - Government advertising public service post - Appellant possessing requisite qualifications - Appointment of third respondent not qualified in terms of advertisement for advertised post - Application by appellant for review and setting aside of decision of appointing authority - High Court dismissing application on ground of it not having been brought within reasonable time and refusing to grant condonation for delay. PELOEWETSE v. THE PERMANENT SECRETARY TO THE PRESIDENT and Others [2000] 1 B.L.R. 79 (CA), Amissah P. J, Tebbutt J and Friedman JA Application for Delay in bringing application - Waiver of right to object to delay - Payment of allowance stopped but resumed some years later retrospectively to specified cut off date - Whether such conduct could be said to amount to waiver of right to raise defence of unreasonable delay against demand for payment for period preceding cut - off date. MORUAKGOMO and Others v. THE ATTORNEY - GENERAL [1996] B.L.R. 561 (HC), Nganunu J Delay in bringing application - Period of six years had elapsed - No reason given for inordinate delay - Whether delay so unreasonable that it could not be condoned. MORUAKGOMO and Others v. THE ATTORNEY - GENERAL [1996] B.L.R. 561 (HC), Nganunu J Application for review and setting aside of award First respondent inviting tenders for supply of goods - Goods to meet SABS standards - No manufacturer in Botswana meeting standards - Applicant bidding - Tender awarded to second respondent - Whether first respondent failed to apply its mind to issues in question - Whether fact that none of the tenderers met required standards nullified first respondent's exercise of its discretion. CROWN PAINTS (PTY) LTD v. BOTSWANA HOUSING CORPORATION and Others [1999] 2 B.L.R. 78 (HC), Reynolds J Award of contract by tender Application to review and set aside award - Tender for supply of food at cafeteria - Eight persons including first appellant and respondent tendering for award of contract - Three persons including first appellant and respondent short - listed for consideration of award - Contract awarded to first appellant - Second appellant at liberty to adopt any fair way of choosing candidate - Respondent aggrieved by award alleging mode of award of contract to appellant flawed - Allegation of failure to give any or adequate consideration to issue in question - Onus on respondent to prove award flawed. INDEPENDENT TAVERNS (PTY) LTD t/a MOGHUL RESTAURANT and Others v. SHONIC (PTY) LTD [1999] 2 B.L.R. 72 (CA), Amissah P. J, Schreiner J and Hoexter JA Decision of administrative body Setting aside of decision by court - When court entitled to substitute its own decision for that of administrative body. MBISANA v. THE ATTORNEY - GENERAL and Another [1999] 1 B.L.R. 189 (HC), Mosojane J Decision of government body Central Tender Board - Right of court to review award of tender - No statutory provision laying down limits of activity of Board and thus not possible to approach matter upon basis of ultra vires - Court entitled to intervene on basis that it will be regulating behaviour of public body - To do so by considering whether factual allegations made and what is sought in application within general ambit of reviewable acts of public bodies - Right of intervention arising in cases of illegality, unreasonableness and procedural impropriety - That supplier previously supplied defective product not unreasonable ground for Board to refuse subsequent tender of such supplier. ATTORNEY - GENERAL and Another v. KGALAGADI RESOURCES DEVELOPMENT COMPANY (PTY) LTD [1995] B.L.R. 234 (CA), Amissah P, Schreiner JA and Lord Cowie JA Grounds for Suspension of applicant from classes at educational institution - No grounds for review advanced by applicant other than that he was prejudiced thereby - Court will not veto the decision of an authority entitled to exercise power on a value judgment. MARATA v. THE ATTORNEY - GENERAL and Another [1996] B.L.R. 370 (HC), Nganunu J Legitimate expectation Appellant not given opportunity to be heard - Orders in the nature of certiorari and mandamus sought - Procedural duty allegedly breached not owed - Appellant having no legal right to be invited in shaping training policy - Whether appellant having legitimate expectation. NASHA v. THE ATTORNEY - GENERAL and Another [2001] 1 B.L.R. 259 (CA), Aguda AJP, Korsah JA and Mosojane AJA Statutory body University of Botswana - Decisions of University - Closure of University - Mass dismissal of students - Validity of action of University Council - Relationship between students and University - Relationship contractual in nature - Whether courts power to review decisions of University Council. STUDENTS' REPRESENTATIVE COUNCIL v. UNIVERSITY OF BOTSWANA and Others [1989] B.L.R. 396 (CA), Amissah P, Aguda JA, Doyle JA, Bizos JA, Schreiner JA Which decisions subject to review Commission of inquiry - Commission failing to hold public hearing. KWELAGOBE and Another v. KGABO and Another (No 2) [1994] B.L.R. 347 (HC), Martin Horwitz J Legal proceedings Notice Intention to institute - Effect of non - compliance. MOKGALAGADI and Others v. KWENENG LAND BOARD [1994] B.L.R. 65 (CA), Amissah JP, Aguda JA, Schreiner JA Licensing Appeal against refusal of licence by local authority On appeal to Minister applicant given period in which to rectify defects - Defects not rectified but licence issued by Minister - Nature of Minister's powers - Trade and Liquor Act (Cap 43:02), s 57; Public Health Regulations (Cap 63:01) (Sub Leg). SELEBI - PHIKWE TOWN COUNCIL v. THE ATTORNEY - GENERAL and Another [2004] 2 B.L.R. 453 (HC), Marumo J Natural justice Audi alteram partem Adequate notice - Whether warning given by Minister did not constitute adequate or any notice. STUDENTS' REPRESENTATIVE COUNCIL OF THE MOLEPOLOLE COLLEGE OF EDUCATION and Another v. THE ATTORNEY - GENERAL [1996] B.L.R. 182 (CA), Amissah JP, Lord Wylie and Hoexter JJA Application of to road transportation permit procedure Aggrieved parties not having attended hearings or made representations to appeal tribunal even though notices had appeared in Government Gazette - Road Transport (Permits) Act (Cap. 69:03). TSAYANG EXPRESS SERVICES (Pty) Ltd and Others v. CHAIRMAN, TRANSPORT APPEAL TRIBUNAL and Others [2001] 2 B.L.R. 18 (HC), Kirby J Audi alteram partem Administrative tribunals, unlike courts of law, not expected to follow strict formal procedure and be expected to give full oral hearing, cross - examination and reply - Procedures can be more informal and less vigorous, provided they inform person appearing before them of case to be faced, they gave him fair opportunity to deal with case and tribunal acted in good faith. RABANA v. BOTSWANA HOUSING CORPORATION [1993] B.L.R. 175 (HC), Nganunu J Failure to provide hearing before decision taken - No justification for not applying audi alteram partem before taking preliminary decision which harmful to individual - Applicant having been provided with opportunity to make representations - Applicant choosing not to take advantage of opportunity - Applicant neglecting to make use of opportunity to be heard. SINDEN v. THE ATTORNEY - GENERAL and Another [2005] 1 B.L.R. 266 (HC), Chinhengo J Failure to provide hearing before decision taken - Such an infringement of audi principle and vitiating decision taken. SELEBI PHIKWE MINE WORKERS CO - OPERATIVE & THRIFT LOAN SOCIETY LTD v. COMMISSIONER OF CO - OPERATIVES [1993] B.L.R. 415 (HC), Aboagye J Legitimate expectation - Defence force officer - Retirement - Notice of compulsory retirement in terms of enactment - Appellant employed as officer in defence force - Employment governed by Defence Force Act and regulations - Regulation empowering Commander to compulsorily retire appellant - Retirement of appellant in terms of regulations - Whether appellant established any legitimate expectation of continuing employment until attaining compulsory retiring age - Botswana Defence Force (Regular Force) (Officers) Regulations (Cap. 21:05) (Sub. Leg.), regs. 4(4), (5)(b), 8 and 9. MOKOKONYANE v. COMMANDER OF BOTSWANA DEFENCE FORCE and Another [2000] 2 B.L.R. 102 (CA), Amissah P. J, Kumleben J and Zietsman JA Legitimate expectation principle - Essence of principle - Duty to act fairly - Right to be heard - Likelihood of decision prejudicially affecting person's liberty, property or existing rights - Right of person prejudicially affected to be heard unless enactment indicating otherwise. MOKOKONYANE v. COMMANDER OF BOTSWANA DEFENCE FORCE and Another [2000] 2 B.L.R. 102 (CA), Amissah P. J, Kumleben J and Zietsman JA Letter of suspension written to employee - Not in principle or legally required to give applicant opportunity to answer what are suspicions, which could be confirmed or alternatively proved groundless in further investigations. RABANA v. BOTSWANA HOUSING CORPORATION [1993] B.L.R. 175 (HC), Nganunu J Nature of hearing - Schoolboys of tender age expelled from school. MALAU and Another v. DEBSWANA DIAMOND COMPANY (PTY) LIMITED and Another [2004] 2 B.L.R. 497 (HC), Masuku J Nature of hearing required - Variation of applicants' rights to use of land - Consultation held at kgotla - In light of importance of decision for individuals insufficient to rely on kgotla - Individual consultation should have taken place. BOIKAGO BOREHOLE SYNDICATE and Others v. NGWATO LAND BOARD and Others [2004] 1 B.L.R. 357 (HC), Walia J Respondent offered opportunity to make submissions - Respondent offered option of retiring with full terminal benefits or dismissal - Respondent rejecting offers summarily - Whether method of cancellation adopted by appellant fair and in accordance with audi alteram partem rule. BOTSWANA HOUSING CORPORATION v. LEMPADI [1998] B.L.R. 131 (CA), Tebbutt J, Hoexter J and Lord Allanbridge JA Audi alteram partem principle Applicability of to suspension of Chieftainship Act (Cap. 41:01), s.12. GASEITSIWE v. THE ATTORNEY - GENERAL [1996] B.L.R. 54 (CA), Aguda JA, Lord Wylie JA and Hoexter JA Legitimate expectation - Armed forces - Officer - Retirement from army - Notice of compulsory retirement in terms of enactment - Applicant not given opportunity to be heard before notice of compulsory retirement - Whether right to be heard excluded by enactment - Defence Force (Regular Force) (Officers) Regulations (Cap. 21:05) (Sub. Leg.), reg. 4 - Defence Force (Officers) (Amendment) Regulations, 1996 (S.I. 76). MOKOKONYANE v. COMMANDER OF BOTSWANA DEFENCE FORCE and Another [2000] 1 B.L.R. 341 (HC), Reynolds J Right to be heard - Issue of security permit - Precious stones protection area - Revocation of permit - Whether right to be heard before revocation of permit - Precious and Semi - Precious Stones (Protection) Act (Cap. 66:03), ss. 25 and 26. MOMPATI v. DEBSWANA DIAMOND CO (PTY) LTD [2000] 1 B.L.R. 252 (HC), Nganunu CJ Audi alteram partem rule Constitution of political party - Provision of constitution empowering president of party to take action in cases of emergency in interest of party - Eruption of violence at meeting of special congress of party - Special congress dispersed by police - Dissolution of central committee by second respondent - Whether members of central committee ought to have been afforded opportunity of being heard before dissolution of central committee - Whether audi alteram partem rule infringed - Whether second respondent acted mala fides in dissolving central committee. SALESHANDO and Others v. BOTSWANA NATIONAL FRONT and Another [1998] B.L.R. 457 (CA), Amissah P. J, Aguda J and Korsah JA Disciplinary proceedings Right to fair hearing before impartial tribunal - Management committee of appellant to conduct disciplinary hearing - Committee severely prejudiced against respondent - Whether respondent likely to get fair hearing. GABORONE CONSUMERS CO - OPERATIVE SOCIETY v. GAOLEKWE [1998] B.L.R. 177 (CA), Aguda J, Tebbutt J and Lord Allanbridge JA Evidence Admissibility - Hearsay evidence - Disciplinary proceedings - Whether technical rules applicable. MOSEBOLA v. ATTORNEY - GENERAL [1988] B.L.R. 159 (HC), Lawrence Ag J Legitimate expectation Audi alteram partem doctrine - Right to be heard - When doctrine arises - Deciding official enforcing mandatory provisions of law - No right to hearing. KGOSIDIILE and Others v. ATTORNEY - GENERAL [1993] B.L.R. 372 (HC), Nganunu J Extension of audi alteram partem doctrine - Right to be heard - When doctrine arises - Express promise given on behalf of public authority or existence of regular practice reasonably expected to be continued - Housing of employees - Variation of terms and conditions of housing benefits - Whether employees entitled to houses at sub - economic rentals - Whether consent of employees required before increasing rentals. BOTSWANA RAILWAY WORKERS UNION v. BOTSWANA RAILWAYS ORGANISATION [1991] B.L.R. 113 (HC), Martin Horwitz AJ Extension of audi alteram partem doctrine - Right to be heard - When doctrine arises - Doctrine covering wide range of situations requiring varying degrees of formality in hearing - Basic requirement being that person affected in all cases to be given real opportunity to give explanation and if possible to controvert any allegation - Scholar expelled from school for theft - Tenets of doctrine not requiring formal inquiry - Scholar given opportunity to give verbal and written explanations to principal - Though presence of parents desirable, their absence in present case not meaning that scholar denied opportunity of giving his side of story - Requirements of rule satisfied. THIPE v. MOGWE N O and Others [1995] B.L.R. 242 (HC), Nganunu J Government advertising public service post - Best candidate to be appointed to post - Appointment of person not having requisite qualification to post - Appellant possessing required qualifications - Appellant having legitimate expectation to be rightful candidate for advertised post - Whether appellant has right to apply for judicial review. PELOEWETSE v. THE PERMANENT SECRETARY TO THE PRESIDENT and Others [2000] 1 B.L.R. 79 (CA), Amissah P. J, Tebbutt J and Friedman JA Presidential order of partial remission of sentences - Appellant having `legitimate expectation' to benefit from publication of Presidential order - Failure of respondents to apply principles of natural justice - Failure to fulfil appellant's `legitimate expectation' - Duty of court to review and set aside decision of respondents. ARBI v. COMMISSIONER OF PRISONS and Another [1992] B.L.R. 246 (CA), Amissah P, Aguda JA, and Puckrin JA When arising - Statutory power to set conditions of service - Amendment of conditions without hearing employees - Whether employees entitled to hearing before amendment of service conditions - Botswana Power Corporation Act (Cap. 74:01), subs. 11(4). ZACHARIAH and Another v. BOTSWANA POWER CORPORATION [1996] B.L.R. 710 (CA), Amissah JP, Aguda, Schreiner, Hoexter and Lord Allanbridge JJA Opportunity for hearing Oral representations - Grant of ranches under Tribal Land Act (Cap 32:02) - Whether applicants had legitmate expectation that they would be granted a hearing - No case made out for such expectation - Procedure adopted in granting land fair. KEABETSWE and Others v. NGWATO LAND BOARD [2002] 2 B.L.R. 320 (HC), Horn J Opportunity to meet charges Determination whether prima facie case - Disciplinary proceedings - Investigation prior to charges being preferred - Whether applicant entitled to be heard - Whether principles of natural justice applicable - Unified Teaching Service Regulations (Cap.62:01) (Sub.Leg.) (1973 Rev.), reg. 17. MOSEBOLA v. ATTORNEY - GENERAL [1988] B.L.R. 159 (HC), Lawrence AJ Disciplinary proceedings - Legitimate expectation - Misconduct and persistence in misconduct despite pleas from employer - Effect - Deprivation of legitimate expectation. SECHELE and Others v. BANK OF BOTSWANA [1989] B.L.R. 337 (HC), Livesey Luke CJ Disciplinary proceedings - Preliminary investigation into conduct of applicants - Finding of prima facie case and charges preferred against applicants - Failure to reply to charges or to exculpate themselves - Failure tantamount to plea of guilty - Disciplinary officer in circumstance finding applicants guilty without holding enquiry - Whether breach of Public Service Regulations (Cap. 26:01) (Sub. Leg) (1973 Rev.), regs. 29 and 30. BALESENG and Others v. ATTORNEY - GENERAL [1988] B.L.R. 195 (HC), Lawrence AJ Disciplinary proceedings - Preliminary investigation - Role of Permanent Secretary - Investigation not of disciplinary nature - Determination whether prima facie case - Audi alteram partem rule not applicable to preliminary investigation - Public Service Regulations (Cap. 26:01) (Sub. Leg.) (1973 Rev.), reg. 15 (1) - General Orders, s. 309. BALESENG and Others v. ATTORNEY - GENERAL [1988] B.L.R. 195 (HC), Lawrence AJ Right to be heard - Disciplinary proceedings - Director required to consider charges - Consideration of charges limited to comparison of charges preferred and reply thereto - Serious breach of enactment - Whether principles of natural justice applicable - Unified Teaching Service Regulations, regs. 17 - 19, 28 and 29. MOSEBOLA v. ATTORNEY - GENERAL [1988] B.L.R. 159 (HC), Lawrence AJ Right to be heard - Disciplinary proceedings - Suspension of applicant from school - Right of applicant to make representations to Minister in respect of his suspension - Applicant not informed of decision of disciplinary hearings - Whether applicant entitled to have right of findings of disciplinary hearings - Education (Government and Aided Secondary Schools) Regulations (Cap. 58:01) (Sub. Leg.), reg. 31. MBISANA v. THE ATTORNEY - GENERAL and Another [1999] 1 B.L.R. 189 (HC), Mosojane J Right to be heard - Disciplinary proceedings - Suspension of applicants from school - Nothing in Education (Government and Aided Secondary Schools) Regulations (Cap. 58:01) to suggest that audi alteram partem principle excluded - The proviso to regulation 28(3) permitted deviation from principles of natural justice only where compliance would entail a substantial delay which could seriously prejudice the interests of the school. MADIMABE and Others v. THE ATTORNEY - GENERAL [2001] 2 B.L.R. 419 (HC), Marumo J Right to be represented - Disciplinary proceedings - Preliminary investigation - Determination whether prima facie case - Whether applicants entitled to legal representation. BALESENG and Others v. ATTORNEY - GENERAL [1988] B.L.R. 195 (HC), Lawrence AJ Police officer Termination of employment - Failing to give applicant a hearing - Whether audi alteram partem rule excluded by Police Act (Cap. 21:01), s. 14(1). REBATENNE v. THE ATTORNEY GENERAL and Another [1998] B.L.R. 616 (HC), Nganunu CJ Retirement Compulsory retirement - Plaintiff compulsorily retired without being allowed opportunity to make representations - No reasons given for compulsory retirement - Whether defendant's action null and void - Whether defendant authority to retire plaintiff - Unified Local Government Service Act (Cap. 40:06), s. 12(3). SIMONDA v. THE ATTORNEY GENERAL [1998] B.L.R. 654 (HC), Aboagye J Rules of Breach of ordinary fairness and natural justice - Whether termination wrongful and unlawful. LEMPADI v. BOTSWANA HOUSING CORPORATION [1996] B.L.R. 1016 (HC), Gyeke - Dako J Employee given choice between pre - mature retirement with full benefits and termination - No opportunity to put his case - Whether principles of natural justice violated. LEMPADI v. BOTSWANA HOUSING CORPORATION [1996] B.L.R. 1016 (HC), Gyeke - Dako J Rules of - Rules of natural justice not incorporated in General Conditions of Service - Whether employer bound to observe these rules. LEMPADI v. BOTSWANA HOUSING CORPORATION [1996] B.L.R. 1016 (HC), Gyeke - Dako J Principles of natural justice Audi alteram partem rule Applicability of to decisions of Botswana National Sports Council Appeals Board. TAFIC SPORTING CLUB v. MOKOBI N.O. and Another [1997] B.L.R. 177 (HC), Gyeke - Dako J Breach of Remedies - Sports code - Dispute over replaying of football match - National Sports Council Regulations, regs. 8(3), 8(5), 9. TAFIC SPORTING CLUB v. MOKOBI N.O. and Another [1997] B.L.R. 177 (HC), Gyeke - Dako J Internal rules of procedure Except where otherwise provided, bodies entitled to regulate their own procedure provided this did not defeat purpose of empowering legislation and was fair. TAFIC SPORTING CLUB v. MOKOBI N.O. and Another [1997] B.L.R. 177 (HC), Gyeke - Dako J Review Application for Decision of State or official of State - Manner of proceeding - Rule 61 should be used - Where conflict of fact anticipated, summons and declaration should be used. DITSWANE v. BOTSWANA RAILWAYS [1997] B.L.R. 1088 (HC), Levy AJ Time within which to be brought - Where application not brought within a reasonable time - Review of arbitrator's award where proceedings already instituted for enforcement of award - Review application dismissed without merits being argued - Same issues raised in opposition to enforcement proceedings - Fact that application brought out of time a substantive issue in review application and dismissal of that application meant that same issues could not be raised in opposition to enforcement proceedings. WHARIC CONSTRUCTION (PTY) LTD v. NTETA and Another [2004] 1 B.L.R. 67 (HC), Collins J Decisions subject to Public bodies Political party - Whether decision of subject to review. AUTLWETSE v. BOTSWANA DEMOCRATIC PARTY and Others [2004] 1 B.L.R. 230 (HC), Collins J Decision of Minister to confirm dismissal set aside Applicant engaged in performing his normal duties as member of police when Minister made wrongful and unlawful decision - What effect setting aside of Minister's decision had. MORAKE v. THE ATTORNEY - GENERAL [1996] B.L.R. 970 (HC), Levy AJ Disciplinary hearing Disciplinary rules provided for investigation stage and hearing stage under different rules - Two meetings held - Committee had not made clear distinction between investigation stage and hearing stage. COETZEE v. BAROT and Another [1996] B.L.R. 872 (HC), Amissah JP, Schreiner and Hoexter JJA Internal procedural rules - No communication of committee's conclusion after investigation proceedings - No notification of hearing in terms of rule 35 - Invitation to appear on second occasion not issued under rule for hearing - Procedure for hearing not followed - Whether appellant condemned without a proper hearing according to rules. COETZEE v. BAROT and Another [1996] B.L.R. 872 (HC), Amissah JP, Schreiner and Hoexter JJA Dismissal from police force confirmed by Minister Delay in bringing review proceedings - Whether delay unreasonable. MORAKE v. THE ATTORNEY - GENERAL [1996] B.L.R. 970 (HC), Levy AJ In what cases Failure to apply principles of natural justice - Defence that domestic remedies not exhausted - Proceedings however flawed from beginning where audi alteram partem principle not applied. NATIONAL AMALGAMATED LOCAL AND CENTRAL GOVERNMENT AND PARASTATAL MANUAL WORKERS' UNION v. MABOTSENG and Others [2004] 1 B.L.R. 58 (CA), Tebbutt JP, Zietsman and Lord Sutherland JJA Legitimate expectation Grading of positions - Applicant promoted but retaining same grade - Establishment register showing applicant's post graded at higher grade for three consecutive years - Argued that error made in establishment register - Establishment register clear and unambiguous and public document affecting individual's rights - Mistake in register unilateral on part of government and not able to be used to defeat applicant's claim - Register constituting promise to applicant of scale he to be remunerated on and he having legitimate expectation to be so remunerated. MULALE v. MOLEBOGE and Others [2003] 1 B.L.R. 431 (HC), Lisimba J Safari operation conducted from two farms - Refusal of application for culling quota and ration permit - Permits issued for number of years - Legitimate expectation that permits would be issued again - No game farm status as required by Act - Whether expectation legitimate when arising out of long practice when such practice implemented contrary to enabling statute - Wildlife Conservation and National Parks Act No. 28 of 1992, ss. 24(1) and 24(6). LIMPOPO SAFARIS (PTY) LTD v. DIRECTOR OF WILDLIFE AND NATIONAL PARKS and Others [1996] B.L.R. 441 (HC), Nganunu J Minister to confirm dismissal of member of local police force Exercise of discretion by Minister - Minister confirmed dismissal - Entire record not forwarded to Minister for consideration - Whether Minister able to exercise discretion properly - Local Police Act (Cap. 21:04), subs. 18(1). MORAKE v. THE ATTORNEY - GENERAL [1996] B.L.R. 970 (HC), Levy AJ Of administrative decision of official or tribunal under powers granted by Act of Parliament Powers of court on review - Such review is inquiry into manner in which decision made - Court on review does not substitute its own view for that of decision - maker as to whether decision right, wrong or fair. RAPHETHELA v. ATTORNEY - GENERAL [2003] 1 B.L.R. 591 (HC), Nganunu CJ Of decision of functionary When review permissible - Withdrawal of waiver of fees previously granted by university - Whether decision could be set aside by court. MUDONGO v. UNIVERSITY OF BOTSWANA [2002] 2 B.L.R. 218 (HC), Walia AJ Of decision of official or tribunal under powers granted by Act of Parliament Grounds for review - On ground that decision grossly unreasonable - Test for - Test is whether decision so outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to question to be decided could have arrived at it. RAPHETHELA v. ATTORNEY - GENERAL [2003] 1 B.L.R. 591 (HC), Nganunu CJ Grounds for review - Courts will review and interfere with administrative and executive action in three circumstances - Where decision - maker acts illegally, contrary to empowering statute - Where decision made is grossly unreasonable to extent that court on review can only conclude that no person acting reasonably could have come to that decision - Where decision - maker acted unprocedurally and decision - making process unfair - Each case to be decided on its own facts. RAPHETHELA v. ATTORNEY - GENERAL [2003] 1 B.L.R. 591 (HC), Nganunu CJ Of taxation Procedure for Must be brought under Order 58 and not Order 61 of the Rules of the High Court. AKANYA (PTY) LTD v. BATHUSI TRANSPORT (PTY) LTD [1997] B.L.R. 168 (HC), Aboagye J Other remedies available Applicant failing to make use of domestic remedies - Effect of. ST LUKE'S GOSPEL CHURCH OF BOTSWANA v. MATLOTSE [2004] 1 B.L.R. 324 (HC), Lesetedi J Previous convictions not put Re - opening of proceedings. STATE v. ANNETSWE KANOKANG 1964 - 1967 B.L.R. 179 (HC), Thompson ACJ Statutory Bodies and Tribunals Failure to give proper notice of hearing. SMITH'S TRANSPORT and Others v. INDEX MOTORS and Another 1981 B.L.R. 167 (HC), Hannah J When to be brought Reasonable time after decision - Application brought five months after decision in question. ST LUKE'S GOSPEL CHURCH OF BOTSWANA v. MATLOTSE [2004] 1 B.L.R. 324 (HC), Lesetedi J Right to a fair hearing Power delegated to Minister to amend sections of Act by Parliament Minister not obliged to consult with any party before acting in terms of empowering section. BARCLAYS BANK OF BOTSWANA LTD v. BOTSWANA BANK EMPLOYEES' UNION and Others [1995] B.L.R. 10 (IC), De Villiers J Rules of natural justice Audi alteram partem principle Content of - Fully fledged tribunal not required in all cases. MASIMOLOLE v. THE ATTORNEY - GENERAL and Another [1997] B.L.R. 142 (CA), Amissah P, Lord Cowie and Lord Allanbridge JJA Content of - Not necessary that same person who takes decision must also conduct hearing. MASIMOLOLE v. THE ATTORNEY - GENERAL and Another [1997] B.L.R. 142 (CA), Amissah P, Lord Cowie and Lord Allanbridge JJA Nature of hearing - Oral hearing not required. BOTSWANA HOUSING CORPORATION v. RABANA [1997] B.L.R. 106 (CA), Amissah P, Tebbutt and Allanbridge JJA Breach of What constitutes - Commission of inquiry investigating applicants without informing them of nature of allegations or that they were being investigated. KWELAGOBE and Another v. KGABO and Another (No 2) [1994] B.L.R. 347 (HC), Martin Horwitz J Commissioner of Police acting in terms of s. 29 of Police Act (Cap. 21:01) Commissioner under duty to give police officer hearing before imposing severe punishment, especially dismissal - Police Act (Cap. 21:01), s. 29. MATSHEKA v. ATTORNEY - GENERAL [1993] B.L.R. 354 (HC), Mokama CJ Statutory powers Exercise of Closure of school - Whether in the public interest - Closure after class boycotts - No indication when boycotts would end - Minister had exercised discretion properly - Closure not unlawful. STUDENTS' REPRESENTATIVE COUNCIL and Another v. THE ATTORNEY - GENERAL [1995] B.L.R. 510 (HC), Mokama CJ Tender Award of Pre - qualification exercise - Nature of - Whether if the financial offer of the highest ranked proposal was below the financial offer of the next ranked proposal, the highest ranking tenderer had to be invited to revise its financial offer. KER & DOWNEY (BOTSWANA) (Pty) Ltd v. THE LAND TRIBUNAL and Another [2001] 2 B.L.R. 47 (HC), Kirby J Setting aside of - Administrative law principles requiring that tribunal or agency to direct its mind to proper question and properly direct its mind to factors which to be taken into account - Appellant awarding tender without having applied its mind to essential issue of comparability of tenders and their conformity in regard to pricing - Award of tender correctly set aside. The Public Procurement and Asset Disposal Board v. Researched Solutions Intergrators (Pty) Ltd and Others [2006] 1 B.L.R. 319 (CA), Tebbutt JP, McNally and Lord Coulsfield JJA Setting aside of - Information provided by tenderer replaced by tender board officials - Evaluation of tender not based on information provided by tenderer - Whether tender properly dealt with. A V COMMUNICATIONS (Pty) Ltd v. THE ATTORNEY - GENERAL and Others [1995] B.L.R. 739 (HC), Nganunu J Setting aside of - Two invitations to tender on same items - Allegations that second tender provided preferred tenderer with advantage - Whether tender dealt with properly. A V COMMUNICATIONS (Pty) Ltd v. THE ATTORNEY - GENERAL and Others [1995] B.L.R. 739 (HC), Nganunu J Setting aside of - Unfairness in award of tender alleged - Award based on procedure - Choice of tenderer administrative action - Whether court could interfere with choice of tenderer. A V COMMUNICATIONS (Pty) Ltd v. THE ATTORNEY - GENERAL and Others [1995] B.L.R. 739 (HC), Nganunu J Voluntary association Expulsion from Application to set aside expulsion order - Whether domestic remedies had to be exhausted before recourse to court - Practical reasons justifying departure from general rule. MABOTSENG and Others v. NATIONAL AMALGAMATED LOCAL AND CENTRAL GOVERNMENT AND PARASTATAL MANUAL WORKERS UNION [2002] 2 B.L.R. 467 (HC), Kirby J Notice of appeal Condonation of late filing - Whether provision peremptory or directory - Merits of the matter. BOTSWANA FOOTBALL ASSOCIATION v. P G NOTWANE FOOTBALL CLUB and Others; AD HOC CHAIRMAN OF EXECUTIVE OF BOTSWANA FOOTBALL ASSOCIATION and Others v. P G NOTWANE FOOTBALL CLUB [1994] B.L.R. 37 (CA), Aguda, Bizos, Puckrin JJA AGRICULTURE Animal diseases Powers of Minister Slaughter of cattle - Outbreak of cattle lung disease - Minister ordered all cattle in disease affected area to be slaughtered - Whether Minister's powers under regulation 24 properly exercised - Diseases of Animal Act (Cap. 37:01). KANDU and Others v. DIRECTOR OF VETERINARY SERVICES and Another [1996] B.L.R. 618 (HC), Gyeke - Dako J Slaughter of cattle - Outbreak of cattle lung disease - Minister ordered all cattle in disease affected area to be slaughtered - Whether Minister's decision and mode of its execution could be reasonably justified in democratic society under Constitution - Constitution of Botswana, s.5. KANDU and Others v. DIRECTOR OF VETERINARY SERVICES and Another [1996] B.L.R. 618 (HC), Gyeke - Dako J ARBITRATION Arbitration award Interest on Whether arbitrator correctly awarded interest on professional and arbitration fees. FRANCISTOWN STEEL CORPORATION (PTY) LTD t/a SULCO CONSTRUCTION v. DITHUNYA COSMETICS AND CHEMICALS (PTY) LTD; DITHUNYA COSMETICS AND CHEMICALS (PTY) LTD v. FRANCISTOWN STEEL CORPORATION (PTY) LTD TRADING AS SULCO CONSTRUCTION and Another [1996] B.L.R. 277 (HC), Cotran J Arbitrator Appointment Dispute as to who out of three nominees should act as arbitrator - Factors to be considered in making decision. B C L v. BOTSWANA POWER CORPORATION [1985] B.L.R. 153 (HC), Hannah J Appointment Submission of dispute to arbitration - Meaning of 'submission' - Agreement to refer dispute to arbitration with named arbitrator - Dispute between parties - Refusal of named arbitrator to act - Denial by respondent of existence of agreement between parties - Application by applicant to court to appoint arbitrator - Whether court jurisdiction to appoint arbitrator for the parties - Arbitration Act (Cap. 06:01), ss. 2 and 11(b). ABLETRADE (PTY) LTD v. ITIRELENG COMMUNITY JUNIOR SECONDARY SCHOOL and Others [2001] 1 B.L.R. 283 (HC), Nganunu CJ Award Declaration of nullity and setting aside of arbitration proceedings - Alleged that witness testimony available to show attempt to set proceedings aside based on lie - Priority that witness be heard - Matter referred to court for further hearing. Horizon (Pty) Ltd and Another v. Southern District Council and Another [2006] 1 B.L.R. 299 (CA), Zietsman, Moore and McNally JJA Review of award - Application to review, correct or set aside award - Ground for setting aside award - Misconduct on part of arbitrator - Permissible to correct or vary award on ground of mistake - Allegation of irregularity in making award - Whether any question of mistake in issue - Whether award reviewable. BOTSWANA MINE WORKERS UNION v. MAPITSE N O and Another [1990] B.L.R. 96 (HC), Martin Horwitz AJ Review of award - Arbitrator required to conduct himself impartially and without bias - Reasonable person would, in circumstances, question impartiality and independence of arbitrator - Grounds for review established. ST JOSEPH'S COLLEGE v. DAWSON & FRASER (PTY) LTD and Others [2005] 2 B.L.R. 418 (HC), Marumo J Remuneration of Agreement between parties as to payment of arbitrator's fees - Whether arbitrator erred in deciding that contractor and employer should bear arbitrator's fees equally if there was agreement otherwise. FRANCISTOWN STEEL CORPORATION (PTY) LTD t/a SULCO CONSTRUCTION v. DITHUNYA COSMETICS AND CHEMICALS (PTY) LTD; DITHUNYA COSMETICS AND CHEMICALS (PTY) LTD v. FRANCISTOWN STEEL CORPORATION (PTY) LTD TRADING AS SULCO CONSTRUCTION and Another [1996] B.L.R. 277 (HC), Cotran J Award What constitutes Application to arbitrator for stay of arbitration pending delictual action for damages to be instituted in High Court - Arbitrator's ruling on such application not an 'award' but a procedural step in arbitration. BCL LTD v. TRENGOVE NO and Another [2002] 1 B.L.R. 221 (HC), Collins AJ Award of arbitrator Enforcement of Attachment to enforce - Principle of effectiveness applicable to actions equally applicable to arbitration. SILVERSTONE (PTY) LTD and Another v. LOBATSE CLAY WORKS (PTY) LTD [1995] B.L.R. 669 (HC), Lesetedi AJ Interim injunction in terms of s 16(2)(f) of Arbitration Act (Cap 06:01) Fact that, by time application comes to court, final relief is sought not changing fact that order sought is interim to pending arbitration. BOTSWANA ASH (PTY) LTD v. ZUZUMBE (PTY) LTD [2003] 1 B.L.R. 58 (HC), Monthe AJ 'Interim' in expression 'an interim injunction or similar relief' in s 16(2)(f) of Act Means 'interim injunction pending final relief' - Final relief competent under s 16(2)(f) - Application to court for stay of arbitration pending delictual action for damages to be instituted in High Court - Permissible to invoke s 16(2) of Act for such purpose - Court having power to grant or refuse stay of arbitration without usurping or interfering with arbitrator's authority. BCL LTD v. TRENGOVE NO and Another [2002] 1 B.L.R. 221 (HC), Collins AJ Misconduct in arbitrator's award Award made relating to excavations originally excluded from contract Whether any misconduct in arbitrator's award on extra excavations undertaken by contractor that were originally excluded from the contract. FRANCISTOWN STEEL CORPORATION (PTY) LTD TRADING AS SULCO CONSTRUCTION v. DITHUNYA COSMETICS AND CHEMICALS (PTY) LTD; DITHUNYA COSMETICS AND CHEMICALS (PTY) LTD v. FRANCISTOWN STEEL CORPORATION (PTY) LTD TRADING AS SULCO CONSTRUCTION and Another [1996] B.L.R. 277 (HC), Cotran J Referral to When dispute arising Building contract providing for arbitration - Defendant having failed to pay on architect's certificate - Failure to pay on certificate not per se a dispute - Arbitration Act (Cap 06:01) s 6(1). GLENDINNING BOTSWANA (PTY) LTD v. PORTION 122 MILLENIUM (PTY) LTD [2005] 1 B.L.R. 282 (HC), Dow J Stay of arbitration Application in terms of s 16(2)(f) of Arbitration Act (Cap 06:01) for stay of arbitration pending delictual action for damages to be instituted in High Court Delictual action based fraudulent misrepresentation inducing contract - Arbitration arising out of disputes under same contract - Applicant required to demonstrate that respondent's conduct amounted to material fraudulent misrepresentation inducing contract - No misrepresentation impacting upon contractual substance proved - Application dismissed. BCL LTD v. TRENGOVE NO and Another [2002] 1 B.L.R. 221 (HC), Collins AJ Stay of judicial proceedings Arbitration agreement Agreement to refer dispute to arbitration - Summons issued by plaintiff against defendant for breach of contract - Entry of appearance and filing of plea by defendant - Application by defendant to stay proceedings in reliance upon arbitration agreement - Whether defendant precluded from relying on arbitration agreement by virtue of Arbitration Act - Whether court discretion to stay proceedings - Arbitration Act (Cap. 06: 01), s. 6. BM PACKAGING(PTY) LTD v. PPC BOTSWANA (PTY) LTD [1998] B.L.R. 309 (HC), Mosojane J Agreement to refer dispute to arbitration - Action claiming damages for breach of contract - Defendant entering appearance to defend - Application for summary judgment by plaintiff - Defendant applying for stay of proceedings in reliance upon arbitration agreement - Whether proper in circumstances to stay proceedings - Arbitration Act (Cap. 06:01), s. 6(1). ROPACE BOTSWANA (PTY) LTD v. DAWSON AND FRASER (PTY) LTD [2001] 1 B.L.R. 479 (HC), Lesetedi J Stay of proceedings 'Taking . . . steps in the proceedings' Pleadings - Request for further particulars - Request constituting taking steps in the proceedings - Option open to defendant - Defendant to proceed with pleadings by raising preliminary plea that action be submitted to arbitration - Arbitration Act (Cap. 06:01) (1973 Rev.), s. 6(1). BECCO BOTSWANA (PTY) LTD v. DIAMOND MANUFACTURING BOTSWANA (PTY) LTD [1983] B.L.R. 288 (HC), O'Brien Quinn CJ Stay of proceedings pending arbitration When to be ordered Terms of agreement in dispute - Function of court to determine and not arbitrator and stay of trial should accordingly not be ordered. FENCING CENTRE (PTY) LTD v. MURRAY & ROBERTS CONSTRUCTION and Others [2002] 2 B.L.R. 269 (HC), Kirby J ARMED FORCES Botswana Defence Force Officer Course of instruction - Private scholarship outside Botswana - Officer resigning after training - Whether liable to repay costs of training, allowances and salary - Condictio indebiti - Defence Force (Regular Force) (Officers) Regulations (Cap. 21:05) (Sub. Leg.), reg. 5(6)(b). MERAFHE v. BOTSWANA DEFENCE FORCE and Another [2000] 1 B.L.R. 284 (HC), Gittings J Discipline Discharge Misconduct - Effect of reg 2(6)(c) of the Defence Force (Regular Force) Discharge Regulations (Cap 21:05) (Sub Leg). CHEPETE v. THE ATTORNEY - GENERAL and Another [2005] 1 B.L.R. 351 (HC), Nganunu CJ Court martial Trial by Release from custody pending trial - No power in court - martial to release on bail pending trial - Botswana Defence Act (Cap. 21:05). MANTHE v. THE ATTORNEY - GENERAL and Others [1997] B.L.R. 1170 (HC), Gyeke - DaKo J Members Actions by and against Petition to set aside conviction and sentence by military tribunal - Petitioner not having exhausted his domestic remedies - Whether this was a bar to petition to court - Botswana Defence Act (Cap 21:05), ss 32(d), 131. MOGALADI v. THE ATTORNEY - GENERAL and Another [2002] 2 B.L.R. 140 (HC), Marumo J Officers Disciplinary proceedings against Arrest of officer, a lieutenant - colonel - Whether arrest of lieutenant - colonel by a provost marshall where such provost marshall had not acted under order of another officer a valid arrest under section 70(4) of Botswana Defence Force Act (Cap. 21:05). MOLEFE v. THE ATTORNEY - GENERAL and Others [2001] 2 B.L.R. 550 (HC), Mwaikasu J B BAILMENT - see CONTRACT BANKS Banker Agreement between banker and customer Breach of - In carrying out instructions of its customer to make payments from latter's account, banker acting as agent and in respect of its duty to honour its customer's payment orders must not do so out of account without conforming to instructions or mandate given to it by customer - In deciding whether banker had exercised necessary degree of care and skill, test objective - Duty of care not of absolute nature but degree of care exercised by reasonable banker, ie ordinary prudent banker. BOTSWANA HOUSING CORPORATION v. FIRST NATIONAL BANK OF BOTSWANA LTD [2003] 2 B.L.R. 6 (CA), Tebbutt JP, Korsah and Grosskopf JJA Debt due by banker to customer Such capable of attachment - Right to funds standing to credit of bank account capable of attachment. SUPREME CONSTRUCTION (PTY) LTD and Another v. KAMUSHINDA and Others [2004] 2 B.L.R. 440 (HC), Marumo J Customer relationship Duty of bank - Execution of customer's orders - Drawing and payment of customer's cheques - Bank's duty to exercise reasonable skill and care - Mandate to honour instructions signed by specified officers of staff of plaintiff - Bank acting on instructions of unauthorized members of staff of customer - Customer suing banker for breach of mandate - Whether bank under obligation to make inquiries before honouring instructions - Defendant bank applying for absolution from the instance - Whether application sustainable. BOTSWANA HOUSING CORPORATION v. FIRST NATIONAL BANK LTD [1999] 1 B.L.R. 314 (HC), Reynolds J Banking business Customer Relationship between banker and customer - Deposit of money in bank by customer - Money deposited in bank becoming banker's money - Bank becoming debtor to depositor. SABONE v. THE STATE [2001] 1 B.L.R. 538 (HC), Nganunu J Deposits Meaning of 'deposits' as used in definition of 'banking business' - Respondent ostensibly carrying on business as management consultant - Monthly payment of contributions by clients to respondents - Moneys repayable to clients in due course - Respondent meanwhile at liberty to use contributions - Whether contributions loans - Whether respondent carrying on business of banking - Whether respondent a financial institution - Financial Institutions Act (Cap. 46:04) (1973 Rev.), ss. 2, 5 and 7. BANK OF BOTSWANA v. R M SIKWANE ENTERPRISES [1985] B.L.R. 134 (HC), Hannah J Respondent receiving deposits while insolvent - Respondent not licensed to carry on banking business - Whether criminal offence had been committed - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 328 - Financial Institutions Act (Cap. 46:04) (1973 Rev.), s. 40(2). BANK OF BOTSWANA v. R M SIKWANE ENTERPRISES [1985] B.L.R. 134 (HC), Hannah J Cheque Dishonour Notice of dishonour required - Cheque not falling within excepted provisions of sections 47 and 49 of Cap. 46:02 - 'Refer to drawer' written on dishonoured cheque - Action on dishonoured cheque - Failure to give notice of dishonour before issuing summons - Whether summons defective - Bills of Exchange Act (Cap. 46:02) (1973 Rev.) ss. 47 and 49. MAROBELA and Another v. JAMOR (PTY) LTD t/a STEEL KING [1983] B.L.R. 83 (HC), Hannah J Exportation Cheques drawn on foreign bank by person living outside Botswana - Cheques mailed by a citizen of Botswana to person outside Botswana - Interception of mail by Botswana Police - Whether cheques being exported in contravention of Exchange Control Regulations, 1976 (S.I. 110), reg. 23. STATE v. NICOLAU [1985] B.L.R. 492 (HC), O'Brien Quinn CJ Holder Rights of holder - Cheque made payable to plaintiffs' attorneys - Plaintiffs receiving delivery of cheques - Cheque not indorsed - Cheque dishonoured by bank - Plaintiffs suing on dishonoured cheque - Whether plaintiffs had locus standi to sue on cheque - Whether plaintiffs holder of cheque. MAXEL TRADING COMPANY (PTY) LTD v. UNITED AUTOMOBILES (PTY) LTD [1988] B.L.R. 300 (HC), Hallchurch J Liability of signatory Cheque imprinted with company's name and account number and signed without qualification by signatory - Ambiguity ex facie the cheque which could be resolved by means of extrinsic evidence. TRANS LOBATSE (PTY) LTD v. MARSH and Others; MAHAJAN v. TRANS LOBATSE (PTY) LTD and Others [1997] B.L.R. 77 (CA), Aguda, Steyn and Tebbutt jJA Cheques allegedly indorsed by defendant in representative capacity - No authority to indorse cheques in representative capacity - Dishonour of cheques - Defendant personally liable on dishonoured cheques - Bills of Exchange Act (Cap. 46:02), s. 22. BARCLAYS BANK OF BOTSWANA LTD v. KIKIA and Another [1990] B.L.R. 54 (HC), Barrington - Jones J Notice of dishonour When to dispense with notice - Where drawer not bound between himself and drawer to accept or pay bill - Drawer bank not bound to honour drawer's cheques - Whether notice dispensed with - Bills of Exchange Act (Cap. 46:02), s. 49 (2) (c) (iv) and (d) (iii). BARCLAYS BANK OF BOTSWANA LTD v. KIKIA and Another [1990] B.L.R. 54 (HC), Barrington - Jones J Presentment Defendant negotiating cheques to plaintiff - Plaintiff presenting cheques for payment - Cheques dishonoured - Presentment for payment and dishonour - Proof - Onus on plaintiff - Whether onus discharged. KIKIA v. BARCLAYS BANK OF BOTSWANA LTD [1991] B.L.R. 267 (CA), Amissah P, Bizos and Schreiner JJA When presentment excused - Defendant's first of a series of three cheques dishonoured - Plaintiff failing to present two subsequent cheques - Provisional sentence refused in respect of the two subsequent cheques - Bills of Exchange Act (Cap. 46:02), s. 45(2)(c), (e). NALEDI MOTORS (PTY) LTD v. DENCO (PTY) LTD [1997] B.L.R. 365 (HC), Nganunu J Interest Accrual of interest Whether creditor obliged to inform debtor of accrual of interest. FIRST NATIONAL BANK OF BOTSWANA LTD t/a WESBANK v. MCKOP [2001] 1 B.L.R. 502 (HC), Kirby J 'Capitalized' interest Whether interest or capital - Interest retains character as interest. BARCLAYS BANK OF BOTSWANA LTD v. MPUISANG [2000] 1 B.L.R. 481 (HC), Nganunu CJ Commencement Date from which interest to run - Such date that of the court's judgment, not that on which damage inflicted or incurred. CHICOLE v. THE ATTORNEY - GENERAL FOR BOTSWANA and Another [1994] B.L.R. 77 (CA), Amissah JP, Aguda JA, Schreiner JA Compound interest Standard banking usage - Implied agreement to charge interest. FIRST NATIONAL BANK OF BOTSWANA LTD t/a WESBANK v. MCKOP [2001] 1 B.L.R. 502 (HC), Kirby J In duplum rule Interest claimable not to exceed amount equal to capital sum. BARCLAYS BANK OF BOTSWANA LTD v. MPUISANG [2000] 1 B.L.R. 481 (HC), Nganunu CJ Interest Compound interest - Whether claimable. BARCLAYS BANK OF BOTSWANA LTD v. MPUISANG [2000] 1 B.L.R. 481 (HC), Nganunu CJ Letter of credit Effect of Letter of credit is independent of primary contract of sale - Obligation on bank to pay irrespective of any dispute between buyer and seller - Buyer may not go behind document and cause payment to be stopped or suspended - Court will only intervene if a party is alleged to have committed fraud. AFRICAN HANDLING EQUIPMENT COMPANY v. MONITOR KAMAZ TRUCKS (PTY) LTD [1995] B.L.R. 800 (HC), Gaefele Ag J Liability of Duty to observe banker - customer confidentiality Banker required by order of magistrate in terms of section 250(1) of the Criminal Procedure and Evidence Act (Cap. 08:02) to reveal information - Extent of banker's duties - Validity of order that provided for bank to provide `all relevant information'. DAVID v. BARCLAYS BANK OF BOTSWANA and Another [2001] 2 B.L.R. 340 (HC), Mwaikasu J Liquid document Cheque Validity - Nature of liquid document - Cheque drawn on local bank - Amount on cheque expressed in foreign currency - Whether liquidity of document destroyed. MAROBELA and Another v. JAMOR (PTY) LTD t/a STEEL KING [1983] B.L.R. 83 (HC), Hannah J Payment Presentment for payment When necessary - Right of recourse against drawer and indorser accruing to holder when bill dishonoured by non - acceptance - Presentment not necessary under circumstances - Bills of Exchange Act (Cap. 46:02), s. 42 (2). BARCLAYS BANK OF BOTSWANA LTD v. KIKIA and Another [1990] B.L.R. 54 (HC), Barrington - Jones J BIRTHS AND DEATHS Alteration of Birth Certificate and Births Register. EX PARTE HERBST 1975 (2) B.L.R. 1 (HC), Rooney J Burial Deceased spouse Person entitled to bury deceased spouse - Batlokwa tribal custom - Surviving spouse entitled to bury deceased spouse - Exceptions to rule - When surviving spouse not entitled to bury deceased spouse. BOGATSU v. BOGATSU and Another [1987] B.L.R. 496 (HC), Hallchurch J Right of surviving spouse to determine where deceased should be buried - Effect of breakdown in relationship between spouses. GABOSIANELWE v. MOEPI and Others [2004] 2 B.L.R. 516 (HC), Chinhengo J Person entitled to bury deceased Deceased living with applicant at time of death, having divorced ex - wife - Legitimate children or their blood relations each in order of succession rightful people to undertake responsibility of burial - Fact that deceased would not have wished applicant to be excluded from burial proceedings taken into account. MOTSHWAEDI v. REBAONE and Others [2005] 2 B.L.R. 373 (CA), Sarkodie - Mensah AJ Right to bury Vests in heirs, failing them, the blood relations - Mere non - payment of bogadi by person in a formal recognized union not sufficient to bastardise children. TANGANE and Others v. KAOTE and Others [2002] 1 B.L.R. 300 (HC), Chatikobo J Wishes of deceased person preferred over wishes of surviving spouse Marriage found to have existed in name only at time of deceased's death - Deceased wish to be buried by relatives - In majority of cases, wishes of surviving spouse adhered to but where marriage no more than empty shell and wishes of deceased capable of being satisfactorily ascertained, court could exercise discretion to award burial rights to relatives other than surviving spouse. TSHOAGONG v. TSHOAGONG and Another [2003] 2 B.L.R. 110 (HC), Marumo J Deaths Inquests Certification of death - Nothing in Inquests Act (Cap 07:01) s 5 or s 6 requiring certification of death to be made - Such the prerogative of investigating police officer depending on circumstances of case - Where body badly decomposed and no evidence of foul play present, police officer entitled to give authority for body to be buried without post - mortem examination being carried out - Section 6(1)(d) granting discretion to police officer to authorize body to be medically examined. KEHUPETSE v. THE ATTORNEY - GENERAL [2003] 2 B.L.R. 316 (HC), Lesetedi J BUILDING Contract Construction Vesting of property - Plant and material brought on to building site by contractor - Agreement stipulating plant and material deemed to become property of building owner - Whether property vested in building owner. TOSAS (PTY) LTD v. ATTORNEY - GENERAL [1987] B.L.R. 510 (CA), Maisels P, Amissah and Van Winsen JJA C CESSION Cessionary Locus standi Third party allegedly ceding rights to plaintiff - Mere allegation of existence of cession bestowing locus standi on plaintiff - Whether plaintiff has established locus standi in circumstance. MAHOMED v. GEORGOULAS [2000] 2 B.L.R. 245 (HC), Letsididi AJ Contract Contractual rights Pactum de non cedendo - Stipulation against cession without prior written consent of second respondent - Agreement containing arbitration clause - First respondent ceding and transferring all its claims and rights to applicant - Cession of rights made without prior consent of second respondent - Admission of second respondent of owing first respondent an amount of P108,682.00 - Refusal to pay amount to applicant - Application for order declaring cession valid and payment of P108,682 to applicant - Whether cession validly made - Whether applicant has any other enforceable right under cession. DRAMBOLE v. CYRIL HURVITZ EXPORT CO (BP) and Another [1992] B.L.R. 217 (HC), Nganunu J CHIEFTAINCY Chief of tribe Application to set aside appointment Jurisdiction of court - Effect of ouster clause in section 25 of the Chieftainship Act (Cap. 41:01). KGOSIKWENA v. THE ATTORNEY - GENERAL and Another [2001] 2 B.L.R. 513 (HC), Nganunu CJ, Dibotelo and Lisimba JJ Designation of paramount chief Action to set aside designation of - Proceedings flawed as review clothed as action - Proceedings also brought unreasonably late, some 20 years after the event - Chieftaincy Act (Cap 41:01), s 25. SECHELE v. THE ATTORNEY - GENERAL and Another [2002] 2 B.L.R. 94 (HC), Dibotelo J Suspension of Powers of Minister - Whether chief a fit and proper person - Chieftainship Act (Cap. 41:01), s.12. GASEITSIWE v. THE ATTORNEY - GENERAL [1996] B.L.R. 54 (CA), Aguda JA, Lord Wylie JA and Hoexter JA Whether minister legally obliged to give full reasons for suspension - Chieftainship Act (Cap. 41:01), s.12. GASEITSIWE v. THE ATTORNEY - GENERAL [1996] B.L.R. 54 (CA), Aguda JA, Lord Wylie JA and Hoexter JA Designation as sub - chief Validity of Challenge to designation brought by ordinary application rather than under Order 61 of the Rules of the High Court (Cap 04:02) (Sub Leg) - No prejudice occasioned by adoption of incorrect procedure and matter not to be dismissed on this ground alone. GULUBANE v. THE ATTORNEY - GENERAL and Others [2002] 2 B.L.R. 224 (HC), Marumo J Election of sub - chief - Election well within the contemplation of the Act whether person elected of royal blood or not. GULUBANE v. THE ATTORNEY - GENERAL and Others [2002] 2 B.L.R. 224 (HC), Marumo J Designation of person as sub - chief Consultation required Form of - Election permitted where deep division exists in body to be consulted - Chieftainship Act (Cap 41:01), s. 19. LEIPEGO v. MOAPARE and Others [1993] B.L.R. 229 (CA), Amissah JP, Aguda and Bizos JJA Discrimination in Chieftainship Act (Cap. 41:01) Challenge to Section 2 of Act not affording equal protection of law to Wayeyi tribe and in conflict with section 3(a) of Constitution. KAMANAKAO I and Others v. THE ATTORNEY - GENERAL and Another [2001] 2 B.L.R. 654 (HC), Nganunu CJ, Dibotelo and Dow JJ Whether court could examine validity given that provisions antedated Constitution and such legislation saved by section 15(9) - Challenge justiciable where provision offended against any other section of Constitution than section 15. KAMANAKAO I and Others v. THE ATTORNEY - GENERAL and Another [2001] 2 B.L.R. 654 (HC), Nganunu CJ, Dibotelo and Dow JJ Paramount chief For Wayeyi tribe Whether failure of Constitution and Chieftainship Act (Cap. 41:01) to acknowledge Wayeyi tribe and to allow them to have their members sit as members of the House of Chiefs discriminated unfairly against such tribe. KAMANAKAO I and Others v. THE ATTORNEY - GENERAL and Another [2001] 2 B.L.R. 654 (HC), Nganunu CJ, Dibotelo and Dow JJ CO - OPERATIVE SOCIETIES Decision in dispute referred to Commissioner in terms of s. 92 of Co - operative Societies Act 5 of 1989 Commissioner making recommendation against one party prior to dispute being referred to him In such circumstance Commissioner unable to exercise function impartially and without bias. SELEBI PHIKWE MINE WORKERS CO - OPERATIVE & THRIFT LOAN SOCIETY LTD v. COMMISSIONER OF CO - OPERATIVES [1993] B.L.R. 415 (HC), Aboagye J Liquidation Powers of liquidator Signature of certificates of indebtedness - Effect of s. 97(1) of Co - operative Societies Act, 1989. BOTSWANA CO - OPERATIVE BANK LTD v. CHARUMBIRA [1997] B.L.R. 941 (HC), Aboagye J COMPANIES Actions by and against companies Company may not enter appearance to defend and defend action 'otherwise than by an attorney' Rules of the High Court (Cap 04:02) (Sub Leg), Order 9 rule 1(1), (2) - Company not exempted from provisions of Order 9 rule 1(2) because action commenced by way of application and not by writ of summons - Order 1 rule 3 - Director of company therefore not having right of audience in High Court on behalf of company - Nor can director be heard in Court of Appeal on behalf of company - Court of Appeal Act (Cap 04:01), s 7 - Such not depriving director of his/her constitutional rights under s 12(1) of Constitution of Botswana. WATER ENGINEERING (PTY) LTD v. MURRAY & ROBERTS (BOTSWANA) (PTY) LTD (FORMERLY MULTI CONSTRUCTION BUILDING & ENGINEERING (PTY) LTD) [2002] 2 B.L.R. 68 (CA), Korsah, Lord Sutherland and Akiwumi JJA Jurisdiction Company's place of residence - Dual residence - Whether a company can also have a place of residence at its registered office. SILVERSTONE (PTY) LTD and Another v. LOBATSE CLAY WORKS (PTY) LTD [1996] B.L.R. 190 (CA), Amissah JP, Schreiner JA and Tebbutt JA Application for judicial management Changed to application for winding - up Costs of intervening and abortive applications. PARLATO (PTY) LTD v. BENCO INTERNATIONAL BOTSWANA (PTY) LTD and Others 1982 (1) B.L.R. 147 (HC), Hannah J Application for summoning of meetings of creditors of a private Company in terms of Section 161 (1) of the Companies Act. In re HUGO STRACHAN 1977 B.L.R. 63 (HC), Edwards J Application under Section 161 (1) of the Companies Act for an order that meetings of creditors be summoned to consider a proposed arrangement. EX PARTE GAY N O 1977 B.L.R. 82 (HC), Edwards J Company Liquidation Voidable disposition - Disposition made after commencement of liquidation - Discretion of court - Principles for exercise - Applicant providing company with performance bond supporting its undertaking to complete contract - Company unable to execute contract - Agreement that applicant execute contract for company - Company agreeing to endorse all cheques made in payment to applicant - Provisional liquidation order granted against company - Cheque endorsed in favour of applicant stopped - Application for validation of disposition - Whether disposition be validated. GABOREKWE v. P D H (PTY) LTD and Others [2000] 1 B.L.R. 38 (HC), Nganunu CJ Shares Shareholder - Deceased shareholder bequeathing shares to wife - Wife appointed executrix of deceased estate - Invitation by Central Tender Board for tender - Tenders invited from only wholly citizen owned companies - Tender by respondent - Fifty - five percent of shares owned by deceased share holder devolving on executrix and legatee of shares - Executrix non - citizen - Whether respondent wholly citizen owned company. MALIDO (PTY) LTD v. THE ATTORNEY - GENERAL and Others [1999] 1 B.L.R. 141 (CA), Amissah P. J, Lord Allanbridge J and Lord Morison JA Winding - up Stay of actions - Execution - Sale of goods by sheriff - Execution put in force before commencement of winding - up proceedings - Proceeds of sale in hands of sheriff - Whether execution void by reason of section 180 of the Companies Act (Cap. 42:01) (1973 Rev.) Ex parte, M & P TRIKAM; In re: MANICA FREIGHT SERVICES (PTY) LTD and Others v. PEAK CLOTHING (BOTSWANA) (PTY) LTD [1986] B.L.R. 1 (HC), Murray J Criminal liability Striking off register and dissolving of company Charge of being found in possession of suspected stolen property after dissolution of company - Whether charge sustainable. STATE v. BE - CORNER COMPLEX (PTY) LTD [1992] B.L.R. 230 (HC), Gyeke - DaKo J Directors Appointment of Point in limine - Deponent to affidavit a director appointed by subscribers - Appointment not recorded in formal resolution - Whether such director a first director entitled to depose to affidavit on behalf of company. BIG GAME DEVELOPMENT COMPANY BOTSWANA LIMITED v. DE KOCK and Another [1995] B.L.R. 788 (HC), Gaefele AJ Directors Criminal liability - Charge against company - Director liable for punishment but must be charged - Criminal Procedure and Evidence Act (Cap. 08:02), s. 332 (1); Penal Code (Cap. 08:01), s. 24. WRIGHT v. THE ATTORNEY - GENERAL [1996] B.L.R. 405 (HC), Gittings J Personal liability Recovery of losses caused where business carried on recklessly or with intention to defraud - Knowledge by director - Director adopting supine attitude but indifference to general affairs of company rather than to fraudulent activities - Companies Act (Cap 42:01), s 274(1). FIRST NATIONAL BANK OF BOTSWANA t/a WESBANK v. MASEKO and Others [2002] 1 B.L.R. 1 (HC), Collins AJ Foreign liquidators Recognition Applicants appointed joint liquidators of company in South Africa having assets in Botswana - Application for recognition as liquidators of company's assets in Botswana - Whether proper to give recognition. EX PARTE TRAKMAN N O and Another [1983] B.L.R. 176 (HC), Hannah J Judicial management Application for Grounds on which order may be made - Applicant having insignificant stake in company which although in financial difficulties was in no immediate danger of being liquidated. MACDONALD v. COIN BOTSWANA (PTY) LIMITED [2004] 1 B.L.R. 415 (HC), Sapire AJ External Company. SHELL OIL BOTSWANA (PTY) LTD v. A G BURTON CONSTRUCTION LTD 1977 B.L.R. 45 (HC), Edwards J Judicial management B P DISTRIBUTORS (PTY) LTD v. GLADEN SUPPLIES (PTY) LTD AND ORS 1968 - 1970 B.L.R. 350 (HC), Dendy Young CJ BUILDERS MERCHANTS BOTSWANA (PTY) LIMITED v. BOTOKA CONSTRUCTION (PTY) LIMITED 1979 - 1980 B.L.R. 1 (HC), Hayfron - Benjamin CJ Liquidation Application for examination by Court of witnesses to whom Company assets had been sold. VENTURIS in re S K D DISTRIBUTORS (PTY) LIMITED (in liquidation) 1974 (2) B.L.R. 61 (HC), Rooney J Liquidation of Company Commission of Inquiry in terms of section 204 (i) of Companies Act Stay of Commission. SWART and Another v. KLERCK and Another 1979 - 1980 B.L.R. 156 (HC), Hannah J Offences by Charge against Director not charged in personal capacity - Conviction and sentence of such director not competent - Criminal Procedure and Evidence Act (Cap. 08:02), s. 332(1); Penal Code (Cap. 08:01) s. 24. WRIGHT v. THE ATTORNEY - GENERAL [1996] B.L.R. 405 (HC), Gittings J Offer of Compromise Sanction of Court. In re STRELITZ and Others 1978 B.L.R. 67 (HC), Mahomed J Ownership of company Piercing of corporate veil When appropriate - In order to determine jurisdiction. SILVERSTONE (PTY) LTD and Another v. LOBATSE CLAY WORKS (PTY) LTD [1996] B.L.R. 190 (CA), Amissah JP, Schreiner and Tebbutt JJA Provisional Liquidation Application by Provisional Liquidator to sell company assets. DE WET v. NEW BUTCHERY & DELICATESSEN (PTY) LTD (in Provisional Liquidation) 1977 B.L.R. 49 (HC), Edwards J Shares Rectification of company register of shareholders Application for - Applicants to show entry of respondent's name on register having been without sufficient cause - Registration effected without reasonable cause if there irregularity in allotment or if contract to take shares void or voidable - Court having discretionary power to intervene and would only do so if found to be just and equitable - Applicants failing to show that there adequate case for rectification claimed - Companies Act (Cap 42:01), s 93. ETOSHA TECHNICAL SERVICES BOTSWANA (PTY) LTD and Another v. FAZIRI [2004] 2 B.L.R. 358 (HC), Lesetedi J Shares transferred to other party, but still held as pledge Transferee not fulfilling obligation to pay purchase price of shares - Transferor not entitled to merely order that shares be forfeited nor step into shoes of transferee and call meeting of company. ABE's CANTEEN (PTY) LTD and Others v. CHOUHAN and Others [1993] B.L.R. 382 (HC), Martin Horwitz AJ Transfer Prescription - Purchase of shares by respondents from appellant - Respondents misplacing share certificate delivered by appellant - Failure of appellant to accede to request for issue of new share certificate - Action by respondents for declaration as owners of shares held by appellant - Appellant pleading action prescribed - Whether plea of prescription sustainable - Prescriptions Act (Cap. 13:01), s. 4 (2) (b). MBAAKANYI v. VIZE and Others [1992] B.L.R. 110 (CA), Amissah P, Schreiner and Puckrin JJA Sale of shares by appellant to respondents - Delivery of blank transfer form signed by appellant and share certificate to respondents - Failure of respondents to register shares - Effect - Respondents becoming beneficial owners of shares - Appellant holding shares on behalf of respondents as nominee of respondents - Whether registration of transfer of rights to shares prerequisite to acquisition of rights of shareholder by purchaser of shares. MBAAKANYI v. VIZE and Others [1992] B.L.R. 110 (CA), Amissah P, Schreiner and Puckrin JJA Winding - up Allegations by intervening creditor and one time holder of the issued shares of the Company, of undue influence in causing him to dispose of his shares Relevance of such averments - standard of proof of such averments. MORGAN v. GOVERNMENT OF BOTSWANA in re: GOVERNMENT OF BOTSWANA v. BOTSWANA NATIONAL AIRWAYS (PTY) LTD 1968 - 1970 B.L.R. 274 (CA), Schreiner JP, Maisels JA, Milne JS Application for provisional liquidation order Applicant seeking to enforce payment of debt against respondent company - Respondent bona fide disputing claim - Winding up of company not to be resorted to enforce payment. SMUTS v. TS 24 (PTY) LTD [1999] 2 B.L.R. 419 (HC), Dow J Disputed claim - Onus - Respondent company need not disprove indebtedness to applicant but merely show that indebtedness disputed on bona fide and reasonable grounds - Applicant failing to substantiate claim beyond mere assertion - Whether case strong enough to justify winding up. SMUTS v. TS 24 (PTY) LTD [1999] 2 B.L.R. 419 (HC), Dow J Commission of enquiry into affairs of company Application for setting aside of order for holding of commission of enquiry - Parties affected by order lacking locus standi to attack validity of enquiry proceedings - Companies Act (Cap. 42.01), ss. 202 and 261. AIR BOTSWANA and Others v. THIRO N O and Others [1995] B.L.R. 315 (HC), Martin Horwitz AJ Court having discretion, even where company unable to pay debts at time of application. ENAMCOR (BOTSWANA) (PTY) LTD v. DYNASTY VENTURES (PTY) LTD t/a A TO Z [1993] B.L.R. 217 (HC), Nganunu J Intervention Proposed intervenor must show locus standi - Employees having no legal interest and opposed to commercial or financial interest - Proposed intervention refused. MOLEFHI v. ACADEMY OF BUSINESS MANAGEMENT (PTY) LTD and Another [1994] B.L.R. 1 (HC), Nganunu J Petition for Grounds for - No other grounds for winding up other than those listed in s 172 of Companies Act. ROADCORP LTD (IN LIQUIDATION) v. ROADPROP BOTSWANA (PTY) LTD [2002] 1 B.L.R. 482 (HC), Walia AJ Locus standi of petitioner - Holder of fully paid shares has locus standi - Section 173 Companies Act (Cap. 42:01). BOTSWANA DEVELOPMENT CORPORATION Ltd v. CRESTA MARAKANELO (Pty) Ltd and Another [2001] 2 B.L.R. 126 (HC), Horn J Order for winding up - Creditor's petition - When to grant petition - Failure to pay debt on demand - Prima facie proof of inability to pay debts - Companies Act (Cap. 42:01) (1973 Rev.), s 173 (f). BOTSWANA INSURANCE CO (PTY) v. L M PUBLISHING CO (PTY) LTD [1989] B.L.R. 508 (HC), Martin Horwitz AJ Requirements - Requirement that petition be accompanied by certificate of Master that security found - Provision requiring strict compliance - Companies Act s 173(1). ROADCORP LTD (IN LIQUIDATION) v. ROADPROP BOTSWANA (PTY) LTD [2002] 1 B.L.R. 482 (HC), Walia AJ Requirements - Resolution for needs to be a special resolution, ie a members' resolution - Companies Act (Cap 42:01) s 107, 172(a). ROADCORP LTD (IN LIQUIDATION) v. ROADPROP BOTSWANA (PTY) LTD [2002] 1 B.L.R. 482 (HC), Walia AJ Provisional winding up order Order granted on application of petitioner - Extension of order by court - Filing of intervening application by A on extended return day - Adjournment of both matters to be heard on adjourned date - Petitioner, prior to adjourned date applying to be placed under final judicial management without prior grant of rule nisi placing petitioner on provisional judicial management - Appearance of counsel for intervening petitioner and for joint liquidators at hearing on adjourned date - Whether intervening petitioner and joint liquidators locus standi to appear at hearing on ex parte application of petitioner - Whether proper to grant petitioner final order for judicial management without first granting provisional order for judicial management - Companies Act (Cap. 42:01), s. 264. EX PARTE SOFT DRINK DISTRIBUTORS [1992] B.L.R. 63 (HC), Nganunu J When ordered Just and equitable - Deadlock in management - Allegations and denials obscure - Section 172(g) of the Companies Act (Cap. 42:01) not confined to specific or categories of reasons but court has to examine equity and justice - Just and equitable that company be wound up subject to ruling on the effect of section 174(2) - Once that section applies and its conditions satisfied court obliged to issue winding up order absent the exclusions - Burden of proof - Where conditions not satisfied but just and equitable that company be wound up in terms of section 172, a winding up order could be issued. MOLEFHI v. ACADEMY OF BUSINESS MANAGEMENT (PTY) LTD and Another [1994] B.L.R. 1 (HC), Nganunu J Winding Up DIAMANDIS v. SPEEDY LINES HOLDINGS and Another 1975 (1) B.L.R. 70 (HC), Rooney J Winding - up on ground of 'just and equitable' Creditor as petitioner BUBB v. U PAY 'N TAKE IT 1979 - 1980 B.L.R. 169 (HC), Corduff J CONFLICT OF LAWS Divorce Domicile of origin Abandonment - Acquiring fresh domicile - Temporary right of residence in Botswana - Removal of himself and every possession to Botswana - Engagement in long - term employment in Botswana - Whether domicile of choice acquired. MAKARA v. THE STATE; SERGEANT v. SERGEANT [1983] B.L.R. 61 (CA), Maisels P, Dendy - Young and Van Winsen JJA Foreign judgment Divorce decree Domicile - Divorce jurisdiction - Respondent husband domiciled in Tanzania - Parties nationals of Tanzania - Matrimonial home of parties in Botswana - Divorce decree granted by High Court of Tanzania - Whether Tanzania court jurisdiction to grant decree of divorce. MTUI v. MTUI [2000] 1 B.L.R. 406 (HC), Lisimba J Enforcement - Distribution of matrimonial property - Decree granted in Tanzania - Action in Botswana to enforce decree - Tanzania court decreeing assets of parties acquired and situate in Botswana to be distributed according to Botswana law - Whether decree enforceable in Botswana. MTUI v. MTUI [2000] 1 B.L.R. 406 (HC), Lisimba J Recognition - Law applicable - Common law - Non - application of Judgments (International Enforcement) Act (Cap. 11: 04), s. 2(2). MTUI v. MTUI [2000] 1 B.L.R. 406 (HC), Lisimba J CONSTITUTION An Accused person must be brought to trial without undue delay. STATE v. MERRIWEATHER SEBONI 1968 - 1970 B.L.R. 158 (HC), Dendy Young CJ Citizenship 'Ordinarily resident'. ATTORNEY - GENERAL v. MORRIS BANDA 1968 - 1970 B.L.R. 206 (HC), Dendy Young CJ Citizenship by registration Wife entitled to Registration as a Citizen but not registered as such at a time when she was declared to be a prohibited immigrant following such a Declaration against her husband. MODISE v. STATE 1968 - 1970 B.L.R. 288 (HC), Dendy Young CJ Challenge to provisions of Constitution itself which were alleged to be unconstitutional Whether High Court had jurisdiction to declare provisions of Constitution unconstitutional High Court would have to have express powers from the body of the Constitution itself, enabling it to be the revisionary instrument for the alteration of the Constitution - Such powers could not be assumed to exist unless they were clearly and expressly granted by unambiguous language - No such powers given to court. KAMANAKAO I and Others v. THE ATTORNEY - GENERAL and Another [2001] 2 B.L.R. 654 (HC), Nganunu CJ, Dibotelo and Dow JJ Interpretation Principles governing interpretation of constitutional enactment - Broad and generous approach to be adopted in interpreting constitutional provisions - Derogation from rights and freedoms conferred on persons to be narrowly or strictly construed. ATTORNEY - GENERAL v. DOW [1992] B.L.R. 119 (CA), Amissah P, Aguda, Bizos, Schreiner and Puckrin JJA Principles governing interpretation of constitutional enactment - Court to adopt generous approach to constitutional construction - Whether rules of construction of statutes applicable to construction of constitutional enactments - Constitution, s. 15. DOW v. ATTORNEY - GENERAL [1991] B.L.R. 233 (HC), Martin Horwitz Ag J Referral of issues to High Court Which matters to be referred - Contraventions of Constitution - Section 18(3) of Constitution. DIRENG v. FURNITURE MART (PTY) LTD [1995] B.L.R. 826 (IC), De Villiers J Right to vote Section 67 - Breach of - Effect. BOTSWANA NATIONAL FRONT and Others v. THE ATTORNEY - GENERAL [1994] B.L.R. 385 (HC), Mokama CJ Constitutional question referred for determination Constitution excluded from definition of 'forced labour' labour required in consequence of court order Employees ordered to report for work by Industrial Court - Whether order contravened constitutional provisions - Constitution of Botswana, subs. 6(2), Trade Disputes Act, subss. 17(1), 18(1)(b). BOTSWANA RAILWAYS' ORGANISATION v. SETSOGO and Others [1995] B.L.R. 758 (HC), Gaefele AJ Meaning of 'court' and 'forced labour' in constitution By definition 'forced labour' did not include labour required in consequence of court order - Whether Industrial Court included under 'court' - Constitution of Botswana, subss. 6(2), 6(3)(a). BOTSWANA RAILWAYS' ORGANISATION v. SETSOGO and Others [1995] B.L.R. 758 (HC), Gaefele AJ Courts High Court Jurisdiction of - Ouster clauses - Whether unconstitutional - Ouster clause in section 25 of the Chieftainship Act (Cap. 41:01). KGOSIKWENA v. THE ATTORNEY - GENERAL and Another [2001] 2 B.L.R. 513 (HC), Nganunu CJ, Dibotelo and Lisimba JJ Criminal Law Offence committed prior to enactment of Penal Code Constitution sec. 10(8) - whether prosecution under Common Law now competent. STATE v. ISAAC MONYOSO 1964 - 1967 B.L.R. 249 (HC), Hathorn ACJ Enactment Issue of constitutionality of enactment Challenge of validity of Act of Parliament - Challenge not to be taken lightly - Attorney - General to be notified and sufficient opportunity to be given to him to decide whether or not to intervene to give court view of State on matter - Application for declaration of constitutionality of enactment not to be made casually. BOTSWANA POWER CORPORATION WORKERS' UNION v. BOTSWANA POWER CORPORATION [1999] 1 B.L.R. 73 (CA), Amissah P, Aguda, Tebbutt, Korsah and Friedman JJA Freedom of association Collective bargaining Trade Union - Enactment restricting membership of trade union of members of management - Whether enactment infringing freedom of association - Constitution, ss. 3 (b) and 13 - Trade Unions and Employers' Organisations Act (Cap. 48:01), s. 61. BOTSWANA POWER CORPORATION WORKERS' UNION v. BOTSWANA POWER CORPORATION [1998] B.L.R. 159 (IC), De Villiers J Trade union - Enactment restricting membership of trade union of members of management - Whether enactment infringing freedom of association - Whether enactment unconstitutional - Constitution, s. 13 - Trade Unions and Employers' Organisations Act (Cap. 48:01), s. 61. BOTSWANA POWER CORPORATION WORKERS' UNION v. BOTSWANA POWER CORPORATION [1999] 1 B.L.R. 73 (CA), Amissah P, Aguda, Tebbutt, Korsah and Friedman JJA Freedom of expression, association and conscience Limitation of Conditions of service limiting political activity. ZACHARIAH and Another v. BOTSWANA POWER CORPORATION [1994] B.L.R. 492 (HC), Nganunu J Fundamental right Inhuman treatment Corporal punishment - Repeated and delayed infliction of corporal punishment - Corporal punishment inflicted in traditional manner with traditional instrument - Whether infringement of provisions of Constitution, s. 7 - Cap. 08:01 - Act No. 20 of 1982 - Cap. 08:02 - Act No. 21 of 1982 - Corporal Punishment (Designation of places for Administering) Order, 1983 (S.I. 146 of 1983). PETRUS and Another v. THE STATE [1984] B.L.R. 14 (CA), Maisels P, Baron JA, Aguda JA, Amissah JA, Kentridge JA Legal representation Appellant's counsel withdrawing from case - Appellant denied opportunity to seek further legal representation - Infringement of appellant's constitutional right to be permitted legal representation. MOLATLHEGI v. THE STATE (PRACTICE NOTE) [1990] B.L.R. 477 (HC), Aboagye J Whether right absolute - Accused to avail himself of right within reasonable time - Rights of accused to be weighed against interest of State - Constitution, s. 10 (1) and (2) (d). MAPHANE v. THE STATE [1991] B.L.R. 60 (HC), Gyeke - DaKo J Protection against deprivation of property Seizure and detention of applicant's property by police - Enactment empowering police to seize property believed on reasonable grounds as capable of affording evidence as to commission of offence - Discovery of mandrax tablets in vehicle owned by applicant - Possession o mandrax tablets prohibited of by Habit - Forming Drugs Act - Whether detention unlawful - Constitution, s. 8 - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 56A. AZAD HAULIERS (PTY) LTD v. ATTORNEY - GENERAL [1985] B.L.R. 144 (HC), Hannah J Fundamental rights Breach Argument made for decriminalisation of homosexual practices between adult consenting males - Time not having arrived to take such step - Gay men and women not representing group or class which at this stage shown to require protection under Constitution - Section 167 of Penal Code (Cap 08:01) declared in violation of Constitution not s 164(c) - Penal Code, ss 164(c) and 167 and Constitution of Botswana, s 3. KANANE v. THE STATE [2003] 2 B.L.R. 67 (CA), Tebbutt JP, Nganunu CJ, Korsah, Zietsman and Kirby JJA High Court - Appeal to - Determination of appeal pending answers to questions referred to Court of Appeal - Appellant granted bail - Appeal relisted for hearing two years after determination of questions by Court of Appeal and three years after conviction of appellant - Whether hearing in breach of Constitution, ss. 3 (a), 5 (1), 7 (a) and 10. MZWINILA v. THE STATE [1989] B.L.R. 357 (HC), Aboagye J High Court - Appeal to - Determination of appeal pending answers to questions referred to Court of Appeal Appellant granted bail - Appeal relisted for hearing two years after determination of questions by Court of Appeal and three years after conviction of appellant - Whether hearing in breach of Constitution, ss. 7 and 10 (1). MZWINILA v. THE STATE [1989] B.L.R. 610 (CA), Amissah P, Aguda JA, Doyle JA, Schreiner JA, Puckrin JA Enforcement of Locus standi - Interpretation of Constitution - Provisions of section 18 of Constitution to be read liberally so as to give as wide an access to the court as possible - Word 'person' in section 18(1) includes a body corporate and an unincorporated body. KAMANAKAO I and Others v. THE ATTORNEY - GENERAL and Another [2001] 2 B.L.R. 654 (HC), Nganunu CJ, Dibotelo and Dow JJ Freedom from discrimination Citizenship - Enactment providing for acquisition of citizenship - Denial of citizenship to children born in Botswana to female citizen married to non - citizen - Whether enactment discriminating - Whether ultra vires Constitution - Citizenship Act, 1982, ss. 4 and 5. as amended by Citizenship (Amendment) Act, 1984. DOW v. ATTORNEY - GENERAL [1991] B.L.R. 233 (HC), Martin Horwitz AJ HIV status - Rape - Enactment providing stiffer penalties for persons convicted of rape found to be HIV positive - Provisions of enactment discriminatory - Exception - Whether enactment reasonably justifiable in a democratic society - Interpretation of exception - Constitution, s. 15(4)(e) - Penal Code (Cap. 08:01), s. 142(4)(a). MAKUTO v. THE STATE [2000] 2 B.L.R. 130 (CA), Amissah P, Aguda, Steyn, Korsah and Friedman JJA Inhuman or degrading punishment or treatment Mandatory minimum punishments - Threefold mandatory punishments - Imprisonment, fine and corporal punishment - Whether any one punishment by itself inhuman or degrading - Whether combination of three mandatory provisions in casu inhuman and degrading - Constitution, s.7 (1) - Habit - forming Drugs Act (Cap. 63:04) (1973 Rev.), s.3 (2) (a), (b) and (c). DESAI and Others v. THE STATE [1987] B.L.R. 55 (CA), Maisels P, Aguda JA, Amissah JA, Van Winsen JA and Doyle JA Legal representation Appellant having insufficient time to secure services of counsel - Trial court refusing to grant appellant more time - Proceeding with trial - Whether infringement of appellant's constitutional right to be permitted legal representation - Constitution, s. 10(2)(d). TSHUKUDU v. THE STATE [2000] 1 B.L.R. 400 (HC), Dibotelo J Fair hearing within reasonable time - Considerations underlying right to trial within reasonable time comprising need to prevent oppressive pre - trial incarceration; minimize anxiety and concern of accused; and limit possibility that defence will be impaired or prejudiced - Court to carry out `balancing test' to gauge whether delay reasonable or not - No court expected to save accused from consequences of delay caused by himself - If accused of view that State dragging its feet in bringing him to trial, he to assert his constitutional right to be tried within reasonable time and in default of compliance with such protest seek stay of proceedings - Constitution, s 10(1). RABANA v. THE ATTORNEY - GENERAL and Another [2003] 1 B.L.R. 330 (HC), Chatikobo J Postponement of trial of appellant due to problems arising between appellant and counsel - Counsel withdrawing from case - Further postponement sought by appellant to engage new counsel denied - Case proceeding in absence of defence counsel - Whether appellant's constitutional right to representation by counsel infringed. MAPOSA v. THE STATE [1989] B.L.R. 556 (HC), Gyeke - DaKo J Right to representation not absolute - Postponement of trial several times - No record showing that attorney briefed to represent second appellant - Magistrate ordering trial to proceed in absence of appellant's attorney - Whether second appellant deprived of fundamental right to legal representation - Constitution, s. 10(2)(d). MAKHURA and Another v. THE STATE [1991] B.L.R. 104 (HC), Livesey - Luke CJ Trial - Appellant - Failure of counsel to attend trial without excuse - Trial proceeding without counsel - Whether breach of constitutional right to legal representation of appellant - Constitution, s. 10(2) (c). MARUMO v. THE STATE [1990] B.L.R. 659 (HC), Livesey - Luke CJ Trial - Appellants arraigned before magistrate's court without legal representation - Failure by magistrate to inquire why defence counsel absent in court - Failure by magistrate to afford appellants opportunity to secure services of counsel or engage services of another counsel - Trial proceeding in absence of defence counsel - Whether appellants' constitutional right to representation by counsel infringed. LESETEDI and Another v. THE STATE [2001] 1 B.L.R. 393 (HC), Dibotelo J What constituting denial of legal representation - Deprivation of right only constituted by express refusal by court, for example, where court refuses application for postponement or adjournment when it demanded - Cannot be held that constitutional right to legal representation denied where there no request or demand to afford opportunity for such. MASUKU v. THE STATE [2004] 2 B.L.R. 239 (HC), Gaongalelwe J Personal liberty Bail - Enactment denying right to apply for bail on charge of rape - Application to declare enactment unconstitutional - Constitutional provision entitling applicant to be released if not tried within reasonable time - Applicant arrested and charged with rape on 20 October 1998 - Trial scheduled to be heard on 29 January 1999 - Projected trial within reasonable time - Whether any rights of applicant breached by enactment prohibiting grant of bail on charge of rape - Whether enactment unconstitutional - Constitution, ss. 3 and 5 - Penal Code (Cap. 08:01) as amended by Penal Code (Amendment) Act, 1998, s. 142(1). SERURUBELE v. THE ATTORNEY - GENERAL [1998] B.L.R. 661 (HC), Nganunu CJ Right not to be subjected to inhuman or degrading punishment Statutory minimum sentence of 10 years' imprisonment for aggravated robbery in terms of s 292(2) of Penal Code (Cap 08:01) - Statutory minimum sentences not per se unconstitutional as being in conflict with s 7(1) of Constitution and likewise sentence in terms of s 292(2) Penal Code not per se unconstitutional - Such sentence may in rare cases be unconstitutional in exceptional circumstances surrounding offender or offence - In such circumstances open to High Court, but not magistrate's court, to impose appropriate lesser sentence in terms of s 18(2) of Constitution. MOATSHE and Another v. THE STATE [2003] 1 B.L.R. 65 (HC), Kirby J Statutory minimum sentences - Not per se unconstitutional as being in conflict with s 7(1) of Constitution - Where accused challenges such minimum sentence because of exceptional circumstances surrounding offence and himself as offender, court first to consider offence, circumstances of offender and issues of public policy and public interest - If High Court then finds minimum sentence is inhuman or degrading because it is grossly disproportionate, it should decline to impose minimum sentence and proceed to pass lesser and appropriate sentence in terms of s 18(2) of Constitution - Only in rare cases where it would be proper to proceed in this way - And only High Court authorised by s 18(2) to do so - In such cases in magistrates' court, magistrate should hear and record argument, receive evidence in mitigation of sentence and then refer matter to High Court in terms of s 18(3) - High Court may act in terms of s 18(2) in hearing appeals against statutory minimum sentences - Where appellant unrepresented, court may act under s 18(2) even though no formal application launched. MOATSHE and Another v. THE STATE [2003] 1 B.L.R. 65 (HC), Kirby J Grossly disproportionate compulsory sentence will contravene s 7(1) of Constitution - Cannot be saved by s 7(2), which covers only types of punishment and not their severity or manner of infliction - High Court's authority to depart in individual cases from statutory minimum sentence to be found in Constitution. MOATSHE and Another v. THE STATE [2003] 1 B.L.R. 65 (HC), Kirby J Right of freedom of expression Role of media - Decision by Government to withdraw advertising from newspapers which had incurred its displeasure for articles critical of Government - Government directive hindering free speech and important role of media - Constitution, ss. 3, 11(1), 12(1) and 15(1). MEDIA PUBLISHING (PTY) LTD v. THE ATTORNEY - GENERAL and Another [2001] 2 B.L.R. 485 (HC), Lesetedi J Right to fair trial within reasonable time Phrase 'reasonable time' having no precise definition and interpretation depending on circumstances of case - Constitution of Botswana, s 10. CHARLES v. THE STATE [2005] 1 B.L.R. 421 (HC), Mosojane J Right to legal representation Absence of defence counsel - Refusal of trial court to postpone trial to allow accused to brief counsel of convenience - Postponement of trial on several occasions due to absences of defence counsel - Accused warned on at least two occasions of trial proceeding on counsel failing to appear on agreed date - Trial continuing in absence of defence counsel - Conviction and sentencing of accused - Whether refusal of postponement denial of right of accused to be afforded adequate time and facilities to prepare case for trial. BASUPI v. THE STATE [2000] 2 B.L.R. 1 (CA), Steyn J, Friedman J and Lord Weir JA Failure to enable accused to engage attorney of his own choice - Accused appearing before magistrate and advised of right to legal representation before trial date - Accused given reasonable time to secure services of attorney - Accused making no serious efforts to engage a lawyer - Accused without legal representative on trial date - Trial proceeding with accused unrepresented - Whether court erred not enabling accused to obtain legal representation - Constitution, s. 10(2)(d). BASIMA v. THE STATE [1999] 1 B.L.R. 202 (HC), Nganunu CJ Section 10 of the Botswana Constitution - Excursus on several foreign legal systems - Botswana a party to the Banjul Charter and bound thereby - However, no automatic inclusion of right of representation in law of Botswana. BOJANG v. THE STATE [1994] B.L.R. 146 (HC), Gyeke - DaKo J Right to personal liberty Bail - Provisions of s 142(1)(i) of Penal Code (Cap 08:01) that any person charged with rape not entitled to be granted to bail - Such offending against provisions of s 5(3)(b) of Constitution of Botswana - Denial of bail where person alleged to have committed rape not in public interest - Section 142(1)(i) of Penal Code accordingly ultra vires the Constitution and to be struck down. ATTORNEY GENERAL'S REFERENCE: IN RE: THE STATE v. MARAPO [2002] 2 B.L.R. 26 (CA), Tebbutt AJP, Korsah, Lord Sutherland, Grosskopf and Akiwumi JJA Right to release on bail Section 142(1)(i) of the Penal Code (Cap. 08:01) prohibiting granting of bail to persons charged with rape ultra vires the Constitution - Constitution of Botswana, ss. 5(3)(b), 10(2)(a), 102(a); Criminal Procedure and Evidence Act (Cap. 08:02), ss, 104, 114. MARAPO v. THE STATE [2001] 2 B.L.R. 632 (HC), Mosojane J Fundamental rights and freedoms Freedom from discrimination Sex discrimination - Citizenship - Enactment providing for acquisition of citizenship - Denial of citizenship to children born in Botswana to female citizens married to non - citizens - Whether permissible to enact legislation discriminating on basis of sex - Whether discriminatory enactment ultra vires - Constitution, ss. 3 and 15 - citizenship Act, 1982 (Act No. 25 of 1982), ss. 4 and 5 as amended by Citizenship (Amendment) Act, 1984 (Act No. 17 of 1984). ATTORNEY - GENERAL v. DOW [1992] B.L.R. 119 (CA), Amissah P, Aguda JA, Bizos JA, Schreiner JA, and Puckrin JA Infringement Citizenship - Enactment providing for acquisition of citizenship - Denial of citizenship to children born in Botswana to female citizens married to non - citizens - Application by mother of children to declare enactment unconstitutional - Whether mother locus standi to institute action - Constitution, s. 18. ATTORNEY - GENERAL v. DOW [1992] B.L.R. 119 (CA), Amissah P, Aguda JA, Bizos JA, Schreiner JA, and Puckrin JA Legal representation Fair hearing within reasonable time - Trial of accused postponed several times due to unavailability of defence counsel - Subsequent hearing date fixed at request of defence counsel - Absence of defence counsel at adjourned date - Application for further adjournment to enable counsel to be present - Grant of application likely to delay hearing - Refusal by magistrate to grant further adjournment - Whether infringement of accused's constitutional right to be permitted legal representation - Constitution, s. 10 (1) and (2) (d). SAMARIBELA v. THE STATE [1987] B.L.R. 37 (HC), Barrington - Jones J Postponement of trial of appellant several times due to unavailability of defence counsel - Court intimating no further adjournment - Counsel other than original counsel appearing at adjourned date - Application by new counsel for short adjournment to be fully instructed by appellant - Refusal to grant application - Case proceeding in absence of defence counsel - Whether constitutional right of appellant infringed. PHALADZE v. THE STATE [1987] B.L.R. 166 (HC), Murray J Personal liberty Debtor and creditor - Civil imprisonment - Summons for civil imprisonment - Whether civil imprisonment for non - payment of debt constituting unlawful deprivation of liberty - Constitution, ss. 3(a) and 5(1)(c). BOTSWANA CO - OPERATIVE BANK LTD v. NOOR and Others [1999] 1 B.L.R. 248 (HC), Nganunu CJ Judgment debtor - Civil imprisonment for debt - Enactments providing for and regulating the sanction of civil imprisonment - Whether enactments ultra vires the Constitution, ss. 3 and 5(1) - High Court Act (Cap. 04:02), s. 23 - Rules of the High Court (Cap. 04:02) (Sub. Leg.), Ord. 53. NOOR and Others v. BOTSWANA CO - OPERATIVE BANK LTD [1999] 1 B.L.R. 443 (CA), Amissah P. J, Steyn J, Tebbutt J, Korsah J and Friedman JA Right to legal representation Right to consult with own lawyer in private - Applicants sentenced to death - Regulation 75(1) of Prisons Regulations requiring consultation with lawyer to be within sight and hearing of prison officers - Whether regulation ultra vires the Constitution, s. 10(1) and (2) - Prisons Regulations (Cap. 21:03) (Sub. Leg.), reg, 75(1). MAAUWE and Another v. THE ATTORNEY - GENERAL and Another [1999] 1 B.L.R. 275 (HC), Dibotelo J Right to protection of law Presumption of innocence until proof or plea of guilty - Charge of fraud against respondent - Respondent's bank account frozen pending outcome of charge of fraud against him - Freezing of account to protect interests of third party - Whether freezing of account likely to prejudice respondent at his trial - Whether freezing account amounts to infringement of constitutional right - Constitution, s. 10(2)(a). STANDARD CHARTERED BANK OF BOTSWANA LTD v. JOTIA [1999] 2 B.L.R. 1 (HC), Mosojane J High Court Jurisdiction Constitution stipulating High Court having unlimited original jurisdiction - Whether enactment taking away powers of High Court by taking away or limiting rights of individuals unconstitutional - Constitution, s. 95(1). SERURUBELE v. THE ATTORNEY - GENERAL [1998] B.L.R. 661 (HC), Nganunu CJ Statute offending against Constitution - Whether High Court jurisdiction to declare statute ultra vires. DOW v. ATTORNEY - GENERAL [1991] B.L.R. 233 (HC), Martin Horwitz AJ Human rights Enforcement of Ambit of s 18(2) of Constitution - Court's powers of review - Section 18 of the Constitution conferred alternative powers of review in terms of very wide powers granted to the court under that section but it clearly did not entitle the subject to have the same cause of action or issues determined twice by the High Court using different procedures. KOBEDI v. THE STATE [2002] 2 B.L.R. 502 (HC), Kirby J Right not to be discriminated against Discrimination against non - citizens in Immigration Act (Cap 25:02) - Sections 11(6) and 36 applied only to non - citizens and only in relation to matters affecting their presence in Botswana, dealt with in the Act - To the extent that such sections discriminated against persons whose origins were outside Botswana the Constitution permitted such discrimination. GOOD v. THE ATTORNEY - GENERAL [2005] 1 B.L.R. 462 (HC), Sapire AJ Enforcement of - Requirement that copy of notice of motion be served on Attorney - General. MZANGEZULU and Another v. MOKGETSE [1997] B.L.R. 171 (HC), Cotran J Prohibition by public corporation on active political involvement by its employees - Such not discrimination as intended by s. 15(2) and (3) of the Constitution. ZACHARIAH and Another v. BOTSWANA POWER CORPORATION [1996] B.L.R. 710 (CA), Amissah JP, Aguda, Schreiner, Hoexter and Lord Allanbridge JJA Right to a fair trial Access to State witness statements - Whether accused has such right - Limitations on such right where access may compromise the ends of justice - Constitution s 10(2)(c), (e), 18(1), (2)(a). MOTSHWANE and Others v. THE STATE [2002] 2 B.L.R. 368 (HC), Phumaphi J Right of accused to have access to contents of police docket - Accused entitled to copies of State witness statements, documentary evidence in possession of either the State or the police pertaining to the charges against the applicant - Constitution of Botswana s 10(2)(c) and (e). AHMED v. THE ATTORNEY - GENERAL [2002] 2 B.L.R. 431 (HC), Collins J Right to a speedy trial - Effect of s. 10(1) of Constitution. KGOLAGANO v. THE STATE [1997] B.L.R. 914 (HC), Gyeke - DaKo J Unreasonable delay in trial - When delay deemed to commence - Charges having been dismissed but thereafter accused suspended from her employment on half pay pending investigation of offences - Period commencing when accused informed of her suspension. KELAOTSWE v. THE ATTORNEY - GENERAL [2005] 1 B.L.R. 306 (HC), Molokomme J Unreasonable delay in trial - What constitutes - Period of five years from date of dismissal of previous related charges - Period unreasonable even though serious and complicated issues involved - Delay not however having prejudiced accused in her trial - Constitution of Botswana s 18(1). KELAOTSWE v. THE ATTORNEY - GENERAL [2005] 1 B.L.R. 306 (HC), Molokomme J Right to personal liberty Curtailment of in respect of members of disciplined force - Effect of section 19(2) of the Constitution on section 5(1) of the Constitution. MANTHE v. THE ATTORNEY - GENERAL and Others [1997] B.L.R. 1170 (HC), Gyeke - DaKo J Right to be presumed innocent Reverse onus provisions - Constitutionality of - Section 4(a) Stock Theft Act inconsistent with the provisions of s 10(2)(a) as read with those of s 10(12)(a) of the Constitution of Botswana. OTLHOMILE v. THE STATE [2002] 2 B.L.R. 295 (HC), Marumo J Right to be tried within a reasonable time Calculation of time - Meaning of 'charge' in s 10(1) of Constitution of Botswana. SEJAMMITLWA and Others v. THE ATTORNEY - GENERAL and Others [2002] 2 B.L.R. 75 (CA), Tebbutt AJP, Nganunu CJ, Zietsman, Plewman and Grosskopf JJA Right to freedom of association and assembly Prohibition by public corporation on active political involvement by its employees - Right not infringed in circumstances where corporation set this as one of its conditions of employment and employees had accepted such condition - Constitution s. 13(1). ZACHARIAH and Another v. BOTSWANA POWER CORPORATION [1996] B.L.R. 710 (CA), Amissah JP, Aguda, Schreiner, Hoexter and Lord Allanbridge JJA Right to freedom of conscience Prohibition by public corporation on active political involvement by its employees - Right not infringed in circumstances where corporation set this as one of its conditions of employment and employees had accepted such condition - Constitution, s. 11(1). ZACHARIAH and Another v. BOTSWANA POWER CORPORATION [1996] B.L.R. 710 (CA), Amissah JP, Aguda, Schreiner, Hoexter and Lord Allanbridge JJA Right to freedom of expression Prohibition by public corporation on active political involvement by its employees - Right not infringed in circumstances where corporation set this as one of its conditions of employment and employees had accepted such condition - Constitution, s. 12(1). ZACHARIAH and Another v. BOTSWANA POWER CORPORATION [1996] B.L.R. 710 (CA), Amissah JP, Aguda, Schreiner, Hoexter and Lord Allanbridge JJA Right to freedom of opinion Prohibition by public corporation on active political involvement by its employees - Right not infringed in circumstances where corporation set this as one of its conditions of employment and employees had accepted such condition - Constitution, s. 11(1). ZACHARIAH and Another v. BOTSWANA POWER CORPORATION [1996] B.L.R. 710 (CA), Amissah JP, Aguda, Schreiner, Hoexter and Lord Allanbridge JJA Unfair discrimination on grounds of gender Regulation or rule of law providing for women alone not necessarily discriminatory on ground of sex - May be need to regulate lives or affairs of one gender in manner not applicable to other - Law or regulation under consideration has to be reasonable and fair, made for benefit of the welfare of gender, without prejudice to other and cannot be punitive to gender in question. STUDENTS' REPRESENTATIVE COUNCIL OF MOLEPOLOLE COLLEGE OF EDUCATION v. THE ATTORNEY - GENERAL [1995] B.L.R. 178 (CA), Amissah JP, Aguda JA, Schreiner JA, Lord Wylie JA and Steyn JA Judicial independence Sentencing Erosion of discretionary powers of court to impose sentence depending on circumstances of case - Prescription of mandatory minimum sentence - Legislature arrogating to itself functions reserved for judiciary by Constitution. MATOMELA and Another v. THE STATE [2000] 1 B.L.R. 396 (HC), Dibotelo J Locus standi Citizenship Enactment providing for acquisition of citizenship - Application to declare enactment ultra vires - Person entitled to make application - Denial of citizenship to children born in Botswana to female citizen married to non - citizen - Whether female citizen locus standi to bring application - Citizenship Act, 1982 (Act No. 25 of 1982) as amended by Citizenship (Amendment) Act, 1984 (Act No. 17 of 1984). DOW v. ATTORNEY - GENERAL [1991] B.L.R. 233 (HC), Martin Horwitz AJ Parliament House of Chiefs Court having previously declared s 2 of Chieftainship Act (Cap 41:01) unconstitutional and ordering its amendment by Parliament - Application for order interdicting House of Chiefs from conducting its parliamentary business - Section 83(2)(a) of Constitution providing that National Assembly cannot deliberate on Bill or amendment altering provisions of Constitution relating to designation, recognition and powers of chiefs, subchiefs and headmen unless Bill referred to House of Chiefs after its introduction in National Assembly - Application for interdict would frustrate that process - Application dismissed. KAMANAKAO I and Another v. ATTORNEY - GENERAL [2002] 1 B.L.R. 110 (HC), Chatikobo J Membership of - Membership governed by s 78 of Constitution - Even if number of chiefs doubled or trebled as consequence of amendment of s 2 of Chieftainship Act (Cap 41:01), only chiefs named in s 78 of Constitution would be ex officio members of House of Chiefs - That position can only change if s 78 of Constitution amended - Court cannot declare s 78 unconstitutional - Such the preserve of makers of Constitution. KAMANAKAO I and Another v. ATTORNEY - GENERAL [2002] 1 B.L.R. 110 (HC), Chatikobo J Legislation Abrogation by disuse - Undesirable to retain the rule that abrogation by disuse still a possibility. REFERENCE BY THE ATTORNEY - GENERAL IN RE: DYNAMIC SERVICES (PTY) LTD AND THE ATTORNEY - GENERAL and Another [1996] B.L.R. 49 (CA), Amissah JP, Aguda JA and Schreiner JA Prosecuting authority Power of Attorney - General to delegate Relationship between section 51(3) and (4) of the Constitution and sections 7 and 8 of Criminal Procedure and Evidence Act. MPHUSU and Another v. THE STATE [1997] B.L.R. 845 (HC), Nganunu CJ Public office Public officer Dismissal - Prescribed office - Registrar of Companies - Disciplinary control of prescribed offices vested in President - Dismissal of Registrar of Companies by Permanent Secretary to President - Whether power to do so - Whether office of Registrar of Companies prescribed office - Constitution, s. 12(2)(f) - Companies Act (Cap. 42:01) (1973 Rev.), s. 6(1) - Statute Law (Miscellaneous Amendments) Act, 1978 (Act No. 22 of 1978), s. 5. KALABENG v. ATTORNEY - GENERAL and Another [1985] B.L.R. 1 (HC), Hannah J Right to be brought before court after arrest on warrant Technical error made in warrant of arrest pursuant to dismissal of appeal Protection given by s. 5(3)(a) of Constitution of Botswana not intended to give shelter to persons properly convicted and sentenced to imprisonment and whose liberty gained through bail once more curtailed by order of court that their bail be rescinded - Constitution, s 5(3)(a). TLHOGO v. THE STATE [1993] B.L.R. 287 (CA), Amissah JP, Aguda JA, Bizos JA, Schreiner JA, Puckrin JA Sentence Sentence of death Sentence of death by hanging - Constitutionality - Matter already decided at Court of Appeal - New constitutional issues arising - Applicant to be given opportunity to place new issues before court - Constitution, s. 7(2). DITSHWANELO and Others v. THE ATTORNEY - GENERAL and Another [1999] 2 B.L.R. 56 (HC), Reynolds J Separation of powers Policy decisions Such rightfully to be made by Executive - Judiciary there to act as watchdog to ensure that policies implemented by government are reasonable and rational - Court not empowered to tell government what policy it ought to implement - Such would be serious violation of doctrine of separation of powers - Decisions as to how government's budget to be spent an executive decision - Court will not interfere where such decision exercised bona fide. NATIONAL AMALGAMATED LOCAL AND CENTRAL GOVERNMENT AND PARASTATAL MANUAL WORKERS UNION v. ATTORNEY - GENERAL [2003] 1 B.L.R. 378 (IC), Ebrahim - Carstens J CONTEMPT OF COURT Fact that party to cause in contempt of order of court not in itself a bar to being heard, but if disobedience such that, so long as it continues, it impedes course of justice, by making it more difficult for court to ascertain truth or to enforce orders which it may make, court may in its discretion refuse to hear him until impediment removed or good reason shown why it should not be removed. P G NOTWANE FOOTBALL CLUB v. BOTSWANA FOOTBALL ASSOCIATION and Others [1993] B.L.R. 34 (HC), Gyeke - DaKo J Must be wilful conduct imputing contempt. THE STATE v. KYNOCH in re IPELENG 1968 - 1970 B.L.R. 115 (HC), Dendy Young CJ Power to bring civil contempt proceedings does not rest in Attorney - General alone. P G NOTWANE FOOTBALL CLUB v. BOTSWANA FOOTBALL ASSOCIATION and Others [1993] B.L.R. 34 (HC), Gyeke - DaKo J Where person knows or has reason to believe or ought to know that application is being made to court for a certain purpose, if he takes any action before court can be approached or which is calculated to render less effective order subsequently made the court will regard that as interference with administration of justice exercise its powers to prevent itself from being defeated by anything of the kind Once shown that order has been granted and that respondent disobeyed or neglected to comply with it, wilfulness normally inferred and onus on respondent to rebut inference of wilfulness on balance of probabilities. P G NOTWANE FOOTBALL CLUB v. BOTSWANA FOOTBALL ASSOCIATION and Others [1993] B.L.R. 34 (HC), Gyeke - DaKo J Contempt in facie curiae Procedure Onus - Onus not on accused. KGALEMANG v. THE STATE [1997] B.L.R. 767 (CA), Aguda, Tebbutt and Lord Cowie JJA Procedure Proceedings by way of notice of motion - Contents of. KGALEMANG v. THE STATE [1997] B.L.R. 767 (CA), Aguda, Tebbutt and Lord Cowie JJA Court order Non - compliance Reasons for - Lack of understanding - Financial constraints - Belief court functus officio - Respondent's conduct bordering on arrogance - Whether respondent be convicted of contempt. SELLO v. SELLO and Another [1999] 2 B.L.R. 84 (HC), Dow J Failure to comply with order of court Requirements Not necessary that order which respondent alleged to have failed to comply with be served on respondent - Sufficient that it be shown that it had come to his notice. MARTINS v. REGADAS [2001] 2 B.L.R. 371 (HC), Mwaikasu J Failure to observe interdict and ancillary relief No power of judge to re - open issue decided previously - issue estoppel Locus standi of unincorporated association - Petition in terms of Societies Amendment Act. THE EVANGELICAL LUTHERAN CHURCH IN SOUTHERN AFRICA v. PHILLIP JEREMIAH ROBINSON & ANOTHER 1982 (1) B.L.R. 215 (CA), Maisels P, Aguda JA, Kentridge JA Ingredients of offence Mens rea in form of intention requisite element of offence Act calculated or intended to cause interference with administration of justice - Pending proceedings - Prejudging of issues - Real risk of influencing trial or prospective witnesses. BAFFOUR - AWUAH v. THE STATE [1999] 1 B.L.R. 366 (CA), Amissah P. J, Lord Allanbridge J and Friedman JA Interim interdict Breach Order prohibiting burial of deceased by respondents - Seventh respondent defying order by retrieving body from mortuary and burying it - First to sixth respondents attending funeral without physically taking party in ceremony - Whether such attendance intended as deliberate defiance of court order - Whether seventh respondent in contempt of court order. MOISAKAMO v. MOISAKAMO and Others [1989] B.L.R. 642 (HC), Horwitz J Jurisdiction to punish for Magistrate's court Contempt ex facie curiae - Failure of attorney to appear in court in good time for continuation of trial - Such not punishable summarily by magistrate - Penal Code (Cap. 08:01) s. 123(1), (2), (3). MATHUMO v. THE STATE [1997] B.L.R. 623 (HC), Aboagye J Newspaper article Criticism of judiciary Inaccurate report of proceedings in newspaper - Rule of committal of editor and Another of report. In Re EDITOR OF BOTSWANA GAZETTE and Another [1990] B.L.R. 655 (HC), Horwitz AJ Pending proceedings Prejudging of issues Appellant interviewed by newspaper reporter in respect of pending case - Appellant disclosing accused person's proposed defence - Publication of interview - Whether publication contempt of court. BAFFOUR - AWUAH v. THE STATE [1999] 1 B.L.R. 366 (CA), Amissah P. J, Lord Allanbridge J and Friedman JA Power to bring civil contempt proceedings does not rest in Attorney General alone. P G NOTWANE FOOTBALL CLUB v. BOTSWANA FOOTBALL ASSOCIATION and Others [1993] B.L.R. 34 (HC), Gyeke - Dako J Proof of Element of wilfulness Onus on respondent where non - compliance with court order proved - Open to the court with the material and evidence at its disposal including the respondent's explanation and general behaviour to assess whether it could be said on all accounts that willfulness and bad faith were apparent. SHABANE and Others AND THE ESTABLISHMENT SECRETARY; IN RE: SHABANE and Others v. MOGAMI and Another [2005] 1 B.L.R. 343 (HC), Masuku J What amounts to Applicant refusing to stand in court even after being directed to do so by two of judges constituting court Applicant's refusal to comply with clear direction direct affront to authority of court. PILANE v. THE ATTORNEY - GENERAL and Another: IN RE SESANA and Others v. THE ATTORNEY - GENERAL [2005] 2 B.L.R. 379 (HC), Marumo J Deliberate and intentional disobedience of order granted by court To establish contempt, it to be shown that (a) order granted against respondent; (b) respondent either served with order or informed of grant of order against him and could have no reasonable ground for disbelieving information and (c) respondent disobeyed or neglected to comply with it - If respondent proving that, while he in breach of order, such conduct bona fide, he not held to be in contempt. TAWANA LAND BOARD v. KAMANAKAO ASSOCIATION [2003] 2 B.L.R. 268 (HC), Walia J Generally, for act to be contempt of court, it has to be calculated to bring court or judge into contempt or lower his authority or interfere with due course of justice or the lawful process of court However, object of discipline enforced by court in case of contempt also to prevent undue interference with administration of justice - Improper conduct by itself enough to constitute contempt in certain circumstances - Acts of contemnor to be of such nature as would unduly interfere with due process of administration of justice. MAGETSE v. MAGETSE and Another [1993] B.L.R. 27 (HC), Gyeke - Dako J What constitutes Absence from court By legal practitioner - Appellant, a legal practitioner, not present in court when matter called - Appellant discourteous and had failed to exercise proper care to ensure that court not inconvenienced - Judge should not have tried the appellant summarily but referred matter to Attorney - General. JOINA v. THE STATE [1997] B.L.R. 26 (CA), Amissah P. J, Steyn J and Tebbutt JA Frustration of execution proceedings by disposing of goods attached by court order. MONARCH STEEL (PTY) LTD v. NGWATO [1997] B.L.R. 463 (HC), Cotran J Intention to cause an interference with or an obstruction to the smooth administration of justice or was intentionally violating the dignity of the court Whether offence committed by clerk of court who failed to submit record of proceedings to appeal court. KAMBURA v. THE STATE [2002] 1 B.L.R. 121 (HC), Lisimba J Legal practitioner accusing judge in court of bias. MONARCH STEEL (PTY) LTD v. NGWATO [1997] B.L.R. 463 (HC), Cotran J Non - appearance of counsel at court - Court sitting in town for first time Counsel's behaviour not amounting to intention to interfere with process of court or administration of justice. SOLOMON v. THE STATE [1997] B.L.R. 725 (CA), Aguda J, Tebbutt J and Lord Cowie JA Order disobeyed deliberately Onus - Respondent required to have personal knowledge of order before he could be committed for contempt - Onus on applicant to demonstrate that order brought to attention of respondent and that latter refused to act in accordance with such order - Dolus or wilfulness on part of respondent presumed if it demonstrated that order brought to attention of respondent and he disobeyed such order - Presumption rebuttable by defaulting party upon proving that he not disobeying court order intentionally - If no wilfulness or reckless disregard of court order, there is no contempt. CHANA and Others v. CHANA and Another [2003] 1 B.L.R. 125 (HC), Monthe AJ Whether conduct amounts to discourtesy of such a serious nature that punishment justified Counsel, unaware where court sitting, late for court - Explanation not accepted by court resulting in summary conviction of contempt for court - Act had to be one calculated or intended to cause interference with or an obstruction to smooth administration of justice - Conduct not within level of discourtesy deserving of summary punishment. RUGWARO v. THE STATE [1996] B.L.R. 660 (CA), Aguda, Schreiner and Hoexter JJA CONTRACT. See also EMPLOYMENT pactum commissorium TSWAING v. VAN SCHALKWYK 1979 - 1980 B.L.R. 149 (HC), Hayfron - Benjamin CJ Agent Unauthorised act Ratification - Petitioner's representative acting without authority in bringing petition - Respondent objecting to representative's competence to bring petition - Petitioner purporting to ratify representative's actions retroactively - Whether purported ratification cures impermissible authority relied upon by petitioner. PRETORIA PORTLAND CEMENT CO LTD v. EBFI CASH AND CARRY (PTY) LTD [1999] 2 B.L.R. 40 (HC), Collins AJ Agency Principal Undisclosed principal - Defendant booking plaintiffs motel for delegates to conference - Number and identity of delegates at time of booking unknown to defendant - Whether defendant acting as agent of delegates. MESWELE INVESTMENTS (PTY) LTD t/a OASIS MOTEL v. ATTORNEY - GENERAL [1985] B.L.R. 370 (HC), Murray J Undisclosed principal - Defendant contracting as principal - Failure to disclose that contracting as agent - Defendant to be held as contracting as principal. BOTSWANA LIVESTOCK DEVELOPMENT CORPORATION v. LEE [1983] B.L.R. 302 (HC), Hannah J Undisclosed principal Application for summary judgment - Defendant managing son's store during his absence - defendant contracting with plaintiff - Plaintiff issuing invoices in name of son's store - Whether defendant agent acting for undisclosed principal - Whether plaintiff believed defendant to be principal. LOBATSE CASH STORE (1961) (PTY) LTD v. SWIEGELAAR [1985] B.L.R. 293 (HC), Hannah J Claim by plaintiff against defendant for goods supplied to store belonging to defendant's son - Defendant managing son's store during his absence - Defendant contracting with plaintiff - Plaintiff issuing invoices in name of son's store - Whether defendant acting as agent for undisclosed principal - Whether plaintiff believed defendant to be principal. LOBATSE CASH STORE (1961) (PTY) LTD v. SWIEGELAAR [1986] B.L.R. 75 (HC), O'Brien Quinn CJ Agreement Condition If agreement made conditional on or subject to happening of any event, then agreement not contract until condition fulfilled. NATIONAL AMALGAMATED LOCAL AND CENTRAL GOVERNMENT AND PARASTATAL MANUAL WORKER'S UNION v. THE ATTORNEY - GENERAL [1995] B.L.R. 48 (CA), Amissah JP, Aguda JA, Schreiner JA, Lord Brand JA and Steyn JA Where parties entering into contract on assumption or supposition that certain event would materialise and event fails to occur, contract also fails - This more so if it shown that parties would not have contracted if they had known that their anticipation would come to naught. GAKEBAFHE and Another v. WRUTH SOLERGY BOTSWANA (PTY) LTD [2003] 1 B.L.R. 449 (HC), Chatikobo J Elementary principle of contract law that those who make contract have intend to enter into binding legal relations If parties express intention that agreement reached between them not to lead to binding legal relations or obligations, there is no legally binding agreement. NATIONAL AMALGAMATED LOCAL AND CENTRAL GOVERNMENT AND PARASTATAL MANUAL WORKER'S UNION v. THE ATTORNEY - GENERAL [1995] B.L.R. 48 (CA), Amissah JP, Aguda JA, Schreiner JA, Lord Brand JA and Steyn JA Terms of agreement Memorandum of agreement - Performance of certain architectural services by plaintiff - Defendant to pay fee of 6 per cent of total cost as quoted by nominated contractor - Performance of all services mandated - Failure of defendant to pay agreed fees - Effect. MOSIENYANE v. DOBO [1989] B.L.R. 473 (HC), Livesey Luke CJ Misrepresentation made by an agent to his own principal Contract not thereby vitiated. MOSHAWA HOLDINGS (PTY) LTD v. JOHN BURROWS & PARTNERS (BOTSWANA) LTD and Another [1994] B.L.R. 70 (CA), Amissah JP, Aguda JA, Schreiner JA Terms of agreement Collective agreement between National Railways of Zimbabwe and Botswana Railway Workers Union entered into in 1983 - Members of Botswana Railway Workers Union employees of National Railways of Zimbabwe - Undertakings of National Railways of Zimbabwe in Botswana taken over by Botswana Railways Organisation - Entry of contracts of employment between Botswana Railways Organisation and members of Botswana Railway Workers Union in 1986 - Stipulation of terms of contract to be on same basis as existing Botswana localised conditions - Employees required to conform to general rules and laws governing running of Railways - Enactment establishing Botswana Railways Organisation prohibiting any alteration of terms of contract subsisting before commencement of enactment without consent of all parties - Which terms of contract governing conduct of parties in question - Botswana Railways Act (Cap. 70:01), s. 30 (2). BOTSWANA RAILWAY WORKERS UNION v. BOTSWANA RAILWAYS ORGANISATION [1991] B.L.R. 113 (HC), Martin Horwitz AJ Implied terms - Term not implied because court considers it reasonable - Term has to be necessary in business sense to give efficacy to contract - 'Officious bystander' test - Question to be asked is whether officious bystander, at conclusion of contract, were to ask what was to happen in particular eventuality parties to the contract would answer that term not included as it is too clear - Provisions of implied term to be capable of exact formulation - If there is another possible wording with different meaning it is not open to court to pick on one most appropriate. GODDARD v. ANJUS FRESH PRODUCE (PTY) LTD [1993] B.L.R. 221 (CA), Amissah JP, Bizos JA, Schreiner JA Validity Severability - Illegality of clause in agreement - Whether clause severable. SEBUSI and Others v. FRANSCH [2001] 1 B.L.R. 229 (CA), Aguda AJP, Korsah and Sir John Blofeld JJA Avoidance Justus error How established. KLETTE v. DICK DRILLING SERVICES and Another [1994] B.L.R. 432 (HC), Gyeke - Dako J Bailment for reward Liability of bailee Deposit of car for repair - Car destroyed by fire - Reasonable care - Burden of proof. TOKO v. KWAPE [1983] B.L.R. 48 (HC), Hannah J Breach Contractual damages Award of reduced on appeal where part thereof not proved 'with that degree of precision required in breach of contract' - Amount disallowed where it could not be said that it was incurred prior to breach of promise and not incurred in contemplation of promised marriage taking place. MAFOKO v. THABA [2002] 2 B.L.R. 48 (CA), Tebbutt AJP, Lord Sutherland and Akiwumi JJA Delictual damages Damages awarded on basis that plaintiff found herself 'in great anguish upon finding her expectations for a married life shattered . . .' - No evidence supporting such finding - Transaction more like a commercial venture than a love match - Furthermore, no evidence to show that personal dignity and reputation as well as social standing of plaintiff adversely affected or that her feelings wounded - Award of damages of P25 000 reduced on appeal to P5 000. MAFOKO v. THABA [2002] 2 B.L.R. 48 (CA), Tebbutt AJP, Lord Sutherland and Akiwumi JJA Damages Failure to perform contract within stipulated time - Measure of damages - Damages flowing naturally from breach. MOSIKARE v. B M CONSTRUCTION (PTY) LTD [1992] B.L.R. 100 (HC), Nganunu J Sale of business - Default by purchasers - Sellers entitled to damages. VAN DER COLF v. SEBUSI and Another [1989] B.L.R. 281 (HC), Livesey Luke CJ Failure or refusal to honour obligation under contract Damages for breach of contract - Agreement to drill borehole - Three boreholes drilled by plaintiff on defendant's land - First borehole abandoned on plaintiff encountering problem - Second borehole abandoned on failure to strike water - Third borehole proved successful - Dispute between parties as to whether second borehole drilled with consent of defendant - Resolution of dispute depending on credibility of witnesses on both sides - Finding of plaintiff's witnesses credible - Plaintiff entitled to judgment for amount claimed. TECHMIN BOTSWANA (PTY) LTD v. SEMPHETE CATTLE AGENTS AND AUCTIONEERS [1991] B.L.R. 127 (HC), Livesey - Luke CJ Mora Party in mora by failing to perform within time stipulated in contract if time vital for performance of contract - If time not of essence other party can make it so by giving notice to perform by certain time, failing which contract ended. ABE's CANTEEN (PTY) LTD and Others v. CHOUHAN and Others [1993] B.L.R. 382 (HC), Martin Horwitz AJ Remedies Acceleration clause in terms of which full amount became due and payable on breach - Necessary that a demand be specifically pleaded. STANDARD CHARTERED BANK OF BOTSWANA v. SETLHAKE [2001] 2 B.L.R. 286 (HC), Walia Ag J Specific performance A party to contract which repudiated by other party may seek specific performance but must allege and prove that he has performed or tendered performance of his own obligations under same contract - Respondent as repudiating party to prove facts from which it may be inferred that its failure to perform justified. POTGIETER v. VAN DYK and Another [2004] 2 B.L.R. 213 (HC), Gaongalelwe J Breach of contract Damages Failure or refusal to honour obligations under contract - Breach of contract - Plaintiff entitled to damages for breach - Defendants liable jointly and severally for damages. TIM'S LOCK AND KEY (PTY) LTD v. JONES and Another [1988] B.L.R. 338 (HC), Livesey Luke CJ Breach of contract of Service. Damages. S & B CONSTRUCTION (PTY) LIMITED v. STOBBS 1979 - 1980 B.L.R. 3 (HC), Edwards J Cancellation Cancellation due to lack of performance Requirements - Test, whether innocent party entitled to cancel contract because of malperformance by other, entailing value judgment by court - Essentially balancing of competing interests - Ultimate criterion to be one of treating both parties under circumstances fairly bearing in mind that rescission radical remedy. AVIOTECH (PTY) LTD and Another v. LESEDI MOTORS (PTY) LTD [2004] 2 B.L.R. 190 (HC), Collins J Effect. LOETO v. MOLAOLWA [1994] B.L.R. 355 (HC), Nganunu J Franchise agreement No special fiduciary relationship created in franchise agreement - Cancellation clause providing for cancellation of agreement if certain standards not maintained - Franchisee not maintaining standards set - Franchisor entitled to cancel agreement in terms of cancellation clause. GRADAM HOLDINGS (PTY) LTD v. SPUR GROUP (PTY) LTD and Others [2004] 2 B.L.R. 11 (CA), Tebbutt JP, Zietsman and Grosskopf JJA Remedy for breach Contract cancelled when party failing to maintain restaurant on leased premises in terms of agreement - Breach failure to observe obligation so fundamental that it warranting summary cancellation of contract. GREENWAYS (PTY) LTD v. ENGEN MARKETING BOTSWANA (PTY) LTD [2005] 2 B.L.R. 270 (CA), Tebbutt JP, Zietsman and Grosskopf JJA Repayment of purchase price by agreement Business equipment sold for less than purchase price of business - Meeting between parties and plaintiff's accountants - Minutes recorded negotiations, names of those present and settlement as agreed - Document drafted by accountants present and signed by parties - Whether written document a settlement agreement. MUSTAPHA v. TOMLINSON [1996] B.L.R. 588 (HC), Levy AJ Seller to place purchaser in mora by demanding payment of purchase price prior to resiling from contract No demand made and seller accepting part payment of purchase price - Contract valid and enforceable. MOREWANE v. CHAROTEE BOREHOLE SYNDICATE and Others [2005] 2 B.L.R. 388 (CC), Marumo J Cession Cession in securitatem debiti Rights of cessionary - Effect of on other creditors of cedent. TSWELELO (PTY) LTD v. INCO FUEL CENTRES (PTY) LTD [1995] B.L.R. 449 (CA), Steyn, Lord Wylie, Hoexter JJ.A Pactum de non cedendo Prohibition clause not having to serve useful purpose in pursuance of public policy that rights should be freely transferable in interest of fostering commercial activity to be effective - Issue of whether prohibition is judged to be valid or not is at time the agreement concluded and not after. DRAMBORE LTD v. CYRIL HURVITZ EXPORT CO (BP) and Another [1993] B.L.R. 245 (CA), Amissah JP, Aguda JA, Bizos JA Compromise Essence of compromise Final settlement of dispute or uncertainty between parties - Offer of compromise by debtor to creditor in respect of liquidated amount or amount ascertainable not amounting to compromise - Offer tantamount to payment of amount to which creditor entitled in any case - Applicant claiming for unfair dismissal and other benefits - Respondent offering cheque in amount of P63,927 as ex gratia payment in full and final settlement of all disputes of any nature whatsoever between parties - Respondent requiring cheque to be returned if not accepted on those terms - Applicant accepting cheque and cashing it but purporting to impose conditions on his acceptance - Whether by accepting cheque and cashing it applicant thereby compromised his claim. MBAAKANYI v. BOTSWANA MEAT COMMISSION [1999] 1 B.L.R. 286 (IC), De Villiers J Compromise or transactio Formation of Whether compromise had come into existence. CHINAPPEN and Others v. KANDASWANY and Others [2005] 1 B.L.R. 58 (CA), Tebbutt JP, Lord Sutherland and Moore JJA Conditions Fictional fulfilment Party frustrating fulfilment of contract by lawfully terminating contract of employment - Such not amounting to fictional fulfilment. MANSON HOLDINGS v. NALIN [1995] B.L.R. 446 (CA), Amissah JP, Steyn, Hoexter JJ.A Construction Contract for supply of animal feed Appellant awarded contract to supply respondent with quantities of animal feed for certain period - Respondent ordering animal feed from other suppliers during contract period - Appellant alleging having exclusive right to supply respondent with animal feed - Whether respondent in breach of contract - Whether respondent having exclusive right to supply respondent with animal feed. EMERALD STAR (PTY) LTD (IN LIQUIDATION) v. THE ATTORNEY - GENERAL [2000] 2 B.L.R. 98 (CA), Friedman J, Kumleben J and Lord Weir JA Contract of employment Standard form - Taxation - Exemption - Deletion of provision relating to withholding tax - Whether employee exempted from paying tax. MARICIC and Another v. THE ATTORNEY - GENERAL [2000] 2 B.L.R. 204 (HC), Lever AJ Deletion Standard form - Relevance of deleted clause in construing form. MARICIC and Another v. THE ATTORNEY - GENERAL [2000] 2 B.L.R. 204 (HC), Lever AJ Duty of court Intention of parties to contract - Ascertainment - Intention to be gathered having particular regard to words used in contract - Terms of agreement signed by parties - Architectural agreement - Plaintiff 'to establish construction as of present by Botswana builder - 'Fees to be 6 per cent of total cost as quoted by 'nominated contractor' - Words used clear and unambiguous - No special or technical meaning given to words used in agreement - Effect to be given to grammatical or ordinary meaning in words used. MOSIENYANE v. DOBO [1989] B.L.R. 473 (HC), Livesey Luke CJ Intention of parties Surrounding circumstances - Common intention of parties to be ascertained by linguistic treatment of words used in contract - Evidence of surrounding circumstances cannot be admitted to vary, contradict or modify terms of written contract - Court to do its best to deduce common intention of parties from language used by them - Not permissible to give historical account of parties' negotiations as aid to interpretation of contract. BYTES TECHNOLOGY GROUP BOTSWANA (PTY) LTD v. GAME MANAGEMENT SERVICES (PTY) LTD t/a FRONTLINE TECHNOLOGY [2003] 2 B.L.R. 142 (HC), Chatikobo J Construction contract Interpretation of Remuneration for project manager where contract over - runs contract period - Rules of F.I.D.I.C. applicable to contract - Project manager entitled to remuneration on time basis. LEADING AUTO ENGINEERING (PTY) LTD v. EURAFRIC (PTY) LTD [1995] B.L.R. 168 (CA), Amissah JP, Lord Wylie JA, Steyn JA Contract for services Termination Notice of termination - Agreement providing either party to give three months' notice of termination - Termination of contract by effluxion of time - Continuation of provision of services by plaintiff - Defendant paying for services rendered - Nature of agreement - Defendant terminating agreement by giving one day's notice - Whether notice given appropriate. SPOT SECURITY SERVICES (PTY) LTD v. FRANCISTOWN TOWN COUNCIL [1998] B.L.R. 480 (HC), Gaefele J Contract of employment Contract for personal services Termination of contract for improper reasons - Court entitled to order reinstatement. TAMASIGA v. NATIONAL DEVELOPMENT BANK and Another [1992] B.L.R. 269 (HC), Martin Horwitz AJ Contractual provision Validity - Effect of provision allowing one party the right to act outside the law. SELERIO v. BOTSWANA BUILDING SOCIETY [1998] B.L.R. 300 (IC), Marumo AJ Mode of entering into contract Same as any contract - Tacit entry into contract - Employment of appellant in post of chief medical officer - Respondent impliedly offering to pay appellant remuneration attached to post - Appellant accepting offer by his conduct in performing work of chief medical officer - Respondent contractually obliged to remunerate appellant on salary scale attached to post of chief medical officer. NYABIENDA v. THE ATTORNEY - GENERAL [2000] 1 B.L.R. 143 (CA), Tebbutt J, Friedman J and Kumleben JA Term of contract Term stipulating repatriation of employee to employee's place of recruitment on termination of contract at employer's cost - Condition prohibiting employee to take up other employment within six months from termination of contract - Breach of condition - Whether plaintiff entitled to damages for breach - Whether term of contract repugnant and obnoxious to spirit of section 33(1)(a) and (2) as read with section 38 of Employment Act (Cap. 4 7:01). MARTEX TRADING (PTY) LTD t/a BUILDERS MERCHANTS BOTSWANA v. LLOYD [1998] B.L.R. 201 (HC), Dibotelo J Validity - Term stipulating suspension of employee without pay - Term conflicting with provisions of Employment Act, 1982 (No. 29), s.38. SETILO v. TSWELELOPELE BRIGADE CENTRE [1988] B.L.R. 33 (HC), Lawrence AJ Termination Notice of termination of contract - Contract of employment for unspecified period of time - Termination of contract subject to notice having been given to other party of intention to do so or payment of notice pay in lieu of notice - Claim of notice pay by employer withholding employee's wages - Whether proper - Proper mode of making claim - Institution of action in magistrate's court or customary court - Employment Act (Cap. 47:01), s. 19(a). NGAMBELA v. JP PRINT PRODUCTION (PTY) LTD [2001] 1 B.L.R. 484 (IC), De Villiers J Terms Scheme of service - Applicant employed on permanent and pensionable terms - Employment subject to two years' probation - Application by employee to upgrade his scheme of service - Whether court competent to do so. RALOKA v. THE ATTORNEY - GENERAL [1998] B.L.R. 533 (HC), Nganunu CJ Terms and conditions Variation - Unilateral alteration of terms and conditions by employer - Violation of employee's contract of employment - Dismissal of employee - Whether dismissal substantively fair. MAFU v. PLOT 4925 (PTY) LTD [2001] 1 B.L.R. 417 (IC), Legwaila JP Debt Acknowledgment Liability of obligors - Joint liability - Document of acknowledgment required to be signed by two persons - Document signed by only one person - Liability of person signing document. COSTAIN CONSTRUCTION (BOTSWANA) (PTY) LTD v. ESSACK [1983] B.L.R. 120 (HC), Hannah J Duress What constitutes Acknowledgement of debt signed under threat of criminal prosecution. BOTSWANA BREWERIES (PTY) LTD v. WOTO [1997] B.L.R. 368 (HC), Aboagye ACJ Enforcement of Contract in restraint of trade Whether reasonable or not - Restraint restricting wholesaling of alcoholic and soft beverages in one district only for period of five years - Restraint not unreasonable and enforceable. EQUINOX INVESTMENTS (PTY) LTD v. LEPOPO (PTY) LTD and Others [2002] 1 B.L.R. 149 (HC), Nganunu CJ Execution Date of execution Standard - form memorandum of agreement - Certain particulars inserted in handwriting in agreement - Discrepancy in evidence as to when particulars in handwriting inserted in agreement - Whether particulars inserted before execution of agreement MOSIENYANE v. DOBO [1989] B.L.R. 473 (HC), Livesey Luke CJ Written contract Executed in Setswana language - Setswana being language of person signing contract - Signature raising presumption of liability - Distinct and explicit averments required to subvert presumption - No proof of appellant being illiterate - Proof on balance of probabilities of appellant being fully cognisant of contents of terms of written agreement. MOTHUPE v. MOGATUSI [1987] B.L.R. 473 (HC), Barrington - Jones AJ Express terms Evidence Parole evidence inadmissible to add to or contradict or vary or alter terms - Evidence admissible to indicate nature of contract. TGB DRILL CONTRACTORS (BOTSWANA) (PTY) LTD v. NATIONAL DEVELOPMENT BANK [1987] B.L.R. 116 (HC), Barrington - Jones J Formation Consensus ad idem Agreement to design residential building for defendant by plaintiff - Preparation of design by plaintiff - Acceptance of design by defendant - Refusal or failure of defendant to use design prepared by plaintiff - Whether defendant entitled to be relieved from performing his obligations under agreement. MOSIENYANE v. DOBO [1989] B.L.R. 473 (HC), Livesey Luke CJ Doctrine of quasi - mutual assent Principles of - Whatever a man's real intention may be, if he conducting himself in such manner that reasonable man would believe that he was assenting to terms proposed by other party, and that other party upon that belief entering into contract with him, man thus conducting himself equally bound as if he intending to agree to other party's terms. ALEMAYEHOU v. THE DIRECTOR OF PUBLIC SERVICE MANAGEMENT and Others [2005] 2 B.L.R. 199 (HC), Newman AJ Mistake When a party is entitled to repudiate a contract on the ground of unilateral mistake - Mistake must be reasonable and must be pleaded - Other contracting party's position must be considered. THOBEGA v. BOTSWANA MOTOR VEHICLE INSURANCE FUND [1995] B.L.R. 657 (HC), Nganunu J Offer Acceptance - Conduct - Conclusion of contract by conduct. NOLA INDUSTRIES (PTY) LTD v. MASIRE [1987] B.L.R. 326 (HC), Hallchurch J Offer and acceptance Effect - Defendant booking plaintiffs motel for delegates to conference - Booking consisting of telephone calls and written correspondence between parties - Whether binding contract entered into by parties. MESWELE INVESTMENTS (PTY) LTD t/a OASIS MOTEL v. ATTORNEY - GENERAL [1985] B.L.R. 370 (HC), Murray J Oral agreement Essential elements - Intention to create legal relationship - Capacity of parties to enter into contract - Agreement need not be in writing unless specifically required by statute or custom - Oral instructions to carry out construction works - Performance of construction works - Whether valid contract entered into - Whether two separate contracts entered into. TIM'S LOCK AND KEY (PTY) LTD v. JONES and Another [1988] B.L.R. 338 (HC), Livesey Luke CJ Formation and acceptance Justus error What constitutes - Settlement agreement accepted by party who believed that cheque had been forged but later came to opposite conclusion but had failed to investigate matter before agreeing to settlement - Error not justus. STANDARD CHARTERED BANK BOTSWANA Ltd v. ESTATE CONSTRUCTION (PTY) LTD [2001] 2 B.L.R. 303 (CA), Tebbutt Ag P, Zietsman and Grosskopf JJA Guarantee Consequences Nature of. SPECTRA BOTSWANA (PTY) LTD v. FIRST NATIONAL BANK OF BOTSWANA LTD and Another [1994] B.L.R. 360 (HC), Martin Horwitz J Illegality Provision contrary to public policy Contract purporting to oust jurisdiction of court, Industrial Court and any other quasi - judicial or administrative tribunal - Such agreement nullity and applicant not bound by it. PAYA v. DIRECTOR OF PUBLIC SERVICE MANAGEMENT and Another [2003] 1 B.L.R. 439 (HC), Lisamba J Sale of vehicle Payment of P5 000 by plaintiff to defendant as part payment for purchase of second - hand vehicle - Defendant issuing document acknowledging part payment - Vehicle's blue book in name of first owner - Forgery by N of signature of first owner in presence of plaintiff purporting to effect transfer of ownership to plaintiff - Seizure of vehicle by police as stolen vehicle - Action by plaintiff to recover part payment made to defendant - Denial of defendant of having sold vehicle to plaintiff or receiving money as part payment - Whether contract of sale tainted with illegality - Whether contract enforceable. OLATOTSE v. MAKHALA [1986] B.L.R. 322 (HC), Barrington - Jones J Implied term Custom or usage Evidence required to establish trade usage - Evidence must be clear, convincing and consistent - Alleged hotel industry custom - Failure of guest to take up room booked - Guest not liable for more than one night. MESWELE INVESTMENTS (PTY) LTD t/a OASIS MOTEL v. ATTORNEY - GENERAL [1985] B.L.R. 370 (HC), Murray J Written contract Circumstances in which term to be implied in written contract - Contract of insurance of motor vehicle - Registration book - Blue book - Whether particulars in blue book to be construed as implied terms in contract of insurance. DOUGLAS v. I G I BOTSWANA LTD [1992] B.L.R. 204 (HC), Nganunu J Implied terms When terms to be implied Express terms to be examined first - Exclusion of implied terms by express terms - Implied terms not to contradict express terms. TGB DRILL CONTRACTORS (BOTSWANA) (PTY) LTD v. NATIONAL DEVELOPMENT BANK [1987] B.L.R. 116 (HC), Barrington - Jones J Interpretation of Employment contract Terms providing for payment of relocation and vacation passages - Designation of plaintiff's home for purposes of contract - Contract of two years' duration commencing in 1991 - Subsequent contracts entered into every two years thereafter until 1999 - Home in subsequent contracts all in USA but in last one in 1999 it was stated by the defendant to be Zimbabwe - Plaintiff's acceptance binding him. NINDI v. THE UNIVERSITY OF BOTSWANA [2005] 1 B.L.R. 439 (HC), Marumo J Terms providing for payment of relocation and vacation passages - Holistic interpretation of contract applied. NINDI v. THE UNIVERSITY OF BOTSWANA [2005] 1 B.L.R. 439 (HC), Marumo J Termination clause Whether contract requiring mutual agreement for termination or not - Effect of change of wording between clauses. LINDA'S HOLDINGS (PTY) LTD t/a FONES 4U v. MASCOM WIRELESS BOTSWANA (PTY) LTD [2004] 1 B.L.R. 203 (HC), Collins J Variation of Verbal variation - Of a clause in a lease agreement which prevented the lessee from transferring goods without the prior written consent of the lessor - Whether permissible. AFRICAN BANKING CORPORATION (PTY) LTD v. FINFOOT INVESTMENTS (PTY) LTD and Others [2004] 1 B.L.R. 432 (HC), Gaongalelwe J Lease Breach Action for damages for breach of lease agreement - Plaintiff appointing estate agent to find tenant for her house - Defendant's employee offered house by agent and accepting - Agent aware that only group secretary of defendant can sign lease agreement - Defendant declining to have house because of defects - Whether there was a contract reached between plaintiff and defendant. KHAMA v. DEBSWANA DIAMOND CO (PTY) LTD [2000] 1 B.L.R. 31 (HC), Nganunu CJ Master and Servant Right of employee under the Education Law to terminate a teacher's employment on one month's notice for any reason whatever. GABAAKE v. GABORONE TOWN COUNCIL 1971 (2) B.L.R. 35 (HC), Rooney ACJ Misrepresentation Inducement Rescission. LOETO v. MOLAOLWA [1994] B.L.R. 355 (HC), Nganunu J Mistake Unilateral mistake Signing of agreement by defendant with full knowledge and understanding of terms contained in agreement - No evidence of plaintiff having misrepresented anything - Whether defendant bound by terms of agreement - Whether any evidence of misrepresentation made by plaintiff MOSIENYANE v. DOBO [1989] B.L.R. 473 (HC), Livesey Luke CJ Novation Intention Difference between novation and a definite procedure prescribed for alteration. KLETTE v. DICK DRILLING SERVICES and Another [1994] B.L.R. 432 (HC), Gyeke - Dako J Partial novation Defendant booking plaintiff's motel for delegates to conference - Each delegate checking in motel personally liable for, payment of motel accounts - Whether payment of motel accounts by delegates operated as partial novation of contract between parties. MESWELE INVESTMENTS (PTY) LTD t/a OASIS MOTEL v. ATTORNEY - GENERAL [1985] B.L.R. 370 (HC), Murray J Requirements for Novation inter extraneous personas - Such novation involved three parties - Necessary that all parties involved - In absence of agreement novation held not to have taken place. SIKWANE v. TSWELELO (PTY) LTD and Another [1997] B.L.R. 1052 (HC), Aboagye J Obligation Undertaking Letter of comfort - Whether a legal, binding or moral obligation created. FASHION ENTERPRISES (PTY) LTD v. IMAGE (BOTSWANA) (PTY) LTD [1994] B.L.R. 288 (CA), Amissah JP, Steyn JA, Tebbutt JA Option Option agreement Nature of option agreement - Grant of option to purchase property - Whether option agreement disguised transaction of sale of property. Contract - Illegality - Prohibition by statute - Contract not ex facie illegal - Illegality known to both parties - State not adversely affected by contravention of statute - Whether contract enforceable - Whether plaintiff entitled to damages for breach of contract. BHAMJEE v. MAPOSA (No 2) [1988] B.L.R. 268 (HC), Hallchurch J Parties Agreement to drill and equip borehole Agreement providing parties to pay indebtedness within two years of incurring debt - Termination of membership of syndicate on failure to liquidate indebtedness - Respondent failing to liquidate indebtedness for 10 years - Application to evict respondent from borehole area - Whether application sustainable. MOSINYI and Another v. KAOTE [1998] B.L.R. 361 (HC), Gaefele J Company not registered yet Applicant claiming vindication of motor vehicle on basis that contract of employment which affording use of motor vehicle to respondent having been terminated - Respondent alleging applicant having no locus standi because it not party to contract - Contract concluded before applicant formed and applicant not having passed special resolution ratifying contract - Applicant not party to agreement - Companies Act (Cap 42:01), s 32 not complied with. SOLAR, SEWAGE & STEAM SERVICES (PTY) LTD v. CORBY [2003] 1 B.L.R. 290 (HC), Lesetedi J Company not yet registered Memorandum of agreement granting option to purchase immovable property - Agreement signed by defendant and G. W. on behalf of company to be formed - Company subsequently formed and registered - No reference in company's memorandum regarding adoption or ratification of agreement - Failure to deliver agreement or certified copy thereof to Registrar of Companies - Effect of agreement - Companies Act (Cap. 42:01) (1973 Rev.), s. 33. T L INVESTMENT (PTY) LTD v. MOLEFE [1985] B.L.R. 222 (HC), Murray J Contractual capacity Business names - Effect of Registration of Business Names Act (Cap. 42:05) Sections 18,22(1). RAPID MASTER CONSTRUCTION (PTY) LTD v. KGALAGADI DISTRICT COUNCIL and Another [1997] B.L.R. 1323 (HC), Aboagye J Intention to create legal relations Witness to signature - Husband signing contract as witness to wife's signature - Whether husband party to agreement. MOSIENYANE v. DOBO [1989] B.L.R. 473 (HC), Livesey Luke CJ Privity Third party Syndicate requesting respondents to drill borehole - Respondents furnishing quotation of P13 245.00 for drilling borehole - Issue of purchase order by appellants requesting respondents to drill borehole for syndicate at cost not exceeding P13 245.00 - Borehole drilled found to be blank - Payment of P6 622.50 being 50 per cent of drilling cost - Refusal to pay rest of amount due on account of borehole drilled being blank - Appellants alleging condition of term of agreement with syndicate to pay only 50 per cent of agreed price if borehole drilled found to be dry - Respondents averring not being party to agreement between appellants and syndicate - Whether respondents privy to agreement between appellants and syndicate - Question of fact for determination by trial court. NATIONAL DEVELOPMENT BANK v. TGB DRILL CONTRACTORS (BOTSWANA) (PTY) LTD [1987] B.L.R. 515 (CA), Maisels P, Aguda JA, and Amissah JA Reality of consent Signature of inchoate document Effect. BARCLAYS BANK OF BOTSWANA LTD v. EBRAHIM and Others [1995] B.L.R. 298 (HC), Gyeke - Dako J Rental agreement Parties to Financial institution - Whether financial institution as party to rental agreement engaged in retail business of selling or renting vehicles - Whether entitled to enter into agreement - Financial Institutions Act (Cap. 46:04), s. 26(8). STANBIC BANK BOTSWANA LTD v. MHALADI [1996] B.L.R. 269 (HC), Nganunu J Whether agreement subject to Hire Purchase Act Agreement not providing for right to buy goods - Ambit of Hire Purchase Act (Cap. 46:03), s.2. STANBIC BANK BOTSWANA LTD v. MHALADI [1996] B.L.R. 269 (HC), Nganunu J Repudiation Damages Measure of damages. MOLEBATSI v. MOLEBATSI [1989] B.L.R. 1 (HC), Livesey Luke CJ Refusal to accept Contract substantially performed by other party - Action for payment of agreed sum payable for performance of contract. POWER CONTRACTING (PTY) LTD t/a OKAVANGO ELECTRONICS v. BOTSWANA MEAT COMMISSION [2000] 2 B.L.R. 349 (HC), Kirby J Sale of property Parts of property let to tenants - Seller warranting that tenants having no fixed - term lease agreement on property - Discovery by purchaser of tenants having fixed - term lease agreement on property - Purchaser requesting seller to sort out matter quickly with tenants - Seller demanding full payment of consideration within three days on receipt of letter - Purchaser reiterating request to sort out matter with tenants for transaction to be finalised - Seller alleging purchaser in breach of contract having repudiated agreement for sale of property - Purported cancellation of sale by seller - Whether on objective construction of terms of agreement purchaser in breach of contract. KUBU INVESTMENTS (PTY) LTD v. CAPITAL GROWTH (PTY) LTD [2001] 1 B.L.R. 213 (CA), Kumleben, Lord Weir and Sir John Blofeld JJA Test Defendant selling vehicle to plaintiff - Plaintiff making part payment - Plaintiff failing to pay balance - Defendant demanding return of vehicle - Both parties alleging that other repudiated contract - Whether conduct of parties amounted to repudiation - Who repudiated. MOLEBATSI v. MOLEBATSI [1989] B.L.R. 1 (HC), Livesey Luke CJ Sale Land Camp site - Agreement of sale evidenced by letter - Agreement stipulating purchase price to be paid by bank guaranteed cheque payable within 60 days from date of agreement - Seller alleging implied term of delivery of bank guarantee for payment of purchase price within 14 days from date of agreement - Whether agreement capable of such construction. MOLLER v. DEREK BRINK HOLDINGS (PM) LTD and Others [1984] B.L.R. 148 (HC), Hannah J Camp site - Camp site constructed on tribal land - Transfer of rights or interest in land subject to prior consent of land board - Sale of camp site subject to implied term of prior consent of land board being obtained - Fundamental term of agreement - Tribal Land Act (Cap. 32:02) (1973 Rev.), ss. 24 and 26. MOLLER v. DEREK BRINK HOLDINGS (PM) LTD and Others [1984] B.L.R. 148 (HC), Hannah J Camp site - Particulars of sale - Agreement of sale evidenced by letter - Agreement stating sale of camp site with buildings and ancillary equipment remaining thereon - Seller denying agreement for sale included any right or title to occupy camp site - Proper construction of agreement - Sale of seller's rights in land with buildings and ancillary equipment thereon. MOLLER v. DEREK BRINK HOLDINGS (PM) LTD and Others [1984] B.L.R. 148 (HC), Hannah J Undeveloped land - Option for sale of - Nothing wrong with such option to purchase provided it is stated therein that development of land shall be condition precedent to sale - Respective rights of parties thereby clearly articulated - Party frustrating fulfilment of such condition is in breach of agreement. BAGIDI v. OKETSANG and Another [2003] 1 B.L.R. 571 (HC), Dow J Sale of business Default by purchaser Right of seller to claim possession - Agreement stipulating purchaser to pay deposit of P5000 on 8 November 1985 - Purchaser paying only P3000 after 8 November 1985 - Failure to pay balance of P2000 - Repossessing of business by sellers - Effect - Termination of contract - Repossession by sellers effectively cancelling agreement - Whether sellers entitled to repossess business - Whether purchaser capable of cancelling agreement after sellers' repossession of business. VAN DER COLF v. SEBUSI and Another [1989] B.L.R. 281 (HC), Livesey Luke CJ Deposit Failure to pay required deposit - Part payment of deposit - Breach of contract - Repossession of business by sellers - Fate of deposit paid - Whether forfeited to sellers - Whether deposit in nature of arrha or earnest. VAN DER COLF v. SEBUSI and Another [1989] B.L.R. 281 (HC), Livesey Luke CJ Rented premises Agreement stipulating 'sellers will use their best endeavours to arrange for an assignment of the existing rental' to purchaser - Failure of sellers to arrange transfer of lease to purchaser - Whether to use one's best endeavours to arrange for something tantamount to contractual obligation. VAN DER COLF v. SEBUSI and Another [1989] B.L.R. 281 (HC), Livesey Luke CJ Sale of land Conditions in title deed Agreement allegedly drawn to enable sale of land without complying with conditions in title deed - Whether real agreement between parties - Whether such agreement enforceable. ISAACS v. MOTLAPELE [2000] 1 B.L.R. 200 (HC), Nganunu CJ Suretyship What constitutes Indemnity - Undertaking to pay employee benefits on closure of operations of company - Company having taken over all the shares in employer company. SMITH v. T A BOTSWANA LIMITED [1995] B.L.R. 622 (HC), Gaefele AJ Termination Remedies Statement of account - After dissolution of business - Equipment sold to recover purchase price after cancellation of sale - Account of such sale of equipment given at settlement meeting - Whether any obligation in law to render account and debit it. MUSTAPHA v. TOMLINSON [1996] B.L.R. 588 (HC), Levy AJ Rules of natural justice Respondent having communicated justifiable reasons for termination to appellant and fulfilling contractual obligations by giving required notice and paying appellant in full - Rules of natural justice not applying in contract entered into between two companies. ANESTHESIA INTENSIVE CARE & EMERGENCY MEDICAL (PTY) LTD v. MRI BOTSWANA LTD [2005] 2 B.L.R. 252 (CA), Tebbutt JP, Zietsman and Moore JJA Termination clause in contract Proper interpretation of - Clause providing that parties entitled to terminate agreement by giving `to each other' one month's prior written notice - Obvious grammatical construction was that both parties to give notice to each other, ie, that there to be reciprocal or mutual exchange of notices - Mechanism providing for consensual termination cumbersome, but possible that good commercial reason for doing so and it was not for court to set itself up as arbiter of business efficiency - Nothing to satisfy court that interpretation leading to absurdity or could not have been intended by parties when agreement entered into. MASCOM WIRELESS BOTSWANA (PTY) LTD v. LINDA'S HOLDINGS (PTY) LTD t/a FONES 4U [2004] 2 B.L.R. 65 (CA), Zietsman, Lord Sutherland and Moore JJA Terms Gratuity Respondent employed by appellant on three year contract - Terms providing for payment of 25 per cent gratuity at end of contract - Appellant disputing existence of term providing for payment of gratuity - Court a quo finding it a term of the contract that appellant would pay gratuity - Whether appellate court should interfere with findings of fact. NURSES ASSOCIATION OF BOTSWANA v. LEJOWA [1999] 1 B.L.R. 498 (CA), Amissah P. J, Steyn J and Tebbutt JA Tacit terms Test for incorporation of a tacit term has two limbs: business efficacy and the bystander test - Term must be reasonable and a necessary implication arising from the language and circumstances of the case. FIRST NATIONAL BANK OF BOTSWANA LTD v. LATE OUR PROPERTIES (PTY) LTD and Another (NO 2) [1995] B.L.R. 701 (HC), Nganunu J Validity Clause providing that a certificate signed by a creditor was to be regarded as conclusive proof of the debtor's indebtedness - Clause contra bonos mores. FIRST NATIONAL BANK OF BOTSWANA LTD v. RATSIE [2002] 2 B.L.R. 494 (HC), Walia AJ The agreement Non - variation clause Effect of - Where agreement provides that no variation to the agreement would be valid unless in writing oral variation or cancellation of no force or effect. FIRST NATIONAL BANK OF BOTSWANA LTD v. CHIKANDA [2002] 1 B.L.R. 499 (HC), Lesetedi J Validity of Contrary to public policy - Clause of contract alleged to be contrary to public policy as purporting to oust jurisdiction of courts, rendering agreement void - Clause amounting merely to waiver of rights - Statutory rights enacted for benefit of any person able to be validly waived - Clause in any event severable from rest of contract - Court a quo found to have erred in holding that respondent not bound by contract. DIRECTOR OF PUBLIC SERVICE MANAGEMENT and Another v. PAYA [2003] 1 B.L.R. 132 (CA), Korsah, Plewman and Akiwumi JJA Unjust enrichment Quantum meruit Reasonableness - Determination of. EURAFRIC (PTY) LTD v. LEADING AUTO ENGINEERING (PTY) LTD [1994] B.L.R. 165 (HC), Gyeke - Dako J Validity Contract against public policy Contract ousting jurisdiction of the court - Contract to be read as a whole and in context where agreement made after numerous judicial skirmishes and in order to finalise matter, clause not contrary to public policy - Clause in any event severable from rest of contract. DIRECTOR OF PUBLIC SERVICE MANAGEMENT and Another v. PAYA [2004] 1 B.L.R. 32 (CA), Korsah, Plewman and Akiwumi JJA Variation Special term Inclusion in contract by mutual consent - Validity of variation. MOSIKARE v. B M CONSTRUCTION (PTY) LTD [1992] B.L.R. 100 (HC), Nganunu J Variation of Non - variation clause Effect - If both parties to contract wish to bound by oral agreement collateral to written agreement, court cannot prevent them from placing reliance on oral agreement - Non - variation clause intended to prevent either party from evading his or her obligations under contract on pretext of subsequent oral variation - Not intended to defeat will of parties. CORREIA v. LESOLOLWANE and Others [2003] 1 B.L.R. 612 (HC), Chatikobo J Waiver Written contract Agreement to waiver non - variation clause must comply with clause SILVERSTONE (PTY) LTD and Another v. LOBATSE CLAY WORKS (PTY) LTD [1995] B.L.R. 669 (HC), Lesetedi AJ Warranty Interpretation Strict interpretation - Express warranty - Breach of warranty - Effect - Breach of term of contract between parties - Defendant failing to pay for repairs in contravention of agreement between plaintiff and himself - Plaintiff claiming purchase price, interest and costs - Whether defendant liable to plaintiff for relief sought. LECAGE v. TSELADIKAE [1990] B.L.R. 494 (HC), Barrington - Jones Ag CJ Written Language not understood by contracting party TSWAING v. VAN SCHALKWYK 1979 - 1980 B.L.R. 149 (HC), Hayfron - Benjamin CJ Signature Effect - Whether person who signed a document headed 'Acknowledgement of Debt' is bound thereby when he had not read the document or known to what it referred. KLETTE v. DICK DRILLING SERVICES and Another [1994] B.L.R. 432 (HC), Gyeke - Dako J Written contract Terms Interpretation - Respondent awarded tender to supply defendant with livestock feed - Plaintiff alleging it enjoyed exclusive rights to supply defendant with livestock feed - Defendant contending agreement not barring it from contracting with other parties - Whether contract precluded defendant from ordering livestock feed from other suppliers. EMERALD STAR (PTY) LTD v. THE ATTORNEY - GENERAL [2000] 1 B.L.R. 8 (HC), Dow J COPYRIGHT Infringement Implied licence Appellants inviting members of public to submit logo designs for use in tournament - Respondent submitting logo design - Implied licence to advertiser to use logo in connection with promotion of tournament - Appellants authorising reproduction and publication of logo - Actual knowledge that grant of licence to use article constituted infringement required - Whether infringement established - Copyright Act (Cap. 68:01) (1973 Rev.), s. 6(3). BOTSWANA FOOTBALL ASSOCIATION and Another v. KGAMANE [1998] B.L.R. 153 (CA), Aguda J, Schreiner J and Tebbutt JA Restriction of copyright Artistic work Logo constituting artistic work within meaning of definition of Copyright Act - Act not including selling artistic work as act restricted by copyright in artistic work - Act including reproducing work in any material form and publishing it - Whether implied licence permitting reproduction and publication of logo - Copyright Act (Cap. 68:01) (1973 Rev.), s. 4(5). BOTSWANA FOOTBALL ASSOCIATION and Another v. KGAMANE [1998] B.L.R. 153 (CA), Aguda J, Schreiner J and Tebbutt JA Subsistence of Artistic works Logo - Copyright in artistic work in which copyright subsists. KGAMANE v. BOTSWANA FOOTBALL ASSOCIATION and Another [1997] B.L.R. 1096 (HC), Lesetedi AJ Requirements for Artistic works commissioned - Interpretation of section 5(1), (2) and (3) of Copyright Act. KGAMANE v. BOTSWANA FOOTBALL ASSOCIATION and Another [1997] B.L.R. 1096 (HC), Lesetedi AJ Registration - Registration not required. KGAMANE v. BOTSWANA FOOTBALL ASSOCIATION and Another [1997] B.L.R. 1096 (HC), Lesetedi AJ COSTS Appeal Application to dismiss for want of prosecution Serious dilatoriness of respondents' attorneys - Costs awarded to applicant on attorney and client scale de bonis propriis. MASS FOODS & CHEMICAL INDUSTRIES (PTY.) LTD. v. JALAL and Others, In Re: JALAL and Another v. KHAN and Others [2001] 1 B.L.R. 454 (HC), Lisimba J Attorney and client costs Award Appellate court - Grounds for awarding such costs - Existence of special circumstances - Considerations giving rise to institution of action - Conduct of losing party - Amount at stake - Prospects of success in noting appeal. BOTSWANA DEFENCE FORCE and Another v. MERAFHE [2000] 2 B.L.R. 83 (CA), Amissah P. J, Korsah J, Friedman J, Lord Weir J and Zietsman JA Conduct of case extremely vexatious - Applicant willing participant in such conduct - Inappropriate to order costs de bonis propriis - Applicant to pay costs on attorney and own client basis. GHANZI DISTRICT COUNCIL v. A K CONSTRUCTION (PTY) LTD [2000] 2 B.L.R. 362 (HC), Kirby J Mark of court's displeasure - Applicant proceeding by way of application instead of by action - Applicant to have foreseen serious dispute of fact developing in course of proceedings. ABDOOL v. FORCHU [2000] 2 B.L.R. 226 (HC), Horn AJ When awarded Only in special cases CHICOLE v. SUN PUBLISHING (PTY) LTD and Another [1997] B.L.R. 139 (CA), Aguda J, Lord Cowie J and Lord Allanbridge JA When to be ordered Application for summary judgment persevered with despite plaintiff's attention having been drawn to the fact that the action was materially flawed - Order 34 rule 9(1). SEBUSI v. METRO CASH & CARRY LTD [1997] B.L.R. 886 (HC), Dibotelo J Application not frivolous - Question of law worth raising. ATTORNEY - GENERAL v. ALLEN [1997] B.L.R. 1030 (HC), Aboagye J Attorney and client scale When awarded Dishonest defence - Awarded when court wished to mark displeasure with conduct of party against whom judgment given - Defendant conducting defence in arrogant and dishonest manner - Conduct warranted costs to be awarded on attorney and client scale. PUSUMANE v. BONANG [1996] B.L.R. 949 (HC), Levy AJ Attorney and own client costs Effect of taxation thereof Such taxed bill of costs not of same status as party and party bill of costs which can be executed upon. SIKHAKHANE & CO v. PHOI [1997] B.L.R. 863 (HC), Nganunu CJ Award Attorney and client scale Pleadings - Exception taken by defendant - Plaintiff alleging exception vexatious - Notice of exception not malicious - Deficiency in particulars of claim - Whether exception vexatious - Whether costs awardable to plaintiff on attorney and client scale. KGWASIWA v. MELLO [1987] B.L.R. 1 (HC), Hallchurch J Claim of costs by both parties Landlord and tenant - Sale of leased property - Registration of transfer of property to buyer - Urgent application by landlord to evict tenant after sale of property - Landlord ceasing to be landlord on transfer of property - No legal interest in property to sustain action of eviction against tenant - Costs incurred by tenant to be paid by landlord. BAGWASI v. O & W CONSTRUCTION (PTY) LTD [1999] 1 B.L.R. 337 (HC), Nganunu CJ Costs following event Rule granted in favour of applicant - Application by applicant for discharge of rule - Discharge tantamount to withdrawal of action - Rules requiring withdrawal of action to be followed by offer to pay costs - Person entitled to be awarded costs in circumstances. LEKHUTILE v. MUSTAPHA (PRACTICE NOTE) [2001] 1 B.L.R. 488 (HC), Dow J Refusal to award Dilatoriness of successful plaintiff in prosecuting claim - Whether sufficient ground for refusal to award costs. ANDREWS v. ANASLASSOPOULOS [1983] B.L.R. 286 (HC), Hannah J Scale Whether punitive costs appropriate - Application not abuse of court process - Fault leading to state of affairs beyond control of applicant - Each party to bear own costs. DE GRAAF v. RAMOKWENA and Others [2000] 1 B.L.R. 224 (HC), Mwaikasu J Bills of costs Taxation of Requirements - Taxing master obliged, except in exceptional circumstances, to rely as much as possible on tariffs which legally enacted and enforceable - Taxing master to satisfy himself that party liable to pay costs having received due notice of time and place of taxation and that he entitled to be present at taxation - Such requirements peremptory. PERMANENT SECRETARY, MINISTRY OF HEALTH and Another v. ACQUAH - DADZIE and Another [2003] 1 B.L.R. 270 (HC), Lesetedi J Review - Procedure for review of taxation set out in Order 58 of the Rules of the High Court (Cap 04:02) (Sub Leg) - Court's inherent jurisdiction going beyond purview of Rule 58 - This allowing review of improper conduct of taxing master which falling outside ambit of Order 58 - Taxation of bills of costs or rulings relating thereto amounting to judicial acts and falling within ambit of Order 61 of Rules of High Court. PERMANENT SECRETARY, MINISTRY OF HEALTH and Another v. ACQUAH - DADZIE and Another [2003] 1 B.L.R. 270 (HC), Lesetedi J Civil procedure Costs of compromised litigation. TOWNSHIP ROLLERS FOOTBALL CLUB v. BOTSWANA FOOTBALL ASSOCIATION 1974 (1) B.L.R. 20 (HC), Rooney J Wasted costs occasioned by postponement Liability for - Various circumstances necessitating postponement - Party against whom costs order sought not represented at proceedings - Court holding that costs to be determined at conclusion of case and that absent party to be given notice of intended hearing. POPEGO v. THE ATTORNEY - GENERAL and Others [2003] 2 B.L.R. 250 (HC), Ngagunu CJ Costs de bonis propriis Attorney Award of costs against attorney - Appellant seeking to pursue appeal in forma pauperis - Appellant's attorney swearing to affidavit certifying probabilis causa - Application successful - Appeal being without merit - Filed out of time without application for condonation - Attorney advancing spurious grounds that reasonable prospects for success existing - Displaying incompetence - Being aware that respondents would not recover costs from client - Having cause to know that client deceived him - Whether attorney liable to pay costs de bonis propriis. OLYN v. LUTTIG and Another [1999] 1 B.L.R. 419 (CA), Steyn J, Lord Allanbridge J and Korsah JA Costs of suit Meaning Costs on ordinary scale - Costs on attorney - and - client scale not claimable. BARCLAYS BANK OF BOTSWANA LTD v. MPUISANG [2000] 1 B.L.R. 481 (HC), Nganunu CJ Payment Applicant seeking order of costs against respondent - Matter between parties compromised - Whether order grantable. ULC (PTY) LTD v. INDUSTRIAL DOMESTIC CLEANING SERVICES AND CHEMICAL SUPPLY (PTY) LTD and Another [1999] 2 B.L.R. 174 (HC), Collins AJ Criminal proceedings Award High Court - Inherent jurisdiction - Whether High Court inherent power to award costs in criminal proceedings as being most equitable to take in circumstances. RE ATTORNEY - GENERAL'S REFERENCE;STATE v. MALAN [1990] B.L.R. 32 (CA), Aguda JA, De van Winsen JA, Bizos JA High Court - Whether High Court power to award costs on application by party in criminal proceedings without any statutory provision covering exercise of power - Court of Appeal Act (Cap.04:01) (1973 Rev.), s. 12(5) - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), ss. 24 and 312(3). RE ATTORNEY - GENERAL'S REFERENCE; STATE v. MALAN [1990] B.L.R. 32 (CA), Aguda JA, De van Winsen JA, Bizos JA Whether costs awardable against State in criminal proceedings - Circumstances necessitating award of costs. KEATSUTSWE and Others v. THE STATE [1990] B.L.R. 176 (HC), Gyeke - Dako J De bonis propriis Application proceedings Issues raised purely legal - Applicants having acted on legal advice - Court's findings against applicants on all issues showing applicants badly advised - Only fair that applicants' legal practitioners should bear costs personally - Applicants' legal practitioners given leave to show cause why they should not pay costs de bonis propriis. KAMANAKAO I and Another v. ATTORNEY - GENERAL [2002] 1 B.L.R. 110 (HC), Chatikobo J Attorney Award of costs against attorney - Gross professional ineptitude - Inexcusable and inordinate delay in prosecuting action - Claim for damages sustained as result of death of deceased husband - Execution of client's mandate falling far short of expected diligence and professionalism - Dismissal of action for want of prosecution - Whether attorney liable to pay costs de bonis propriis. BOTIPENG v. HEALTHCARE HOLDINGS (PTY.) LTD. t/a GABORONE PRIVATE HOSPITAL [2000] 2 B.L.R. 112 (CA), Steyn J, Korsah J and Zietsman JA Award of costs against attorney Making of scurrilous attacks upon opposing party and his attorney can justify award of costs de bonis propriis. ELLECE t/a DESERT POND v. QUICK CASH (PTY) LTD [2002] 1 B.L.R. 210 (HC), Kirby J Failure of attorney to inform court timeously of postponement or inability to appear Legal practitioners to uphold integrity of courts by exhibiting traditional courtesy and respect for its proceedings - Failure to do so might result in order for costs de bonis propriis - Not ordered in present case where attorney informed court and opposing party of his inability to appear in court on day before hearing. MOGOTHO and Others v. SECURITY SYSTEMS [2003] 1 B.L.R. 202 (IC), Dingake J When awarded Only in serious cases of dishonesty, wilfulness or negligence. MOTHEBE v. BARCLAYS BANK OF BOTSWANA LTD [1997] B.L.R. 123 (CA), Schreiner JA Power of attorney purporting to be authority for launching proceedings in matter nullity - Illogical to expect applicant to pay for costs of proceedings its not authorizing - Respondent entitled to be recompensed for its trouble and applicant's attorneys ordered to pay costs de bonis propriis. WESTERN INDUSTRIAL ESTATES (PTY) LTD v. ELAND SHOES (BOTSWANA) (PTY) LTD [2005] 2 B.L.R. 13 (HC), Mosojane J Degree of negligence - Multiplicity of negligent acts. THIPE v. MOGWE [1996] B.L.R. 64 (CA), Amissah JP, Lord Wylie JA and Steyn JA Deprivation of successful party of Although general rule is that successful party entitled to costs, exceptions to this rule exist Litigant commencing proceedings unnecessarily or misleading another into commencing proceedings unnecessarily may be deprived of costs in spite of being successful party. NTUANE v. YOUR FRIENDS (PTY) LTD t/a GABS FM 96.2 and Others [2003] 1 B.L.R. 49 (HC), Lesetedi J Interdict Interdict pendente lite Costs of interdict pending litigation - Costs not to be awarded to successful party save in exceptional circumstances. STANDARD CHARTERED BANK OF BOTSWANA LTD v. JOTIA [1999] 2 B.L.R. 1 (HC), Mosojane J Liability for Action to terminate co - ownership agreement - Dispute settled by agreement between parties Plaintiff had succeeded in what it had set out to claim but defendant also successful in obtaining re - survey of property - Neither party having succeeded in full and each party to pay own costs. MASOHA and Others v. ESTATE LATE WILSON MOKOKO and Others [1996] B.L.R. 531 (HC), Levy AJ Action withdrawn without tender of costs Unless there are sound and solid grounds to the contrary, the other party should be entitled to his costs of the action. SILAS v. DIKOLOGA BOTSWANA TRAVEL AND TOURS (PTY) LTD [2004] 1 B.L.R. 442 (HC), Lesetedi J Disputed application settled but court to decide on costs Discretion of trial judge - Court should not have to hear evidence to decide disputed facts in order to decide who liable for costs, but court must with material at its disposal make proper allocation of costs - Cardinal rule that costs within discretion of trial judge, which judicial discretion to be judicially exercised. TARGET CONSTRUCTION (PTY) LTD v. DAISY LOO BOTSWANA (PTY) LTD [2003] 2 B.L.R. 103 (CA), Korsah, Plewman and Kirby JJA Withdrawal of action after set - down Action for damages arising from dismissal - Defendant in position of successful litigant, but had raised complicated special plea that it conceded it would have abandoned if trial proceeded - All facts to adjudicate special plea pleaded and admitted - Defendant awarded three - quarters of its costs. THEBE v. BOTSWANA MEAT COMMISSION [1996] B.L.R. 582 (HC), Levy AJ Action for damages arising from dismissal - Mitigation of damages after set - down resulted in no financial loss suffered - Matter withdrawn after set - down - Whether plaintiff so withdrawing still obliged to come to court to prove wrongful dismissal so as to get an order for costs. THEBE v. BOTSWANA MEAT COMMISSION [1996] B.L.R. 582 (HC), Levy AJ Action including application for summary judgment withdrawn after set - down with consent of defendant. BP BOTSWANA (PTY) LTD v. PING PONG SUPERMARKET [2003] 2 B.L.R. 1 (HC), Dibotelo J Order for costs Costs on attorney - and - own client's scale Defamation - Circumstances in which costs to be awarded on attorney - and - own client's scale. ATTORNEY - GENERAL v. GHANZI HOTEL [1986] B.L.R. 178 (CA), Maisels P, Amissah JA and Van Winsen JA Party and party costs Plaintiff successful in action for damages Trial prolonged - Successful party at trial raised and dealt with procedural issue determining the matter subsequent to dealing with substantive matters - Whether successful party entitled to all its costs. GABAEME v. BARCLAYS BANK OF BOTSWANA [1996] B.L.R. 914 (HC), Nganunu J Punitive costs Attorney and client costs Award made against attorney - Attorney being recipiens - Attorney orchestrating and conducting a determined, protracted legalistic campaign to deny respondent access to money lawfully belonging to respondent - Whether punitive costs condign. LERUMO MOGOBE LEGAL PRACTITIONERS v. FENCING CENTRE (PTY) LTD [2000] 1 B.L.R. 128 (CA), Amissah P. J, Steyn J and Lord Weir JA Review of Application for Contents of notice of motion - Failure to comply with provisions of Order 61 rules 1 and 2 not fatal to applicant and may be waived. MAYGILLIP v. MFOLWE and Others [1997] B.L.R. 1263 (HC), Masojane J What needs to be set out - Grounds for review and the facts and circumstances upon which applicant's relies have to be set out in application. MAYGILLIP v. MFOLWE and Others [1997] B.L.R. 1263 (HC), Masojane J Security for Function of Registrar - Limited to assessing quantum MISROAME v. MOTSISI [1994] B.L.R. 313 (HC), Gyeke - Dako J Liability Test to be applied - Test of ordinary residence preferable. MISROAME v. MOTSISI [1994] B.L.R. 313 (HC), Gyeke - Dako J Security for costs Peregrinus defendant Peregrinus applying for rescission of judgment obtained by plaintiff - Application by plaintiff for stay of proceedings pending furnishing of security for costs - Whether application for rescission amounts to initiation of proceedings - When peregrinus liable to furnish security for costs. GABORONE v. LOWRENCO [1999] 1 B.L.R. 11 (HC), Dow J Separate claim for Not permissible. WATER UTILITIES CORPORATION v. RODERICK [1993] B.L.R. 164 (HC), Martin Horwitz AJ Taxation Failure of Registrar to scrutinize Bill Taxation a nullity. WALIA v. THE REGISTER OF THE HIGH COURT 1981 B.L.R. 279 (HC), Hayfron - Benjamin CJ Review of Procedure for review - Must be brought under Order 58 and not Order 61 of the Rules of the High Court. AKANYA (PTY) LTD v. BATHUSI TRANSPORT (PTY) LTD [1997] B.L.R. 168 (HC), Aboagye J Taxation not confined to bills of costs arising out of litigation only Client having right to insist on taxation in absence of agreement. MOSATE & ASSOCIATES v. KGOTSO ROADWORKS CONSTRUCTION MAINTENANCE (PTY) LTD and Another [2005] 2 B.L.R. 383 (HC), Marumo J When to be awarded Application to High Court for order declaring law passed by Parliament to be unconstitutional Although Attorney - General representing government in such cases, in effect government, in its capacity as maker of law in question which is party being challenged and which seeks to defend its law - No reason why individual applicant, as successful party in such application, should be deprived of his costs - Quaere: where legal representative of individual party in Court of Appeal acts as amicus curiae, whether any party should bear costs of reference by Attorney General in terms of s 336(1) of Criminal Procedure and Evidence Act (Cap 08:02). ATTORNEY GENERAL'S REFERENCE: IN RE: THE STATE v. MARAPO [2002] 2 B.L.R. 26 (CA), Tebbutt AJP, Korsah, Lord Sutherland, Grosskopf and Akiwumi JJA COURTS Administrative body Decision of administrative body Setting aside decision of administrative body by court - Whether court entitled to substitute its own decision or to remit case back to administrative body - Circumstances in which court entitled to substitute its own decision. ARBI v. COMMISSIONER OF PRISONS and Another [1992] B.L.R. 246 (CA), Amissah P, Aguda JA, and Puckrin JA Actions against Government Law 24/1965 s.9 Peregrinus or incola Business carried on in Botswana - Lack of branch office in Botswana. PIETER LODEWICKUS BEZUIDENHOUT v. DOMINION EARTHWORKS (PTY) LTD and THE GOVERNMENT OF BOTSWANA 1964 - 1967 B.L.R. 233 (HC), Weston CJ Appellate court Appeals Appeals from customary courts to magistrates' courts - Procedure to be adopted by magistrate's court - Appeal to be treated as re - hearing of the case. MERAPELO v. THE STATE [1985] B.L.R. 215 (HC), O'Brien Quinn CJ Application for leave to appeal to appellate court Considerations for granting leave - Reasonable prospect of appeal succeeding - Applicant having reasonably arguable case - Applicant alleging failure of trial court affording applicant opportunity of addressing court at conclusion of evidence - Whether fatal irregularity - Whether any likelihood of applicant's appeal succeeding - Criminal Procedure and Evidence Act (Cap. 08:02), s. 181. MASINA v. THE STATE [2001] 1 B.L.R. 363 (HC), Dibotelo J Evidence Credibility of witnesses - Findings on credibility of witnesses by trial court - Trial court believing evidence of defendant and disbelieving witnesses for plaintiff - Trial court having advantage of observing demeanour of witnesses - Whether proper for appellate court to interfere with findings of trial court. NGOPE v. O' BRIEN QUINN [1988] B.L.R. 121 (CA), Maisels P, Amissah JA, and Van Winsen JA Finding of fact Appeal on fact - When finding of trial court to be disturbed. SELLO v. THE STATE [1984] B.L.R. 87 (HC), Hannah ACJ Findings of fact Appellate court not to interfere with findings of trial court unless findings plainly wrong - Decision of customary court - High Court reversing decision of customary court on grounds of respondent not being party or privy to proceedings before customary court - Overwhelming evidence on record indicating respondent being cognisant of pendency of matter before customary court - Whether appellate court entitled to set aside findings in circumstances. MOLATLHIWA v. GASEMOKWENA [2000] 1 B.L.R. 70 (CA), Aguda J, Korsah J and Lord Weir JA Failure of trial court to make any factual findings - Duty of appellate court in circumstance - Appellate court to do its best on evidential material before it - Onus not to operate until after examination of all relevant evidence. SEPHEKOLO v. SELATO [1999] 1 B.L.R. 533 (CA), Steyn J, Lord Allanbridge J and Kumleben JA Judgment based on fact - Setting aside of judgment - Onus on appellant to show lower court made wrong findings of fact - Appellate court not to set aside judgment unless satisfied of lower court's decision to be wrong. TUMPA v. THE STATE [1987] B.L.R. 51 (HC), Hallchurch J Judgment based on fact - Setting aside judgment - Onus on appellant to show lower court made wrong findings of fact - Appellate court not to set aside judgment unless satisfied of lower court's decision to be wrong. PITSO v. THE STATE [1987] B.L.R. 203 (HC), Barrington - Jones J Proven facts Inference drawn from proven facts - Findings of fact by trial court - Appeal from lower court - Appellate court not to disturb trial court's factual findings or its conclusions as to credibility of witness testifying before it - Appellate court to interfere only when improper inference drawn from proven facts - Inference drawn against circumstantial evidence - Whether inference properly drawn. PHOFEDI v. THE STATE [1987] B.L.R. 19 (CA), Aguda JA, Amissah JA, Van Winsen JA Sentence Grounds of appeal - Appeal against sentence alleging sentence excessive - No heads of arguments - Necessity of setting out clearly and specially grounds of appeal - Rules of the High Court (Cap. 04:02) (Sub. Leg.) (1973 Rev.), Order 42, r. 1. GABELA and Another v. THE STATE [1983] B.L.R. 125 (HC), Corduff J Arrest ad fundandunt jurisdictionem Application for the arrest ad fundandum jurisdictionem of a peregrinus by an applicant who is himself a peregrinus. PAVER v. ROPER and ROPER 1974 (1) B.L.R. 8 (HC), Rooney ACJ Court Martial Appeal Appeal from decision of court - martial - Time for noting appeal from decision of court - martial - Date from which time runs - Whether time runs from date of conviction or confirmation of conviction - Botswana Defence Force Act (Cap. 21:05), ss. 95 and 129. SOLOMON v. THE STATE [1991] B.L.R. 86 (HC), Livesey - Luke CJ Conviction and sentence by court martial - Appeal against sentence to High Court - Whether High Court jurisdiction to entertain appeal against sentence - Criminal Procedure and Evidence Act (Cap. 08:02), s. 323 - Botswana Defence Force Act (Cap. 21:05), s.129. RAMOTSWERE v. THE STATE [1990] B.L.R. 114 (HC), Livesey Luke CJ Conviction by court martial - Sentence imposed by judge advocate - Whether proper - Whether proceedings a nullity. BOAKGOMO v. THE STATE [1999] 1 B.L.R. 309 (HC), Aboagye J Trial Sentence - Conviction on two counts - Imposition of cumulative sentence - Whether proper - Criminal Procedure and Evidence Act (Cap. 08:02), ss. 129 and 300 (1) and (2). RAMOTSWERE v. THE STATE [1990] B.L.R. 114 (HC), Livesey Luke CJ Court of Appeal Alleged error by court Enquiry into error of either fact or law in judgment of any court taking form of review or appeal - Court of Appeal ultimate court in Botswana from which no further appeal could lie - No court having power to review proceedings of court of equal or superior jurisdiction. MOLALE v. THE STATE [2005] 2 B.L.R. 114 (HC), Kirby J Appeal Application for leave out of time - Application must be served on other parties. REINHARDO and Others v. TRANS OKAVANGO (PTY) LTD [1993] B.L.R. 252 (CA), Aguda JA Application for leave out of time - Requirements for set out. REINHARDO and Others v. TRANS OKAVANGO (PTY) LTD [1993] B.L.R. 252 (CA), Aguda JA Attorney - General - Appeal against decision of High Court - Necessity to ensure nature of judgment being appealed against - Essential to comply with appropriate enactment and Rules of the Court - Court of Appeal Act (Cap. 04:01), ss. 10 and 11 - Court of Appeal Rules (Cap. 04:01), r. 33. MATLAPENG and Another v. THE STATE (PRACTICE NOTE) [1991] B.L.R. 369 (CA), Amissah P JA, Aguda JA, Doyle JA In forma pauperis appeal - Procedure to be followed set out - Rules of the Court of Appeal (Cap. 04:01) (Sub. Leg.), r. 30. LEFATLHO v. MATHE [1995] B.L.R. 453 (CA), Chreiner JA, Tebbutt JA, Lord Cowie JA In what matters - Appeal from Industrial Court - Decision appealed against must be judgment or order - Merely preparatory or procedural order not such decision - Trade Disputes Act (Cap. 48:02), s. 18(4). BOTSWANA BANK EMPLOYEES' UNION and Others v. BARCLAYS BANK OF BOTSWANA LTD [1995] B.L.R. 459 (CA), Amissah P, Lord Wylie, Steyn, Tebbutt, Hoexter JJ.A Leave to appeal - Appeal against judgment confirming rule nisi - Founding affidavit containing false statement - Granting of rule nisi based on false statement - Whether any prospect of success on appeal against judgment confirming rule nisi. SETLHAKE v. FLEET SERVICES BOTSWANA (PTY.) LTD. t/a AVIS FLEET SERVICES [2000] 2 B.L.R. 281 (HC), Horn AJ Leave to appeal - Application for leave to appeal out of time - Grounds for granting application - Applicant to satisfy court of reasonable prospect of success on appeal. SELEKA v. THE STATE [1986] B.L.R. 142 (HC), Barrington - Jones J Noting of appeal by counsel - Proper procedure to follow - Necessity to ensure nature of judgment being appealed against - Essential to comply with rule 33 of Court of Appeal Rules and forms prescribed thereunder - Court of Appeal Act (Cap. 04:01), ss. 10 and 11 - Court of Appeal Rules (Cap. 04:01) (Sub. Leg.), r. 33. MATLAPENG and Another v. THE STATE (PRACTICE NOTE) [1991] B.L.R. 369 (CA), Amissah P JA, Aguda JA, Doyle JA Order appealed from - Final or interlocutory - Grant of default judgment - Order setting aside summons and default judgment - Whether order final or interlocutory. SUN INTERNATIONAL BOTSWANA (PTY) LTD v. FAIRDEAL BOTSWANA (PTY) LTD [1991] B.L.R. 378 (CA), Aguda JA, Schreiner JA, Puckrin JA Order appealed from - Refusal of application to dismiss application before respondent has closed its case - Such fundamentally similar to application for absolution from instance - No merit in rendering decision subject to appeal. DE BEERS BOTSWANA (PTY) LTD v. DIPHOKO [1993] B.L.R. 237 (CA), Amissah JP, Schreiner JA, Bizos JA Appeal against order of High Court Respondent filing notice of abandonment of portion of order - Respondent alleging abandonment of order except order as to costs - Appeal allegedly becoming appeal against costs only - Leave of court a quo required in any order relating to costs only - Whether respondents contention maintainable - Whether leave of court required in instant case. SMIT v. SWEDISH GEOLOGICAL COMPANY [1988] B.L.R. 442 (CA), Amissah P, Aguda JA, and Doyle JA Appeal by Attorney - General Direction as to burden of proof on prosecution on submission of no case to answer - Trial of respondent for murder by High Court - Defence of self - defence - Submission of no case to answer at end of prosecution case - Trial judge ruling of onus being on prosecution to prove beyond all reasonable doubt of accused not acting in self - defence - Whether ruling misdirection on burden of proof - Whether appeal proper procedure for requesting Court of Appeal for determination of correctness of ruling - Court of Appeal Act (Cap. 04:01), s. 12 - Criminal Procedure and Evidence Act (Cap. 08:02), s. 336. STATE v. DESHA [1992] B.L.R. 199 (CA), Amissah P, Bizos JA, and Puckrin JA Appeal to What decisions appealable - Interlocutory order - Order to provide security in cash - No decision involved in such ruling which affects the merits of the case - Such ruling left open the rights of the parties to go to trial and was therefore not appealable. FIRST NATIONAL BANK OF BOTSWANA LIMITED (Previously named and known as FINANCIAL SERVICES COMPANY OF BOTSWANA LIMITED) v. KHAN [1994] B.L.R. 213 (HC), Nganunu J Application for leave to appeal to Appeal against conviction and sentence - Conviction for attempted rape - Findings of magistrate justified by evidence - Dismissal of appeal by High Court - Application for leave to appeal to Court of Appeal - Whether any likelihood of success of appeal. MACKENZIE v. THE STATE [1992] B.L.R. 332 (CA), Aguda JA Appeal against refusal by trial magistrate to recuse himself - Ruling on submission of no case to answer without calling on prosecution - Trial magistrate ruling applicant having case to answer - Remarks made by magistrate in ruling - Allegation of prejudging applicant to be guilty - Whether application for leave arguable one. TLHOMELANG v. GABORONE CHIEF MAGISTRATE and Another (No 2) [1987] B.L.R. 72 (HC), O'Brien Quinn CJ Prospect of success or reasonably arguable case - Contention of reasonable prospect of leave being granted by Court of Appeal to adduce further evidence - Admission of fresh evidence likely to produce different result - Whether on totality evidence arguable case to present to Court of Appeal. SEIRWANG v. THE STATE (No 2) [1987] B.L.R. 500 (HC), Barrington - Jones ACJ Application to appeal Appeal against conviction - Conviction based on evidence of finger prints - Examination of police officer and photographs of finger prints by trial court before convicting accused - Whether any prospect of success or reasonably arguable case. MONAGENG v. THE STATE [1987] B.L.R. 185 (HC), O'Brien Quinn CJ Formulation of test for application to appeal - Whether prospect of success or reasonably arguable - Test to be applied. TAWANA v. THE STATE (PRACTICE DIRECTION) [1984] B.L.R. 272 (CA), O'Brien Quinn CJ, Baron JA, Aguda JA Bail application Refusal of application by High Court - Appeal to Court of Appeal against refusal - Whether appeal lies to Court of Appeal from refusal of High Court to grant application. PELOEWETSE v. THE STATE [1988] B.L.R. 439 (CA), Amissah P, Aguda JA, and Doyle JA Court of Appeal Rules Failure of appellant to comply with rules - Whether appeal to be struck out - Court of Appeal Rules (Cap. 04:01) (Sub. Leg.), rr.12 (1), (2) and (3), 13(1), 18 and 19. BOMO (PTY) LTD v. ZAKHEM CONSTRUCTION BOTSWANA (PTY) LTD and Others [1996] B.L.R. 729 (CA), Aguda, Steyn and Lord Cowie JJA Grounds of appeal Abandonment of - Effect - Error by counsel based on mistake of fact. DU SETTO (SUNNYSIDE II) (PTY) LTD and Others v. FINANCIAL SERVICES COMPANY OF BOTSWANA LTD [1994] B.L.R. 274 (CA), Amissah JP, Steyn, Tebbutt JJA Legal issue - Failure to raise issue in court a quo - Issue not covered by grounds of appeal in notice of appeal - Issue not relied upon in heads of argument - Whether proper to entertain such belated submission. BOTSWANA RAILWAYS ORGANISATION v. DITSHWANE [1998] B.L.R. 68 (CA), Steyn J, Hoexter J and Lord Allanbridge JA Judgment Preemption - Acquiescence in judgment - Default judgment - Application to set aside - Conduct of appellants indicating acquiescence in judgment - Conduct of appellants precluding them from disputing validity of default judgment. A STEMMET t/a MULUNGA RANCH v. STANDARD CHARTERED BANK [2001] 1 B.L.R. 217 (CA), Kumleben, Lord Weir and Zietsman JJ A Jurisdiction Power to act as appellate court from decisions of High Court - Appeal to High Court against conviction and sentence by magistrate's court - High Court remitting case to magistrate's court to enable defence to crossexamine on issue - Appeal to Court of Appeal against order of High Court remitting case to magistrate's court - Appellant requesting Court of Appeal to deal with merits of magistrate's decision to convict and sentence - Whether Court of Appeal has jurisdiction to hear appeals direct from magistrates' courts - Court of Appeal Act (Cap. 04:01) (1973 Rev.), s. 19. MOSWEUNYANE v. THE STATE [1986] B.L.R. 308 (CA), Aguda JA, Amissah JA, Van Winsen JA Proper nomenclature Proper nomenclature is `Court of Appeal for Botswana', not `The Appeal Court for the Republic of Botswana'. BOMO (PTY) LTD v. ZAKHEM CONSTRUCTION BOTSWANA (PTY) LTD and Others [1996] B.L.R. 729 (CA), Aguda, Steyn and Lord Cowie JJA Question of law Reservation by High Court - When reference to be made - Reference to be made sparingly - Resolution of two conflicting decisions of the Court of Appeal - Reference to Court of Appeal to avoid delay in arriving at final decision in a case - Court of Appeal Act (Cap. 04:01) (1973 Rev.), s. 15. MZWINILA v. THE STATE [1989] B.L.R. 610 (CA), Amissah P, Aguda JA, Doyle JA, Schreiner JA, Puckrin JA Question of law reserved by High Court Consideration by Court of Appeal - Proper mode of making reference - Judge to state facts as found by him - Posing question of law to be considered based on facts found - Court of Appeal Act (Cap.04:01) (1973 Rev.), s.15. MOKGADI v. THE STATE [1988] B.L.R. 435 (CA), Amissah P, Aguda JA, and Doyle JA Sentence Inducement of sense of shock - Imposition of 10 years' imprisonment - Appellant traditional medicine practitioner - Conviction of manslaughter for acts amounting to negligence and recklessness - Acts performed in attempt to cure ailment of deceased - Whether sentence imposed reasonable. MOKITI v. THE STATE [1986] B.L.R. 449 (CA), Aguda JA, Van Winsen JA, Bizos JA Inducement of sense of shock - Test of - Imposition of 18 months' imprisonment for official corruption on appellant - Appellant complaining of sentence being too severe and induces sense of shock in him - Proper for sense of shock to be induced in appellant but not as the test - Test being whether sentence imposed induces sense of shock in Court of Appeal or review court. TOKWE v. THE STATE [1986] B.L.R. 274 (CA), Maisels P, Baron JA and Murray J Customary courts Compensation order Criminal trial - Whether customary court competent to award compensation - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s.312. KEOMANTSE v. TEISA [1987] B.L.R. 470 (HC), Barrington - Jones ACJ Criminal jurisdiction Whether court power to try cases under Fauna Conservation Act (Cap. 38:01) (1973 Rev.) - Customary Courts Act (Cap. 04:05) (1973 Rev.), s. 14. STATE v. MOLOMO [1984] B.L.R. 108 (HC), Hannah ACJ Decision by Chief in his Ministerial and not judicial capacity. MOISAKAMO v. MOISAKAMO 1978 B.L.R. 22 (HC), Edwards J Judgment Enforcement - Parties - Person not being party to proceedings - Effect of judgment on such party - Whether judgment enforceable against person not being party to proceedings. LEKGABA v. NGWATO LAND BOARD and Others [2000] 1 B.L.R. 217 (HC), Mwaikasu J Jurisdiction Tribal land - Unlawful occupation - Building of homesteads - Order of demolition of buildings and eviction of occupants - Whether customary courts jurisdiction to order demolition of homesteads and eviction of occupants thereof - Customary Courts Act (Cap. 04:05), ss. 11 and 14 - Tribal Land Act (Cap. 32:02), s. 39 - Tribal Land (Amendment) Act, 1993 (No. 14 of 1993). KWENENG LAND BOARD v. MADISAKWANE and Others [2001] 1 B.L.R. 246 (CA), Tebbutt, Kumleben and Zietsman JJA Procedure and evidence in Customary Courts. STATE v. THOKOMELO and Others 1981 B.L.R. 272 (HC), Corduff J Duties of Where supplicant implores courts for justice he can not be sent away without fair hearing Where he is being deprived of his rights by persons appointed to assist course of administration of justice courts should go beyond normal display of fairness and even - handedness to demonstrate to world that complainant was being given hearing to which all were entitled. CHICOLE and Others v. ATTORNEY - GENERAL and Another [1993] B.L.R. 257 (CA), Amissah JP, Schreiner JA, Puckrin JA Functions Assurance of respect for law Accused taking law into his own hands - Accused administering in cold - blood cruel and potentially crippling whipping to person accused believed to have committed offence against his property - Courts not to tolerate persons taking law into their own hands - Courts to deal sternly with such persons. STATE v. TLHASELO [1985] B.L.R. 44 (HC), Hannah J High Court Appeal Hearing of - Dismissal of appeal for reasons for decision to be given later - Judgment for dismissal subsequently written and delivered - Whether appropriate procedure to dismiss or allow appeal for reasons to be given later. NKWE v. THE STATE [1986] B.L.R. 307 (CA), Maisels P, Amissah JA and Van Winsen JA Appeal from magistrate's court Pre - requisites for arguing appeal - Counsel for appellant to provide High Court with certified copy of record of trial court - Failure to provide record - Effect - Circumstances in which departure from supplying record allowable - Exceptional circumstances - Rules of the High Court (Cap. 04:02) (Sub.Leg.) (1973 Rev.), Ord. 41, r. 7. KABLAY and Others v. ATTORNEY - GENERAL and Others [1985] B.L.R. 20 (HC), Murray J Appeal to Hearing of appeal by one judge - Postponement of hearing of substantive appeal by judge - Judge subsequently leaving jurisdiction before hearing of substantive appeal - Whether another judge competent to hear appeal de novo. MZWINILA v. THE STATE [1989] B.L.R. 357 (HC), Aboagye J Hearing of appeal by one judge - Postponement of hearing of substantive appeal by judge - Judge subsequently leaving jurisdiction before hearing of substantive appeal - Whether another judge competent to hear appeal de novo. MZWINILA v. THE STATE [1989] B.L.R. 610 (CA), Amissah P, Aguda JA, Doyle JA, Schreiner JA, Puckrin JA Court having no jurisdiction to inquire into exercise by Speaker of parliament of his discretions under Standing Orders of Parliament into internal proceedings, of which noting and acceptance or rejection of parliamentary questions form part. MZWINILA v. THE ATTORNEY - GENERAL [2003] 1 B.L.R. 554 (HC), Kirby J Jurisdiction Appellate and supervisory jurisdiction over magistrates' courts and customary courts of appeal - Whether jurisdiction over court martial - Constitution, s. 95(5) - High Court Act (Cap. 04:02), s. 10 - (Cap. 04:02) (Sub. Leg.), Ord. 60, r. 1. BOAKGOMO v. THE STATE [1999] 1 B.L.R. 309 (HC), Aboagye J Decision of customary court - Enactment providing for decisions of customary courts appealable to higher customary court or customary court of appeal - Application to High Court to set aside decision of customary court - Whether High Court jurisdiction to do so - Exercise of supervisory role to prevent serious infringement of legal right - Customary Courts Act (Cap. 04:05), s. 41. MOLATLHIWA v. GASEMOKWENA [2000] 1 B.L.R. 70 (CA), Aguda J, Korsah J and Lord Weir JA Decisions and orders of magistrates - courts - Power of review by High Court - Whether power restricted to civil proceedings only - Rules of the High Court (Cap. 04:02) (Sub. Leg.), Ord. 61. KEATSUTSWE and Others v. THE STATE [1990] B.L.R. 176 (HC), Gyeke - Dako J Submission to - What amounts to - Submission must be patent or matter of inevitable inference from facts - Plaintiff, relying on foreign judgment for provisional sentence proceedings against defendant, contending that defendant submitted to jurisdiction of Court by requesting plaintiff to file bond of security - Onus of proving jurisdiction on plaintiff - Letter requesting security on whole not indicating wish to submit to jurisdiction - Defendant in addition having raised matter of lack of jurisdiction of court in limine - No substance to contention of submission by defendant. CLOETE v. BRINK [1995] B.L.R. 275 (HC), Nganunu J Power to review Review of case from magistrate's court - Case remitted to magistrate to continue with trial after acquittal of accused - Whether correct in law to do so. STATE v. JABA (No 2) [1987] B.L.R. 431 (HC), Hallchurch J Powers of High Court exercising inherent powers and accepting de facto situation - Court having been required to give decision on specific issue referred to it - Regularising de facto situation not issue before it - Order accordingly set aside on appeal. SEBONI v. TWELVE APOSTLES' CHURCH OF AFRICA and Another [1995] B.L.R. 161 (CA), Aguda JA, Schreiner JA and Tebbutt JA Powers of reference When powers to be exercised - Court of Appeal Act (Cap. 04:01), s. 15. WILLIAMS v. THE STATE [1990] B.L.R. 289 (CA), Amissah P, Missah P, Aguda JA, Doyle JA, Schreiner JA, Puckrin JA Powers of review Grounds for review - Absence of jurisdiction of trial court - Interest in cause, bias, malice or corruption on part of presiding judicial officer - Gross irregularity in proceedings - Admission of inadmissible or incompetent evidence or rejection of admissible or competent evidence - Grant of conditional bail - Whether any irregularity or illegality in proceedings in granting bail. STATE v. MOYO and Others [1988] B.L.R. 113 (HC), Hallchurch J Registrar of Companies Power of court to review decisions and rulings of Registrar - Whether power includes disciplinary control over Registrar - Constitution - Public Service Act (Cap. 26:01) (1973 Rev.). KALABENG v. ATTORNEY - GENERAL and Another [1985] B.L.R. 1 (HC), Hannah J Trial Criminal trial - Evidence - Murder - Circumstantial evidence - Accused untruthful witness - Logical inference to be drawn from proven facts - Accused being perpetrator of offence - Consideration of evidence as being not satisfactory by trial court - Appropriate verdict in circumstance. STATE v. MOCHICHO [1987] B.L.R. 305 (HC), Murray J Independence of Court staff Appointment of by executive - Such appointment not affecting independence. DIRENG v. FURNITURE MART (PTY) LTD [1995] B.L.R. 826 (IC), De Villiers J Sittings of court Power of Minister to create divisions and prescribe where court to sit - Such powers not affecting independence. DIRENG v. FURNITURE MART (PTY) LTD [1995] B.L.R. 826 (IC), De Villiers J Industrial court Actions in Plea of lis pendens - Claims in Industrial Court substantially the same as those he had brought in High Court - Courts having concurrent jurisdiction - Plea of lis pendens upheld. CHIBONGA v. CHEMDOL (PTY) LTD [2002] 2 B.L.R. 255 (IC), De Villiers J Prescription of - Prescription Act - Whether Industrial Court proceedings are subject to Prescription Act - Prescription Act (Cap. 13:01) DITSELE v. BCL LIMITED [1995] B.L.R. 838 (IC), De Villiers J Time within which matter to be brought to court - No time limits in the Trade Disputes Act (Cap 48:02) within which a party had to refer a dispute to the industrial court after the Commissioner of Labour had issued a s 7 certificate - Only rule 4(2) of the Rules for the Conduct of Proceedings in the Industrial Court that dealt with that this requirement - Words `as soon as possible' in the rule to be interpreted to mean `within a reasonable time' - Delay of four years unreasonably long. CHIBONGA v. CHEMDOL (PTY) LTD [2002] 2 B.L.R. 255 (IC), De Villiers J Constitution of court Not neccessary for judge in Industrial Court to sit with assessors where only issue is question of law. BOTSWANA BANK EMPLOYEES' UNION and Others v. BARCLAYS BANK OF BOTSWANA LTD [1995] B.L.R. 459 (CA), Amissah P, Lord Wylie, Steyn, Tebbutt, Hoexter JJ.A Constitutionality of Appointment of judges - Appointment by President - Not infringing section 104(2)(c) of Constitution of Botswana. BOTSWANA RAILWAYS' ORGANISATION v. SETSOGO and Others [1996] B.L.R. 763 (CA), Amissah P., Aguda, Steyn, Tebbutt and Hoexter JJ.A Appointment of judges - Appointment by President - Industrial Court not a division of the High Court and President did not have to act on advice of Judicial Service Commission in appointing judges to court - Constitution of Botswana section 96(2). BOTSWANA RAILWAYS' ORGANISATION v. SETSOGO and Others [1996] B.L.R. 763 (CA), Amissah P., Aguda, Steyn, Tebbutt and Hoexter JJ.A Exclusive jurisdiction of industrial and trade disputes - Only when a matter properly before Industrial Court that it could be said to have exclusive jurisdiction over it - Expression of exclusivity had nothing to do with diminution of general jurisdiction of High Court. BOTSWANA RAILWAYS' ORGANISATION v. SETSOGO and Others [1996] B.L.R. 763 (CA), Amissah P., Aguda, Steyn, Tebbutt and Hoexter JJ.A Decisions Appeal against - Court giving additional reasons for its reason after appeal having been noted - Industrial Court judge not counsel to argue case on appeal - Judge under no obligation to defend his judgment on appeal being noted against it - Practice undesirable. FIRST NATIONAL BANK OF BOTSWANA LTD v. BOTSWANA BANK EMPLOYEES' UNION [1998] B.L.R. 403 (CA), Amissah P, Tebbutt J and Korsah JA Jurisdiction Matter referred to court by one of parties - Matter not an urgent application - Section 9 certificate required - Section 9 certificate to be related to dispute before court - Trade Disputes Act (Cap 48:02), s 9. BOTSWANA MINING WORKERS UNION v. BCL LIMITED [2004] 1 B.L.R. 82 (IC), De Villiers J Protest to Commissioner of Labour more than 14 days after dismissal - Employee not challenging dismissal but complaining of failure to pay full terminal benefits - Trade Disputes Act (Cap 48:02), ss 7(2), 8. MUNDOW v. ITALTSWANA CONSTRUCTION CO (PTY) LTD [2004] 1 B.L.R. 96 (IC), Legwaila JP Trade disputes - Retrospective jurisdiction - Presumption against retrospective operation of statute - Amendment Act - Amendment Act establishing court - No provison for transitional period - No retrospective jurisdiction conferred - Dispute arising before commencement of Amendment Act - Whether court had jurisdiction over dispute - Trade Disputes (Amendment) Act, 1992, s 1. MODISE v. BOTSWANA BUILDING SOCIETY [1994] B.L.R. 427 (IC), De Villiers J Trade disputes - Retrospective jurisdiction - Amendment Act conferring retrospective jurisdiction - Trade Disputes (Amendment) Act, 1995 (No. 18). LEKOBA v. GREEN INDUSTRIAL ENTERPRISES CORPORATION [1995] B.L.R. 845 (IC), De Villiers J Nature of proceedings in court Whether proceedings civil or not - Proceedings sui generis. DIRENG v. FURNITURE MART (PTY) LTD [1995] B.L.R. 826 (IC), De Villiers J Power to exclude public Constitutionality of - Section 22(1) of the Trade Disputes Act - Section 10(11) of the Constitution. DIRENG v. FURNITURE MART (PTY) LTD [1995] B.L.R. 826 (IC), De Villiers J Powers and functions of Power to adjudicate application for absolution from the instance - Industrial Court may uphold such application where, at end of applicant's case, evidence led is so hopeless that it cannot be salvaged even by court entering arena or where court cannot find for applicant should applicant choose not to lead evidence. DUBE v. FEDEX EXPRESS and Another [2003] 1 B.L.R. 37 (IC), Dingake J Powers and functions of - Proceedings of Industrial Court not civil proceedings strictu sensu - Its proceedings are special type of proceedings - It has power to hear and determine trade disputes - It is not bound by rules of evidence or procedure in civil or criminal proceedings and may disregard technical irregularities that are not like to result in miscarriage of justice - Industrial can take things into its own hands in order to settle disputes or determine trade disputes - Trade Disputes Act (Cap 48:02), ss17(1), 18(1)(a), 19(1). DUBE v. FEDEX EXPRESS and Another [2003] 1 B.L.R. 37 (IC), Dingake J Whether the Industrial Court a court Essential ingredients of court - Would be a mistake to deny the character of a court merely because it did not exercise the powers of the High Court or a similar court - Industrial Court a court for purposes of Constitution of Botswana. BOTSWANA RAILWAYS' ORGANISATION v. SETSOGO and Others [1996] B.L.R. 763 (CA), Amissah P., Aguda, Steyn, Tebbutt and Hoexter JJA Judgment Reasons for judgment When court must give reasons. MEKGWE v. FIRST NATIONAL BANK OF BOTSWANA LTD and Another [1996] B.L.R. 102 (CA), Amissah JP, Lord Wylie JA and Lord Cowie JA Jurisdiction Application for leave to sell immovable property in Botswana of a minor who was not domiciled in Botswana. IN RE ESTATE SWART 1974 (1) B.L.R. 88 (HC), Rooney J Applications Peregrinus - Who is - Person who holds a residence permit within jurisdiction. GAAM ASSOCIATES (PTY) LTD and Another v. OGBUGO [1995] B.L.R. 683 (HC), Aboagye J Attachment to confirm jurisdiction Peregrine defendant - Whether High Court jurisdiction to attach property of defendant domiciled or resident in foreign country to found or confirm jurisdiction - Constitution, s. 95 (1). MARTEX TRADING (PTY) LTD t/a BEMCO v. YANNOULIS [1991] B.L.R. 330 (HC), Livesey Luke CJ Company a peregrinus Attachment necessary to found jurisdiction - Whether principle of effectiveness can be extended to awards of arbitrators SILVERSTONE (PTY) LTD and Another v. LOBATSE CLAY WORKS (PTY) LTD [1995] B.L.R. 669 (HC), Lesetedi AJ Child Court upper guardian both at Common Law and in Customary Law - Custody awarded to non - relative in the interest of the child. EX PARTE VEEN: In re INFANT OTLOGETSWE KGOSIETSILE 1978 B.L.R. 43 (HC), Edwards J High Court In maintenance application - Illegitimate minor child - Jurisdiction of High Court not ousted by Affiliation Proceedings Act (Cap. 28:02). MOREMI and Others v. MESOTLHO [1997] B.L.R. 7 (HC), Gittings J In maintenance application - Illegitimate minor child - Jurisdiction of High Court not ousted by Affiliation Proceedings Act (Cap. 28:02). MZANGEZULU and Another v. MOKGETSE [1997] B.L.R. 171 (HC), Cotran J Matter not related to Botswana Plaintiff annexing in provisional sentence proceedings a copy of judgment of South African magistrate's court - Whether a court in Botswana entitled to refuse to assume jurisdiction. CLOETE v. BRINK [1996] B.L.R. 224 (HC), Nganunu J Matter previously deliberated upon by another court Customary Court of Appeal having decided matter concerning title to land and plaintiff land board aggrieved by decision not taking decision on appeal but instituting action in high Court on same issue - Effect of decision by Customary Court of Appeal. KWENENG LAND BOARD v. KEDISANG and Another [2002] 1 B.L.R. 519 (HC), Dibotelo ACJ Non - African witness Section 10 (e) Proclamation 19/1961. TORPEDO MOOKODI v. THE SENIOR NGWAKETSE KGOTLA 1968 - 1970 B.L.R. 293 (HC), Dendy Young CJ Ouster of Empowering enactment not excluding court from looking into act claimed to have been done outside powers conferred upon person performing act - Such enactment not exempting act done mala fide or where fraud proved. LEIPEGO v. MOAPARE and Others [1993] B.L.R. 229 (CA), Amissah JP, Aguda JA, Bizos JA Peregrinus Who is - Company incorporated and having registered office within jurisdiction SILVERSTONE (PTY) LTD and Another v. LOBATSE CLAY WORKS (PTY) LTD [1995] B.L.R. 669 (HC), Lesetedi AJ Provisional sentence proceedings based on foreign judgment No indication as to where parties resided - Whether court had jurisdiction. CLOETE v. BRINK [1996] B.L.R. 224 (HC), Nganunu J Submission to jurisdiction When to be inferred. CLOETE v. BRINK [1996] B.L.R. 224 (HC), Nganunu J Where relief sought against peregrinus Principle of effectiveness applied in determining whether court had jurisdiction. GAAM ASSOCIATES (PTY) LTD and Another v. OGBUGO [1995] B.L.R. 683 (HC), Aboagye J Juvenile Jurisdiction Appropriate court to trial juveniles - Juvenile court - Children's Act, 1981 (No. 5), s. 2. MOLAUDI and Others v. THE STATE [1988] B.L.R. 48 (HC), Livesey Luke CJ Juvenile court Custodial sentence Imposition - Exclusion of power to impose imprisonment - Children's Act, 1981 (No. 5 of 1981) ss. 28 and 29. STATE v. MOLAUDI and Others [1988] B.L.R. 214 (CA), Amissah P, Aguda JA, Doyle JA Magistrate sitting as juvenile court Accused sentenced to imprisonment - Sentence partly suspended - Whether court had power to impose sentence of imprisonment. STATE v. KHUDUNG [1988] B.L.R. 281 (HC), Livesey Luke CJ Probation officer Trial of juvenile in absence of probation officer - Enactment requiring probation officer to be present at trial - Validity of trial - Children's Act, 1981 (No. 5 of 1981), s. 23 (3). MALEKE v. THE STATE [1988] B.L.R. 325 (HC), Hallchurch J Probation order Breach of conditions of probation order - Imposition of custodial sentence - Whether power to impose custodial sentence for breach of conditions of probation order - Children's Act (Cap. 28:04), ss. 28 and 29. DIKGANG v. THE STATE [1990] B.L.R. 329 (HC), Livesey Luke CJ Sentencing powers Restriction on sentencing powers - Accused 16 years old - Accused sentenced to 21 months' imprisonment plus six strokes - Whether proper - Children's Act, 1981 (No. 5 of 1981), s. 28. STATE v. MASOWA [1989] B.L.R. 24 (HC), Aboagye J High Court will not tolerate administrative inefficiency. GODFREY MORUPISI v. THE STATE 1968 - 1970 B.L.R. 199 (HC), Dendy Young CJ Law of Evidence on procedure in Customary Courts Appeal from Customary Court. MASWIKITI v. MASWIKITI 1974 (1) B.L.R. 57 (HC), Rooney J Magistrates' courts Appeal from Criminal trial - Right of Attorney - General to appeal - Right restricted to appeal on matter of law - Acquittal of respondent on ground of failure of prosecution to prove requisite mens rea - Appeal against decision of magistrate - Grounds of appeal alleging error in holding on basis of facts found of failure of prosecution to prove requisite mens rea - Whether grounds of appeal on matter of law - High Court Act (Cap. 04:02) (1973 Rev.), s. 9 (2) - Penal Code (Cap. 08:01) (1973 Rev.), s. 59. STATE v. MBAIWA [1988] B.L.R. 314 (HC), Livesey Luke CJ Criminal jurisdiction Lack of jurisdiction to try offence committed outside limits of its local jurisdiction - When jurisdiction to try offence - Court having jurisdiction to try accused but without proper procedure for enforcing appearance of accused being observed - Procedure for enforcing appearance - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), ss. 5, 135, 136 and 149 (1) (f). NKOLA v. THE STATE [1989] B.L.R. 500 (HC), Livesey Luke CJ Meaning of jurisdiction - Chief magistrate - Trial of summons containing two counts - Jurisdiction to try one count but no jurisdiction to try other count - Trial of two counts together - Conviction of accused on both counts - Whether proceedings severable - Whether trial a nullity - Penal Code (Cap. 08:01), s. 99 (b) and National Security Act (Cap. 23:01), s. 3 (c). STATE v. MATERE [1991] B.L.R. 359 (HC), Gyeke - Dako Ag CJ Decisions or orders When appealable or reviewable - Final orders or orders of magistrates' courts appealable and reviewable - Party to proceedings locus standi to seek review of decisions or proceedings of magistrates' courts. KEATSUTSWE and Others v. THE STATE [1990] B.L.R. 176 (HC), Gyeke - Dako J Jurisdiction Increased jurisdiction - Amendment of Magistrates' Courts Act (Cap. 04:04), s. 60(2) (1973 Rev.) - Increased Jurisdiction (Government Notice No. 444 of 1976). STATE v. VISSAGIE [1983] B.L.R. 138 (HC), Corduff J Magisterial district - Cattle allegedly stolen in Kgatleng Magisterial District - Recovery of stolen cattle in Molepolole Magisterial District - Charge of stealing cattle brought against accused in Molepolole Magisterial District - Whether magistrate in Molepolole Magisterial District jurisdiction to try case - Magistrates' Courts Act (Cap. 04:04) (1973 Rev.), ss. 60 and 61 - Criminal Procedure and Evidence Act (Cap 08:02) (1973 Rev.), s.5. ATTORNEY - GENERAL v. PHUTE [1987] B.L.R. 460 (HC), Hallchurch J Trial - Hearing in camera - Procedure to be followed in hearing case in camera - Need for trial to be in open court - Exceptions to general rule - Magistrates' Courts Act (Cap. 04:04) (1973 Rev.), s. 6(1) and(2). STATE v. TOKWE [1984] B.L.R. 162 (HC), Hannah J Magistrate Jurisdiction - Trial - Functus officio - When magistrate becoming functus officio - Whether after conviction of accused. KOLAGANO v. THE STATE [1992] B.L.R. 49 (HC), Gyeke - Dako J Magistrate grade I Jurisdiction to try offences - Accused charged before magistrate grade I with offence of causing grievous harm contrary to section 235 of Cap. 08:01 - Whether magistrate competent to try case - Magistrates' Courts Act (Cap. 04:04) (1973 Rev.), ss. 3, 60(2) and (5) and 61 - Increased Jurisdiction (G.N. 444 of 1976) - Magistrates (Increased Powers of Punishment) Order, 1983 (S.I. 121) - Penal Code (Cap. 08:01) (1973 Rev.), s. 235. RAKHUDU v. THE STATE [1988] B.L.R. 237 (HC), Livesey Luke CJ Magistrate grade II Jurisdiction to try offences - Accused charged with offence of causing grievous harm contrary to section 235 of Cap. 08:01 - 14 years' imprisonment being maximum punishment prescribed for conviction of offence - Arraignment and taking of plea before magistrate grade II - Whether magistrate grade II jurisdiction to try offence - Whether trial a nullity - Magistrates' Courts Act (Cap. 04:04) (1973 Rev.), s. 60 (2) - Penal Code (Cap. 08:01) (1973 Rev.), s. 235. NKOLA v. THE STATE [1989] B.L.R. 500 (HC), Livesey Luke CJ Jurisdiction to try offences - Accused charged with offence of arson contrary to section 330(a) of Cap. 08:01 - Life imprisonment being maximum punishment prescribed for conviction of offence - Arraignment and taking of plea before magistrate grade II - Appellant pleading guilty to charge - Whether magistrate grade II jurisdiction to try offence - Whether trial a nullity - Magistrates' Courts Act (Cap. 04:04) (1973 Rev.), s. 60(2) - Penal Code (Cap. 08:01) (1973 Rev.), s. 330 (a). KOTASE v. THE STATE [1990] B.L.R. 86 (HC), Livesey Luke CJ Legal mandate to perform duties of judicial nature - Alleged that judicial officer not having subscribed to necessary oath in terms of Promissory Oaths Act (Cap 26:03) - Argument not taking into account proviso which stipulating that no act rendered invalid by omission to take oath unless judicial officer having declined, neglected or omitted to subscribe to oath - No evidence that instant judicial officer called upon to subscribe to oath after appointment - Official acts not rendered invalid - Promissory Oaths Act, ss 2 and 9 (Cap 26:03). STATE v. GADIWE [2003] 2 B.L.R. 214 (CC), Marumo J Trial Arraignment - Commencement of trial by one magistrate after arraignment and taking of plea of accused - Continuation of trial by second magistrate without taking fresh plea from accused - Whether proceedings before convicting magistrate valid - Criminal Procedure and Evidence Act (Cap. 08:02), s. 150(4). NGWAKO v. THE STATE [1990] B.L.R. 526 (HC), Livesey Luke CJ Commencement of trial by one magistrate after arraignment and taking of plea of accused - Continuation of trial by another magistrate without taking fresh plea from accused - Whether proceedings irregular - Whether trial a nullity - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 140. NKOLA v. THE STATE [1989] B.L.R. 500 (HC), Livesey Luke CJ Commencement of trial by one magistrate after arraignment and taking of plea of accused - Continuation of trial by another magistrate without taking fresh plea from accused - Whether proceedings irregular - Whether trial a nullity. KOTASE v. THE STATE [1990] B.L.R. 86 (HC), Livesey Luke CJ Orders For carrying out of work which required supervision of court Whether courts would issue orders which they could not supervise. KAMANAKAO I and Others v. THE ATTORNEY - GENERAL and Another [2001] 2 B.L.R. 654 (HC), Nganunu CJ, Dibotelo and Dow JJ Ouster of jurisdiction of High Court Land Board having made decision granting certain plots to applicant for registration in name of G company under Tribal Land Act (Cap 32:02) Applicant desiring that plots be registered in name of another company - Applicants obtaining order in High Court restraining respondents from dealing with certain property and other ancillary orders - Jurisdiction of High Court curtailed by s 40(3)(a), read with s 40(4) of Act and s 6(11) of Statutory Instrument 59 of 1995 - Appeals from land board lying to land tribunal in terms of s 40(3)(a) of Act - High Court not having jurisdiction to deal with direct appeals from decisions of land board but only with appeals on questions of law from decisions of land tribunal - Rule nisi discharged. MAGWAZA FAMILY and Another v. KWENENG LAND BOARD and Others [2002] 1 B.L.R. 254 (HC), Lesetedi J Precedent Doctrine of stare decisis Not inflexible - Grounds on which court will depart from previous decision. KWENENG LAND BOARD v. MPOFU and Another [2005] 1 B.L.R. 3 (CA), Tebbutt JP, Korsah, Zietsman, Akiwumi and Moore JJA Presiding judge Application for recusal Judge having given a judgment in matter substantially the same where he had taken a stand on a principle of law - This not a basis for recusal. SECHELE v. THE ATTORNEY - GENERAL and Another [2002] 1 B.L.R. 550 (HC), Dibotelo J Referral of question of law By High Court to Court of Appeal Question of constitutionality of Industrial Court - Court holding that constitutional issue of such importance that issue required adjudication - Industrial Court not unconstitutionally set up. BOTSWANA RAILWAYS' ORGANISATION v. SETSOGO and Others [1996] B.L.R. 763 (CA), Amissah P., Aguda, Steyn, Tebbutt and Hoexter JJ.A By Industrial Court to High Court Whether question of law academic - Rule nisi having been discharged in same order as that which referred matter to the High Court - Discharge not automatically terminating case - In circumstances of particular case, constitutional issue (status of Industrial Court) in any event overwhelming narrow issue which formed subject of original application and this justified referral - Constitution of Botswana sections 18(3), 127(1). BOTSWANA RAILWAYS' ORGANISATION v. SETSOGO and Others [1996] B.L.R. 763 (CA), Amissah P., Aguda, Steyn, Tebbutt and Hoexter JJ.A Constitutional issues Referral by subordinate courts - Difference in matters covered by sections 18(3) and 105(2) of Constitution - The former providing for referral of specific questions of alleged contraventions of provisions on protection of fundamental rights and freedoms whereas later relating to general interpretation of Constitution. BOTSWANA RAILWAYS' ORGANISATION v. SETSOGO and Others [1996] B.L.R. 763 (CA), Amissah P., Aguda, Steyn, Tebbutt and Hoexter JJ.A SENIOR CUSTOMARY COURTS Practice and Procedure in Criminal cases: Rule 18 (a) Customary (Procedure) Rules. Undesirable delay in hearing criminal appeal from Customary Court. GOPOLANG MARULE v. THE STATE 1982 (1) B.L.R. 110 (HC), Hannah J Stare decisis principle When applicable Applicable only to ratio decidendi - Matter not fully argued in previous matter - Court not following earlier decision which was not on ratio decidendi. BOTSWANA RAILWAYS' ORGANISATION v. SETSOGO and Others [1996] B.L.R. 763 (CA), Amissah P., Aguda, Steyn, Tebbutt and Hoexter JJ.A Subordinate Court of First Class Monthly payments of maintenance in terms of the Deserted Wives and Children Protection Act of 1962 which, over a period, would exceed R1,000.00 Subordinate Court has jurisdiction - Contrary decision in case of Christopher Marcos versus Aspasia Wellio (Civil Appeal No. 2/1967) overruled. MORGAN MOATHODE v. KGABYWANA MEKGWE 1968 - 1970 B.L.R. 52 (HC), Dendy Young CJ CRIMINAL LAW Abusive, obscene or insulting language Use of language in relation to President Words uttered at drinking place in a house - Accused charged with offence of using abusive, obscene or insulting language - Whether words uttered in `public place' or `public gathering' in terms of Penal Code (Cap. 08.01) (1973 Rev.), s. 93(1). MOKGOTHU v. THE STATE [1986] B.L.R. 34 (HC), O'Brien Quinn CJ Accessory after the fact STATE v. MORAPE AND ORS 1972 (1) B.L.R. 23 (HC), Rooney ACJ Accomplice Uncorroborated evidence Admissible and can found a conviction - Section 240 of the Criminal Procedure and Evidence Act - Cautionary rule only applies to those persons called by the prosecution and not to co - accused - Whether or not a witness who has some purpose of his own in testifying can properly be classed as an accomplice. TOTENG v. THE STATE [1994] B.L.R. 188 (HC), Gyeke - Dako J Accused Conspiracy Sections 21 and 22 of the Penal Code - Impact of accused's evidence against his co - accused in a joint trial. TOTENG v. THE STATE [1994] B.L.R. 188 (HC), Gyeke - Dako J Ammunition of war Unlawful possession Definition of `ammunition of war' - Expert witness - Testimony of witness indicating ammunition found in possession of appellant to be ammunition of war - Failure to cross - examine witness - Whether burden on prosecution to prove possession and knowledge of articles being ammunition of war - Arms and Ammunition Act (Cap. 24:01) (1973 Rev.), ss. 2 and 9 (1) and (5). NGUGU v. THE STATE [1989] B.L.R. 116 (HC), Aboagye J Appeal Right of Appeals in a criminal matter only allowed on a point of law - Section 10(2) of the High Court Act. STATE v. MOILWE [1994] B.L.R. 232 (HC), Nganunu J Armed robbery What constitutes Effect of provisions of section 292(2) of Penal Code (Cap. 08:01) - Use of dangerous or offensive weapon not a prerequisite for operation of sentence. GABANAKGANG and Another v. THE STATE [1996] B.L.R. 670 (CA), Amissah JP, Lord Cowie and Lord Allanbridge JJA Arms Possession Unlawful to possess arms without licence - Accused allegedly found in possession of arms - Failure to demand or request accused to produce licence in respect of arms - Whether any offence committed - Arms and Ammunition Act (Cap. 24:01), s. 9 (1) and (4). STATE v. NKWALI and Others [2001] 1 B.L.R. 397 (HC), Aboagye J Arms and ammunition 'Ammunition of war' Definition of - Words not defined - Meaning to be attached to words - Arms and Ammunition Act (Cap. 24:01) (1973 Rev.) MABERLY v. THE STATE [1986] B.L.R. 386 (HC), Barrington - Jones J 'Possession' Unlawful possession - Weapons found in vehicle driven by appellants - Appellants alleging weapons deposited in vehicle by another person in their absence - Trial court disbelieving appellants' explanation - Whether appellants in unlawful possession of arms and ammunition - Penal Code (Cap. 08:01) (1973 Rev.), s. 5. MAJILA and Others v. THE STATE [1987] B.L.R. 123 (HC), Barrington - Jones J Definition of Arms of War Section 2 of Arms and Ammunition Act 1979 read with the definition of Arms of War in Statutory Instrument No. 39 and of ammunition in Statutory Instrument No. 40 of 1978. PHINIAS MOLALE v. THE STATE 1982 (1) B.L.R. 123 (HC), Hannah J Possession Magazines - Definition of either `arms of war' or `munitions of war' not including magazines - Whether an offence to be in possession of magazines - Arms and Ammunition (Cap. 24:01) (1973 Rev.), s. 2. MABERLY v. THE STATE [1986] B.L.R. 386 (HC), Barrington - Jones J Mental element - Unlawful possession of arms and ammunition - Large quantities of arms and ammunition contained in packages found under appellant's bed in his bedroom - Alleged lack of knowledge of contents of packages - Appellant allegedly given packages in trust based on tenet of Islamic law called `amanat' - Religious tenet forbidding appellant from opening and verifying contents of parcel - Warning of housemaid by appellant not to look at or touch packages - Failure to adduce evidence to prove nature of `amanat' - Whether appellant aware of contents of packages. GARMROUDI v. THE STATE [1987] B.L.R. 409 (HC), Barrington - Jones AJ Unlawful possession - Ingredients of offence - Mens rea - Physical possession - Appellant found in possession of trunk containing arms and ammunition - Alleged lack of knowledge of contents of trunk - Possession of arms and ammunition not absolute prohibition - Whether appellant in unlawful possession of arms and ammunition - Arms and Ammunition Act (Cap. 24:01) (1973 Rev.), s. 9(5) MABERLY v. THE STATE [1986] B.L.R. 386 (HC), Barrington - Jones J Unlawful possession Definition of arms and ammunition of war - Qualification of arms and ammunition as being arms of war and for warlike purposes - Purpose of use and intention of possessor - Consideration of circumstances of particular case - Arms and Ammunition Act (Cap. 24:01), ss. 2 and 9. STATE v. MAGUBANE [1990] B.L.R. 332 (HC), Gyeke - Dako J Possession having been proved, deeming provision coming into operation regarding accused to have been holder of necessary authorization and casting upon him burden to prove contrary - Accused to prove being holder of licence or exempt from holding one - Criminal Procedure and Evidence Act (Cap 08:02), s 272 - Arms and Ammunition Regulations (Cap 24:01) (Sub Leg), regs 21 and 22. RAMOKATE v. THE STATE [2004] 2 B.L.R. 93 (CA), Zietsman, Akiwumi and Moore JJA Arms of war Unlawful possession Definition of `arms of war' - Possession of 7.65 mm. Walther semi - automatic pistol and 14 rounds 7.65 mm. calibre munitions for semi - automatic pistol - Whether arm found in possession arm of war - Whether weapon found in possession personal weapon excluded by definition from being arm of war and not intended for warlike purposes - Arms and Ammunition Act (Cap. 24:01), ss. 2 and 9(1) and (5). ZITHA v. THE STATE [1992] B.L.R. 9 (CA), Amissah P, Aguda JA, Doyle JA Definition of `arms of war' - Possession of 1971 model Beretta VT pistol of .22 LR calibre - Charge of being in possession of `arms of war' - Conviction and sentenced for minimum term of imprisonment in terms of section 9 (5) of Cap. 24:01 - Whether pistol an arm of war - Arms and Ammunition Act (Cap. 24:01) (1973 Rev.), ss. 2 and 9 (1) and (5). TSEKANE v. THE STATE [1988] B.L.R. 95 (CA), Amissah P, Aguda JA, Van Winsen JA, Doyle JA, and Bizos JA Unlawful possession Definition of arms or ammunition of war - Necessity to identify arms or ammunition with particularity as falling within definition in Arms and Ammunition Act (Cap. 24:01) (1973 Rev.), ss. 2 and 9 (1) and 5. TSHITE v. THE STATE (PRACTICE NOTE) [1989] B.L.R. 386 (HC), Gyeke - Dako J Arrest Detention Validity - Failure to inform plaintiff of reason of arrest - Plaintiff arrested and detained on suspicion of having committed an offence - No offence specified in defendants' plea or evidence given at trial - Whether arrest and detention unlawful. ONKABETSE v. ATTORNEY - GENERAL and Others [1989] B.L.R. 120 (HC), Aboagye J Arson Building or structure Setting fire to building - Claim of right to property - Honest belief of property belonging to accused - Whether any offence committed - Penal Code (Cap.08:01), s. 326(a). STATE v. KOOTSHOLE [1990] B.L.R. 272 (HC), Gyeke - Dako J Burning of own property STATE v. KAISARA 1979 - 1980 B.L.R. 178 (HC), Hannah J Ingredients Accused to have set fire to building or structure unlawfully and wilfully - Accused splashing petrol on roof and doors of deceased's house and setting house alight - Whether accused's act of setting house alight unlawful and wilful - Penal Code (Cap. 08:01), s. 326(a). STATE v. KOBEDI [1990] B.L.R. 458 (HC), Gyeke - Dako J Proof of Intention - Requirement of wilfulness in s. 326(a) of Penal Code. STATE v. TWOBOY GAVU [1997] B.L.R. 542 (HC), Gyeke - Dako J Setting fire to dwelling house Evidence - Circumstantial evidence - Evidence of identification - Prosecution case substantially evidence of identification - Accused seen running away from scene - Accused's evidence evasive as to his movements on night in question - Motive - Accused evicted by complainant prior to the fire. STATE v. KAMGANGE [1986] B.L.R. 52 (HC), Barrington - Jones J House jointly owned by accused and complainant - Accused allegedly believing as being sole owner of house - Whether honest but mistaken belief as to ownership. STATE v. MOTLHABANE ALIAS MATSWINYANE [1984] B.L.R. 180 (HC), O'Brien Quinn CJ Assault Proof of Common purpose - Requirements. KEMOREILE v. THE STATE [1996] B.L.R. 34 (CA), Schreiner JA, Lord Wylie J.A and Lord Cowie J.A Assault occasioning actual bodily harm Infliction of corporal punishment Consent by victim to be caned - Submission to caning under duress - Whether offence of assault occasioning actual bodily harm committed. STATE v. HIRSCHFELDT and Another [1987] B.L.R. 344 (HC), Hallchurch J Ingredients of offence Hurt or injury calculated to interfere with health or comfort of victim - Harm need not be injury of permanent character - Need not amount to grievous bodily harm - Slapping of deceased on cheek causing lip to bleed - Whether assault occasioning actual bodily harm - Penal Code (Cap.08:01)(1973 Rev.), s. 252. STATE v. HIRSCHFELDT and Another [1987] B.L.R. 344 (HC), Hallchurch J Assault on Police Assault following unlawful arrest of Accused by Police. STATE v. SETSHAMEKO FRANCE and Another 1974 (2) B.L.R. 53 (HC), Aguda CJ Assault with intent to do grievous harm Causing serious injury through gross incompetence and carelessness in administering medical treatment. STATE v. ISHMAEL BASHANAKO and Another 1979 - 1980 B.L.R. 5 (HC), Edwards J Defence of self - defence Proof of - Accused to show attack commenced or imminent - Defence necessary to avert attack - Whether means used reasonable in circumstances - Test objective - Court to put reasonable man in position of accused subject to all external circumstances. KEORAPETSE v. THE STATE [2004] 2 B.L.R. 423 (HC), Chinhengo J Assaulting, resisting, or obstructing police officer in the execution of his duty Force used by Accused in resisting policeman who was endeavouring unlawfully to detain him Accused's resistance justified in law. STATE v. SHAMUKUNI MUNIKASU 1968 - 1970 B.L.R. 255 (HC), Dendy Young CJ Attempt Attempted murder Definition of attempted murder - Acts constituting attempted murder - Motive contrasted with intention - Pouring paraffin on child - Attempt to light a match to set child on fire - Declaration of intention to kill child - Whether attempted murder - Penal Code (Cap. 08:01) (1973 Rev.), ss. 222 (a) and 392. STATE v. GOGANNEKGOSI [1989] B.L.R. 133 (HC), Gyeke - Dako J Ingredients of offence - Intention to commit offence - Putting intention into execution by means adopted to its fulfilment - Manifestation of intention by some overt act - Complete commission of offence not essential - Concept of locus poenitentiae inapplicable - Inchoate offence of attempted murder - Elevation from inchoation to substantive offence - Penal Code (Cap. 08:01), ss. 217 and 388. STATE v. MAGUBANE [1990] B.L.R. 332 (HC), Gyeke - Dako J Definition Acts constituting attempt - Attempted rape - Complainant alleging accused getting on top of her - Accused opening his zip and taking out his penis and fighting to remove complainant's panties - Complainant struggling and managed to get up - Accused then left complainant and went away - Whether acts of accused constituting attempt to commit rape. STATE v. MALEBADI [1986] B.L.R. 405 (HC), O'Brien Quinn CJ Attempt to commit Murder under Section 217 of the Penal Code Actual Intent to Kill necessary. STATE v. WILLIAM MOSARWANA 1968 - 1970 B.L.R. 302 (HC), Dendy Young CJ Attempted murder Actual intent to kill not proved, but the Accused reckless as to whether death would result Charge not proved. STATE v. KEEMETSWE 1979 - 1980 B.L.R. 7 (HC), Edwards J Assault with intent to do grievous bodily harm Intent to kill or do grievous bodily harm. STATE v. BASSON 1979 - 1980 B.L.R. 187 (HC), Hannah J Causing grievous harm Common purpose - Essentials of doctrine of common purpose - Common purpose must be in itself unlawful - Imputation to every member responsibility of commission of crime by any member - Offence committed to be imputed to every member must be probable not merely possible consequence of common purpose - Foreseeability of consequences as probability being crucial - Collaboration without premeditation - Action taken on spur of moment - Penal Code (Cap. 08:01) (1973 Rev.), s.24. STATE v. BASSON and Another [1988] B.L.R. 452 (HC), Aboagye J Elements of offence Actus reus - Mens rea - Complainant alleging accused shooting at him - Discrepancies in prosecution evidence regarding shooting - Whether accused shot at complainant - Whether accused intended to cause death of complainant - Whether elements of offence proved - Penal Code (Cap. 08:01) (1973 Rev.), s. 222 (a). STATE v. OTLOLENG [1989] B.L.R. 40 (HC), Livesey Luke CJ Essential ingredients of offence Actus reus, ie physical step taken towards causing death, and mens rea, ie positive intention to kill. STATE v. RASETSHWANE [2005] 2 B.L.R. 47 (CC), Kirby J Intent to kill - Pointing loaded pistol at W and demanding certain information - W diving at accused and hearing shot going off - Whether accused intended to kill W. STATE v. BURNETT [1987] B.L.R. 436 (HC), Barrington - Jones ACJ Intent to kill - Setting fire to a house at night - Occupant of house sleeping - Whether intent to kill proved. STATE v. KAMGANGE [1986] B.L.R. 52 (HC), Barrington - Jones J Intent Proof of - Armed accused went looking for suspect - Whether mere fact that accused armed when looking for suspect was conclusive evidence of intent to kill - Penal Code (Cap. 08:01), s. 217(b). STATE v. KGOROBA [1996] B.L.R. 290 (HC), Aboagye J Shooting at police patrol van - Injuring officers in van - Whether intent to kill - Whether intent to cause grievous harm - Penal Code (Cap.08:01) (1973 Rev.), ss. 222 (a) and (b) and 235. STATE v. BASSON and Another [1988] B.L.R. 452 (HC), Aboagye J Proof of By setting alight hut in which the complainants were hiding - Where accused actuated by desire to extort money from complainants - Whether motive had an effect on intention. STATE v. MOTSUMI [2004] 1 B.L.R. 436 (HC), Phumaphi J Intent to kill - Setting on fire of hut bolted from the outside where there were people both inside and outside the hut. STATE v. MOYO [1995] B.L.R. 532 (HC), Mokama CJ Intention of accused - Accused shooting at complainant - Previous assault on accused by complainant - Not proven that accused intended to kill complainant - Penal Code (Cap. 08:01), ss. 217(a), 388. STATE v. NGWENYA [1997] B.L.R. 466 (HC), Gyeke - Dako J Intention to kill satisfied by conduct which accompanied by recklessness as to its consequences - Where woman wilfully attempting to cause death of her child under age of 12 years at time when balance of her mind disturbed, she guilty of infanticide - Penal Code (Cap 08:01), ss 202, 204(b), 208 and 217(a). STATE v. MAGAZINE [2004] 2 B.L.R. 432 (HC), Chinhengo J Intention to kill - Accused having torched house for purpose of smoking out woman with whom he wanted to have sex. STATE v. TWOBOY GAVU [1997] B.L.R. 542 (HC), Gyeke - Dako J What constitutes Informed intention SEKUMA MUKONO v. THE STATE 1964 - 1967 B.L.R. 259 (CA), Roper P, Schreiner JA, Hathorn JA Attempted rape Ingredients thereof THE STATE v. SETHATU PHUTHEGO 1982 (2) B.L.R. 20 (HC), O'Brien Quinn CJ Attempted robbery Sentence Accused a senior police officer - Court erring in holding that use of police equipment constituted abuse of official position which justified aggravation - Section 293(2) of Penal Code (Cap. 08:01). SEKGA v. THE STATE [1997] B.L.R. 972 (HC), Gyeke - Dako J Autrefois convict Penal Code, sections 271 and 216(1) Alternative charge bad for duplicity. GADIBATLWE RAKGOME v. THE STATE 1964 - 1967 B.L.R. 177 (HC), Weston, CJ Bigamy Customary law Marriage during subsistence of another marriage. STATE v. KGWEDIATHUKWI 1973 (1) B.L.R. 77 (HC), Aguda CJ Proof of first marriage. STATE v. TOMOROMO 1976 B.L.R. 28 (HC), Rooney J Breach of peace Offensive conduct Accused charged with offensive conduct conducive to breach of peace - Particulars of offence alleging use of offensive and insulting words at police station - Whether police station `public place' - Whether breach of peace element of offence charged - Penal Code (Cap. 08:01) (1973 Rev.), ss, 5 and 90(1). STATE v. NTSOBI [1985] B.L.R. 173 (HC), O'Brien Quinn CJ Breaking Constructive breaking Entering house between eaves and top of walls of traditional dwelling - Gap an aperture not intended to be used as entrance - Whether a breaking in terms of Penal Code (Cap. 08:01) (1973 Rev.), s. 304(3). STATE v. OTSOGILE [1985] B.L.R. 347 (HC), Murray J Burden of proof Onus on prosecution to prove guilt of accused Standard of proof - Proof beyond reasonable doubt - Accused presumed innocent until proved guilty - Trial magistrate stating prosecution having proved its case to standard required in criminal law - Whether a misdirection. SIMANE v. THE STATE [1990] B.L.R. 131 (HC), Livesey Luke CJ Burglary Entering dwelling - house Entering with intent to steal - Accused found in bathroom adjoining bedroom - Accused attempting to escape when seen by owner of dwellinghouse - Accused alleging entering dwelling - house with intent of looking for a job - Whether offence committed - Penal Code (Cap. 08:01) (1973 Rev.), s. 306(1). STATE v. BASUPI [1985] B.L.R. 603 (HC), O'Brien Quinn CJ Carnal knowledge Defilement of person under 16 years Defence - Reasonable belief that person over 16 years - Duty of trial court of finding whether person charged had reasonable cause to believe victim over 16 years - Finding of trial court of person charged having no cause to believe victim over 16 years - Penal Code (Cap. 08:01), s. 147(5). LEJONY v. THE STATE [2000] 2 B.L.R. 145 (CA), Amissah P. J, Aguda J, Steyn J, Korsah J and Friedman JA Causing death by dangerous driving Driver of truck made `U' turn No other vehicles on road - While still manoeuvering `U' turn another vehicle hit rear wheels of truck - Accident happening late at night and no indication that other vehicle had its lights on - Road Traffic Act (Cap. 69:01), s. 9(1). RADEBE v. THE STATE [1996] B.L.R. 322 (HC), Gittings J Charge Murder Conviction for manslaughter - Appeal against conviction - Evidence at trial based mainly on agreed admitted facts by prosecution and defence - No evidence establishing causal connection between acts of accused and death of deceased - Whether conviction maintainable - Penal Code (Cap. 08:01) (1973 Rev.), s. 214(d) and (e). SEBONI v. THE STATE [1984] B.L.R. 69 (CA), Maisels P, Dendy - Young JA, and Van Winsen JA Obtaining by false pretences Essential elements - False representation - Intention to defraud - Obtaining something of value capable of being stolen - Whether appellants made any false pretence. LETSHOLO and Another v. THE STATE [1999] 2 B.L.R. 278 (HC), sNganunu CJ Obtaining by false pretences - continued Ingredients of offence - Stolen cheques deposited into company account of which appellant being director - Appellant drawing against deposited cheques - Appellant aware money not due to his company - Conviction on charge of obtaining by false pretences - Whether evidence sufficient to found conviction. MADAMOMBE v. THE STATE [1999] 2 B.L.R. 326 (HC), Lisimba J Representations must concern existing or past facts not future promise or conduct - Whether any representations found by trial court as relating to existing facts proved to have been made - Whether, if made, representations were of such nature as to make case one of obtaining by false pretences. LETSHOLO and Another v. THE STATE [1999] 2 B.L.R. 278 (HC), Nganunu CJ Offence Conviction on alternative but `minor offence' - Ingredients of minor offence must form part of essential elements of offence charged - Charge of theft common - Conviction of alternative offence of assisting in concealing property knowing or believing to have been stolen - Whether conviction on minor offence - Failure to warn accused of being convicted on alternative offence - Whether conviction proper - Criminal Procedure and Evidence Act (Cap. 08:02), s. 187(1). MOETI v. THE STATE [1998] B.L.R. 55 (HC), Nganunu CJ Charge of Rape Conviction of defilement of girl under 16 years of age Duty of Court to apprise Accused of risk of conviction of defilement on a charge of Rape. STATE v. BAREKI 1979 - 1980 B.L.R. 35 (HC), Hayfron - Benjamin CJ Charge of Stealing Inconsistent evidence as to subject matter. BEN MPOTOKWANE v. THE STATE 1982 (1) B.L.R. 141 (HC), Hannah J Common Gaming House Unlawful Gaming Section 172 of the Penal Code considered. THE STATE v. TIMITHY ZIKHALE and Others 1968 - 1970 B.L.R. 337 (HC), Dendy Young CJ Compulsion Defence Armed robbery - Accused alleging being coerced in committing offence - No evidence of threat and imminence of its execution on accused - Whether defence open to accused - Penal Code (Cap. 08:01) (1973 Rev.), s. 17. MANYAKA v. THE STATE [1984] B.L.R. 185 (HC), O'Brien Quinn CJ Concealment of birth Elements of offence Secret disposal of dead body - Place of disposal - Likelihood of body not being found - Endeavouring to conceal birth from the world at large and not from any individual - Accused giving birth to full - term baby in the bush - Admission of strangling baby by its neck and throwing it away - Whether intent to conceal birth of child - Penal Code (Cap. 08:01), s. 223. STATE v. MOSEBEKE [1990] B.L.R. 363 (HC), Gyeke - Dako J Conservation offences Possession of ivory and Government trophies in contravention of section 71(1)(d)(3) Wildlife and National Parks Act (Act No. 28 of 1992) Proof of possession - Section 2 of Penal Code applicable thereto. MASILOMPANE and Others v. THE STATE [1997] B.L.R. 1201 (HC), Gyeke - Dako J Conspiracy Common purpose Four appellants convicted on charges of unlawful possession of arms and ammunition - Weapons found in vehicle driven by appellants - Appellants alleging weapons deposited in vehicle by another person in their absence - Trial court disbelieving appellants' explanation - Contention of appellants of no allegation or proof of conspiracy or common purpose between them - Whether charge and conviction thereby vitiated - Arms and Ammunition Act (Cap. 24:01) (1973 Rev.), s. 9 (1) and (5). MAJILA and Others v. THE STATE [1987] B.L.R. 123 (HC), Barrington - Jones J Nature of offence. STATE v. MAPHORISA and Others [1995] B.L.R. 568 (HC), Gyeke - Dako J What constitutes for purposes of section 392 as read with section 292(1) and (2) of Penal Code. STATE v. MAPHORISA and Others [1995] B.L.R. 568 (HC), Gyeke - Dako J Contempt of court Obstruction or disturbance of judicial proceeding Accused stealing suitcase containing mandrax tablets from courtroom - Mandrax tablets an exhibit - Court out of courtroom to view another exhibit - Whether accused by stealing suitcase from courtroom thereby causing obstruction or disturbance during judicial proceeding - Meaning of `judicial proceeding' - Penal Code (Cap. 08:01) (1973 Rev.), ss. 5 and 123 (1) (c). KGOMANYANE v. THE STATE [1986] B.L.R. 62 (HC), O'Brien Quinn CJ What constitutes Attorney failing to appear in court - Intention required for offence - Attorney may have been labouring under a misapprehension as to correct procedure. STATE v. SETLHARE [2002] 2 B.L.R. 472 (HC), Lesetedi J Contravention of s. 65 of Botswana Defence Force Act (Cap. 21:05) Conduct to the prejudice of good order and military discipline Neglecting to report funds missing - `Conduct' can never consist of one act but may consist of one episode made up of number of acts - `Neglect' only punishable if it blameworthy and deserving punishment - Not neglect if brought about by error of judgment and involving no lack of zeal, carelessness or intentional failure to take proper action - Court has to be satisfied not only that accused was guilty of act, conduct or neglect alleged but that act, conduct or neglect is to prejudice of both good order and military discipline - Prosecution not having to show that good order and military discipline actually affected but that conduct calculated to prejudice good order and military discipline. LETSATSI v. THE STATE [1993] B.L.R. 11 (HC), Gyeke - Dako J Corrupt practice Agent Essence of offence - Payment intended as bribe by person offering it - Payment being dishonestly received by agent with knowledge of that being intention of offeror - Agent of public body receiving money from person holding contract with public body - Offeror intending payment to be an inducement for awarding contract - Whether corrupt practice - Penal Code (Cap. 08:01), s. 384(a). PARATRAM v. THE STATE [1999] 1 B.L.R. 123 (CA), Tebbutt J, Lord Allanbridge J and Lord Morison JA Onus of proof - Agent of public body receiving money from person holding contract with public body - Payment deemed to have been received corruptly unless proof to the contrary - Penal Code (Cap. 08: 01), s. 386. PARATRAM v. THE STATE [1999] 1 B.L.R. 123 (CA), Tebbutt J, Lord Allanbridge J and Lord Morison JA Corruption Factors necessary of proof Prosecutor had to establish intention to corrupt - Not required to prove that the appellant was shown any favour. HAFFEJEE v. THE STATE [1994] B.L.R. 336 (HC), Gyeke - Dako J Official corruption, contravening section 99(b) of the Penal Code Duplication of offences - Provisions of sections 128 and 129(2) of the Criminal Procedure and Evidence Act - Onus of proof - No miscarriage of justice. HAFFEJEE v. THE STATE [1994] B.L.R. 336 (HC), Gyeke - Dako J Sentence Factors to be taken into account - Corruption a social evil which required a deterrent sentence. DUBE v. THE STATE [1996] B.L.R. 694 (CA), Amissah JP Hoexter and Lord Allanbridge JJA Criminal liability Superior orders Conviction of appellant for driving motor vehicle whilst alcohol content in his blood exceeding prescribed limit - Appellant alleging driving vehicle on orders of superior officer - Whether a defence. KOLOBE v. THE STATE [1987] B.L.R. 35 (HC), Hallchurch J Cultivation of dagga charge STATE v. KEOFETELE 1968 - 1970 B.L.R. 188 (HC), Dendy Young CJ Defence Automatism Appellant convicted of causing death by dangerous driving - Appellant alleging black - out while driving - Vehicle going out of control and overturning - Passenger killed - Whether appellant properly convicted of causing death of passenger. KAOME v. THE STATE [1999] 2 B.L.R. 187 (HC), Aboagye J Defence that accused having laboured under honest and reasonable but mistaken belief rendering him not criminally responsible for act Person acting in this manner to be judged on facts as believed by him at the time - Test of reasonableness objective judging by what reasonable person in class of community of accused would have thought - Penal Code (Cap 08:01), s 9(1). KGOGWANE v. THE STATE (2) [2003] 1 B.L.R. 244 (HC), Monthe AJ Person acting in this manner to be judged on facts as believed by him at the time - Test of reasonableness objective judging by what reasonable person in class of community of accused would have thought - Penal Code (Cap 08:01), s 9(1). KGOGWANE v. THE STATE [2003] 1 B.L.R. 239 (HC), Monthe AJ Provocation Insult offered to of a couple who are romantically involved - Whether such may constitute provocation for the purposes of ss 205 and 206 of the Penal Code (Cap 08:01). STATE v. SIBANDA [2002] 2 B.L.R. 386 (HC), Kirby J When available - Only on charge of murder - Penal Code (Cap. 08:01) section 205. STATE v. TUMOTUMO [1997] B.L.R. 30 (CA), Aguda J, Schreiner J and Lord Allanbridge JA Self - defence Requirements for set out. STATE v. DIMMERE [1993] B.L.R. 478 (HC), Gyeke - Dako J Defilement Age of complainant Onus of proof - Onus on State to prove beyond reasonable doubt of complainant being under age of 16 years - Reasonable cause to believe complainant to be 16 years or older - Whether defence to charge - Penal Code (Cap.08:01)(1973 Rev.), s. 147 (3). STATE v. RALENGABI [1988] B.L.R. 1 (HC), Hallchurch J Charge Where complainant a minor - Proper charges to be preferred where no consent involved - Penal Code (Cap 08:01) ss 141, 142, 147. BOITUMELO v. THE STATE [2005] 1 B.L.R. 317 (HC), Chinhengo J Defences Age of complainant - Court's duties in regard to Section 147(3) of Penal Code (Cap. 08:01) and ss. 180(3) and (4) of Criminal Procedure and Evidence Act (Cap. 08:02). MOETEDI v. THE STATE [1997] B.L.R. 285 (HC), Gyeke - Dako J If person charged having reasonable cause to believe, and did in fact believe, that person above age of 16 years or charged person's spouse - Penal Code (Cap 08:01), s 147(5). MANEWE v. THE STATE [2005] 1 B.L.R. 276 (HC), Nganunu CJ Defilement of girl under 16 years Accused charged with rape but magistrate convicting him of defilement - Magistrate labouring under erroneous belief that in sexual cases where complainant under age of 16 years, charge and conviction for rape not competent and that defilement appropriate offence - Elements necessary to prove rape present - Complainant found to be credible witness - Conviction for defilement set aside and replaced by conviction for rape. TSUNKE v. THE STATE [2004] 2 B.L.R. 155 (HC), Molokomme J Evidence Complainant's physical attributes - Size and development of complainant's breasts - Whether accused has reasonable cause to believe complainant to be above age of 16 years - Whether defence to charge - Penal Code (Cap. 08:01) (1973 Rev.), s. 147(3). MADUME v. THE STATE [1986] B.L.R. 49 (HC), Barrington - Jones J Ingredients of offence Consent or lack of consent to sexual intercourse irrelevant - Meaning of `had reasonable cause to be believe' - Penal Code (Cap. 08:01), s. 147(1). KGOPODITHATA v. THE STATE [1990] B.L.R. 663 (HC), Gyeke - Dako J Proof of Age of complainant and accused's knowledge thereof - Accused unaware of special defence - Penal Code (Cap 08:01) s 147(1), (5). MATLAKADIBE v. THE STATE [2004] 1 B.L.R. 44 (CA), mentJanuary 30, 2004 Unrepresented accused - Duties of magistrate to explain onus, special defences and way in which onus could be discharged - Effect of inadmissible evidence of similar facts. RAMABE v. THE STATE [2002] 1 B.L.R. 523 (HC), Kirby J Proof of age of complainant Whether precise age of complainant must be established. SEKAI v. THE STATE [1985] B.L.R. 34 (HC), Hannah J Sentence Where accused and complainant of similar ages - Semble: long term of imprisonment inappropriate and law reform required. BOITUMELO v. THE STATE [2005] 1 B.L.R. 317 (HC), Chinhengo J Destroying evidence Ingredients of offence Accused in possession of uniform of armed forces of foreign country without lawful authority - Burning uniform - Whether charge of destroying evidence sustainable - Penal Code, s. 119. STATE v. VIVIER and Others (No 2) [1988] B.L.R. 371 (HC), Livesey Luke CJ Destroying evidence contrary to section 119 of the Criminal Code Elements of the offence Intention in preventing use of documents in evidence - Time of existence of the intent. TANGANE v. THE STATE [1994] B.L.R. 325 (HC), Nganunu J Diamond offences Possession of rough or uncut diamonds Sentence - No suggestion that accused not the owner of diamonds valued at P10,000 which were to be made into jewellery for accused's wives - Fine of P15,000 and two years' imprisonment suspended for three years imposed. NDLOVU v. THE STATE [1997] B.L.R. 517 (HC), Gittings J Disobedience to a lawful order contrary to section 128 of the Penal Code. STATE v. ACE SIKWA 1974 (1) B.L.R. 116 (HC), Aguda CJ Doctrine of common purpose Where firearm used in commission of offence Liability of members of group. MATTHYS and Another v. THE STATE [2005] 1 B.L.R. 69 (CA), Korsah, Zeitsman and Moore JJA Doctrine of transferred malice If man by mistake or bad aim causes injury to person or property other than person or property intended, he is guilty of crime of same degree as if he achieved his object, provided actus reus and mens rea coincide. STATE v. XAWE [1993] B.L.R. 368 (HC), Gyeke - Dako J Doing any act with fire in a manner so rash or negligent as to endanger human life or to be likely to cause harm to any person Section 244 of the Penal Code (Cap. 08:01). MBAKI MBULAWA v. THE STATE 1982 (2) B.L.R. 42 (HC), Hannah J Driving under influence of intoxicating liquor Breathalyser tests State to prove equipment in good working order - Where State not leading evidence of serviceability of machine, it not discharging burden and accused to be acquitted where prosecution relying solely on such results. RAMATLHOMANE v. THE STATE [2005] 2 B.L.R. 153 (HC), Kirby J Degree of impairment of faculties. KGAOGANO NKHWA v. THE STATE 1968 - 1970 B.L.R. 306 (HC), Dendy Young CJ Evidence of Accused's refusal to taking of blood or urine for analysis. STATE v. PHORI 1979 - 1980 B.L.R. 183 (HC), Corduff J Drug offences Cultivation of dagga contrary to section 16(1)(a) of the Drugs and Related Substances Act (Cap. 63:04) Cultivation - What constitutes - Dagga uprooted in accused's yard - Dagga well cared for and watered - Cultivation proven but accused not the only person who lived in vicinity and not proven that they were his plants. MATLOU v. THE STATE [2001] 2 B.L.R. 158 (HC), Lisimba J Dagga Possession of in contravention of ss. 16(1)(b) and (3) of Drugs and Related Substances Act (Cap 63:04) - Sentence - Sentence of four years' imprisonment plus a fine of P2,500 with alternative of imprisonment too severe. BANDA v. THE STATE [2001] 2 B.L.R. 289 (CA), Tebbutt Ag P, Sir John Blofeld and Grosskopf JJA Dealing in habit Forming drugs in contravention of section 16(1) and (2) of the Drugs and Related Substances Act, 1992 - Proof of - Whether necessary for proof of ownership of drugs. MOUMAKWA v. THE STATE [1997] B.L.R. 1010 (HC), Gyeke - Dako J Forming drugs in contravention of section 16(1) and (2) of the Drugs and Related Substances Act, 1992 - Sentence - Composite sentence required in terms of section 16(2). MOUMAKWA v. THE STATE [1997] B.L.R. 1010 (HC), Gyeke - Dako J Sentence Compulsory sentences in terms of section 16(3) of Drugs and Related Substances Act (Act No. 18 of 1992) - Proper interpretation of. NTETU v. THE STATE [1997] B.L.R. 277 (HC), Nganunu J Unlawful cultivation of dagga contrary to s 16(a) of Drugs and Related Substances Act (Cap 63:04) Word `cultivate' in s16(a) - Means promoting, stimulating, fostering or otherwise doing something to help growth of a plant. MOKGATLE v. THE STATE [2003] 2 B.L.R. 210 (HC), Molokomme J Escaping from Custody Proof that Accused was under lawful arrest. STATE v. MACHEMELA 1974 (1) B.L.R. 99 (HC), Rooney ACJ What is custody. STATE v. MICLAS HABANA 1971 (2) B.L.R. 80 (HC), Rooney ACJ Evidence Accomplices Approach by court to - Reference to sections 237(1) and (2) of the Criminal Procedure and Evidence Act - Accomplice witnesses should be warned. TANGANE v. THE STATE [1994] B.L.R. 325 (HC), Nganunu J Cautionary rule - Rule applies in the instance of more than one accomplice witness - Evidence aliunde still necessary to confirm that of the accomplices. TANGANE v. THE STATE [1994] B.L.R. 325 (HC), Nganunu J Provisions of section 24 of the Criminal Procedure and Evidence Act - Whether evidence of another accomplice can satisfy the provisions of the section. TANGANE v. THE STATE [1994] B.L.R. 325 (HC), Nganunu J Burden of proof Standard of proof - Onus of proving accused's guilt on prosecution - Prosecution to prove guilt beyond reasonable doubt - Whether magistrate considered prosecution's duty to prove guilt beyond reasonable doubt. MAKHURA and Another v. THE STATE [1991] B.L.R. 104 (HC), Livesey - Luke CJ Handwriting Proof of - Four recognised methods. TOTENG v. THE STATE [1994] B.L.R. 188 (HC), Gyeke - Dako J Manufacture of khadi Proof of existence of khadi. FOREMAN MONOLOGA v. THE STATE 1964 - 1967 B.L.R. 173 (HC), Weston CJ Witness not sworn, affirmed or admonished to speak the truth. STATE v. ONKEMETSE KEGOPOTSE 1982 (2) B.L.R. 62 (HC), Corduff J Exchange Control Regulation Contraventions are serious offences. S v. KADER 1981 B.L.R. 183 (HC), Hannah J Extradition `Political offence' exemption from extradition Fugitive criminal not to be surrendered if offence for which surrender sought of political character - Murder and attempted murder not offences of political character but evidence showing that respondents may be punished extra - judicially on account of their political opinions - Respondents able to be brought within ambit of Act and extradition refused - Extradition Act (Cap 09:03), s 7(1)(b). REPUBLIC OF NAMIBIA v. ALFRED and Others [2004] 2 B.L.R. 101 (CA), Tebbutt JP, Korsah, Plewman, Lord Sutherland and Grosskopf JJA False information Publication to person employed in public service Ingredients of offence - Accused giving information to person employed in public service - Knowledge of falsity of information - Intention to cause recipient of false information to do or omit to do anything which such person ought not to do or omit if otherwise aware of true state of facts respecting information given - Penal Code (Cap. 08:01) (1973 Rev.), s. 131 (a). SEGOBAETHSO v. THE STATE [1988] B.L.R. 306 (HC), Livesey Luke CJ False pretence Misrepresentation. STATE v. MAUNGE 1971 (1) B.L.R. 14 (HC), Young CJ Obtaining by false pretences Ingredients of offence - Making of false representation with intention of inducing another person to part voluntarily with property capable of being stolen - Essential ingredient of offence not considered - Whether conviction sound. MOTLHANKE v. THE STATE [1998] B.L.R. 218 (HC), Aboagye J Ingredient of offence - Making of false representation with intention of inducing another person to part voluntarily with property capable of being stolen - Whether prosecution proved that representation made and representation false to knowledge of accused - Whether sentence imposed appropriate. THEREGO v. THE STATE [1991] B.L.R. 292 (CA), Aguda JA, Doyle JA, Puckrin JA Fauna Conservation Hunting game on another's licence. STATE v. CHIZANGA 1979 - 1980 B.L.R. 11 (CA), Maisels P, Ogilvie - Thompson JA, Isaacs AJA Mens Rea Forfeiture Order STATE v. SAMBONA and Another 1978 B.L.R. 28 (HC), Edwards J Seizure of vehicle used in illegal hunting on land of which the offender is neither the owner or occupier. STATE v. WONDERFUL CHIZANGA 1978 B.L.R. 21 (HC), Dyke CJ Fauna Conservation Act Assisting a licensed hunter to hunt STATE v. MASEDI 1981 B.L.R. 199 (HC), Hannah J Fauna Conservation Proclamation Mens Rea on charge of hunting in a Game Reserve Persons who hunt on Tribal Game Licences which are invalidly issued or transferred are guilty of hunting without a Licence. STATE v. MOSINYI and Others 1972 (2) B.L.R. 31 (HC), Aguda CJ Firearm offences Negligent treatment of loaded firearm contrary to section 239(1) of the Penal Code (Cap. 08:01) Proof of - Accused 15 years old, uneducated, inexperienced in handling guns - Gross negligence on part of person who gave him a loaded gun. STATE v. NTWAYAMODIMO [1996] B.L.R. 497 (HC), JugdeGittings J Negligent treatment of loaded firearm contrary to section 239(1) of the Penal Code (Cap. 08:01) What constitutes - Quaere: whether accused required to have knowledge that firearm was loaded. STATE v. NTWAYAMODIMO [1996] B.L.R. 497 (HC), Gittings J Forgery and uttering contrary to ss. 343 and 347 of the Penal Code Accused had signed his own name purporting to sign on behalf of the addressee of a registered article Theft but not forgery and uttering committed. THE STATE v. GILBERT MMELESI 1968 - 1970 B.L.R. 17 (HC) Fraud Untrue statements by Accused which induced Complainant to deposit money with Accused. STATE v. SROUR and Another 1977 B.L.R. 70 (HC), Edwards J General principles of liability Accessory after the fact What constitutes accessorial liability - Motive of accused. STATE v. MAAUWE and Others [1997] B.L.R. 381 (HC), Gyeke - Dako J Doctrine of transferred malice When applicable. STATE v. SELEKE [1997] B.L.R. 422 (HC), Gyeke - Dako J Intention Proof of - To be inferred from proven facts - Where specific intent alleged this has to be proven - Accidental acts covered by provisions of section 8(1) of Penal Code (Cap. 08:01). LESHAGE v. THE STATE [1997] B.L.R. 1193 (HC), Gyeke - Dako J Grievous harm Common purpose Foreseeability of consequences of common purpose - Probability of weapons being used to achieve objective of common purpose. BASSON and Another v. THE STATE [1989] B.L.R. 217 (CA), Amissah P, Aguda JA, Doyle JA Corporal punishment Imposition of corporal punishment mandatory in addition to any other sentence to be imposed - Penal Code (Cap. 08:01) (1973 Rev.), 235. MABI v. THE STATE (PRACTICE NOTE) [1988] B.L.R. 94 (HC), Livesey Luke CJ Intention to cause grievous harm Fracturing of metacarpal bone of complainant - Appellant violently pushing door trapping complainant's finger fracturing metacarpal bone - Appellant subsequently assaulting complainant - Whether injury sustained grievous harm - Whether intention to cause grievous harm - Penal Code (Cap. 08:01), s. 230 - Penal Code (Amendment) Act, 1993 (No. 13). GEORGE v. THE STATE [2000] 1 B.L.R. 365 (HC), Dibotelo J Self - defence Altercation between appellant and complainant - Appellant hitting complainant with stone suspecting complainant about to fight him - Issue of self - defence - Suggestion of an objective rather than subjective test in assessing reasonableness of reaction of appellant to situation - Magistrate failing to consider whether appellant thinking it necessary to resort to using stone to defend himself - Whether misdirection - Penal Code (Cap 08:01) (1973 Rev.), s. 18. MOSWEU v. THE STATE [1987] B.L.R. 220 (HC), Murray J Guilty but insane Form of order. STATE v. GOODWILL BANDA 1971 (2) B.L.R. 82 (HC), Rooney ACJ Habit Forming drugs Possession - Mens rea - Possession essential ingredient of offence - Extent of mens rea required. MAKUNI v. THE STATE [1984] B.L.R. 257 (HC), Hannah J Possession - Methaqualone (BP) otherwise known as mandrax tablets - Whether essential to indicate proportion of methaqualone constituting habit - forming drug - Whether substance found in possession of appellant proven to be methaqualone. MATEN v. THE STATE [1989] B.L.R. 240 (CA), Amissah P, Aguda JA, Doyle JA, Bizos JA, Schreiner JA Unlawful possession - Elements of offence - Mental and physical element - Accused stealing suitcase from courtroom - Suitcase containing mandrax tablets - Accused attending initial trial in which tablets being shown as an exhibit - Burden upon accused to prove lack of knowledge of contents of suitcase - Whether accused knew nature of contents of suitcase - Habit Forming Drugs Act (Cap. 63:04) (1973 Rev.), s. 12 (3). KGOMANYANE v. THE STATE [1986] B.L.R. 62 (HC), O'Brien Quinn CJ Dagga - Cultivation of plant found to be dagga - Dealing in habit - forming drugs - Whether cultivation of single plant found to be dagga amounting to `dealing in' habit - forming drugs - Drugs and Related Substances Act, 1992 (Act No. 18 of 1992), s. 16(6). MOSHOKOA v. THE STATE [1999] 1 B.L.R. 172 (HC), Aboagye J Possession - Accused found in possession of drug - Accused deemed to be possessor of drug unless proved otherwise by accused - Habit - forming Drugs Act (Cap. 63:04) (1973 Rev.), s. 3. MOHALENYANE v. THE STATE [1984] B.L.R. 291 (HC), O'Brien Quinn CJ Possession - Mens rea - Onus on prosecution to prove mens rea - Burden of disproving lack of mens rea on accused on balance of probabilities. MOHALENYANE v. THE STATE [1984] B.L.R. 291 (HC), O'Brien Quinn CJ Cocaine - Possession - Appellant promising to send present to S - S receiving parcel mailed from abroad - Parcel containing two folders in two separate manila envelopes - S suspecting folders having been tampered with took them to the police - Folders found to contain cocaine - Police advising S to contact them if anyone claimed parcel - Appellant telephoning S enquiring whether S in receipt of any parcel - Police arresting appellant on collecting parcel from S - Whether appellant mailed parcel to S - Whether appellant in possession of parcel - Drugs and Related Substances Act, 1992 (Act No. 18), s. 16(1)(b). CHUKWU v. THE STATE [2000] 2 B.L.R. 17 (CA), Steyn J, Kumleben J and Zietsman JA Possession - Methaqualone (BP) otherwise known as mandrax tablets - Whether essential to indicate proportion of methaqualone constituting habit - forming drug - Whether substance found in possession of appellant proven to be methaqualone. MZWINILA v. THE STATE [1989] B.L.R. 610 (CA), Amissah P, Aguda JA, Doyle JA, Schreiner JA, Puckrin JA Possession - Presumption - When applicable - Person being on or in charge of or accompanying conveyance containing habit - forming drug - Habit - Forming Drugs Act (Cap. 63:04) (1973 Rev.), s. 12. MOHALENYANE v. THE STATE [1985] B.L.R. 542 (HC), Aguda JA, Amissah JA and Murray J Homicide Mens rea Common purpose - Doctrine imputing acts of one person to another, and not his mens rea - Person's liability based on his own mens rea - Where mens rea takes form of negligence (culpa), must be established that each participant was, as an individual, guilty of negligence in relation to the act and to the consequence of death. STATE v. NTWAYAKGOSI [2003] 1 B.L.R. 618 (HC), Chatikobo J Alternative verdict Murder - Manslaughter - Provocation - Accused and deceased lovers - Accused suspecting lover of having affair with another man - Accused remonstrating with deceased to stop seeing that other man - Deceased indifferent to warning by accused - Angered by deceased's indifference accused assaulted her and thereafter stabbed her several times causing her death - Whether act of causing death any reasonable relationship to provocation offered. STATE v. MOSEKI [1986] B.L.R. 206 (HC), O'Brien Quinn CJ Murder charge - Accused beating deceased with fists and stick - Stick used ordinarily incapable of causing death - Use of fists considered normal mode of discipline in accused's society - Beating resulting in death of deceased - Absence of evidence of intention to kill - Intention to discipline deceased - Whether accused activated by malice aforethought in beating deceased. STATE v. JOHN [1989] B.L.R. 173 (HC), Aboagye J Murder charge - Accused beating deceased with fists and stick - Deceased lying motionless during the beating - No words exchanged between the parties before the beating - Injuries inflicted by accused causing death of deceased - Whether defence of provocation sustainable. STATE v. JOHN [1989] B.L.R. 173 (HC), Aboagye J Attempted murder Appellant giving order to his men to fire at bus suspected of carrying South African commandos - Bus actually carrying two young persons - Men firing at bus killing one person and injuring other person - Whether attempt to kill injured person - Penal Code (Cap. 08:01), s. 217. MANJESA v. THE STATE [1991] B.L.R. 391 (CA), Amissah P, Aguda JA, Schreiner JA Causation Accused beating deceased with fists and stick - Death resulting three weeks after beating, in hospital - Whether proper medical treatment given at hospital - Whether death caused by injuries inflicted by accused. STATE v. JOHN [1989] B.L.R. 173 (HC), Aboagye J Common purpose Principles of set out - Penal Code (08:01), s. 22. STATE v. THEBE and Others [1993] B.L.R. 484 (HC), Gyeke - Dako J Establishment Presumption of murder - Presumption rebuttable if killing found to be manslaughter, accident or self - defence. STATE v. NGWAKO [1989] B.L.R. 152 (HC), Gyeke - Dako J Infanticide Attempted infanticide - Proper charge - Proper charge - Penal Code (Cap 08:01), ss 11, 208, 217(b), 389. The accused was charged with attempted murder under s 217(b) of the Penal Code (Cap 08:01) in that she had attempted to kill her newborn child. STATE v. BOLELANG [2002] 2 B.L.R. 213 (HC), Chatikobo J Statutory offence - Ingredients of offence - Balance of accused's mind disturbed at time of commission or omission of act resulting in child's death - Factors for consideration in determining emotional state of accused's mind - Age of accused - Number of previous births - Motive for killing - Manner of killing - Circumstances surrounding birth of child - Whether accused killed baby whilst balance of her mind disturbed - Penal Code (Cap. 08:01) (1973 Rev.), s. 213. STATE v. RAMATHAKA [1989] B.L.R. 265 (HC), Gyeke - Dako J Manslaughter Causing death by unlawful act - Act causing death not dangerous per se - Accused slapping deceased's cheek - Intention to chastise deceased - Slap rupturing two vessels in deceased's head eventually leading to death - Whether accused guilty of manslaughter. STATE v. HIRSCHFELDT and Another [1987] B.L.R. 344 (HC), Hallchurch J Causing death by unlawful act - Self - defence - Question of self - defence to be judged by objective standards - Standards of fictitious reasonable man - Onus on State of proving beyond reasonable doubt of accused acting unlawfully - Deceased deliberately picking quarrel with accused - Fight ensuing - Accused taking out knife and stabbing deceased twice - Whether force used excessive - Whether application of force unlawful. STATE v. MASHABANE [1986] B.L.R. 425 (HC), Barrington - Jones J Defence - Accident - Accident not raised as defence at trial - Could not be slipped in by means of attorney's submission in mitigation of sentence. PING v. THE STATE [2005] 2 B.L.R. 176 (CA), Korsah, Grosskopf and Akiwumi JJA Defence - Self - defence - Plea of - Accused attacked by four men at night including deceased - Accused striking deceased with sandcrete block on head - Sandcrete block only means of defence available to accused - Whether use of sandcrete block reasonably necessary under circumstances. STATE v. SELEBALENG [1990] B.L.R. 478 (HC), Gyeke - Dako J Ingredients - Accused to have intentionally done act being unlawful and dangerous - Whether prosecution established all ingredients of manslaughter. STATE v. KOBEDI [1990] B.L.R. 458 (HC), Gyeke - Dako J Mens rea - Owner of restaurant evicting patron who had become abusive - Lawful ejectment but deceased's tripping and injuring himself not foreseeable and not proximate cause of death - Accused acquitted of manslaughter. STATE v. MATLHOKOTSA [2001] 2 B.L.R. 130 (HC), Lisimba J Mental element - Rash and reckless conduct - Discovery of girlfriend having affair with another man - Patience snapping after having enough drink - Delivery of two enormous kicks to deceased resulting in injury to liver and rupture of her spleen - Deceased dying as result of injuries sustained - No wish or desire by accused to cause serious injury or death - Charge of murder - Conviction of alternative offence of manslaughter. STATE v. TSHWARAKASEATLA [1987] B.L.R. 66 (HC), Murray J Pressure imposed on deceased's nose and mouth causing her death - Accused's act grossly negligent and therefore culpable. KING v. THE STATE [1993] B.L.R. 274 (CA), Amissah JP, Aguda JA, Bizos JA Traditional medical treatment - Deceased dying as result of application of steam treatment - Charge of manslaughter - Failure to prove negligence or recklessness in application of steam treatment - Whether charge of manslaghter sustainable. STATE v. KANAKATSE [1987] B.L.R. 43 (HC), O'Brien Quinn CJ Unlawful act causing death - Appellant giving order to his men to fire at bus suspected of carrying South African commandos - Bus carrying two young persons - Men unleashing intensive fire power killing one person in bus - Whether charge of manslaughter sustainable - Penal Code (Cap. 08:01), s. 200. MANJESA v. THE STATE [1991] B.L.R. 391 (CA), Amissah P, Aguda JA, Schreiner JA Unlawful act resulting in death - No intention to kill or of causing grievous harm - Accused being extremely negligent or careless - Charge of murder - Accused guilty of manslaughter. STATE v. BAREELENG [1984] B.L.R. 241 (HC), O'Brien Quinn CJ Accused - Voluntary confession of guilt - Proof of commission of offence by competent testimonies of other witnesses - Whether admission of guilt sufficient to warrant conviction without any corroborative evidence - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 239(2). STATE v. MOKWENA [1990] B.L.R. 1 (HC), Gyeke - Dako J Alternative verdict - Manslaughter - Sentence - Extenuating circumstances - Imposition of eight years' imprisonment - Trial judge misjudging moral blameworthiness of appellant - Sentence imposed excessive. KETHIBOGILE v. THE STATE [1989] B.L.R. 607 (CA), Amissah P, Doyle JA, Schreiner JA Alternative verdict - Murder charge - Intention to cause serious bodily harm - Appellant kicking deceased once on head with his heel in course of quarrel - Death resulting from kicking - Finding of intention to cause serious bodily harm - Whether kicking per se sufficient to found malice aforethought - Whether finding misdirection - Whether charge of murder sustainable. SHARP v. THE STATE [1987] B.L.R. 395 (CA), Amissah JA, Van Winsen JA, Doyle JA Attempted murder - Intention to kill - Actual intention to kill need not be proved - All that needs to be proved is an appreciation of some risk to life in act contemplated coupled with some recklessness on part of accused as to whether or not risk is fulfilled in death - Person who points loaded rifle at another and pulls the trigger must appreciate risk to life - Pulling trigger in such circumstances reckless - Penal Code (Cap 08:01), s 217(a). STATE v. MATTHYS and Others [2003] 1 B.L.R. 528 (HC), Lesetedi J Attempted murder - Meaning of `attempt' - Attempt consisting of essential elements of actus reus and mens rea - Intention to commit specific offence - Accused tying cloth around mouth of her newly born child and throwing it into pit latrine - Child rescued alive by police - Whether accused attempted to cause death of child - Whether accused intended to cause death of child - Penal Code (Cap. 08:01) (1973 Rev.), ss. 222 (a) and (b) and 392. STATE v. GOLA [1988] B.L.R. 73 (HC), Livesey Luke CJ Causation - Accused having assaulted deceased and chased him until he staggered into road where they continued to assault him and left him unconscious - Deceased having been struck by vehicle a short while later causing instantaneous death - Whether accused guilty of having caused death - Applicability of s 209(c) of the Penal Code (Cap 08:01). STATE v. OXHO and Another [2002] 1 B.L.R. 284 (HC), Mwaikasu J Causation - Common purpose or joint enterprise - Appellants armed with guns embarked on mission to retrieve stolen horses and to catch suspected thieves - Deceased being one of suspected thieves shot and sustained wound at base of skull - Medical evidence indicating death not caused by gun shot but probably by wound at base of skull - No evidence as to how deceased sustained wound or person inflicting it - Defence counsel submitting no case to answer on murder charge at close of prosecution case - Trial judge ruling no case to answer on charge of murder but case to answer for manslaughter - Appellants declining to give evidence or to make unsworn statement or to call any witnesses - Conviction of appellants of manslaughter - Whether conviction sustainable. LESOGORO v. THE STATE [1986] B.L.R. 311 (CA), Maisels P, Aguda JA, and Amissah JA Causation - Deceased sustaining multiple injuries - Accused admitting kicking and hitting deceased with pole - Evidence of other persons simultaneously assaulting deceased - Medical evidence indicating deceased being struck possibly with two weapons - Heavy weapon with sharp cutting edge and blunt instrument causing fracture of skull with haemorrhage and laceration of brain resulting in death of deceased - No evidence establishing causal connection between acts of accused and death of deceased - Proper verdict in circumstances - Accused not guilty of murder but guilty of common assault. STATE v. MOLOI [1986] B.L.R. 277 (HC), Barrington - Jones J Causation - Stabbing deceased twice with deadly weapon - Whether prompt medical attention likely to have saved life of deceased - Whether stab wound operative cause of death - Penal Code (Cap.08:01) (1973 Rev.), s.214. STATE v. CHIBIDU [1988] B.L.R. 467 (HC), Livesey Luke CJ Death sentence - Enactment providing sentence not to be pronounced or recorded against a person under 18 years of age - Person to be detained during President's pleasure - Finding of extenuating circumstances - Provision of enactment inapplicable where extenuating circumstances found by court - Penal Code (Cap. 08:01) (1973 Rev.), s. 28 (2). STATE v. MOTHOKGO [1989] B.L.R. 247 (HC), Gyeke - Dako J Defence - Accident - Accused inflicting multiple stab injuries on deceased - Whether in circumstance defence of accident sustainable. STATE v. NDIWENYU [1990] B.L.R. 409 (HC), Gyeke - Dako J Defence - Battered wife syndrome - Appellant charged with murder of boyfriend - Appellant pleading battered wife syndrome - Whether battered wife syndrome a defence under the laws of Botswana. HARVEY v. THE STATE [2000] 1 B.L.R. 56 (CA), Amissah P. J, Tebbutt J and Lord Weir JA Defence - Intoxication - Accused voluntarily consuming alcohol - Accused assaulting deceased - Deceased dying as a result of assault - Whether voluntary intoxication defence to charge of murder - Penal Code (Cap. 08:01), s. 12 (2). STATE v. MASUPE [1992] B.L.R. 1 (HC), Aboagye J Defence - Intoxication and provocation - Suspected infidelity - Deceased stabbed eight times - Whether stabbing caused by sudden provocation - Whether provocation and intoxication likely to negative intent of accused to kill - Penal Code (Cap. 08:01), s. 205. STATE v. NKATSWE [2000] 2 B.L.R. 441 (HC), Reynolds J Defence - Lack of criminal capacity - Accused suffering from battered wife syndrome - Accused pouring hot water over deceased - Accused acted impulsively unable to control herself - Whether defence to murder charge. STATE v. HARVEY [1999] 1 B.L.R. 352 (HC), Aboagye J Defence - Provocation - Accident - Onus of proof - Stabbing deceased with knife - Plea of provocation and accident - Onus on prosecution to negative defence - Whether defence of provocation or accident sustainable on the evidence - Penal Code (Cap. 08:01), s. 204(b). STATE v. NTESANG [1990] B.L.R. 396 (HC), Gyeke - Dako J Defence - Provocation - Accused hounded and assaulted by deceased with a blow around ribs - Accused stabbing deceased with kitchen knife - Whether deceased's actions provocative - Whether accused's actions bearing resemblance to provocation offered - Penal Code (Cap. 08: 01), ss. 205 and 206. STATE v. LESOGO [1999] 1 B.L.R. 506 (HC), Nganunu CJ Defence - Provocation - Accused insulted by deceased's utterances - Accused stabbing deceased eight times - Whether accused's actions bore reasonable relationship to provocation offered - Whether accused possessed requisite malice aforethought - Whether in circumstances offence of murder could be reduced to manslaughter - Penal Code (Cap. 08:01), s. 205(2). STATE v. NDIWENYU [1990] B.L.R. 409 (HC), Gyeke - Dako J Defence - Provocation - Accused provoked by what appeared to be unfaithfulness of the mother of his child - Provocation in this sense not able to reduce crime of accused to manslaughter but capable of constituting extenuating circumstances. STATE v. KAMANGA [2005] 2 B.L.R. 135 (CC), Kirby J Defence - Provocation - Deceased refusing to give back accused's money - Deceased referring to accused's genitals - Deceased attacking accused for no just cause - Accused stabbing deceased with bradawl - Death resulting from wound - Whether deceased's actions provocative - Whether accused's actions bearing resemblance to provocation offered - Penal Code (Cap. 08:01), ss. 205 and 206. STATE v. MOTLHONO [1991] B.L.R. 66 (HC), Gyeke - Dako J Defence - Self - defence - Accident - Provocation - Accused allegedly assaulted by deceased - Accused shooting at deceased several hours after alleged assault - Whether defence of self - defence, accident or provocation available to accused. STATE v. MOTHOKGO [1989] B.L.R. 247 (HC), Gyeke - Dako J Defence - Self - defence - Accused alleging deceased pulling him by genitals - Accused stabbing deceased eight times - Deceased not armed - Whether means used and degree of force employed by accused in circumstances reasonably necessary to sustain defence of self - defence - Constitution, s. 4(2) (a) and (d) - Penal Code (Cap. 08:01), s. 16. STATE v. NDIWENYU [1990] B.L.R. 409 (HC), Gyeke - Dako J Defence - Self - defence - Whether where defence of self defence fails on ground that excessive force was used inevitable result must be conviction for manslaughter. STATE v. NDIWENYU [1990] B.L.R. 409 (HC), Gyeke - Dako J Defence - Self - defence - Accused claiming having hurled stone at deceased to repel imminent attack by deceased with knife - Accused's version of events unsupported by anything on record - No justification for accused to have believed he was in imminent danger from deceased. PHOLOGOLO v. THE STATE [2004] 2 B.L.R. 87 (CA), Korsah, Plewman and Grosskopf JJA Defence - Self - defence - Accused having been provoked and attacked by deceased with knife, requiring her to defend herself - Possible that fatal stabbing of deceased reasonable act of self - defence. KLINK v. THE STATE [2005] 2 B.L.R. 299 (CA), Zietsman, Akiwumi and Lord Coulsfield JJA Defence - Self - defence - Accused stabbing deceased with bradawl - Deceased unarmed - Accused having upper hand during fist fight - Whether in circumstances defence of self - defence sustainable - Penal Code (Cap. 08:01), s. 16. STATE v. MOTLHONO [1991] B.L.R. 66 (HC), Gyeke - Dako J Defence - Self - defence - Burden of proof - - Onus on prosecution to negative self - defence - Deceased reprimanding accused and pushing him roughly away - Accused reacting by hitting deceased on hip with a fist - Exchange of blows between accused and deceased - Accused retreating and running away - Deceased following him and continuing with assault - Accused stabbing deceased with a knife - Whether infliction of wound justifiable in circumstance as amounting to self - defence. STATE v. MOAKI [2000] 2 B.L.R. 212 (HC), Lisimba J Defence - Self - defence - Conditions for set out - Once defence raised, onus on prosecution to prove beyond reasonable doubt that accused did not act in self - defence - Failure to retreat only one of factors to be taken into account in assessing reasonableness of accused's use of force - Accused not required to adjudicate with great nicety exact amount of force justified in circumstances - Penal Code (Cap. 08.01), s. 16. STATE v. NOTI [1995] B.L.R. 325 (HC), Gyeke - Dako J Defence - Self - defence - Provocation - Appellant angered by deceased - Appellant stabbing deceased with Okapi knife - Whether accused stabbed deceased in self - defence - Whether plea of provocation available to accused. RANCHIBIDU v. THE STATE [1987] B.L.R. 367 (CA), Maisels P, Amissah JA and Van Winsen JA Defence - Self - defence - Provocation - Deceased hitting accused twice with his fist - Accused stabbing deceased twice with his knife in retaliation - Deceased having previously beaten up accused - Whether accused stabbing deceased in revenge or out of fear for his life - Whether defence of self - defence available to accused - Whether defence of provocation available to accused. STATE v. MOTINGWA [1999] 2 B.L.R. 286 (HC), Aboagye J Defence of mistake of fact - Defence must be honest and reasonable - Person acting under honest and reasonable belief in certain state of facts - State of facts wrong - Person to be judged not by facts as actually existing but by assumed even though wrong facts believed in - Defence unavailable if belief based on facts known to be false or non - existent - Appellant giving order to fire at bus suspected to be carrying South African commandos - Whether appellant's belief honest and reasonable - Penal Code (Cap. 08:01), s. 9. MANJESA v. THE STATE [1991] B.L.R. 391 (CA), Amissah P, Aguda JA, Schreiner JA Defence of mistake of fact - Defence to be bona fide and reasonable - Test of reasonableness - Test to be objective - Guard on duty at State House shooting and killing driver of vehicle allegedly believed to be attempting to enter State House for sinister purpose - Whether accused's belief honest and reasonable - Penal Code (Cap.08:01), s. 9. STATE v. NTSIMA [1991] B.L.R. 251 (HC), Gyeke - Dako J Defence of provocation - Sudden confession of adultery by either spouse, without more, can never constitute provocation of sort which might reduce offence of murder to manslaughter in terms of s. 205 of Penal Code. STATE v. KASAMA [1993] B.L.R. 1 (HC), Gyeke - Dako J Defence - Self - defence - Accused hounded and assaulted by deceased with a blow around ribs - Accused stabbing deceased with kitchen knife - Whether elements necessary for self - defence existed - Whether reasonable possibility to avoid attack existed - Penal Code (Cap. 08:01), s. 16. STATE v. LESOGO [1999] 1 B.L.R. 506 (HC), Nganunu CJ Drunkedness as defence - Insanity - Deceased stabbed with knife - Accused having been drinking - Whether accused so drunk as to be temporarily insane at time of commission of offence - Penal Code (Cap. 08:01), s. 12(2)(b). STATE v. LETSHOLATHEBE [2001] 1 B.L.R. 42 (HC), Mosojane J Evidence - Circumstantial evidence - Proof of cause of death by circumstantial evidence - Deceased body found with multiple injuries - Prosecution witnesses' testimony as to accused's admission of having chased after deceased - Accused's own admission of hitting deceased twice with shoe - Whether accused caused deceased's injuries resulting in death. STATE v. MANGA [1986] B.L.R. 242 (HC), Barrington - Jones J Evidence - Corpus delicti - Proof by circumstantial evidence - Missing person victim of offence - No trace of body - No direct proof of death or killing - No admission of commission of offence by accused persons - Whether proof by circumstantial evidence sufficient. STATE v. MMESETSE and Another [1998] B.L.R. 604 (HC), Nganunu CJ Evidence - Identification - Circumstantial evidence - No eyewitness to commission of offence - Proof by circumstantial evidence - Articles stolen from deceased - farmhouse found in possession of accused - Penknife in deceased - pocket on day of incident found in accused - possession - Whether proof of commission of offence by accused. STATE v. MOKWENA [1990] B.L.R. 1 (HC), Gyeke - Dako J Evidence - Prosecution relying on evidence of single eyewitness - Failure to call other material witnesses at scene of crime - Whether evidence aliunde to corroborate evidence of single eyewitness - Whether proof of offence beyond reasonable doubt. GATE v. THE STATE [2001] 1 B.L.R. 156 (CA), Aguda AJP, Kumleben and Lord Weir JJA Extenuating circumstances - Factors to be taken into consideration - Facts upon which degree of moral capability to be assessed - Factors bearing upon appellant's moral blameworthiness in committing offence - Appellant under influence of alcohol on date in question - Appellant consumed by jealousy from suspicion of lover and deceased having an affair - Whether existence of extenuating circumstance. RAMOTLHAEDI v. THE STATE [1998] B.L.R. 9 (CA), Amissah P. J, Steyn J and Lord Cowie JA Extenuating circumstances - Factors to be taken into consideration - Belief of deceased having affair with appellant's fiancee - Genuine and honest belief mistakenly brought on by innate jealous disposition - Court to take into consideration matters honestly and genuinely believed by appellant to be factual in making moral judgment - Failure to do so - Misdirection. RAMONTSHO v. THE STATE [1987] B.L.R. 374 (CA), Maisels P, Amissah JA and Doyle JA Extenuating circumstances - Factors to be taken into consideration - Factors bearing upon accused's moral blameworthiness in committing offence - Accused having taken alcoholic drinks on date in question - Accused incensed at being accused of surreptitiously taking deceased's keys - Accused having belief of deceased being unfaithful. STATE v. NTESANG [1990] B.L.R. 396 (HC), Gyeke - Dako J Extenuating circumstances - Lack of premeditation to any appreciable degree - Absence of intention to kill - Extreme drunkenness - Provocation in widest sense. STATE v. PHORI [1987] B.L.R. 228 (HC), Hallchurch J Extenuating circumstances - Lack of premeditation to any appreciable degree - Absence of intention to kill - Drunkenness - Slight insult. STATE v. SHARP [1987] B.L.R. 14 (HC), Hallchurch J Extenuating circumstances - Mental condition - Accused having long history of deviance - Murdering of victims consistent with personality disorder which amounting to extenuation - At time of commission of offences, accused's state of mind and causes of such state somewhat reducing his blameworthiness. STATE v. GADIWE [2005] 1 B.L.R. 212 (CC), Marumo J Extenuating circumstances - Shooting of deceased by accused - No evidence of provocation or accident - Whether existence of any extenuating circumstances. STATE v. MOKWENA [1990] B.L.R. 1 (HC), Gyeke - Dako J Fatal stab wound - Common purpose - Deceased assaulted and stabbed once by M while appellant searched and took P5 from deceased - Deceased breaking free and running away - M chasing after deceased and fatally stabbing deceased - Appellant not taking part in pursuit of deceased - Whether appellant's common objective to rob ceased before fatal stabbing. MOYO and Another v. THE STATE [2000] 2 B.L.R. 151 (CA), Amissah P. J, Kumleben J and Zietsman JA Infanticide - Young mother having killed her newly born baby - Accused having been sent for psychiatric examination some three months after commission of offence - Accused prone to depression - Court not satisfied beyond reasonable doubt that at time of offence which led to an imbalance in her mind - Found not guilty of murder but guilty of infanticide under section 208 of Penal Code (Cap. 08:01). STATE v. OTHUSITSE [2001] 2 B.L.R. 394 (HC), Lesetedi J Ingredients - Accused to have had specific intent to kill or do grievous harm to deceased - Accused setting house alight with intention of killing ex - girlfriend and not deceased - Whether element of malice aforethought proved by prosecution - Penal Code (Cap. 08:01), s. 202. STATE v. KOBEDI [1990] B.L.R. 458 (HC), Gyeke - Dako J Insanity as defence - Assaulting deceased with pestle - Testimony of accused indicating awareness of wrongfulness of act - Psychiatrist's evidence suggesting ability to appreciate wrong from right at time of commission of offence - Whether accused's plea of insanity sustainable - Penal Code (Cap. 08:01) (1973 Rev.), s. 14. STATE v. SAAMU [1989] B.L.R. 191 (HC), Gyeke - Dako J Insanity as defence - Burden of proof - Onus on accused to establish insanity on balance of probabilities - Penal Code (Cap. 08:01) (1973 Rev.), ss. 13 and 14. STATE v. SAAMU [1989] B.L.R. 191 (HC), Gyeke - Dako J Insanity as defence - Defence of drunkenness raised first time in testimony before court - Accused alleging intoxication through consumption of alcohol and smoking of dagga - Whether any evidence of insanity temporarily or otherwise when offence committed. STATE v. MOTHOKGO [1989] B.L.R. 247 (HC), Gyeke - Dako J Intention to cause really serious bodily harm - Provocation - Deceased chasing and assaulting accused with fists - Momentary loss of self - control by accused - Grabbing of first defensive object available and stabbing deceased with it - Long sharp knife - Whether stabbing with knife reasonable retaliation of provocation offered. STATE v. HENDRICK [1987] B.L.R. 483 (HC), Hallchurch J Intention to cause serious bodily harm - Self - defence - Accused insulting deceased - Fight ensuing - Deceased taking out from his pocket okapi knife and opening it and attacking accused with it - Accused striking deceased's right hand with piece of wood causing knife to fall on ground - Accused striking deceased on head twice with piece of wood when deceased no longer in possession of any weapon - Whether defence of self - defence available to accused - Penal Code (Cap. 08:01) (1973 Rev.), s. 18. STATE v. GAKEBAFE [1986] B.L.R. 429 (HC), Hallchurch J Intention to do grievous harm - Harm resulting in death - Person causing harm guilty of murder - Prosecution need not prove intention to kill - Sufficient to prove intention to do grievous harm to victim. RANNATSHE v. THE STATE [1991] B.L.R. 300 (CA), Amissah P, Aguda JA, and Schreiner JA Intention to kill - Appellant firing gun at deceased - Deceased dying in consequence of gun shot - Finding of fact by court - 'Possible' appellant thinking gun unloaded when fired - Word `possible'' meaning `reasonably possible' in context of finding of fact - Whether intent to kill established by the State. GAOLATLHE v. THE STATE [1987] B.L.R. 362 (CA), Maisels P, Amissah JA, Van Winsen JA Intention to kill - Burden to prove intention on prosecution - Provocation - Effect of it on murder charge. STATE v. MALUZO and Another [1990] B.L.R. 380 (HC), Gyeke - Dako J Intention to kill - Common purpose or joint enterprise - Essentials of - Common purpose or joint enterprise must be in itself unlawful - Imputation to every member responsibility of commission of crime by any member - Offence committed to be imputed to every member must be probable not merely possible consequence of common purpose or joint enterprise - Foreseeability of consequence as probability being crucial - Appellants armed with guns embarked on mission to retrieve stolen horses and to catch suspected thieves - Deceased killed in course of mission - No evidence as to person causing death of deceased - Ruling of no case to answer on murder charge - Ruling of case to answer for manslaughter - Conviction of appellants - Whether common purpose or joint enterprise unlawful - Whether conviction sustainable - Penal Code (Cap. 08:01) (1973 Rev.), s. 24. LESOGORO v. THE STATE [1986] B.L.R. 311 (CA), Maisels P, Aguda JA, and Amissah JA Intention to kill - Deceased's body found with multiple injuries - Admission of accused hitting deceased twice with shoe - Whether intent to kill. STATE v. MANGA [1986] B.L.R. 242 (HC), Barrington - Jones J Intention to kill - Extenuating circumstances - Accused finding common law wife in his bedroom at night with deceased - Room in total darkness either as preclude to or conclusion of sexual intercourse - Whether existence of extenuating circumstances. STATE v. MANGA [1986] B.L.R. 242 (HC), Barrington - Jones J Intention to kill - Test to be applied - Objective or subjective test - Appellant member of B.D.F. on operation duties on Botswana - Zimbabwe border to arrest illegal Zimbabwean entrants - Arrest of deceased as suspected illegal entrant by appellant - Appellant assaulting deceased and tying his neck with rope to a pole - Death caused by asphyxia due to strangulation - Proof of intent - Knowledge of appellant of likelihood of act done causing death - Penal Code (Cap. 08:01) (1973 Rev.), s. 209(b). MOLEFI v. THE STATE [1986] B.L.R. 452 (CA), Amissah JA, Doyle JA, Bizos JA Malice aforethought - Accused hitting deceased on head with saucepan - Accused having no positive intention to cause death or grievous harm to deceased - Defence alleging failure of prosecution to establish malice aforethought - Accused employing considerable force in hitting deceased's head with saucepan - Conduct of accused fell within Penal Code (Cap. 08:01), s. 204(b). STATE v. MARIPANE [1991] B.L.R. 151 (HC), Gyeke - Dako J Manslaughter - Proof of cause of death - Deceased's body decomposed - No medical evidence of injury or disease causing death - Accused admitting beating deceased - Plea of guilty to manslaughter on charge of murder - Charge of murder or manslaughter not sustainable - Appropriate charge in circumstance - Common assault. STATE v. RANKAI [1987] B.L.R. 181 (HC), O'Brien Quinn CJ Mens rea - Self - defence - Failure of defence of self - defence - Accused entitled to rely on other defence based on same facts - Whether defence of intoxication available to accused. STATE v. CHIBIDU [1988] B.L.R. 467 (HC), Livesey Luke CJ Mental element - Intention to cause grievous bodily harm - Foreseeability of consequences - Accused throwing block of wood at back of deceased's head causing death - Accused alleging assault by deceased - Delay by accused in retaliating to assault - Evidence of accused being drunk - Whether defences of self - defence and provocation sustainable - Whether accused by reason of drink incapable of forming intention to do serious harm. STATE v. PHORI [1987] B.L.R. 228 (HC), Hallchurch J Mental element - Probable consequence resulting from voluntary act - Foreseeability of consequence - Accused angered by deceased - Accused being kicked by deceased - Fight ensuing - Accused stabbing deceased with Okapi knife - Accused saying in course of fight `I will hit you with one that cuts meat' - Whether accused intended to kill or cause serious bodily harm - Foreseeability of consequences of act. STATE v. RANCHIBIDU [1987] B.L.R. 146 (HC), Barrington - Jones J Person killed not one accused initially intended to kill - Whether fact that different person killed making any difference in law to offence committed. MAGUBANE v. THE STATE [1991] B.L.R. 286 (CA), Amissah P, Bizos JA, and Schreiner JA Proof - Onus on prosecution to prove beyond reasonable doubt following ingredients - Death of person - Causing of death by harm or omission - Harm or omission being unlawful - Death being caused with malice afore - thought - Accused being person causing death with malice afore - thought - Penal Code (Cap. 08:01) (1973 Rev.), s. 207. STATE v. MOTHELESI [1989] B.L.R. 78 (HC), Gyeke - Dako J Proof beyond reasonable doubt - Cardinal principle that no onus rested on accused person to convince court of veracity of any explanation which he giving and if he gave explanation which could reasonably possibly be true, he to be acquitted - Court could only convict if satisfied not only that explanation improbable but that it beyond reasonable doubt false. STATE v. SEANANA [2004] 2 B.L.R. 366 (HC), Gaongalelwe J Provocation - Deceased insulting and hitting accused with piece of wood - Accused re - acting by hitting deceased twice on head after dispossessing him of piece of wood - Whether provocation defence to murder charge - Penal Code (Cap. 08:01), s. 211(1). STATE v. MPOFU [1986] B.L.R. 487 (HC), Hallchurch J Provocation - Deceased persistently harassing accused and his girlfriend and attacking accused with fists - Accused losing self - control and stabbing deceased three times with pocket knife - Whether retaliation of accused bearing reasonable relationship to act of provocation - Penal Code (Cap. 08:01) (1973 Rev.), s. 210 (2). STATE v. JACOB [1989] B.L.R. 443 (HC), Gyeke - Dako J Provocation - Deceased taunting accused with disparaging remarks about her husband - Accused losing self - control and hitting deceased with saucepan - Whether reasonable relationship between act causing death and provocation offered - Penal Code (Cap. 08:01), s. 205. STATE v. MARIPANE [1991] B.L.R. 151 (HC), Gyeke - Dako J Provocation - Deceased throwing stones at accused causing injury to accused - Accused bleeding as result of injury - Accused losing self - control and stabbing deceased twice - Whether retaliation of accused bearing reasonable relationship to act of provocation. STATE v. CHIBIDU [1988] B.L.R. 467 (HC), Livesey Luke CJ Provocation - Deceased's vehicle hitting accused's vehicle - Deceased failing to stop and running away - Accused giving chase to deceased's vehicle and catching up with him - Failure of deceased to give explanation of not stopping - Assault by accused - Whether assault proportionate to provocation offered. STATE v. NGWAKO [1989] B.L.R. 152 (HC), Gyeke - Dako J Provocation - Defence - Appellant and deceased involved in a fight - Appellant fatally stabbing deceased after 20 minutes of cessation of fight - Whether defence of provocation sustainable. GATE v. THE STATE [2001] 1 B.L.R. 156 (CA), Aguda AJP, Kumleben and Lord Weir JJA Provocation - Defence - Deceased insulting accused by calling him `a grey - haired old man with small testicles' - Accused a much older man than deceased - Accused stabbing deceased - 'Wether provocation offered sufficient to cause accused to lose his self - control - Whether reasonable relationship between act causing death and provocation offered - Penal Code (Cap. 08:01) (1973 Rev.), s. 210. STATE v. MAREMA [1989] B.L.R. 562 (HC), Gyeke - Dako J Provocation - Defence - Verbal insult - Appellant fatally stabbing deceased with knife - Appellant an illiterate of rustic background - Effect of wrongful act or insult on ordinary person having a degree of subjectivity about it - Whether action of appellant having reasonable relation to provocation - Penal Code (Cap. 08: 01), s. 206. TOTOWE v. THE STATE [2001] 1 B.L.R. 166 (CA), Tebbutt, Lord Weir and Zietsman JJA Provocation - Manslaughter - Accused insulting deceased - Fight ensuing - Deceased taking out from his pocket okapi knife and opening it and attacking accused with it - Accused striking deceased's right hand with piece of wood causing knife to fall on ground - Accused striking deceased on head twice with piece of wood when deceased no longer in possession of any weapon - Whether opening of okapi knife sufficient provocation to cause accused to lose his self - control and in heat of passion striking deceased on head twice with piece of wood - Penal Code (Cap. 08:01) (1973 Rev.), s. 21](1). STATE v. GAKEBAFE [1986] B.L.R. 429 (HC), Hallchurch J Provocation - Verbal insult by accused - Deceased hitting accused with fists - Accused in blind fury hitting deceased with iron bar on head several times - Whether action of accused reasonable retaliation to provocation. STATE v. MOSHABELE [1987] B.L.R. 246 (HC), Barrington - Jones J Self - defence - Principles applicable to self - defence. STATE v. SANNO [1990] B.L.R. 636 (HC), Gyeke - Dako J Self - defence - Accused involved in confrontation with deceased - Deceased punching accused with fists - Accused stabbing deceased three times with pocket knife - Accused using more force than was necessary to defend himself - Whether the defence of self - defence justifiable under the circumstances. STATE v. JACOB [1989] B.L.R. 443 (HC), Gyeke - Dako J Self - defence - Deceased hitting accused with piece of wood - Accused dispossessing deceased of wood and hitting deceased twice - Whether peril still existing after deceased having been disarmed - Whether defence of self - defence available to accused - Penal Code (Cap. 08:01) (1973 Rev.), s. 18(2). STATE v. MPOFU [1986] B.L.R. 487 (HC), Hallchurch J Self - defence - Deceased insulting accused - No struggle, fight or altercation between deceased and accused - Accused stabbing deceased with knife - plea of self - defence - ether in circumstances defence of self - defence available. STATE v. MAREMA [1989] B.L.R. 562 (HC), Gyeke - Dako J Self - defence - Verbal insult by accused - Deceased pulling accused from yard into hut and assaulting him with fists - Accused retaliating by hitting deceased on head with iron bar several times - Whether accused acted in self - defence. STATE v. MOSHABELE [1987] B.L.R. 246 (HC), Barrington - Jones J Self - defence - What constitutes - At the heart of defence was that there had to be an attack which seemed serious or dangerous enough to require the accused to take defensive action and thus kill the attacker - Whether it constituted self - defence where a man took a weapon and struck a fatal blow at an approaching friend who was charging at him with hands thrust forward - No evidence that the advance of the deceased constituted a serious and imminent danger that could lead the accused reasonably to fear that if he reacted in other ways than using fatal force he would suffer a serious violation to his person or even death. STATE v. LEPERE [2001] 2 B.L.R. 147 (HC), Nganunu CJ Sentence - Accused having stabbed deceased with knife he was carrying - Accused alleging provocation - Provocation having little significance in circumstances - Judge imposing sentence entitled to take importance of discouraging carrying of knives into consideration. TAPOLOGO v. THE STATE [2005] 2 B.L.R. 220 (CA), Tebbutt JP, McNally and Lord Coulsfield JJA Sentence - Death sentence - Extenuating circumstances - Enquiry conducted by court stated - Accused found to have been under influence of deceased's wife and having committed murder at her behest - Circumstances constituting extenuation reducing accused's moral blameworthiness. PHIRI v. THE STATE [2005] 2 B.L.R. 240 (CA), Tebbutt JP, Grosskopf and McNally JJA Sentence - Death sentence - Trial court's repugnance at nature of offence clouding judgment leading to failure to consider extenuating circumstances. KOITSWE v. THE STATE [2001] 2 B.L.R. 317 (CA), Tebbutt Ag P, Korsah and Zietsman JJA Sentence - Extenuating circumstances - Accused under age of 18 years - Provocation - Intoxication and mental defect short of insanity. STATE v. MOTHOKGO [1989] B.L.R. 247 (HC), Gyeke - Dako J Sentence - Extenuating circumstances - Diminished responsibility - Drug abuse - Psychiatrist evidence suggesting possibility of diminished responsibility. STATE v. SAAMU [1989] B.L.R. 191 (HC), Gyeke - Dako J Sentence - Extenuating circumstances - Enquiry as to existence of extenuating circumstances and determination of appropriate sentence to impose - Process of enquiry to be approached as two separate and distinct issues - Enquiry not to be compressed into one single enquiry - Extenuating circumstances to be dealt with as separate and distinct issue - Conviction of murder of new - born baby - Trial court finding no extenuating circumstances - Lack of premeditation in commission of crime - Enquiry as to existence of extenuating circumstances in imposing sentence - Whether misdirection. MASONO v. THE STATE [2000] 1 B.L.R. 46 (CA), Amissah P. J, Steyn J and Kumleben JA Sentence - Extenuating circumstances - Meaning of exetenuating circumstances - Factors for consideration in determining extenuating circumstances - Marital disharmony - Weighing of aggravating features and extenuating circumstances. STATE v. MOTHELESI [1989] B.L.R. 78 (HC), Gyeke - Dako J Sentence - Extenuating circumstances - Youthful offender - Accused 181/2years of age - Factors to be taken into consideration - Accused's motives, personality, intellectual quality, past history, level of education and social background - Whether accused killed person out of inherent wickedness - Extenuating features to be weighed against any aggravating features - Whether imposition of death penalty justifiable - Penal Code (Cap. 08:01), s. 203. STATE v. BOJELO [2000] 1 B.L.R. 331 (HC), Reynolds J Sentence - Extenuating factors - Killing in order to avoid detection - Killing a person in order to escape from the law a heinous aggravating feature and not constituting extenuation. STATE v. KELEFITLHETSE [2002] 1 B.L.R. 96 (CA), Korsah, Zietsman JJA and Dibotelo AJA Intention to cause serious bodily harm - Provocation - Deceased insulting accused - Accused punching deceased on jaw and stamping on his head with shoes - Delay between verbal insult and striking of deceased - Whether attack on deceased bore any reasonable relationship to provocation offered. STATE v. SHARP [1987] B.L.R. 14 (HC), Hallchurch J Defence - Provocation, accident and selfdefence - Accused alleging deceased being intimate with his girlfriend - Accused threatening to kill deceased for being intimate with his girlfriend - Accused chasing and stabbing deceased with a knife - Whether stabbing caused by sudden provocation - Whether accused stabbing deceased by accident or in self - defence. STATE v. RAMAISHO [2001] 1 B.L.R. 14 (HC), Nganunu CJ Intention to cause grievous harm - Malice aforethought - Proof - Stabbing deceased with a knife in the chest with sufficient force - Proof of intention to cause deceased grievous harm - Penal Code (Cap. 08:01), s. 204 (a). STATE v. RAMAISHO [2001] 1 B.L.R. 14 (HC), Nganunu CJ Murder Self - defence - Accused stabbing deceased, who was bigger than he was, drunk, very aggressive and threatening to beat him up - Fact that accused felt in danger of grievous harm not misplaced - State to negative accused's defence beyond reasonable doubt - State failing to do so. Magula v. The State [2006] 1 B.L.R. 209 (CA), Tebbutt JP, Akiwumi and Ramodibedi JJA Sentence - Interference by court of appeal with sentence imposed by trial court - In circumstances cumulative effect of sentences imposed, in court's view, startlingly inappropriate - Sentences reduced and ordered to run concurrently. Mojaki v. The State [2006] 1 B.L.R. 222 (CA), Tebbutt JP, Akiwumi and Moore JJA Provocation Defence - Accused finding common law wife in his bedroom at night with deceased - Room in total darkness - Accused inflicting multiple injuries on deceased - Whether retaliation of accused bearing any reasonable relationship to provocation offered. STATE v. MANGA [1986] B.L.R. 242 (HC), Barrington - Jones J Semble: Court commenting on frequency of use of knives after imbibing of alcohol and suggesting legislature should consider legislation aimed at controlling carrying of knives with blades of a certain length. STATE v. MAKGANYA [2003] 1 B.L.R. 551 (HC), Dow J Housebreaking Ingredients of offence Offence deemed to have been committed by merely pulling or pushing door - Person's whole body need not enter building to constitute entry - Person deemed to have entered building if part of body or instrument used being within building - Penal Code (Cap. 08:01), s. 299. RADITHOTSE v. THE STATE [1990] B.L.R. 166 (HC), Livesey Luke CJ Necessary to prove either unlocking or pushing of window to gain ingress into locked house. MOTSUMI v. THE STATE [1993] B.L.R. 131 (HC), Gyeke - Dako J Housebreaking and theft Elements of offence Breaking - What amounts to - Actual and constructive breaking - Prosecution evidence not establishing element of breaking - Conviction - Whether proper - Conviction for lesser offence of receiving stolen property. NTHAWE v. THE STATE [1991] B.L.R. 349 (HC), Livesey Luke CJ Goods stolen from complainant's house Appellant found in possession of goods shortly after the breaking in - Goods positively identified by complainant - Unsatisfactory explanation of such possession - Whether doctrine of recent possession applicable. OGOPOLENG v. THE STATE [1988] B.L.R. 17 (HC), Lawrence Ag J Ingredients of offence Articles stolen from dwelling house - Appellant found in possession of stolen articles within few days of theft - No evidence of actual or constructive breaking - Appellant convicted of housebreaking and theft - Whether conviction on housebreaking and theft sustainable - Whether proper charge that of receiving stolen property - Penal Code (Cap. 08:01), ss. 271, 300 (1) (a) and 317 (1). NTHAWE v. THE STATE [1991] B.L.R. 375 (CA), Doyle JA, Schreiner JA, and Puckrin JA Stolen articles Appellant found in possession of certain stolen articles - Articles clearly identified by owner - Owner's house broken into few hours before recovery of articles - Onus on appellant to explain possession of stolen articles - Appellant unable to give satisfactory explanation of possession of stolen articles - Whether conviction proper. DIKOTSI v. THE STATE [1988] B.L.R. 11 (HC), Lawrence AJ Doctrine of recent possession - Possession of stolen article by accused to be proved beyond doubt - Whether possession of article is recent will depend on nature of article. MOGOMOTSI v. THE STATE [1993] B.L.R. 112 (HC), Nganunu J Doctrine of recent possession - Appellant found in possession of stolen articles - Articles found seven days after theft - Whether magistrate right in considering seven days' interval as raising presumption of appellant's guilty connection to housebreaking and theft. JEREMANE v. THE STATE [1991] B.L.R. 100 (HC), Gyeke - Dako J Housebreaking with intent to steal and theft Combination of charges permissible. STATE v. MOSHE 1978 B.L.R. 54 (HC), Edwards J Two separate offences under Penal Code but should be regarded as one for the purposes of sentence Criminal Procedure - procedure for enforcing suspended sentences. STATE v. GEORGE NTOGA 1968 - 1970 B.L.R. 262 (HC), Dendy Young CJ Hunting without licence Offence one in which strict liability imposed Mens rea therefore not element of offence - Duty on person hunting game to satisfy himself that licence exists for hunting such game and that hunt takes place I area for which licence issued - Once killing of game proved by prosecution, evidential burden on accused to show that he has licence for hunting game in prescribed area - Wildlife Conservation and National Parks Act (Cap 38:01), ss 19(1), (3), 72(4), (5). STATE v. MATTHYS and Others [2003] 1 B.L.R. 528 (HC), Lesetedi J Mens rea Common purpose - In order to establish common purpose, must be shown that accused set out on illegal enterprise - Act with which they are charged must either have formed part of intended illegal enterprise or they must have been aware and it must have been foreseeable that in pursuit of illegal enterprise act complained of likely to result - Accused must be shown to have associated themselves with intended act either verbally or by some act - Penal Code (Cap 08:01), s 22. STATE v. MATTHYS and Others [2003] 1 B.L.R. 528 (HC), Lesetedi J Sentence Forfeiture order in respect of goods used for the purpose of or in connection with offence - Motor vehicle - Whether owner of vehicle must have actively taken part in offence - Game shot by passenger and owner of vehicle from which game was hunted not having tracked, followed or wilfully disturbed game - Hunting and killing of game unrelated to owner's trip - Forfeiture set aside - Wildlife Conservation and National Parks Act, 1992 (Act No. 28 of 1992), s. 75(1). OATLHOTSE v. THE STATE [1995] B.L.R. 381 (HC), Gaefele AJ Identification of deceased Evidence of pointing out Cap. 18, section 222 Pointing out as part of a confession - Admissibility - Inference from proved facts. ELLEN PALEDI and KEDIEMETSE BEMBE v. REGINA 1964 - 1967 B.L.R. 137 (CA), Roper JA, Schreiner JA, Hathorn JA Immigration Law Remaining in Botswana illegally. STATE v. NKHABU 1974 (1) B.L.R. 87 (HC), Rooney J Incest Elements of offence Consent of one party - Such irrelevant to question of guilt but relevant to question whether cautionary rule to be invoked - Penal Code (Cap. 08:01) s. 168(1). STATE v. GALEKUELWE [1996] B.L.R. 373 (HC), Gyeke - Dako J Indecent assault Appellant charged with and convicted of indecent assault on females contrary to s. 146(1) of the Penal Code (Cap. 08:01) No evidence that appellant touched complainant, forcibly removed her clothes or threatened her harm if she did not obey his instruction to remove her clothes - Conviction quashed. MOLOKWANE v. THE STATE [1993] B.L.R. 66 (HC), Aboagye J Infanticide Attempted infanticide Accused tying cloth around mouth of her newly born child and throwing it into pit latrine - Child rescued alive by police - Accused dizzy and frightened at time of commission of offence - Medical evidence indicating accused being mentally sound at time of commission of offence - Whether accused guilty of attempted infanticide - Penal Code (Cap. 08:01) (1973 Rev.), s. 213 - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), ss. 187 and 188. STATE v. GOLA [1988] B.L.R. 73 (HC), Livesey Luke CJ Whether attempted infanticide an offence - Penal Code (Cap. 08:01) (1973 Rev.), s. 213. STATE v. MOSIAPETO [1984] B.L.R. 194 (HC), Corduff J Balance of Accused's mind disturbed - Degree of proof of such disturbance. STATE v. COLLET MOTHIBI 1974 (2) B.L.R. 21 (HC), Rooney J Murder Distinction between infanticide and murder - Infanticide different from murder - Infanticide being killing by woman of her child due to disturbance of her mind by reason of her not having fully recovered from effect of giving birth. STATE v. MOKULA [1985] B.L.R. 66 (HC), Hannah J Proof of Onus - Whether balance of accused's mind was disturbed by reason of her not having fully recovered from the effect of giving birth - Penal Code, s.208. STATE v. SEFELANI [1996] B.L.R. 259 (HC), Gyeke - Dako J Sentence Factors affecting - Accused, a young woman, having given birth after 32 weeks of pregnancy. STATE v. SEFELANI [1996] B.L.R. 259 (HC), Gyeke - Dako J Injuring animals contrast to Section 336 (1) of the Penal Code Wilfulness a necessary element Injury must be to an animal of which the Accused was not the owner. STATE v. DITHORISO OVERALL 1976 B.L.R. 80 (HC), Isaacs AJ Insanity Evidence of insanity Onus on defence - Proof on balance of probabilities - Mode of proof - Proof need not come directly from accused - Proof by evidence of witnesses or reliance on evidence of prosecution witnesses - Psychiatrist testimony stating accused suffering from mental disease at time of commission of offence - Psychiatrist prosecution witness - Whether sufficient evidence of proof of insanity - Penal Code (Cap. 08:01) (1973 Rev.), ss. 12 and 13. STATE v. MASINGA [1990] B.L.R. 47 (HC), Gyeke - Dako J Insanity resulting from intoxication Evidence of insanity - Onus on defence - Proof on balance of probabilities. STATE v. MASUPE [1992] B.L.R. 1 (HC), Aboagye J Intention Proof of Common purpose - For purposes of assault. KEMOREILE v. THE STATE [1996] B.L.R. 34 (CA), Schreiner JA, Lord Wylie JA and Lord Cowie JA Common intention - Accused charged with murder committed in course of breaking - in - One accused carried crow - bar at outset of expedition - Insufficient to infer from possession of crow - bar that accused intended to kill person who thwarted their efforts to steal. STATE v. MAJEREMANE and Others [1997] B.L.R. 630 (HC), Gyeke - Dako J Intoxication Mens rea Intention to kill STATE v. JOHN BUNGA 1964 - 1967 B.L.R. 161 (HC), Weston CJ Jurisdiction Place of commission of offence Forgery, uttering and false pretences - Forged cheques issued in foreign country drawn on bank in Botswana - Cheque honoured by bank in Botswana - Proceeds of cheques paid by Botswana bank to person resident in Botswana - Accused charged with forgery, uttering and false pretences - Accused a citizen of Botswana - Victim of forged cheques a Motswana - Whether offences committed in Botswana - Whether magistrate jurisdiction to trial offences. NGWENYA v. THE STATE [1984] B.L.R. 216 (HC), Corduff J Territorial STATE v. MTSHWAELI 1981 B.L.R. 232 (HC), Hayfron - Benjamin CJ Law 2 of 1964, sec. 129 'Lawful authority' What constitutes - Evidence - Witness's notes - Production for cross - examination. MONAKWE v. REGINA 1964 - 1967 B.L.R. 51 (HC), Weston CJ Lawful Authority What constitutes Evidence - Reply to query by investigating officer - Admissibility of - Penal Code, sec. 129. MARUPING v. REGINA 1964 - 1967 B.L.R. 20 (HC) Liquor Proclamation No. 69 of 1960 'Kgadi' an intoxicating liquor Evidence of its intoxicating nature not necessary. FOREMAN MONOLOGA v. THE STATE 1964 - 1967 B.L.R. 203 (CA), Roper P, Schreiner JA, Maisels JA Malicious injuries to property Ingredients of offence Destruction or damage to property - Accused causing destruction or damage to property - Accused acting wilfully and unlawfully - Wilful and unlawful act to be proved to satisfaction of court - Both elements to coexist - Meaning of `wilful' - Deliberate and intentional act - Accused setting fire to a hut - Properties in hut burnt - No evidence of accused's knowledge of existence of properties in hut - Whether charge against accused sustainable - Penal Code, (Cap. 08:01) (1973 Rev.), s. 337 (1). STATE v. RAMATLHOMANE [1989] B.L.R. 370 (HC), Gyeke - Dako J MALICIOUS PROSECUTION Action Essentials to action for malicious prosecution - Setting law in motion - Malice - Defendant acting without reasonable cause - Proceedings terminating in favour of plaintiff - Plaintiff suffering damage - Onus of proof on plaintiff to prove on balance of probabilities. THOKWANE v. THE ATTORNEY - GENERAL [1998] B.L.R. 221 (HC), Aboagye J Essentials to action Instigation of prosecution - Malice - Arrest and detention of plaintiff - Absence of reasonable or probable cause - Termination of proceedings or acquittal of plaintiff - Defendant reporting missing of 16 - year - old daughter to police - Daughter alleged to be plaintiff's girlfriend - Defendant stating daughter too young to have sexual relations with men - Police interviewing plaintiff and thereafter charging him with defilement of girl under 16 - Whether defendant instigated prosecution. SAREFO v. DIRA [1985] B.L.R. 306 (HC), O'Brien Quinn CJ Malice Motive - Malice to be inferred from absence of reasonable and probable cause - Failure to investigate case against plaintiff within reasonable time - Knowledge of innocence of plaintiff - Whether damages for malicious prosecution maintainable. THOKWANE v. THE ATTORNEY - GENERAL [1998] B.L.R. 221 (HC), Aboagye J Manifesting an intention to assist persons threatening Botswana Mens Rea necessary. STATE v. BEYLEVELD 1978 B.L.R. 1 (CA), Maisels JP, Doyle JA, Ogilvie - Thompson JA Manslaughter Causation Death within year and a day - Appellant stabbing deceased with knife - Deceased hospitalised and discharged - Deceased dying five weeks after stabbing - Whether appellant caused death of deceased - Whether conviction and sentence proper - Penal Code (Cap. 08:01) (1973 Rev.), s. 216. KASHWEKA v. THE STATE [1989] B.L.R. 211 (CA), Amissah P, Doyle JA, Schreiner JA Culpable negligence What is STATE v. KAISARA 1979 - 1980 B.L.R. 178 (HC), Hannah J Deceased having just committed adultery with Appellant's wife. STATE v. MOMOTI (2) 1974 (2) B.L.R. 92 (CA), Maisels P, Smit JA, Doyle JA Defences Private defence - Use of firearm where deceased merely throwing stones at accused and family - Whether means of repelling attack commensurate with attack. STATE v. PHELE [2005] 1 B.L.R. 515 (HC), Masuku J Failure by State to prove conclusively the cause of death. STATE v. FRANK MAJAHI 1968 - 1970 B.L.R. 134 (HC), Dendy Young CJ Failing to keep a proper lookout Causal relationship between Accused's negligence and the death of the deceased. STATE v. JOSEPH MAKOLAWE 1968 - 1970 B.L.R. 93 (HC), Dendy Young CJ Medical Treatment Degree of skill required - Incompetent or negligent treatment REGINA v. MOTLANE 1964 - 1967 B.L.R. 18 (HC), Watkin Williams CJ Negligent driving Element of unlawfulness' STATE v. MARANGI 1979 - 1980 B.L.R. 13 (CA), Maisels P, Ogilvie - Thompson JA, Isaacs JA Proof of Defence of self defence - Trial court rejecting accused's evidence amounting to use of unwarranted assumptions. HANGE v. THE STATE [2005] 1 B.L.R. 25 (CA), Tebbutt JP, Lord Sutherland and Akiwumi JJA Negligent shooting of a friend - Accused an unsophisticated juvenile who had never before handled a firearm - Lack of care shown but not gross negligence - Penal Code (Cap. 08:01), s. 200(1). STATE v. NTWAYAMODIMO [1996] B.L.R. 497 (HC), JugdeGittings J Proof of cause of death. STATE v. ROBERT KENGALOGILE 1977 B.L.R. 1 (CA), Maisels P, Doyle JA, Ogilvie - Thompson JA Running - down case Sufficiency of Evidence. REGINA v. BAIPOLEDI 1964 - 1967 B.L.R. 42 (HC), Weston CJ Self - defence. STATE v. MOYO 1971 (2) B.L.R. 68 (HC), Rooney ACJ Sentence Prolonged and brutal assault with subsequent injuries resulting in death - Sentence of 15 years' imprisonment - Whether sentence imposed excessive. MOLAO v. THE STATE [1996] B.L.R. 678 (CA), Aguda, Lord Cowie and Lord Allanbridge JJA What constitutes Effect of omission - Mother of newly born baby failing to raise alarm after leaving baby in pit latrine. MMOLAI v. THE STATE [1997] B.L.R. 743 (CA), Aguda, Schreiner and Lord Allanbridge JJ.A Unlicensed driver causing death - Driving without licence not necessary ingredient of negligence. STATE v. RACHATA [1995] B.L.R. 498 (HC), Gyeke - Dako J Marriage Marriage with dishonest intent 'Dishonestly' synonymous with `fraudulently' - Test to be applied in determining whether accused was dishonest - Whether test of dishonesty subjective or objective - Dishonestly going through marriage ceremony - First appellant falsely representing his identity to marriage officer - Second appellant aiding and abetting first appellant - Deception of marriage officer of false representation of identity - Whether deceptive conduct of appellants dishonest - Penal Code (Cap. 08:01) (1973 Rev.), s. 174. MORWALELA and Another v. THE STATE [1985] B.L.R. 50 (HC), Hannah J Medical Dental and Pharmacy Act 'Practising as a doctor' without being licensed Rights of Naturopath. STATE v. PHIRI 1968 - 1970 B.L.R. 295 (HC), Dendy Young CJ Mens rea Malicious damage to property Ingredients offence - `Wilfully' and `Unlawfully' - Act causing damage to be done deliberately and intentionally - Appellant suspecting complainant intending to run his vehicle over him threw water bottle at complainant's vehicle shattering windscreen of vehicle - Charge of wilfully and unlawfully damaging complaint's vehicle - Proof of requisite mens rea - Penal Code (Cap. 08:01), s. 333(1). RAIBLE v. THE STATE [1991] B.L.R. 315 (HC), Livesey Luke CJ Statutory offence Enactment not specifying requisite mens rea - No contrary indication of mens rea not being element of offence - Presumption of offence having mental element - Penal Code (Cap. 08:01) (1973 Rev.), s. 59. STATE v. MBAIWA [1988] B.L.R. 314 (HC), Livesey Luke CJ Treason - Ingredients of offence - Whether mental element constituent part of enactment creating offence of treason - Penal Code, s. 36 (1) (e). STATE v. VIVIER and Others (No 2) [1988] B.L.R. 371 (HC), Livesey Luke CJ Unlawful possession of Government trophies - Whether offence of absolute laibility - Fauna Conservation Act (Cap. 38:01) (1973 Rev.). s. 82(2). GABOEKAE v. THE STATE [1983] B.L.R. 94 (HC), Corduff J Unlawful possession of habit - forming drugs - Whether mens rea essential ingredient of offence - Defendant in possession of jacket containing prohibited habit - forming drugs - Defence of not knowing jacket containing habit - forming drugs - Whether defence sustainable Habit - Forming Drugs Act (Cap. 63:04) (1973 Rev.), s. 3 (1) (b). KALINGA v. THE STATE [1989] B.L.R. 490 (HC), Livesey Luke CJ Miscellaneous statutory offences Customs and excise offences False declaration contrary to s. 90(1) of Customs and Excise Act (Cap. 50:01) - Meaning of phrase `has a bearing on value' in s. 90(2). CHITI v. THE STATE [1997] B.L.R. 577 (HC), Nganunu J Motor Law Charge of reckless driving Failure to allege and prove that offence was committed on a `road.' STATE v. MAVELA 1976 B.L.R. 75 (HC), Isaacs AJ Driving a motor vehicle whilst under the influence of drink. STATE v. HANS WASCHLEWIKI 1979 - 1980 B.L.R. 24 (HC), Hayfron - Benjamin CJ Driving when unfit to do so through drink Presumption created by Section 47 (11) of Cap. 69:01 - whether rebuttable. ATTORNEY - GENERAL v. ODENDAAL 1981 B.L.R. 63 (CA), Maisels P, Dendy - Young JA, Aguda JA, Baron JA, Kentridge JA Presumption created by Section 47 (11) of Cap. 69:01 - whether rebuttable. ATTORNEY - GENERAL v. ODENDAAL 1982 (2) B.L.R. 194 (CA), Maisels P, Dendy - Young JA, Baron JA, Aguda JA, Kentridge JA Driving whilst unfit to drive through drink. STATE v. VICTOR MUTUKWA 1979 - 1980 B.L.R. 29 (HC), Edwards J Murder Administering of poison or noxious thing Endangering of life or doing grievous harm - Meaning of `noxious' - Accused administering `terramycin' to two persons intending to make them sick - Both persons becoming sick and one of them dying thereafter - Accused charged with murder and attempted murder - Post - mortem examination of deceased indicating deceased dying of natural causes and no evidence of `terramycin' found in deceased's body - Acquittal of accused of charges - Whether accused liable to be convicted of administering any poison or noxious thing in contravention of the Penal Code (Cap. 08:01), s 232. STATE v. LESOWA [2003] 1 B.L.R. 580 (HC), Chatikobo J 'Malice aforethought'. STATE v. RAPULA 1979 - 1980 B.L.R. 18 (CA), Maisels P, Ogilvie - Thompson JA, Isaacs JA Attempted murder Alternative verdict - Rash and negligent act - Accused firing shot in direction of another person - Charge of attempted murder - Accused alleging no intention to kill - Act of accused constituting rash and negligent act contrary to Penal Code (Cap. 08:01) (1973 Rev.), s. 244(i). STATE v. MOTLHABAKGOMO [1985] B.L.R. 91 (HC), O'Brien Quinn CJ Essential ingredients of offence - Intent to kill - Setting fire to a house at night - Occupants of house sleeping - Accused alleging no intention to kill - Penal Code (Cap. 08:01) (1973 Rev.), s. 222(a). STATE v. MOTLHABANE ALIAS MATSWINYANE [1984] B.L.R. 180 (HC), O'Brien Quinn CJ Mental element - Foreseeability of consequences - Wish or desire to attain particular objective - Direction to be adopted by trier of fact - Penal Code (Cap. 08:01) (1973 Rev.), s. 222(b). STATE v. BOGOSI [1986] B.L.R. 95 (HC), Murray J Belief in witchcraft may be an extenuating circumstance. STATE v. NKANI 1979 - 1980 B.L.R. 195 (CA), Maisels P, Doyle JA, Dendy Young JA Body of Deceased not found. STATE v. MOLELEKWA 1975 (1) B.L.R. 88 (HC), Rooney J Causation Accused kicking deceased twice - Deceased escaping from assault by accused by breaking through wooden barrier - Deceased dying from peritonitis due to traumatic perforation of the jejunum - Fatal injury allegedly caused by fall on rough surface or kick - Post mortem examination revealing three injuries on deceased - Whether accused directly caused injury that caused deceased's death. STATE v. MOTSUMI [1988] B.L.R. 5 (HC), Hallchurch J Novus actus interveniens - Accused stabbing deceased on the back with knife - Deceased sustaining injury on back - Deceased also having abdominal wound - Abdominal wound requiring major operation - Deceased dying while undergoing surgery - No evidence of cause of abdominal wound - No evidence as to which wound was fatal - No evidence as to deceased's medical treatment in hospital - Whether there was an act breaking chain of causation - Whether death caused by wound inflicted by accused - Penal Code (Cap. 08:01) (1973 Rev.), s. 214. STATE v. KELEEMETSE [1985] B.L.R. 365 (HC), Barrington - Jones J Novus actus interveniens - Accused striking deceased blow on mouth - Blow causing haematoma - Doctors failing to diagnose haematoma - Haematoma causing deceased's death - Whether doctors' failure to diagnose haematoma broke chain of causation - Whether death caused by blow struck by accused - Penal Code (Cap. 08:01) (1973 Rev.), s. 214. STATE v. MOSIME [1985] B.L.R. 355 (HC), O'Brien Quinn CJ Charge Defence - Automatism - Irresistible impulse - Provocation - Accused angered by wife receiving letters from a man - Quarrelling and fighting with wife regarding letters - Efforts of others to stop the fighting - Stabbing of wife to death - Whether defence of automatism, irresistible impulse or provocation available to defence. STATE v. KOOAGILE [1984] B.L.R. 173 (HC), O'Brien Quinn CJ Death sentence Extenuating circumstances - Court to consider not only extenuating features but also any aggravating features - Both features to be cumulatively considered by court in arriving at its value judgment - Failure to consider both features - Misdirection. DIJO v. THE STATE [1985] B.L.R. 566 (HC), Aguda JA, Amissah JA, Murray J Extenuating circumstances - Decision to impose or not to impose death sentence - Procedure to be followed - Question of extenuating circumstances to be decided as separate issue - Accused to be permitted to lead evidence and to address court in extenuation or merely address court in extenuation - Essential for trial judges to adhere to procedure. MOJAGI v. THE STATE [1985] B.L.R. 560 (HC), Aguda JA, Amissah JA, Murray J Extenuating circumstances - Decision to impose death sentence - Procedure to be followed - Question of extenuating circumstances to be decided as separate issue - Accused to be permitted to lead evidence and to address court in extenuation or merely address court in extenuation. LOSANG v. THE STATE (PRACTICE DIRECTION) [1985] B.L.R. 281 (CA), Maisels P, Amissah JA, Van Winsen JA Extenuating circumstances - Extenuating circumstances not apparent in course of trial - Duty of trial court after conviction - Accused to be permitted to lead evidence and to address court in extenuation or merely to address court in extenuation - Proceedings after conviction must be noted and made part of record of case. DIJO v. THE STATE [1985] B.L.R. 566 (HC), Aguda JA, Amissah JA, Murray J Deceased woman telling a lover that she has another lover - does not reduce murder to manslaughter. THE STATE v. MARITE MOTSWAKWA 1982 (2) B.L.R. 94 (HC), O'Brien Quinn CJ Defence Accidential - Accused charged with stabbing deceased to death - Accused aware of what he doing - Foreseeable in circumstances that he would stab someone with knife while involved in scuffle - Drawing of knife and subsequent use intentional - All accused unaware of was identity of victim - At very least, accused intending to do grievous bodily harm to victim - Accused guilty of murder with extenuating circumstances contrary to s 202(1) as read with s 202(2) of Penal Code (Cap 08:01). STATE v. PHETO [2003] 1 B.L.R. 400 (HC), Kirby J Drunkeness as defence - Intention to kill - Burden of proof on prosecution - Failure of prosecution to establish accused capable of forming intention to kill despite amount of liquor consumed - Effect - Alternative verdict of manslaughter. STATE v. GABOKGATHWE [1985] B.L.R. 514 (HC), O'Brien Quinn CJ Provocation - Accused stabbing deceased after she swore at him - Accused acting in heat of passion - Cannot expect person to be able to weigh amount of force used when smarting under extreme provocation - Attack on deceased not out of proportion with provocation. STATE v. LEBURU [1993] B.L.R. 362 (HC), Gyeke - Dako J Provocation - No epithet, vulgarity or insult bearing any reasonable relationship to killing - Penal Code (Cap 08:01), s. 205. KENOSI v. THE STATE [1993] B.L.R. 268 (CA), Amissah JP, Schreiner JA, Puckrin JA Self defence - Accused not fleeing - Penal Code (Cap 08:01), s. 16. KENOSI v. THE STATE [1993] B.L.R. 268 (CA), Amissah JP, Schreiner JA, Puckrin JA Self - defence - Deceased stabbed by accused in a quarrel - Accused pleading self - defence - Onus on prosecution to disprove self - defence. STATE v. MODIMAKWANE ALIAS SAM [1984] B.L.R. 210 (HC), O'Brien Quinn CJ Self - defence - Evidence - Direction by judge sitting as jury - Consideration of whole evidence - Accused to be acquitted if judge convinced of innocence of accused or doubtful as to guilt of accused. LEMME v. THE STATE [1985] B.L.R. 576 (CA), Aguda JA, Amissah JA, Murray J Self - defence - Manslaughter - Accused charged with murder pleading self - defence - Trial court finding force used exceeding reasonable force - Whether finding of excessive force giving rise to verdict of manslaughter STATE v. MOREPUTLA [1985] B.L.R. 380 (HC), Murray J Self - defence - Provocation - Deceased hitting accused with stick - Accused disarming deceased of stick - Accused beating deceased to death with same stick - Whether self - defence available to accused - Whether defence of provocation available to accused. STATE v. MOKGOSANA [2001] 1 B.L.R. 291 (HC), Nganunu CJ Self - defence - Provocation - Deceased trampling on accused and later attacking him - Accused trying to trade blows with deceased but not reaching him - Deceased knocking down accused three times - Accused in desperation stabbing deceased once with knife - Whether accused stabbed deceased in self - defence - Whether plea of provocation available to accused. STATE v. BADISANG [1986] B.L.R. 44 (HC), O'Brien Quinn CJ Defence of provocation Deceased committing adultery with Accused's reputed wife or mistress - Accused aware of association between Deceased and reputed wife - The adultery no sudden provocation. STATE v. SEGANA SELEKE 1974 (1) B.L.R. 102 (HC), Aguda CJ Defences Belief in witchcraft - No overt or physical act of witchcraft in accused's presence - Accused believed witchcraft used to torment him - Whether provocation as envisaged by section 205(1) established - Penal Code, s. 205(1). STATE v. MONATO [1995] B.L.R. 628 (HC), Gyeke - Dako J Defence of self - defence - Effect of - Threatened person need not run away. STATE v. KGATSO [1995] B.L.R. 663 (HC), Gyeke - Dako J Implied defence of self - defence - Accused admitted striking fatal blows when deceased surged forward - Deceased unarmed - Whether evidence supported self - defence. STATE v. MONATO [1995] B.L.R. 628 (HC), Gyeke - Dako J Intoxication - Section 12 of the Penal Code - Whether accused imbibed so much as to render him incapable of forming an intention to kill or inflict grievous bodily harm - Accused did not at the material time form the necessary intention - Onus of establishing that accused was incapable of forming such intention rested on the prosecution - Clear from the accused's conduct that the influence of alcohol on his mind not so extensive as to make him irrational - Accused realised what he was doing, formed the intention to act and to achieve the consequences thereof. STATE v. MOLAAKGOSI [1994] B.L.R. 135 (HC), Gyeke - Dako J Provocation - Section 205 of the Criminal Code - Provisions of sections 205 and 206 of the Penal Code - Definition of provocation in section 206 extends the ambit to limited class of relatives, of which a nephew not one - Accused's act bore no reasonable relationship to whatever provocation may have been offered by the deceased. STATE v. MOLAAKGOSI [1994] B.L.R. 135 (HC), Gyeke - Dako J Provocation - What constitutes - Murder in the heat of passion caused by provocation - Penal Code (Cap 08:01), s.205 (1). STATE v. KGATSO [1995] B.L.R. 663 (HC), Gyeke - Dako J Self - defence - What constitutes - Accused stabbing deceased haphazardly after altercation over drinks - Excessive force used. STATE v. LESIELA [1996] B.L.R. 359 (HC), Gyeke - Dako J Drunkeness as defence Shooting of deceased by accused - Consumption of liquor by accused - Accused habitual drinker - Whether accused under influence of alcohol at material time in terms of Penal Code (Cap. 08:01) (1973 Rev.), s. 14(4). STATE v. LEKOLWANE [1985] B.L.R. 94 (HC), O'Brien Quinn CJ Effect of Provocation. STATE v. BOTSHALO TSHWANELO 1968 - 1970 B.L.R. 371 (HC), Dendy Young CJ Evidence Circumstantial evidence - Proof of murder by circumstantial evidence - Accused alleged to be in love with deceased's husband - Accused planning to eliminate deceased in order to marry deceased's husband - Accused procuring a gun from South Africa - Deceased killed by two shots fired from a gun - Ballistics expert finding spent cartridges recovered near deceased's body having been fired from gun procured by accused - Inference to be drawn from evidence - Whether accused shot and killed deceased. STATE v. BOSCH [1999] 2 B.L.R. 350 (HC), Aboagye J Circumstantial evidence - Proven facts - Aggravated assault on accused by deceased - Accused leaving scene of assault - Accused subsequently being seen returning to scene of assault - Deceased asleep - Fracturing of deceased's skull - Bloodstains matching deceased's blood grouping found on accused's trousers - Inference to be drawn. STATE v. BABEILE [1985] B.L.R. 250 (HC), Muhammad AJ Corpus delicti - No trace of body - Proof of murder by circumstantial evidence. GOFHAMODIMO v. THE STATE [1984] B.L.R. 119 (CA), Maisels P, Van Winsen JA, and Isaacs AJ Extenuating Circumstances RAPULANA v. THE STATE 1975 (1) B.L.R. 37 (CA), Maisels P, Milne JA, Doyle JA Belief in Witchcraft STATE v. MOGAMPANE 1975 (1) B.L.R. 64 (HC), Rooney J Moral guilt when intention was only to cause harm and not death but death resulted STATE v. MALAN MANYEKE 1978 B.L.R. 10 (CA), Milne Smit JA, Doyle JA STATE v. MMALEKOTO KEGODILE AND ORS 1968 - 1970 B.L.R. 403 (HC), Young CJ STATE v. NYAMBE NELSON 1974 (1) B.L.R. 107 (HC), Rooney J Failure to call medical evidence as to the cause of death. STATE v. MOKOTEDI 1973 (1) B.L.R. 85 (HC), Rooney J Finding of no extenuating Circumstances When Appeal Court will interfere. KELANO MASASA and Others v. THE STATE 1964 - 1967 B.L.R. 229 (CA), Roper P, Schreiner JA, Maisels JA Infanticide Balance of accused's mind - Accused strangling her newly born baby - Accused sane but depressed at time of commission of offence - Need to examine accused immediately after event - Whether accused guilty of murder or of infanticide - Penal Code (Cap. 08:01) (1973 Rev.), ss. 207 and 213. STATE v. MOYO [1985] B.L.R. 239 (HC), Muhammad AJ Intent Grievous bodily harm - Strangling of victim - Appellant not intending to kill - Whether sufficient intent to establish murder - Penal Code (Cap. 08:01) (1973 Rev.), s.207. RAMPHANANA v. THE STATE [1984] B.L.R. 83 (CA), Maisels P, Dendy - Young JA, and Van Winsen JA Intention to kill Defence - Provocation - Proof - Extra - curial confession statement by accused alleging provocation - Accused making unsworn statement alleging provocation - Medical evidence in support of evidence of provocalion - Prosecution evidence alleging absence of provocation - Duty of court to decide what weight to be attached to statements - Omission to admit extra - curial confession statement in evidence - Duty of prosecution to admit such evidence - Whether prosecution capable of discharging its duty of proving case beyond reasonable doubt. STATE v. BINANG [1985] B.L.R. 267 (CA), Baron JA, Amissah JA, Van Winsen JA Extenuating circumstances - Accused waylaying his former girlfriend and her new boyfriend in the dark - Killing boyfriend with three bullets - Whether existence of extenuating circumstances. STATE v. LEKOLWANE [1985] B.L.R. 94 (HC), O'Brien Quinn CJ Extenuating circumstances - Accused seeing injuries inflicted on his friend by deceased - Whether existence of extenuating circumstances. STATE v. LEMME [1985] B.L.R. 159 (HC), O'Brien Quinn CJ Extenuating circumstances - Deliberate intention to kill - Previous conviction - Accused shabbily and disgracefully treated by deceased - Deceased habitually referring to accused in derogatory fashion - Trial judge finding no extenuating circumstances on grounds that accused intended to kill and of having previous conviction - Whether misdirection. MOSARWANA v. THE STATE [1985] B.L.R. 258 (CA), Maisels P, Amissah JA, Van Winsen JA Extenuating circumstances - Factors to be considered - Appellant consuming liquor - Appellant habitual drinker - Whether appellant under influence of alcohol at material time - Whether extenuating circumstance - Aggravating features - Appellant jealous of affair of former girlfriend with colleague - Appellant waylaying them in the dark - Killing boy - friend with three bullets - Whether existence of extenuating circumstance. LEKOLWANE v. THE STATE [1985] B.L.R. 245 (CA), Maisels P, Baron MA, Van Winsen MA Extenuating circumstances - Intoxication - Youth - Assault. STATE v. BABEILE [1985] B.L.R. 250 (HC), Muhammad AJ Extenuating circumstances - sentence. MASHABA v. STATE 1977 B.L.R. 10 (CA), Milne JA, Smit JA, Doyle JA Intention to kill or cause grievous harm Malice aforethought - Proof - Appellant striking deceased twice on the head with heavy wood - Force used cracking skull of victim - Proof of intention to cause deceased grievous harm - Penal Code (Cap. 08:01) (1973 Rev.), s. 209(a). MOJAGI v. THE STATE [1985] B.L.R. 560 (HC), Aguda JA, Amissah JA, Murray J Intention to kill. STATE v. BANTSHANG 1972 (2) B.L.R. 79 (HC), Aguda CJ Killing in self - defence Excess of force mens rea. REGINA v. JACKSON KHUMALO 1964 - 1967 B.L.R. 147 (HC), Weston CJ Malice aforethought. STATE v. DIKGANG BANTHOELANG 1977 B.L.R. 66 (HC), Edwards J Intention to kill Malice aforethought - Proof - Suffocation of newborn child by mother - Death resulting from suffocation - Whether death caused with malice aforethought - Penal Code (Cap. 08:01), s. 204(2). STATE v. MONGAE [2001] 1 B.L.R. 312 (HC), Lesetedi J Penal Code, sections 202, 202, and 204 Killing in course of the commission of another offence - Versari - Extenuating circumstances - Re - examination of finding by High Court by Appeal Court - Grocends DAVID SEJAMMU v. REGINA 1964 - 1967 B.L.R. 153 (CA), Roper JA, Schreiner JA, Elyan JA Penal Code: s. 206(3) Excess of defensive Force - Manslaughter or Murder - Extenuating Circumstances. DAVID LEABANENG MOKGWATHI v. THE STATE 1964 - 1967 B.L.R. 263 (CA), Roper P, Schreiner JA, Weston CJ Proof of Killing by police in attempting to effect arrest - Police officer exceeding reasonable means to effect - Deceased shot in back with AK47 on automatic mode - Conviction of murder altered to one of culpable homicide - Penal Code (Cap. 08:01), s. 47. MAKWATI v. THE STATE [1996] B.L.R. 682 (CA), Schreiner JA, Steyn JA and Tebbutt JA Proof of malice afore thought. STATE v. LETSHOLO 1976 B.L.R. 65 (HC), Hill J Provocation Deceased insulting accused during argument - Accused striking deceased blow on mouth - Whether accused provoked - Whether accused's reaction excessive enough to sustain murder charge. STATE v. MOSIME [1985] B.L.R. 355 (HC), O'Brien Quinn CJ Defence - Accused attacked by assailant armed with a knife - Accused disarming assailant of knife and stabbing him with it - Whether stabbing retaliation to Provocation offered by assailant. STATE v. MANKURWANE [1985] B.L.R. 168 (HC), O'Brien Quinn CJ Defence - Accused seeing his former girlfriend in car with deceased - Accused subsequently finding couple in a house several hours later - Accused becoming very jealous - Shooting of deceased - Whether provocation - Whether defence to murder charge. STATE v. LEKOLWANE [1985] B.L.R. 94 (HC), O'Brien Quinn CJ Defence - Altercation between accused and deceased - Deceased stabbing accused's friend - Accused indicating intention, to stab deceased on seeing his friend's injuries - Subsequent stabbing of deceased by accused - Whether defence of provocation available to accused. STATE v. LEMME [1985] B.L.R. 159 (HC), O'Brien Quinn CJ Defence - Deceased hitting and throttling accused - Accused fighting for breath - Accused stabbing deceased with knife to rescue himself - Whether accused's action sufficient to support defence of provocation. STATE v. LESEGONG [1985] B.L.R. 70 (HC), O'Brien Quinn CJ Defence - Killing by stabbing - Plea of self - defence - Deceased aggressively assaulting accused - No imminent danger to life of accused - Absence of intention to kill or cause grievous harm - Whether plea of self - defence available. STATE v. XLAOTE [1985] B.L.R. 78 (HC), O'Brien Quinn CJ Provocation STATE v. MOMOTI 1974 (1) B.L.R. 94 (HC), Rooney J Self Defence STATE v. BAHUMILE 1979 - 1980 B.L.R. 206 (HC), Corduff J Accused attacked by assailant armed with a knife - Accused disarming assailant of knife and stabbing him with it - Whether defence of self - defence available to accused. STATE v. MANKURWANE [1985] B.L.R. 168 (HC), O'Brien Quinn CJ Accused knocked down with blow by deceased - Deceased lying on top of accused and pinning him to ground and throttling him - Accused unable to relieve pressure on himself and fighting for breath - Accused stabbing deceased with knife to rescue himself - Knife being only weapon available - Whether defence of self - defence available in circumstances. STATE v. LESEGONG [1985] B.L.R. 70 (HC), O'Brien Quinn CJ Conditions for application of the defence of self - defence enumerated - Issue of self - defence did not arise - Even if the deceased had punched the accused, the latter was not justified in stabbing the deceased. STATE v. MOLAAKGOSI [1994] B.L.R. 135 (HC), Gyeke - Dako J Defence of sister in fight - Bona fide belief in imminent danger to life of sister - Means of defence - Means not to be excessive - Weapon used must be only one available. STATE v. MPOTSANG [1985] B.L.R. 63 (HC), O'Brien Quinn CJ One continuous event with no interruptions permitting of evasive or alternative action - Failure by State to lead evidence to negative defence of self - defence a fatal flaw in State's case. SELEKE v. THE STATE [1994] B.L.R. 310 (CA), Aguda JA, Steyn JA, Lord Wylie JA Unless means employed and degree of force used to avert attack falls within four corners of defence of self - defence provided for in s 16 of Penal Code (Cap 08:01), defence not open to accused - 'Partial excuse' rule of common law whereby use of excessive force helps to reduce murder to culpable homicide not part of law of Botswana. STATE v. PINTO [2003] 1 B.L.R. 600 (HC), Chatikobo J Sentence Death sentence - Court relying on inadmissible evidence to supply motive for murder - Sentence set aside. KGAODI v. THE STATE [1996] B.L.R. 23 (CA), Amissah JP, Schreiner and Lord Cowie JJA Death sentence - Extenuating circumstances - Enquiry into - Circumstances to be looked at individually and then cumulatively. BALIKI v. THE STATE [1997] B.L.R. 666 (CA), Amissah JP, Steyn JA and Lord Allanbridge JA Death sentence - Extenuating circumstances - Onus to establish - No onus on either party - Duty of court to ascertain with assistance of counsel. DIBONENG and Others v. THE STATE [1997] B.L.R. 675 (CA), Amissah JP, Aguda J, Steyn J, Hoexter J and Lord Allanbridge JA Death sentence - Extenuating circumstances - Unequal treatment of co - accused - Trial court mistakenly finding that one accused had done the stabbing and finding no extenuation in his case but finding extenuation in respect of other accused. DIBONENG and Others v. THE STATE [1997] B.L.R. 675 (CA), Amissah JP, Aguda J, Steyn J, Hoexter J and Lord Allanbridge JA Death sentence - Extenuating circumstances - What constitutes - Lack of premeditation and provocation. BALIKI v. THE STATE [1997] B.L.R. 666 (CA), Amissah JP, Steyn JA and Lord Allanbridge JA Death sentence - Extenuating circumstances - What constitutes - Accused having killed lover after seeing her having intercourse with her husband - Whether cumulative effect of features of the case reduced moral blameworthiness - Penal Code (Cap. 08:01), s 203(2). MMINAKGOMO v. THE STATE [1996] B.L.R. 655 (CA), Amissah JP, Tebbutt and Lord Cowie JJA Death sentence - Extenuating circumstances - Proof of - Murder committed during course of robbery. KELALETSWE and Others v. THE STATE [1995] B.L.R. 100 (CA), Amissah JP, Lord Wylie JA and Steyn JA Extenuating circumstances - Accused having acted in state of great distress in murdering lover. MOKHOLO v. THE STATE [1996] B.L.R. 646 (CA), Aguda, Steyn and Lord Allanbridge JJA Extenuating circumstances - Proof of - Court a quo had required extenuating circumstances to be shown on balance of probabilities - Such constituting misdirection. MOKHOLO v. THE STATE [1996] B.L.R. 646 (CA), Aguda, Steyn and Lord Allanbridge JJA Factors to be taken into account - Murder committed whilst accused in state of high anxiety - Fact that accused a policeman an aggravating factor in circumstances. KALIMUKWA v. THE STATE [1995] B.L.R. 425 (CA), Amissah P, Steyn JA, Lord Wylie JA Murder of woman by her lover - Prevalence of crimes of this nature requiring severe sentences. MOREMI v. THE STATE [2005] 1 B.L.R. 31 (CA), Tebbutt JP, Lord Sutherland and McNally JJA Serious misdirection by trial judge - Appellate court at large as to sentence - Power to impose proper sentence. JONATHAN v. THE STATE [1985] B.L.R. 277 (CA), Baron JA, Amissah JA, Van Winsen JA Obtaining property by false pretences Future promise. STATE v. MOKOPOTSA 1981 B.L.R. 205 (HC), Hannah J Offence Elements Essential elements of every offence, except contempt of court, must be defined in written law - Constitution, s. 10(8) - Penal Code (Cap. 08:01), s. 3. KGANG v. THE STATE [2000] 1 B.L.R. 313 (HC), Nganunu CJ Statement of offence No person should be tried when the charge sheet or indictment does not specify the offence and the section of the law detailing such offence - Automatic injustice when statement of offence not furnished. TANGANE v. THE STATE [1994] B.L.R. 325 (HC), Nganunu J Offence of `threat to kill' in contravention of s 220(1) of Penal Code Onus on State to prove (a) issuing of threat by accused either directly or indirectly to person to be killed; (b) threat was unequivocal in sense that words used are capable of being understood by recipient of accused's intention to kill victim; (c) accused issued threat intending that recipient would fear that threat would be carried out; and (d) accused had no lawful excuse for making threat Threat to contain some expression of intention to inflict some injury on another which might result in death of other. STATE v. KASAMA [1993] B.L.R. 1 (HC), Gyeke - Dako J Offence of causing death by driving recklessly or dangerously Proof required Test for reckless driving subjective requiring foresight and essential element of mens rea - Test for dangerous driving objective with mens rea not being necessary ingredient of offence - Nature and limits of foreseeability required set out. DITSHOTO v. THE STATE [2003] 1 B.L.R. 191 (HC), Lisimba J Offences Defence of compulsion Nature of evidence in proof of compulsion - Penal Code (Cap.08:01), s. 15. MATLAPENG and Another v. THE STATE (PRACTICE NOTE) [1991] B.L.R. 369 (CA), Amissah P JA, Aguda JA, Doyle JA No offence, in terms of s. 302 of the Penal Code (Cap. 08:01), like `shop - breaking and theft' Unless additional offence specified in separate count, no verdict can be returned on charge under section 302 - Penal Code (Cap. 08:01), s. 302. KOBE v. THE STATE [1995] B.L.R. 37 (HC), Gyeke - Dako J Office breaking and theft Whether offence created composite offence of office breaking and theft Accused having been party to agreement to break in and steal - Offence committed in pursuance of such agreement - Accused guilty of both break - in and theft even though he was not present when actual break - in and theft taking place. MOGAE v. THE STATE [2004] 2 B.L.R. 71 (CA), Tebbutt JP, Zietsman and Plewman JJA Official corruption Detention of goods Lawfulness of - Influence on determination of punishment. HAFFEJEE v. THE STATE [1994] B.L.R. 336 (HC), Gyeke - Dako J Official corruption contrary to s. 99(a) of Penal Code (Cap. 08:01) What constitutes Acts constituting the alleged offence committed outside workplace and with materials which were not official materials. AUTLWETSE v. THE STATE [2001] 2 B.L.R. 464 (HC), Mwaikasu J Whether party who has offered the inducement must also have intended inducement as a bribe. AUTLWETSE v. THE STATE [2001] 2 B.L.R. 464 (HC), Mwaikasu J Penal Code A Chief is a person `employed in the Public Service' for the purposes of the Penal Code. STATE v. CHIEF SEEPAPITSO IV 1972 (2) B.L.R. 43 (HC), Aguda CJ Penal Code s. 118(1)(f) Whether person who successfully interferes with judicial proceedings punishable for attempt. SMETCH GOMEE v. THE STATE 1964 - 1967 B.L.R. 199 (CA), Roper P, Schreiner JA, Maisels JA Penal Code s. 200 Manslaughter or Misadventure Criminal negligence. THE STATE v. MATHOGONDO MEDUPI JEWEL 1964 - 1967 B.L.R. 271 (HC), Weston CJ Penal Code, section 221 Proof of conspiracy Onus - Nature of conspiracy - Persons committing crime at instigation of superior. REGINA v. MOSIAKGABO and EIGHT OTHERS 1964 - 1967 B.L.R. 111 (HC), Weston CJ Penal Code, sections 271, 302, 303 Housebreaking and theft Form of Charge. DAVID TSIANE MPUANG v. THE STATE 1964 - 1967 B.L.R. 175 (HC), Weston, CJ Perjury Ingredients of offence Knowingly giving false testimony in judicial proceeding - Whether failure to recollect details tantamount to commission of perjury - Trial judge or magistrate to be slow to issue threat of committal for perjury against witness - Penal Code (Cap. 08:01) (1973 Rev.), s. 111(1)(a). SEROLE v. THE STATE [1985] B.L.R. 571 (CA), Aguda JA, Amissah JA, Murray J Witness Committal for perjury - Magistrate - Procedure for committal for perjury - Magistrate to suggest to prosecutor to investigate matter with view to prosecution - Prosecution to be conducted before another magistrate - Records from proper custody to be produced to establish charge. STATE v. NTSHUPETSANG [1984] B.L.R. 1 (HC), O'Brien Quinn CJ Possession of stolen property Possession of property stolen outside Botswana contrary to s. 320 of Penal Code Sufficient to prove property in accused's possession at some stage - Penal Code (Cap. 08:01), s. 320. MODISAEMANG v. THE STATE [1993] B.L.R. 167 (HC), Mokama CJ Possession of suspected stolen property Proof of Account given of how accused came to be in possession of goods - It is tribunal before which accused is brought which must be satisfied as to account - Penal Code (Cap. 08:01) section 318. NCHINDO v. THE STATE [1997] B.L.R. 519 (HC), Dibotelo J Reasonable suspicion - Admission of this element by accused - Plea of guilty - Whether accused can admit to facts not within his personal knowledge - Penal Code (Cap. 08:01), s. 318. NCHINDO v. THE STATE [1996] B.L.R. 927 (HC), Levy AJ Principles applicable to self Defence and provocation. STATE v. BENJAMIN GEORGE SEKGOBOKGOBO 1972 (2) B.L.R. 71 (HC), Aguda CJ Principles of liability Causation Test for - Omission - Mother of newly born baby failing to raise alarm after leaving baby in pit latrine. MMOLAI v. THE STATE [1997] B.L.R. 743 (CA), Aguda, Schreiner and Lord Allanbridge JJ.A Provocation What constitutes Adultery. STATE v. GAKE [1994] B.L.R. 406 (HC), Gyeke - Dako J Public order offences Unlawful procession Taking part in unlawful procession in contravention of Public Order Act - Evidence required that procession took place in controlled area - Public Order Act (Cap. 22:02), s.6(b). BADI and Others v. THE STATE [1997] B.L.R. 538 (HC), Aboagye J Rape Attempted rape Accused placing his penis between thighs of six - year - old girl - Accused ejaculating thereby - Intention to rape girl - Charge of attempted rape inappropriate - Appropriate charge - Indecent assault - Penal Code (Cap. 08:01) (1973 Rev.), s. 146. STATE v. LEPIRITWA [1985] B.L.R. 598 (HC), O'Brien Quinn CJ Charge Where complainant a minor - Proper charges to be preferred where consent involved - Penal Code (Cap 08:01) ss 141, 142, 147. BOITUMELO v. THE STATE [2005] 1 B.L.R. 317 (HC), Chinhengo J Complainant witness Credibility of - Test applied in assessing credibility set out - Complainant's evidence requiring corroboration which inconsistent with innocence of accused. SEREMILWE v. THE STATE [2005] 2 B.L.R. 223 (CA), Korsah, Zietsman and Grosskopf JJA Consent Girl under 16 - Prosecution to prove physical resistance or lack of understanding to decide whether to consent or resist - Whether girl of tender age capable of understanding and having knowledge to decide whether to consent or resist. MPOLOKA v. THE STATE [1986] B.L.R. 254 (HC), O'Brien Quinn CJ Corroboration Doctor examining complainant finding evidence of forced sexual act - Such constituting corroboration. BOITUMELO v. THE STATE [1993] B.L.R. 281 (CA), Amissah JP, Bizos JA, Schreiner JA Corroboration of compainant False statement by the accused. REGINA v. MASOPA MASOPA 1964 - 1967 B.L.R. 125 (HC), Weston CJ Cautionary rule required in sexual cases - Court to decide whether complainant credible witness and whether complainant's story corroborated - Cautionary rule not binding on courts as rule of law - Discriminatory assumptions underlying origins of cautionary rule not having basis in fact and doubt that they would pass test of compliance with equality provisions of Botswana Constitution. NTLOYAKHUMO and Another v. THE STATE [2004] 2 B.L.R. 269 (HC), Molokomme J Defences Consent - Complainant and accused intoxicated at time of alleged commission of offence - Lack of consent not proved by State because complainant unable to remember whether she consented or not and accused not remembering act at all - Accused entitled to acquittal. MADIMELE v. THE STATE [2005] 2 B.L.R. 150 (HC), Kirby J Consent - Complainant removing own clothing - Not inconsistent with use of force or threat of it. BOITUMELO v. THE STATE [1993] B.L.R. 281 (CA), Amissah JP, Bizos JA, Schreiner JA HIV test before sentencing HIV test done seven days after offence committed - Accused found to be HIV positive - State arguing that judicial notice to be taken of fact that it taking more than seven days after person having become HIV positive before test would provide positive result - Circumstances in which judicial notice may be taken of fact set out - Judicial notice not applicable in circumstances. DIRELANG v. THE STATE [2005] 2 B.L.R. 211 (CA), Korsah, Zietsman and Lord Coulsfield JJA Ingredients of offence Penetration - Slightest penetration sufficient to constitute offence - No proof of emission required. STATE v. MOTHATEGO [1985] B.L.R. 303 (HC), Murray J Sexual intercourse - Penetration - Lack of consent - Examination of vaginal swab of complainant - Absence of spermatozoa in vagina - Whether disproving rape. MOLEFI v. THE STATE [2000] 2 B.L.R. 471 (HC), Nganunu CJ Presence of spermatozoa not essential to prosecution's case Proof of penetration sufficient. STATE v. MODISAOTSILE [1993] B.L.R. 102 (HC), Gyeke - Dako J Proof of Corroboration - Fact of a report having been made not necessarily constituting corroboration - Complainant's distressed state in instant case where there were some unanswered questions about the circumstances of the alleged crime not sufficiently corroborative. BOIKOTLHAO v. THE STATE [2001] 2 B.L.R. 642 (HC), Marumo J Corroboration - Independent testimony could be furnished by someone who is a friend of the complainant. ENGLISHMAN v. THE STATE [1997] B.L.R. 439 (HC), Aboagye ACJ Corroboration - Time within report should be made - Court to have regard to all circumstances of case in determining reasonable time. MOLATEDI v. THE STATE [2004] 1 B.L.R. 393 (HC), Gaongalelwe J Corroboration of intercourse - Complainant's anxious state when making a report. NTALETSANG v. THE STATE [2004] 1 B.L.R. 329 (HC), Chinhengo J Corroboration of intercourse - Effect of false alibi. NTALETSANG v. THE STATE [2004] 1 B.L.R. 329 (HC), Chinhengo J Evidence of complainant - Discrediting of - Fact that complainant's clothes not torn not discrediting complainant's evidence that intercourse not consensual. ENGLISHMAN v. THE STATE [1997] B.L.R. 439 (HC), Aboagye ACJ Recent complaint - Does not corroborate complainant's evidence - May however be corroborative of credibility of complainant as showing consistency - Failure of complainant to report rape to first persons she met after rape not per se detracting from her credibility - This even more so where complainant believed that such persons would not offer her any succour. MOMPATI v. THE STATE [1995] B.L.R. 258 (HC), Gyeke - Dako J Sentence Committal for sentence in High Court where act of rape accompanied by violence resulting in injury to victim - Nature of violence - Violence must be violence other than the violence which is the inherent violence of rape itself - Penal Code (Cap 08:01), ss 141, 142 as amended by Act 5 of 1998. STATE v. SEJO [2002] 1 B.L.R. 488 (HC), Collins J Factors affecting - Prevalence of AIDS - Statement by magistrate that rape was potentially fatal activity - No evidence that parties infected with AIDS - Mitigating factors present - Sentence excessive in the light of mitigating circumstances. NATO v. THE STATE [1996] B.L.R. 567 (HC), Nganunu J Gang rape - Severe sentences called for - When mandatory minimum sentence to be imposed - Penal Code (Cap 08:01) s 142(1), (2), (4). NONANE v. THE STATE [2004] 2 B.L.R. 461 (HC), Chinhengo J If rape attended by violence resulting in injury to victim, minimum sentence of 15 years' imprisonment to be imposed - Evidence showing accused's violence at time of rape resulting in injury to victim - Minimum sentence imposed. MOTSAMAI v. THE STATE [2005] 2 B.L.R. 279 (CA), Tebbutt JP, McNally and Lord Coulsfield JJA Legislature considering rape so grave an offence that it punishable by life imprisonment and corporal punishment and subject to statutory minimum sentence of 10 years - Trial court entitled to hold that appropriate sentence to be enhanced beyond minimum base which law allowing depending on circumstances of case. MOGAPI v. THE STATE [2004] 2 B.L.R. 76 (CA), Zietsman, Akiwumi and Moore JJA Rape of a young girl - Incidence of crime and age of victim calling for stern measures from court. KEBOPETSWE v. THE STATE [2004] 1 B.L.R. 440 (CA), Tebbutt JP, Plewman and Lord Sutherland JJA Sentence of 10 years' imprisonment minimum able to be imposed - Accused not detained while awaiting trial and sentence backdated to date of conviction - Sentence not able to be reduced. LEKGELA v. THE STATE [2005] 2 B.L.R. 249 (CA), Korsah, Zietsman and Grosskopf JJA Sentencing Effect of HIV - Upon conviction for rape, trial magistrate ordering accused to undergo HIV test - Test showing accused HIV positive and liable to minimum sentence of 15 years - Precondition for invoking minimum sentence being imposed is that it be shown that accusing having HIV at time of commission of offence - Where no evidence to show this, appropriate sentence 10 years. STATE v. SEITHAMO [2003] 1 B.L.R. 147 (HC), Lisimba J Violence accompanying rape Mandatory minimum sentence - Violence to be attendant to rape as separate and distinguishable act of violence causing injury - Penal Code (Cap 08:01), s 142(2). IKAKANYENG v. THE STATE [2004] 2 B.L.R. 414 (HC), Chinhengo J What constitutes Intercourse per anum - Penal Code (Cap 08:01), s 141. CHANDA v. THE STATE [2004] 1 B.L.R. 285 (HC), Waila J Receiving Stolen Property Section 316 of the Penal Code - Enlarges Common Law Offence Charge of receiving property knowing it to have been stolen - Evidence that accused had reason to believe it to have been unlawfully obtained after he had received it - Onus of proof on the Crown where no statutory provision to the contrary. REGINA v. ABDUL CARRIM KHAN 1964 - 1967 B.L.R. 83 (HC), Roper ACJ Receiving stolen stock Interpretation of section 219 of the Penal Code Alternative Charges Effect of section 158 of the Criminal Procedure and Evidence Proclamation (Chapter 18) - Charge uncertain and void for duplicity - Form of Charges to be adopted in contraventions of section 319. MMIRWA SENAMOLELA v. REGINA 1964 - 1967 B.L.R. 89 (HC), Weston CJ 'Reckless' driving what constitutes STATE v. JOSEPH JONAS 1971 (1) B.L.R. 21 (HC), Young CJ Reckless or negligent driving Duty of driver cutting into a stream of traffic to take special care. LETEANI v. THE STATE 1968 - 1970 B.L.R. 40 (HC), Dendy Young CJ Section 35 of Cap. 168 A finding of reckless and negligent driving incompetent - Negligence. REGINA v. JOHANNES RANTAU 1964 - 1967 B.L.R. 149 (HC), Weston CJ Recklessness and negligence Meaning of `reckless' Charge of criminal recklessness and negligence - Firing of loaded gun in crowded village intending to kill a beast - Stray bullet from gun injuring victim - Whether reckless and negligent act - Penal Code (Cap. 08:01) (1973 Rev.), s. 244. CHABAESELE v. THE STATE [1986] B.L.R. 375 (HC), O'Brien Quinn CJ Resisting arrest Appellants fighting in public place Constables attempting to arrest appellants - Appellants threatening constables with knife - Whether appellants' action offence - Penal Code (Cap. 08:01) (1973 Rev.). KGOSIEMANG and Another v. THE STATE [1989] B.L.R. 12 (HC), Livesey Luke CJ Robbery Armed robbery Sentence - Increasing occurrence of and need for severe punishment noted. MAPHORISA and Others v. THE STATE [1996] B.L.R. 133 (CA), Amissah P, Schreiner JA and Tebbutt JA Defence Claim of right - Complainant allegedly robbed by appellants - Whether a claim of right a defence to a charge of robbery - Penal Code (Cap. 08:01) (1973 Rev.), s. 296. THEBE and Another v. THE STATE [1989] B.L.R. 167 (HC), Livesey Luke CJ Claim of right - Complainant beaten, stabbed and robbed - Intention of obtaining money being revenge - Complainant not owing money to appellants - Whether defence of right to claim available to appellants. THEBE and Another v. THE STATE [1989] B.L.R. 167 (HC), Livesey Luke CJ Ingredients of offence Person stealing anything - Using or threatening to use actual violence to any person or property in order to steal - Whether spraying of noxious substance into eyes of another constituting use of `actual violence' - Penal Code (Cap. 08:01), ss. 291 and 292. GEORGE and Another v. THE STATE [1999] 1 B.L.R. 379 (CA), Tebbutt J, Korsah J and Kumleben JA Violence immediately before, during or after commission of theft - Intention to deprive victim of possessions - Appellant tripping complainant and dispossessing her of bag - Appellant taking complainant's bag into bushes and inviting complainant to follow - Whether evidence pointing to offence of robbery - Penal Code (Cap. 08:01), s. 292. OMAR v. THE STATE [1998] B.L.R. 237 (HC), Dow J Robbery with violence Common assault - Breaking into restaurant - Stealing of goods therein - Whether offence of robbery committed. STATE v. RABASEJE and Another [1985] B.L.R. 328 (HC), O'Brien Quinn CJ Sentence Effect of amendment to section 292 of Penal Code brought about by Penal Code (Amendment) Act, 1993 STATE v. MAPHORISA and Others [1995] B.L.R. 568 (HC), Gyeke - Dako J What constitutes Appropriation of a radio in presence of legal possessor - Accused armed with a shot gun - At the stage at which he appropriated the radio he was not actually pointing the firearm at any person - Mere fact of his barging into the premises armed with a gun sufficient to justify finding of robbery. GABAAKANYE v. THE STATE [1994] B.L.R. 17 (CA), Amissah JP, Aguda JA, Schreiner JA Armed robbery in contravention of s 291 read with s 292(2) of the Penal Code (Cap 08: 01) - Use of toy gun - Not a dangerous weapon and insufficient for purposes of offence. SOKWE v. THE STATE [2002] 1 B.L.R. 308 (HC), Mosojane J Distinguished from theft - Use of violence - Use of spray with noxious substance such as chillies sufficient for purposes of ss. 291 and 292 of Penal Code. GEORGE and Another v. THE STATE [1997] B.L.R. 856 (HC), Nganunu CJ Infliction of injury to victim not a requirement - Penal Code (Cap 08:01), s 291. ATTORNEY - GENERAL v. KEGASITSWE and Another [2002] 1 B.L.R. 55 (CA), Tebbutt AJP, Zietsman and Sutherland JJA Infliction of violence not required to be in respect of person in possession of goods - Penal Code (Cap 08:01), s 291. MABUTHO v. THE STATE [2002] 1 B.L.R. 67 (CA), Tebbutt AJP, Plewman and Sutherland JJA Not necessary to prove that violence used by assailants resulting in injury to complainants - Appellant using force to retain what stolen - Appellant falling within ambit of s 291 of Penal Code (Cap. 08:01) and correctly convicted of robbery. MOKONE and Another v. THE STATE [2003] 2 B.L.R. 225 (HC), Molokomme J Robbery in contravention of s 291 read with s 292(2) of the Penal Code (Cap 08:01) - Nature of threat - The threat had to be one of immediate violence - Whether applicant's implied threat with gun - like object and the brandishing of a replica toy gun by his accomplice which occurred respectively immediately before and after the taking of the money, constituted threats of actual violence. SOLOMON and Another v. THE STATE [2002] 1 B.L.R. 273 (HC), Kirby J Theft of goods - Whether security guard guarding store the special owner or general owner of the goods in question within the meaning contemplated by s 2 and s 64(1) and (2) of the Penal Code (Cap 08:01). SIBANDA and Another v. THE STATE [2002] 1 B.L.R. 194 (HC), Mwaikasu J STATE v. MAPHORISA and Others [1995] B.L.R. 568 (HC), Gyeke - Dako J Robbery with violence Common assault Distinction between the two - Penal Code (Cap. 08:01)(1973 Rev.), ss. 254 and 296. STATE v. BALIKI and Another [1983] B.L.R. 156 (HC), O'Brien Quinn CJ Rough and uncut precious stones Possession Unlawful possession - Meaning of unlawful possession - Mens rea - Degree of mens rea required - Some knowledge of being in possession of prohibited thing - Appellant found in possession of parcel containing rough and uncut precious stones - Appellant alleging lack of knowledge of contents of parcel - Attempt to get rid of parcel when confronted by police - Whether defence of lack of knowledge of contents of parcel sustainable - Precious and Semi - Precious Stones (Protection) Act (Cap. 66:03) (1973 Rev.), s. 6. MPOFU v. THE STATE [1986] B.L.R. 351 (HC), Barrington - Jones J Proof of possession Joint possession - Co - accused having pleaded guilty to offence and having already been convicted thereof - Joint possession possible - Precious and Semi - Precious Stones Act (Cap. 66:03), s. 6(1). RAMOKGWANA v. STATE [1996] B.L.R. 455 (HC), Aboagye J Sentence Diamonds of little value - Precious and Semi - Precious Stones Act (Cap. 66:03), s. 6(1). RAMOKGWANA v. STATE [1996] B.L.R. 455 (HC), Aboagye J Unlawful possession Physical and mental element - Appellant found with packet containing rough and uncut precious stones - Rebuttable presumption on appellant having knowledge of contents of packet - Burden on appellant to prove lack of knowledge of contents of packet being precious stones - Precious and Semi - Precious Stones (Protection) Act (Cap. 66:03) (1973 Rev.) ss. 6 (1) (c) and 22. MOTSHWARAKGOLE v. THE STATE [1988] B.L.R. 68 (HC), Livesey Luke CJ Unlawful possession of diamonds - Sentence. STATE v. G IKANYENG 1974 (1) B.L.R. 98 (HC), Aguda CJ Unlawful possession of rough or uncut diamonds - Meaning of `possession'. STATE v. MAFUTAKA 1979 - 1980 B.L.R. 31 (HC), Edwards J Rough or uncut precious stones Possession Appellant found in possession of rough and uncut precious stones - Appellant alleging holding stones on behalf of another - Whether appellant in possession of stones - Penal Code (Cap. 08:01) (1973 Rev.), s. 5. MPOFU v. THE STATE [1986] B.L.R. 351 (HC), Barrington - Jones J Section 3 of Stock Theft Act Explanation of possession by Accused which might reasonably be true. SEROLE v. STATE 1976 B.L.R. 82 (HC), Isaacs AJ Section 39 of Penal Code Threatening the security of Botswana How proved. STATE v. BEYLEVELD (II) 1978 B.L.R. 59 (HC), Edwards J Section 316 of the Penal Code Receiving stolen property Degree of guilty knowledge of theft necessary. BLIND TOTENG v. THE STATE 1968 - 1970 B.L.R. 14 (HC), Maisels ACJ Section 317 of the Penal Code Requirements of offence. STATE v. MOITUMELO MOLEFE 1968 - 1970 B.L.R. 100 (HC), Dendy Young CJ Section 324 of the Penal Code (cap. 08:01) Evidence disclosing an offence other than offence charged Necessity to amend charge. Defence of alibi. SIMON RAMONTSHO v. THE STATE 1982 (1) B.L.R. 152 (HC), O'Brien Quinn CJ Section 4 Cap 109, buying cattle without licence issued under Cap 109 Meaning of `own use' in Section 4 Cap 109 ARCHIE SOLOMON v. THE STATE 1968 - 1970 B.L.R. 106 (HC), Dendy Young CJ Security or sovereignty of Botswana Threat of Uniform of armed forces of foreign country - Possession - Soliciting or procuring others to commit offence - Accused found in possession of uniform of armed forces of foreign country without lawful authority - Accused leaving box containing uniform with another person - Concealment of uniform - Whether accused threatened security or sovereignty of Botswana - Penal Code (Cap. 08:01) (1973 Rev.), ss. 5, 40A (1) (a) and 395. STATE v. VIVIER and Others (No 2) [1988] B.L.R. 371 (HC), Livesey Luke CJ Self Defence Onus of proof Accused hitting deceased's head on ground causing fatal injuries - Onus on prosecution to negative self - defence - Accused aggressor - Deceased defenceless and succumbing to blows from accused - Whether defence of self - defence sustainable. STATE v. NGWAKO [1989] B.L.R. 152 (HC), Gyeke - Dako J Sentence Appeal When appeal court will interfere with sentence - Misdirection by trial magistrate - Effect of. TOTENG v. THE STATE [1994] B.L.R. 188 (HC), Gyeke - Dako J Corporal punishment Housebreaking or burglary - Enactment providing person contravening provision of enactment `liable' to term of imprisonment `with or without corporal punishment' - Subsequent amendment of enactment Providing person contravening provision of enactment `liable' to term Of imprisonment `with corporal punishment' - Appellant charged and convicted after amendment of enactment - Wether corporal punishment mandatory - Penal Code (Cap. 08:01) (1973 Rev.), s. 305 - Penal Code (Amendment) Act 1982 (No. 20 of 1982), s. 6. TLOUNYANE v. THE STATE [1989] B.L.R. 552 (CA), Doyle MA, Bizos MA, Schreiner JA Imposition under Penal Code - Discretionary or mandatory - Enactment providing person contravening provision of enactment `liable' to term of imprisonment `with or without corporal punishment' - Subsequent amendment of enactment providing person contravening provision of enactment `liable' to term of imprisonment' with corporal punishment' - Effect of deletion of words `or without' - Whether imposition of corporal punishment discretionary or mandatory - Penal Code (Cap, 08.01) (1973 Rev.), ss. 235 and 305 - Penal Code (Amendment) Act, 1982 (No. 20 of 1982). RE ATTORNEY - GENERAL'S SUBMISSION; STATE v. DINOKO [1989] B.L.R. 619 (CA), Amissah P, Aguda JA, Doyle JA, Schreiner JA, Puckrin JA Imposition of corporal punishment Whether mandatory or discretionary on accused being sentenced to imprisonment whether portion of sentence suspended or not - Penal Code (Cap. 08:01) (1973 Rev.), s. 305(1). PETRUS and Another v. THE STATE [1984] B.L.R. 14 (CA), Maisels P, Baron JA, Aguda JA, Amissah JA, Kentridge JA Sexual offences Defilement Complainant 12 years of age - Admission of sexual intercourse by appellant - Appellant alleging complainant being his girlfriend and consented to act of sexual intercourse - Denial by complainant of being appellant's girlfriend or consenting to act - Complainant stating having been hurt between her legs - Medical evidence disclosing complainant's hymen partly present - Whether offence of defilement of girl under 16 years committed - Penal Code (Cap. 08:01) (1973 Rev.), s. 147. MASUPATSELE v. THE STATE [1987] B.L.R. 96 (HC), O'Brien Quinn CJ Incest by males Prosecution - Consent of Attorney - General required to institute prosecution - Consent not obtained - Whether trial a nullity - Penal Code (Cap. 08:01) (1973 Rev.), ss. 168(1) and 171. STATE v. NGWAKO [1984] B.L.R. 156 (HC), O'Brien Quinn CJ Sodomy Punishment - Need to increase maximum sentence prescribed - Penal Code (Cap. 08:01) (1973 Rev.), s. 164(a). STATE v. RANTOROBANE [1985] B.L.R. 37 (HC), O'Brien Quinn CJ Shop breaking and theft Accused in possession of a very small part of the stolen property five days after the shop breaking - inference to be drawn, doctrine of recent possession. STATE v. KGOTLE MOSHE 1982 (2) B.L.R. 91 (HC), Hannah J Statutory offence Possession of elephant tusks Found in possession - Meaning of in section 68(2) of the Wildlife Conservation and National Parks Act 28 of 1992. STATE v. AKUJE [1994] B.L.R. 475 (HC), Gyeke - Dako J Statutory offences Unlawful making of threat What constitutes - Policeman threatening person whom he had arrested and who was attempting to escape - Penal Code (Cap 08:01) s 220(1). MOLEFI v. THE STATE [2004] 1 B.L.R. 49 (CA), Korsah, Zietsman and Grosskopf JJA Stealing Ingredients of offence Charge of conversion of part of money received by appellant - Failure of prosecution to prove appellant receiving money and converting whole or any part of it - Effect. TOTO v. THE STATE [1990] B.L.R. 440 (HC), Livesey Luke CJ Stealing by agent Ingredients of offence Conversion and asportation - When asportation essential element of offence - Penal Code (Cap. 08:01), s. 264(1). STATE v. PILANE [1990] B.L.R. 669 (HC), Gyeke - Dako J Stealing from motor vehicle Charge of Elements of offence - Goods to be stolen from vehicle used for conveyance or custody of goods in transit - Wheels stolen not goods consigned to be transported - Whether proper to charge accused with stealing from motor vehicle - Penal Code (Cap. 08:01),s. 275(c). KEPALETSWE v. THE STATE [1990] B.L.R. 554 (HC), Aboagye J Stock theft Application for leave to appeal Leave granted. THUSO RANKHUDUNYANA v. THE STATE 1982 (1) B.L.R. 156 (HC), Hannah J Compensatory Fine. STATE v. ELIAS SENNINGIBEDE 1968 - 1970 B.L.R. 29 (HC), Dendy Young CJ Compensation Stolen cattle sold by thief. STATE v. DAVID MOLEFE 1968 - 1970 B.L.R. 49 (HC), Dendy Young CJ Desirability of uniformity of sentence Principles of assessing punishment discussed. STATE v. MANYOWE JACK 1982 (1) B.L.R. 193 (HC), O'Brien Quinn CJ Elements of offence Possession of stock - Reasonable suspicion of stock having been stolen - Accused failing to give satisfactory account of possession - No onus on accused to prove anything but obliged to give trial court `a satisfactory account of such possession'' - Determination of issue of satisfactory account matter for trial court - Stock Theft Act (Cap. 09:01) (1973 Rev.), s. 3. KEBOLETSE v. THE STATE [1984] B.L.R. 280 (CA), O'Brien Quinn CJ, Baron JA, Aguda JA Possession of stock - Reasonable suspicion of stock having been stolen - Explanation of possession by accused - Trial magistrate stating explanation possibly true but not convinced by it - Onus on State to prove beyond reasonable doubt - Whether misdirection by trial court - Stock Theft Act (Cap. 09:01) (1973 Rev.), s.3. SEBETELA v. THE STATE [1987] B.L.R. 134 (HC), Murray J Forfeiture Appellant charged with stock theft - Trial court finding no evidence that appellant fraudulently branded cattle - Nobody else claiming ownership of cattle - Court ordering forfeiture of cattle - Whether trial court erred in ordering forfeiture. JOSEPH v. THE STATE [2000] 1 B.L.R. 93 (CA), Aguda J, Tebbutt J and Lord Weir JA Inability of Accused to give satisfactory account of his possession of stock reasonably suspected of having been stolen STATE v. OLEFULA 1968 - 1970 B.L.R. 281 (CA), Schreiner JP, Maisels JA, Milne JA Ownership of cattle Identification of cattle - Judicial notice taken of fact that herdboys able to identify cattle. MOSARWA v. THE STATE [1993] B.L.R. 348 (HC), Mokama CJ Possession of stock reasonably suspected of having been stolen. STATE v. RAMONTSHONYANE 1974 (2) B.L.R. 46 (HC), Rooney J Possession of suspected stolen stock Nature of offences and presumptions created by ss 3 and 4 of Stock Theft Act (Cap 09:01). PALAI v. THE STATE [2004] 2 B.L.R. 495 (HC), Marumo J Proof of Requirement that there be proof of ownership of stock either by the general or special owner thereof - Stock Theft Act (Cap. 09:01), s. 2, s. 3(1), Penal Code (Cap. 08:01), s. 263(3), 264(2). KEOBOKILE v. THE STATE [2001] 2 B.L.R. 696 (HC), Mwaikasu J Receiving stolen stock Accused charged with receiving stock knowing or believing same to be stolen - Conviction of lesser offence of receiving stolen stock without having reasonable cause for believing in bona fide acquisition of stock by seller - Onus on person receiving stolen stock to prove bona fide acquisition of stock by seller - Accused giving evidence of having no reasonable cause for believing stock to be stolen - Failure of prosecution to rebut accused's evidence - Whether conviction proper - Stock Theft Act (Cap. 09:01) (1973 Rev.), s. 4. MOSANANA v. THE STATE [1985] B.L.R. 29 (HC), Hannah J Receiving stock reasonably suspected to have been stolen without being able to give a satisfactory account of possession `Found' in possession `Reasonably suspected'. STATE v. RAPULA SELLO 1975 (1) B.L.R. 73 (HC), Rooney J Section 3 of Stock Theft Proclamation creates subjective offence and not a presumption of theft. STATE v. MOAGI and Another 1968 - 1970 B.L.R. 198 (HC), Dendy Young CJ Section 4 of Stock Theft Act. STATE v. GADILESWE TEKAE 1971 (2) B.L.R. 64 (HC), Rooney ACJ Sentence Compensation. STATE v. MANTHE 1968 - 1970 B.L.R. 239 (HC), Dendy Young CJ Imprisonment - Imposition of consecutive sentences - When competent - Stock Theft Act (Cap 09:01), s 3(1), (5). KEOSALETSE v. THE STATE [2004] 1 B.L.R. 409 (HC), Chinhengo J Subsequent offences - Minimum period of imprisonment - Stock Theft Act (Cap 09:01), s 3. MAPOTSANE v. THE STATE [2003] 1 B.L.R. 512 (HC), Lesetedi J Sentence STATE v. XEXEE XOMA and Another 1968 - 1970 B.L.R. 34 (HC), Dendy Young CJ Stolen stock Identification of - In case of calves alleged to have been stolen - Desirable to bring stolen calves together with their mothers to see whether calves will identify with mothers - Where stolen stock properly and adequately identified by witnesses, such identification not flawed because of absence of bringing calves together with their mothers - Stock Theft Act (Cap 09:01), s 3(1). HARRISON v. THE STATE [2003] 1 B.L.R. 584 (HC), Lesetedi J Suspected stolen stock Proof of being in possession of such stock - Presumption of being guilty of stealing stock - Whether presumption ultra vires the Constitution s 10(2)(a) - Stock Theft Act (Cap. 09:01), s 4(a). ATTORNEY - GENERAL v. OTLHOMILE [2004] 1 B.L.R. 21 (CA), Tebbutt JP, Korsah, Zietsman, Lord Sutherland and Grosskopf JJA Stolen property Possession Charge of being found in possession of suspected stolen property contrary to Cap. 08:01, s. 322 - Requisites constituting offence - Appellant not found in possession of alleged stolen vehicle - Vehicle registered in appellant's name - Knowledge or belief on part of appellant not an essential ingredient - Prosecution to prove possession, suspicion on part of peace officer of the vehicle having been stolen or unlawfully obtained and unsatisfactory explanation from suspect - Difference between `found in possession' and `being in possession' - Whether appellant `found in possession' of stolen property - Penal Code (Cap. 08:01) (1973 Rev.), ss. 5 and 322. MORUTI v. THE STATE [1990] B.L.R. 89 (HC), Gyeke - Dako J Company - Charge of being found in possession of suspected stolen property contrary to Cap. 08: 01, s. 322 - Alleged stolen property not found in possession of company - Whether charge sustainable - Penal Code (Cap. 08: 01) (1973 Rev.), s. 322. STATE v. BE - CORNER COMPLEX (PTY) LTD [1992] B.L.R. 230 (HC), Gyeke - Dako J Conviction of appellant of being in possession of motor vehicle knowing and having reason to believe same to have been stolen outside Botswana - Identification of vehicle - Owner identifying vehicle by common place features not peculiar to particular vehicle alleged to have been stolen - Failure to produce documentary evidence of ownership of vehicle and evidence of engine number and chassis number - Whether safe to rely on features described in identifying vehicle as being stolen vehicle subject matter of charge. JOHANA MODISE v. THE STATE [1988] B.L.R. 85 (HC), Livesey Luke CJ Three motor cars alleged to have been stolen outside Botswana - Appellants found in possession - Denial by first appellant of knowledge of cars having been stolen - First accused alleging acting as agent of M. to dispose of cars - Second accused denying ever been in possession of cars - Police unable to trace M. - Appellants while negotiating for sale of vehicles saw police coming and attempted to run away - Police preventing them and arresting them - Whether cars stolen property - Whether first appellant in possession of vehicles without having knowledge of cars having been stolen - Whether second appellant ever in possession of vehicles. BOKETE and Another v. THE STATE [1985] B.L.R. 435 (HC), Hannah J Receiving stolen property Charge of receiving stolen property knowing it to have been stolen - Plea of guilty to charge - Admission of receiving stolen property suspecting it to be stolen property - Whether plea to charge unequivocal - Whether mere suspicion of property having been stolen sufficient to constitute mental element of receiving stolen property knowing it to have been stolen - Penal Code (Cap. 08:01), s. 317(1). STODDART v. THE STATE [1990] B.L.R. 371 (HC), Livesey Luke CJ Vehicle stolen from outside Botswana - Appellant found driving vehicle - No registration number on vehicle - Appellant alleging having obtained vehicle from A.B. - Police unable to trace A.B. - Whether appellant received vehicle knowing same to have been stolen. MOLEFHE v. THE STATE [1985] B.L.R. 442 (HC), Maisels P, Baron JA, and Van Winsen JA Recent possession Appellant found in possession of stolen property - Failure to satisfactorily explain possession of property - Whether doctrine of recent possession applicable. KWALO v. THE STATE [1986] B.L.R. 71 (HC), Barrington - Jones J Strict liability Statutory offence Failure to declare dutiable goods - No duty payable at time of importation - Whether any offence committed - Customs and Excise Duty Act (Cap 50:01) (1973 Rev.), s. 85. MAJIEK v. THE STATE [1983] B.L.R. 12 (HC), O'Brien Quinn CJ. Taking part in a riot in contravention of Section 75 of the Penal Code Essentials of Offence. STATE v. MOTHOLOSI and Others 1968 - 1970 B.L.R. 382 (HC), Dendy Young CJ Tests to be applied in deciding extenuating circumstances. S. 205 (1 ) and S. 205 (2) considered concerning the question as to when the crime of murder may be reduced to the crime of manslaughter. KEBONYE BAOTELENG v. THE STATE 1972 (2) B.L.R. 82 (CA), Schreiner P, Maisels JA, Milne JA Theft `General Deficiency' STATE v. SAMUEL MOATSHE 1968 - 1970 B.L.R. 400 (HC), Young CJ `Recent possession'. NDLOVU v. STATE 1977 B.L.R. 43 (HC), Edwards J Charge Accused charged with attempt to steal from motor vehicle contrary to section 280(c) of Cap. 08:01 - Charge under Cap. 08:01, s. 280(c) applicable only to theft of goods consigned for transport in vehicle or being transported therein - Penal Code (Cap. 08:01) (1973 Rev.), s. 280(c). STATE v. THAMAGE [1985] B.L.R. 35 (HC), O'Brien Quinn CJ Charge under Cap. 08:01 s. 280(c) When charge applicable - Charge applicable to stealing of goods in various states of transit whether the carrier be the owner or not - Charge inapplicable to accessories or parts of carrier's own vehicle stolen from his vehicle - Penal Code (Cap. 08:01) (1973 Rev.), s. 280(c). MOTSWIRI v. THE STATE [1984] B.L.R. 286 (CA), O'Brien Quinn CJ, Aguda JA, Kentridge JA When charge applicable - Applicable only to theft of goods entrusted to carrier for transportation and in possession of special owner for carriage or custody - Penal Code (Cap. 08:01) (1973 Rev.), s. 280(c). MASALILA v. THE STATE [1984] B.L.R. 215 (HC), O'Brien Quinn CJ Cheques Employee drawing cheques on employer's bank and depositing cheques with drawee bank - Withdrawal of money from cheques deposited in drawee bank - Interception of cheques cleared by drawee bank before being debited to employee's account at employer's bank - Charges of stealing by servant - Charges not being supported by statement of facts - Conviction on plea of guilty - Whether any offence committed. DITHLABI v. THE STATE [2001] 1 B.L.R. 424 (HC), O'Brien Quinn CJ Defence Intoxication - Plea of guilty to charge of theft - Duty of court where defence of intoxication raised - Determination as to whether accused deprived of capability of forming intention permanently to deprive - Failure to make determination - Plea of guilty not to be taken as unequivocal - Penal Code (Cap. 08:01) (1973 Rev.), ss. 14 and 269. MOKGALAGADI v. THE STATE [1985] B.L.R. 48 (HC), Hannah J Defences Accused taking money in belief he was entitled to do so - Accused not acting fraudulently or without claim of right made in good faith - Animus furandi not proved. STATE v. KGOMELA [1993] B.L.R. 140 (HC), Gyeke - Dako J Evidence Whether sufficient evidence adduced to prove appellant's guilt. MAPHANE v. THE STATE [1991] B.L.R. 60 (HC), Gyeke - Dako J Fraudulent conversion without physical control of stolen goods. DISANG v. STATE 1977 B.L.R. 40 (HC), Edwards J Of insurance premiums paid to insurance agent but not accounted for to his principal. STATE v. PINSHAW 1981 B.L.R. 238 (HC), Hannah J Of motor vehicle Competent verdicts - Unauthorized borrowing of motor vehicle - Such separate offence under s 290 of Penal Code. PHOLO v. THE STATE [2005] 1 B.L.R. 228 (HC), Chinhengo J Proof Appellant allegedly stealing refrigerator from office - Appellant's contention of having right to remove fridge from office and intending to return it - Onus on State to negative appellant's statement and prove appellant intending to permanently deprive owner of fridge - Failure to negative statement - Effect. KESIMOLOTSE v. THE STATE [1991] B.L.R. 279 (CA), Amissah P, Bizos JA, and Schreiner JA Proof of Doctrine of recent possession - Stolen goods found in possession of accused between two and three days after they had been stolen - Period sufficiently short to be capable of recent possession. MONNANYANA v. THE STATE [2001] 2 B.L.R. 309 (CA), Lord Weir, Sir John Blofeld and Grosskopf JJA Fraudulent intention Appellant taking money from employer's safe - Alleging money taken for third parties to pray over - Having intention to return money - Third parties disappearing with money - Whether fraudulent intention presumed to exist - Penal Code (Cap. 08:01), s. 264 (2)(e). RANKGATHI v. THE STATE [2001] 1 B.L.R. 495 (HC), Lesetedi J Sentence Vehicle theft contrary to section 271 of Penal Code (Cap. 08:01) - Maximum sentence for first offender - Whether sentence excessive. JOHNSON v. THE STATE [1996] B.L.R. 636 (HC), Aboagye J Stealing by servant contrary to provisions of s. 277 of Penal Code (Cap. 08:01) and fraudulent false accounting in contravention of s. 324 of the Penal Code Sentence - Appellant an employee of building society having stolen amount of P350 and made fraudulent false accounting entries in respect of sum of P10,875 - Imposition of fines of P300 and P500 plus wholly suspended imprisonment grossly and manifestly perverse. MOTSWAGOLE v. THE STATE [1997] B.L.R. 761 (CA), Aguda, Steyn and Lord Cowie JJA Taking Meaning of `taking'' - Penal Code (Cap. 08:01) (1973 Rev.), s. 269. MAHLAJE v. THE STATE [1983] B.L.R. 294 (HC), Hannah J Theft by servant Bank employee - Transfer of money from one account to another by bank employee - Effect of transfer clearance of indebtedness of customer - Ownership of money remaining in the bank regardless of account to which money transferred or credited - Whether employee effecting transfer guilty of theft - Penal Code (Cap. 08:01), ss. 271 and 277. SABONE v. THE STATE [2001] 1 B.L.R. 538 (HC), Nganunu J Theft from conveyance in terms of Section 280 (c) of the Penal Code. TSHUMUNYA MASIE and Another v. THE STATE 1977 B.L.R. 47 (HC), Edwards J Theft is not a continuing offence in Botswana. STATE v. MASILO and Another 1971 (2) B.L.R. 61 (HC), Rooney ACJ Theft of moneys coming into accused's possession for or on account of his employer Section 264 of the Penal Code. STATE v. MOILWE [1994] B.L.R. 232 (HC), Nganunu J Theft of proceeds of cashed cheque. GAESI v. STATE 1977 B.L.R. 33 (HC), Edwards J What constitutes Mental element - Abandonment of article stolen in reckless circumstances. STATE v. MOSIIWA [2005] 1 B.L.R. 485 (HC), Molokomme J Theft common Ingredients of offence Intent permanently to deprive general or special owner of property - Cylinder of gas taken on loan with intention of returning it - Cylinder taken with permission of superior officer - Supervisor officer having authority to lend - Whether cylinder taken with fraudulent intent - Penal Code (Cap. 08:01), s. 264(2)(a). NNOANE v. THE STATE [1990] B.L.R. 237 (HC), Livesey Luke CJ Intention to permanently deprive Appellant dispossessing complainant of vehicle under false pretences - Appellant changing registration number plates of vehicle within day of taking vehicle - Whether appellant intended to permanently deprive complainant of vehicle. THWANE v. THE STATE [1991] B.L.R. 45 (HC), Gyeke - Dako J Mens rea Conviction of appellant and two others jointly charged with theft common - Number of blocks stolen from building site - Transportation of blocks in truck hired and paid for by appellant at request of second accused - Appellant denying knowledge of blocks being stolen property - Whether act of appellant sufficient to establish criminal intent. ROBERT v. THE STATE [1988] B.L.R. 155 (HC), Livesey Luke CJ Threat to kill Charge Reliance on oral threat to kill - Need to obtain Attorney - General's consent in writing - Penal Code (Cap. 08.01)(1973 Rev.), s. 225. BOK v. THE STATE [1983] B.L.R. 184 (HC), Hannah J Ingredients of offence Making a threat - Maker of threat intending recipient to fear that threat would be carried out - No lawful excuse for making threat - Meaning of `threat' - Expression of malevolent intention - Accused alleged to have threatened to kill another person - Whether threat alleged in fact made - Whether recipient of threat feared that threat would be carried out - Penal code (Cap. 08:01) (1973 Rev.), s. 225(1). STATE v. NGOPE [1985] B.L.R. 408 (HC), Murray J Making a threat - Maker of threat intending recipient to fear that threat would be carried out - No lawful excuse for making threat - Meaning of threat - Expression of intention to inflict injury on person, property or family of another - Menace of destruction or injury to life or property - Whether threat alleged in fact made - Whether recipient of threat feared that threat would be carried out - Whether intention of maker of threat relevant - Penal Code (Cap. 08:01) (1973 Rev.), s. 225 (1). STATE v. RAMATLHOMANE [1989] B.L.R. 370 (HC), Gyeke - Dako J Uttering of threat without lawful excuse - Threatener intending recipient of threat to fear it being carried out to kill recipient or another person - Meaning of `threat to kill' - Malevolent expression of intention to kill - Threat made to complainant to kill her by pouring petrol on her and setting her ablaze - Communication by accused through another person of his intention to kill complainant - Whether threat uttered by accused intending recipient to fear threats being carried out - Penal Code (Cap. 08:01), s. 220(1). STATE v. SAM [1990] B.L.R. 482 (HC), Gyeke - Dako J. Threatening to kill in contravention of s 220(1) of Penal Code (Cap 08:01) Constituents of offence Threat had to be an expression of malevolent intention. SELOKA v. THE STATE [2002] 1 B.L.R. 381 (HC), Lesetedi J Trading without a licence Forfeiture of goods exposed for sale. STATE v. GEORGE RAMOSIANE 1968 - 1970 B.L.R. 231 (HC), Dendy Young CJ Trading without a licence contrary to Section 5(2) of Act of 1966. STATE v. GEORGE KEITIRE 1968 - 1970 B.L.R. 179 (HC), Dendy Young CJ Traffic in Obscene Publications Sec. 177 of Penal Code Obscenity - Test of - English meaning applicable by in terms of Sec. 4 of Penal Code - Evidence of - Criminal Procedure Irregularity - whether a failure of justice - Particulars - Splitting of Charges. ESSOP ISMAIL HAFEGEE v. THE STATE 1964 - 1967 B.L.R. 273 (HC), Weston CJ Traffic offences Driving a motor vehicle with an excessive concentration of alcohol in the breath Proof of - Testing of specimen of breath - Lion intoxiliser 1400 machine not an alcometer as specified under section 46A(3) of Road Traffic Amendment Act as read with Breathalyser Regulations in Statutory Instrument No. 18 of 1995. REETSANG v. THE STATE (PRACTICE NOTE) [1996] B.L.R. 933 (HC), Gittings J Driving motor vehicle whilst alcohol in breath exceeding prescribed limit Positive result of first breathalyzer test not conclusive proof of guilt and second test is required to be carried out which must show same result as first test before offence established - Road Traffic Act (Cap. 69:01), s. 46A(1). BOLEKANE v. THE STATE (PRACTICE NOTE [1996] B.L.R. 871 (HC), Cotran J Driving motor vehicle whilst the alcohol content in breath exceeded the prescribed limit contrary to section 46(1) as read with section 47(11) as amended by Act No. 18 of 1993 of Road Traffic Act (Cap. 69:01) Whether section 47(11) created substantive offence of driving a motor vehicle with alcohol in one's breath in excess of prescribed limit - Road Traffic Act (Cap. 69:01), subss. 46(1) and 47(11). LETSEBE v. THE STATE [1996] B.L.R. 895 (HC), Aboagye J Driving motor vehicle whilst unfit through drinks Proof of - Effect of s. 46A of Road Traffic Act (Cap. 69:01) as introduced by Road Traffic Amendment Act No. 18 of 1993. OMPHITLHETSE v. THE STATE [1997] B.L.R. 752 (CA), Schreuner, Lord Cowie and Lord Allanbridge JJA Proof of - Effect of s. 47(3) of Road Traffic Act (Cap. 69:01) as amended by Road Traffic (Amendment) Act No. 18 of 1993. OMPHITLHETSE v. THE STATE [1997] B.L.R. 752 (CA), Schreuner, Lord Cowie and Lord Allanbridge JJA Driving motor vehicle whilst unfit to drive through drinks contrary to section 46(1) of Road Traffic Act Proof of - Essential averments. MMIPI v. THE STATE [1997] B.L.R. 324 (HC), Nganunu J Driving motor vehicle with alcohol in one's breath Specimen of breath - Alcohol level in - Offence described as driving or attempting to drive whilst unfit to do so through drink or drugs - No mention of driving or attempting to drive whilst alcohol level in breath exceeded prescribed limit - Whether charge disclosed offence - Road Traffic Act (Cap. 69:01), subs. 46(1). LETSEBE v. THE STATE [1996] B.L.R. 895 (HC), Aboagye J Driving whilst alcohol content of breath exceeded prescribed limit as intended by section 46(1) of the Road Traffic Act (Cap. 69:01) Proof of - Whether two tests required. MARUPI v. THE STATE [1997] B.L.R. 337 (HC), Gyeke - Dako J Proof of - Whether two tests required. MARUPI and Others v. THE ATTORNEY - GENERAL [1997] B.L.R. 727 (CA), Aguda JA, Steyn JA and Tebbutt JA Charge - Omission of prescribed blood alcohol limit - Effect of. MARUPI and Others v. THE ATTORNEY - GENERAL [1997] B.L.R. 727 (CA), Aguda JA, Steyn JA and Tebbutt JA Prescribed equipment for testing - Which equipment may be used. MARUPI v. THE STATE [1997] B.L.R. 337 (HC), Gyeke - Dako J Prescribed equipment for testing - Which equipment may be used. MARUPI and Others v. THE ATTORNEY - GENERAL [1997] B.L.R. 727 (CA), Aguda JA, Steyn JA and Tebbutt JA Prescribed equipment for testing - Which equipment may be used. KEOITSIWE v. THE STATE [1997] B.L.R. 504 (HC), Dibotelo J Proof of - Whether two tests required. KEOITSIWE v. THE STATE [1997] B.L.R. 504 (HC), Dibotelo J Charge - Draft charge formulated by court. MARUPI v. THE STATE [1997] B.L.R. 337 (HC), Gyeke - Dako J Driving whilst unfit to drive due to consumption of alcohol Driving motor vehicle with excessive concentration of alcohol in breath - Proof of prima facie case against accused - Failure to rebut prima facie evidence - Effect - Road Traffic Act (Cap. 69:01), ss. 46 (1) and 47 (ll) - Road Traffic (Amendment) Act, 1993 (No. 18), s. 6. PHIRI v. THE STATE [2000] 2 B.L.R. 258 (HC), Letsididi AJ Failure to provide a specimen of blood when required to do so contrary to section 46A(6) of the Road Traffic Act (Cap. 69:01) Requirements of section - There must have been a prior demand for a specimen of breath in order for demand for specimen of blood to be valid. MALOMO v. THE STATE [1997] B.L.R. 1271 (HC), Aboagye J Treason Ingredients of offence Possession of uniform of armed forces of foreign country without lawful authority - Evidence in support of overt act given by only one witness - Whether charge of treason sustainable - Penal Code, s. 41 (2) - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 237, proviso (ii). STATE v. VIVIER and Others (No 2) [1988] B.L.R. 371 (HC), Livesey Luke CJ Uniform of armed forces of foreign country Possession - Pair of brown boots, belt, green havasac and kit of military pattern and style of foreign armed forces found in possession of accused - Whether items found in possession of accused taken individually or collectively constitute uniform. STATE v. VIVIER and Others (No 2) [1988] B.L.R. 371 (HC), Livesey Luke CJ Trespass What constitutes Remaining on premises - Whether request or demand to leave required - Penal Code (Cap 08:01) s 305(1)(b). CHIPETA and Another v. THE STATE [2002] 1 B.L.R. 339 (HC), Horn J Unlawful wounding Negligence in wounding sufficient. STATE v. MAKGOTSO MOLOI 1977 B.L.R. 58 (HC), Edwards J Unnatural offences Unlawful carnal knowledge of person against order of nature Appellant inserting penis between complainant's thighs and ejaculated - Non - penetration per anum - Charge and conviction of offence of having carnal knowledge of person against order of nature - Whether conviction proper - Proper charge to be attempt to commit such offence - Penal Code (Cap.08:01), ss. 164(a) and 165. GAOLETE v. THE STATE [1991] B.L.R. 325 (HC), Livesey Luke CJ Using expressions of hatred of persons because of race Use of word Kaffir. STATE v. VIOLET O' CONNELL 1972 (1) B.L.R. 29 (HC), Aguda CJ Using insulting language likely to provoke a breach of the peace STATE v. DUNKERLEY 1971 (2) B.L.R. 27 (HC), Young CJ Using insulting language likely to provoke breach of the peace contrary to Section 179 of the Penal Code. STATE v. OZIAS LEBUKU 1975 (1) B.L.R. 46 (HC), Aguda CJ Use of the word `Kaffir'. STATE v. ARNOLD 1975 (1) B.L.R. 93 (HC), Rooney J Attorney - General's consent to prosecute. GEORGIOU v. THE STATE 1974 (1) B.L.R. 83 (HC), Aguda CJ Using premises for carrying on a lottery 'Use' implies a deliberate, designed, choice of premises. STATE v. SEJAKGOMO and Another 1979 - 1980 B.L.R. 207 (HC), Hannah J Uttering Proof of False university degree - Statement of facts not mentioning sufficient facts to exclude innocent acquisition of degree. KETSHWANETSE v. THE STATE [1997] B.L.R. 1067 (HC), Aboagye ACJ Uttering false document Ingredients of offence Document must be false - Uttering of document by appellant - Document to have been uttered knowingly and fraudulently - Request by police for appellant to produce his driving licence - Licence allegedly forged - Whether appellant intending to deceive in delivering licence to police - Whether appellant fraudulently uttered document - Whether facts disclosing appellant having necessary mens rea - Penal Code (Cap. 08:01), s. 348. KESENTSE v. THE STATE [1991] B.L.R. 327 (HC), Livesey Luke CJ Weights and Measures Act `Inconsiderable, variation in the weight or measure of a single article.' ATTORNEY GENERAL v. XIFARAS 1978 B.L.R. 36 (HC), Edwards J CRIMINAL PROCEDURE AND EVIDENCE Accomplice Discharge at close of State case. STATE v. CHURCH SEIPONE and ORS 1976 B.L.R. 26 (HC), Rooney ACJ Accomplice evidence Confirmation of Chapter 18, sec. 234 Evidence of normal procedure - Admissibility - Criminal Law - Receiving - Formal evidence of theft - Not necessary. FOURIE v. REGINA 1964 - 1967 B.L.R. 66 (HC), Weston CJ Confirmation of Chapter 18, section 23 of the Criminal Procedure and Evidence Act (Cap. 08:02) The need for corroboration. LUCKY KOMANE v. THE STATE 1982 (2) B.L.R. 106 (HC), O'Brien Quinn CJ STATE v. CHAND 1968 - 1970 B.L.R. 167 (HC), Dendy Young CJ Accomplices Whether English or South African Law as to accomplices applies. STATE v. PHUSU (3) 1968 - 1970 B.L.R. 150 (HC), Dendy Young CJ Accused Evidence Rejection of appellant's evidence solely because of acceptance of evidence of State - No independent appraisal of defence case - Irregularity - Whether irregularity occasioned miscarriage of justice - Court of Appeal Act (Cap. 04:01), s. 13(3). MOLEFE v. THE STATE [1999] 1 B.L.R. 471 (CA), Amissah P. J, Korsah J and Kumleben JA Mental state of Finding that accused insane albeit temporarily - Finding to be based on evidence - Finding contrary to expert evidence - Criminal Procedure and Evidence Act (Cap 08:02), s 160(1). STATE v. CHARLES [2002] 1 B.L.R. 89 (CA), Tebbutt AJP Representation by counsel Accused unrepresented by counsel at beginning of trial - Application to be represented by counsel at close of prosecution case - Whether proper to grant request so late in trial. DIKGANG v. THE STATE [1987] B.L.R. 352 (HC), Hallchurch J Right to copies of police statements Whether such right existed - Trial court failed to compel police to give access to accused of these statements - No good reason advanced at trial why statements required. MOTSUMI v. THE STATE [1996] B.L.R. 905 (HC), Nganunu J Right to legal representation Postponement in order to obtain - Application refused - No explanation for request - Whether request an attempt to delay due process of justice. MOTSUMI v. THE STATE [1996] B.L.R. 905 (HC), Nganunu J Refusal of postponement where accused's attorney had withdrawn - In circumstances where accused not in a position to proceed - Accused not having requested a postponement - Magistrate should have granted a postponement but accused's right to fair trial not violated. STATE v. RAMATSWIDI [2005] 1 B.L.R. 452 (HC), Masuku J Trial Interpreter - Failure of trial court to inquire into competence of interpreter in accused's language - Whether failure vitiates proceedings - Constitution, s. 10(2). MMESETSE and Another v. THE STATE [1999] 1 B.L.R. 14 (CA), Amissah P. J, Aguda J, Steyn J, Korsah J and Friedman JA Accused committed for sentence on ground other than those provided for by the C.P. and E. Proclamation. STATE v. TABALUME MOLUTA 1968 - 1970 B.L.R. 81 (HC), Dendy Young CJ Accused convicted on more than one count Separate sentence in respect of each count Sentences may run concurrently. MARX v. REGINA 1964 - 1967 B.L.R. 55 (HC), Weston CJ Accused's mental state in issue Procedure to be adepted. STATE v. MATHABATHE 1968 - 1970 B.L.R. 214 (HC), Dendy Young CJ STATE v. REBOOMANG 1968 - 1970 B.L.R. 217 (HC), Dendy Young CJ A conviction for receiving stolen property is competent on a charge of Breaking and Entering Premises. MOIPEI and Another v. THE STATE 1975 (1) B.L.R. 63 (HC), Rooney J Adjournments Discretionary Discretion to be exercised judicially. MAPOSA v. THE STATE [1989] B.L.R. 556 (HC), Gyeke - Dako J Admissibility Undue influence to make a confession. STATE v. BOTHAPILE and Others 1968 - 1970 B.L.R. 154 (HC), Dendy Young CJ Admissions of Guilt in cases of driving a vehicle whilst unfit to drive through drink. STATE v. MONAKE MOTHIBI 1973 (1) B.L.R. 82 (HC), Rooney J Admission of guilt procedure. STATE v. de WET 1972 (1) B.L.R. 49 (HC), Rooney ACJ Admission of medical certificate in High Court in terms of Section 222 of the C.P. & E. Proclamation Failure to call medical evidence as to cause of death. STATE v. GASELAME 1977 B.L.R. 35 (HC), Edwards J Admissions. STATE v. BAALAKANI MOLOISE 1977 B.L.R. 28 (HC), Dyke CJ Administrative Officers who have to administer the law should make themselves acquainted with the basic principles of criminal law and procedure. STATE v. DECEMBER RATANE 1973 (1) B.L.R. 68 (HC), Aguda CJ Admissions and confessions Trial - within - a - trial Method of conducting and encapsulation of hearing discussed. SEKGA v. THE STATE [1997] B.L.R. 972 (HC), Gyeke - Dako J Age of victim Report by medical practitioner in terms of s. 222 of the Criminal Procedure and Evidence Act Circumstances in which evidence of opinion may be received - Doctor should testify - Differences between fact and opinion evidence. STATE v. OBUSITSWE MOSALA 1982 (1) B.L.R. 129 (HC), Hannah J Alibi Defence of Alibi not be considered in isolation but in light of totality of evidence before court. July v. The State [2006] 1 B.L.R. 496 (HC), Mosojane J Onus of proof on State to show alibi to be false or unreliable. STATE v. MAFOKO [1983] B.L.R. 80 (HC), O'Brien Quinn CJ Alternative charges Accused cannot be convicted on all the charges if the charges are in the alternative. STATE v. SROUR and Another 1977 B.L.R. 70 (HC), Edwards J Amendment of charge STATE v. KGANO 1981 B.L.R. 186 (HC), Hannah J Analyst's Certificate of analysis of Accused's blood on a charge of driving while unfit to do so through drink Medical report of Doctor who examined Accused. STATE v. RICHARD PULE 1977 B.L.R. 115 (HC), Edwards J An extra - curial statement to a Judicial Officer should be recorded in the language in which the statement was given unless an interpreter is used. STATE v. BENJAMIN GEORGE SEKGOBOKGOBO 1972 (2) B.L.R. 71 (HC), Aguda CJ Appeal Admission of further evidence Powers of court on appeal in terms of Section 10(1)(c) of High Court Act [Cap 04:02] - Power to receive evidence to be exercised cautiously - Evidence received where appellant unrepresented, brought from outside Botswana to stand trial and there was no prejudice to the State. NGWENYA v. THE STATE [2001] 2 B.L.R. 204 (HC), Nganunu CJ Appeal against conviction and sentence for attempted rape Possible verdicts able to be reached by Court when accused facing rape charges articulated - Court determining that appellant should have been found guilty of defilement of girl under age of 16 years and not convicted of lesser charge of attempted rape - On authority of s 10(1) of High Court Act (Cap 04:02), court setting aside conviction for attempted rape and substituting therefor conviction of defilement of girl under age of 16 years, after finding that appellant's grounds of appeal lacking merit. MAKGOLWANE v. THE STATE [2003] 1 B.L.R. 179 (HC), Phumaphi J Appeal against conviction and sentence for rape Appellate court only interfering with sentence of trial court if satisfied that sentence passed wrong; trial judge having misdirected himself by committing fundamental error; or sentence wrong in principle - Trial court having imposed corporal punishment - Corporal punishment only ordered where rape attended by violence resulting in injury to victim - Section 142 of Penal Code (Cap 08:01). MONNAEMANG v. THE STATE [2003] 1 B.L.R. 222 (HC), Walia J Appeal against conviction for rape and sentence Section 181 of Criminal Procedure and Evidence Amendment Act (Cap 08:02) requiring court to afford both prosecution and accused opportunity to address court - Court a quo in instant case had postponed case for judgment without prosecution or accused being given opportunity to address it - To set aside conviction on this basis, court to be satisfied that this irregularity resulting in miscarriage of justice - Court not so satisfied but upon further consideration considering it appropriate to set aside conviction for rape and substitute therefor conviction for defilement of girl under age of 16 years. CHAMAPHATI v. THE STATE [2003] 1 B.L.R. 167 (HC), Phumaphi J Appeal from magistrate's court to High Court Appellant convicted for possession of habit - forming drugs - Minimum sentence prescribed on conviction, 10 years' imprisonment, fine of P15,000 and corporal punishment - Appellant sentenced to 10 years' imprisonment and P15,000 - Appeal against conviction only - Dismissal of appeal - High Court mere motu raising issue of failure of trial court to award corporal punishment - Whether High Court jurisdiction mere motu to raise issue of imposition of erroneous sentence - Whether High Court power to enhance sentence - High Court Act (Cap. 04:02), s. 10 (1) (d) - Habit Forming Drugs Act (Cap. 63:04), s. 3 (1) (b) and (3), proviso. IKGOPOLENG v. THE STATE [1992] B.L.R. 68 (HC), Nganunu J Record of proceedings before magistrate incomplete - Determination of appeal on incomplete record - Appeal against decision of High Court - Whether matter to be determined by Court of Appeal or to be referred back to High Court with proper record for hearing. STATE v. JENKISON [1985] B.L.R. 531 (HC), Maisels P, Aguda JA and Amissah JA Application for condonation of late noting of Appeal against interlocutory ruling - Such only entertained in rare cases where it essential to interests of justice - Applicant to show that appropriate in circumstances to allow appeal of interlocutory nature, that he having reasonable explanation for his delay in noting appeal and that he having reasonable prospects of success on appeal. MAKO v. THE STATE [2003] 1 B.L.R. 150 (HC), Kirby J Application for leave to appeal out of time Applicants to give satisfactory explanation of delay and show reasonably arguable case - Paramount consideration being whether reasonable prospects of success or reasonably arguable case. NGUASENA and Others v. THE STATE [2001] 1 B.L.R. 61 (HC), Mosojane J Appellant arguing that trial judge misdirecting herself in taking evidence into account, not properly considering his alibi and not accepting his evidence that another person was with the deceased Trial judge correct in rejecting appellant's evidence - Trial judge not misdirecting herself - Appeal dismissed. Philaye v. The State [2006] 1 B.L.R. 243 (CA), Tebbutt JP, Akiwumi and Moore JJA Bail pending application for leave to appeal. STATE v. COOPER 1975 (1) B.L.R. 40 (HC), Aguda CJ Evidence Taking evidence at inspection in loco - Irregularity - Failure of justice - Test to be applied in determining `failure of justice on appeal' - Whether irregularity resulted in failure of justice - High Court Act (Cap. 04:02), s. 10 (1), proviso. MAIPHETLHO and Others v. THE STATE [1990] B.L.R. 580 (HC), Livesey Luke CJ Evidence on appeal When to be permitted - Court taking into consideration in favour of one appellant circumstances which had arisen after conviction and sentence - Such evidence should not have been placed before court - Not enuring to benefit of other appellant in further appeal. DUBE v. THE STATE [1996] B.L.R. 694 (CA), Amissah JP Hoexter and Lord Allanbridge JJA From African Court Title of Appeal - Extent of African Court's warrant must be before Appeal Court - Appeal governed by section 34 of African Courts Proclamation - Not adhered to - Appeal improperly brought. SANKA SANKA v. THE STATE 1964 - 1967 B.L.R. 185 (HC), Thompson ACJ From customary court Powers of court on appeal - Court entitled to set aside conviction as well as sentence - Customary Courts Act (Cap 04:05), s 21. PAKI v. THE STATE [2005] 1 B.L.R. 479 (HC), Masuku J From magistrate's court Against conviction and sentence - Appellant arguing that no access to witness statement granted, that magistrate should have recused herself and that magistrate incorrectly disregarding defence evidence - Magistrate not found to have acted incorrectly in any respect - Appeal dismissed. Mmatli v. The State [2006] 1 B.L.R. 4 (CA), Zietsman, Lord Sutherland and Akiwumi JJA Against conviction and sentence - Court on appeal able to substitute own sentence for one passed by trial court where latter having erred in passing sentence - Court having discretion to decide whether sentences to run consecutively - Criminal Procedure and Evidence Act (Cap 08:02), s 300(1). MOOKA and Another v. THE STATE [2003] 1 B.L.R. 347 (HC), Nganunu CJ Against conviction and sentence - By means of bail pending appeal - Whether court can proceed to enter onto appeal against conviction and sentence where parties in agreement on this and full record and reasons for judgment before court - No authority for this procedure. NCHINDO v. THE STATE [1996] B.L.R. 927 (HC), Levy AJ Interlocutory decision Conditions for entertaining appeal - Trial magistrate overruling submission of no case to answer - Appeal against ruling before conclusion of trial - Whether desirable - Principle against hearing appeals piecemeal - Unusual circumstances calling for such procedure - Interest reipublicae ut sit finis litium. NEWTON v. THE STATE [1991] B.L.R. 353 (HC), Gyeke - Dako J Jurisdiction of High Court Appellate jurisdiction - Effect of section 296(4) of the Criminal Procedure and Evidence Act (Cap. 08:02) - Appellants sentenced by High Court - High Court then functus officio - Appellants subsequently appealed to the High Court, which altered the convictions, leaving sentences unchanged - Subsequent application for leave to appeal to the Court of Appeal a nullity - Such court, however, proceeded with the appeal in terms of section 296(4) as if appeal had been lodged directly to it. MORUAKGOMO and Another v. THE STATE [1994] B.L.R. 25 (CA), Amissah JP, Aguda JA, Trengove JA Principle of finality in litigation cornerstone of legal system - Court only departing from principle in exceptional special circumstances. Gareitsane v. The State [2006] 1 B.L.R. 201 (CA), Tebbutt JP, Zietsman, Moore, McNally and Ramodibedi JJA Noting appeal against conviction and sentence Excessive delay in hearing appeal - Whether exceptional circumstance warranting interference by appellate court in sentence imposed by court a quo. SEWAPODI v. THE STATE [2001] 1 B.L.R. 489 (HC), Reynolds J Postponement of hearing of appeal. STEPHENS v. THE STATE 1973 (1) B.L.R. 69 (HC), Aguda CJ Power of Court of Appeal Re - opening of appeal - Court functus officio once court has given its decision - Court of Appeal Act (Cap 04:01), Constitution of Botswana, Rules of the High Court (Cap 04:02) (Sub Leg), Ord 48(1). MONNANYANA v. THE STATE [2002] 1 B.L.R. 72 (CA), Tebbutt AJP, Zietsman, Plewman, Sutherland JJA and Dibotelo AJA Record Record unavailable and could not be reconstructed - Whether conviction could stand. TSHABANG v. THE STATE [2002] 1 B.L.R. 102 (CA), Tebbutt AJP, Blofeld, Sutherland JJA Summary dismissal of Appeal against conviction and sentence for burglary and theft - Appeal court may, after perusing record of case, grounds of appeal and further relevant documents, summarily dismiss appeal if no sufficient ground found for interfering with conviction and sentence by court a quo - Criminal Procedure and Evidence Act (Cap 08:02), s 323. FANILO v. THE STATE [2003] 1 B.L.R. 197 (HC), Collins J Which matter appealable Ruling that prosecutor has authority to prosecute - Special circumstances - Order 39 1(1) of the Magistrates Courts Act, Order 60 rule 1(1) of the High Court Rules and section 10 of the High Court Act. MPHUSU and Another v. THE STATE [1997] B.L.R. 845 (HC), Nganunu CJ Appeal against enhancement of sentence by the High Court in pursuance of its revisional powers Appeal lies to the High Court itself. STATE v. BRILL 1976 B.L.R. 36 (CA), Maisels P, Milne JA, Doyle JA Appeal against sentence Discretion in imposition of death sentence. MMALEKOTO KEGODILE and Another v. THE STATE 1971 (1) B.L.R. 7 (CA), Schreiner P, Maisels JA, Milne JA Principles PATRICK MOTAUNG v. THE STATE 1982 (2) B.L.R. 40 (HC), O'Brien Quinn CJ Request that sentence be back dated to date when taken into custody granted: section 305 of (Cap 08:02) THABO MOSWEU v. THE STATE 1982 (1) B.L.R. 132 (HC), O'Brien Quinn CJ Appeal by Attorney General on questions of Law Failure of Attorney - General to require Magistrate to state a case. ATTORNEY - GENERAL v. HARPER 1979 - 1980 B.L.R. 40 (HC), Hayfron - Benjamin CJ Appeal by State Failure by Accused to give evidence Accomplice evidence - corroboration. STATE v. CHAND 1968 - 1970 B.L.R. 220 (CA), Roper J, Schreiner JA, Maisels JA Question of law Discharge of Accused by Magistrate at close of State case - evidence, however, sufficient to place Accused on his defence. LEMO v. STATE 1977 B.L.R. 25 (HC), Dyke CJ Appeal by State on question of law Magistrate's findings on the facts having no basis on the evidence which was led before him. ATTORNEY - GENERAL v. STANLEY MANTENGE 1974 (2) B.L.R. 13 (HC), Aguda CJ Appeal by the State Magistrate acquitting accused before close of State Case The effect of Section 159 (4) of the C.P. & E Proclamation considered. STATE v. NGWAKO SEGAI 1968 - 1970 B.L.R. 9 (HC), Maisels ACJ Whereabouts of Accused unknown. ATTORNEY GENERAL v. MOTSHEKWANE and Another 1978 B.L.R. 58 (HC), Edwards J Appeal by State on question of Law on charge of unlawful possession of diamonds, STATE v. MATENGE (2) 1974 (2) B.L.R. 86 (CA), Maisels P, Smit JA, Doyle JA Appeal from judgment of the High Court in case remitted to the High Court for sentence Condonation of late noting of appeal. STATE v. ELIAS MOAGI 1974 (1) B.L.R. 37 (CA), Milne JA, Schreiner P, Smit JA Appeal from sentence increased on automatic review Principles applicable to appeal against sentence. STATE v. MAUNGE (2) 1972 (1) B.L.R. 6 (HC), Aguda CJ Appeal from sentence passed by High Court on committal for sentence by Subordinate Court is to Court of appeal. STATE v. ELIAS MOAGI 1972 (2) B.L.R. 54 (HC), Aguda CJ Appeal on fact Demeanour. MOTHOBI v. STATE 1976 B.L.R. 67 (HC), Isaacs JA Appeals on facts against convictions by sub - ordinate Courts Principles. STATE v. LETEBELE 1968 - 1970 B.L.R. 369 (HC), Dendy Young CJ Application by State, at hearing of an appeal by the Accused, for the substitution of a verdict on a more serious charge and for an increase of sentence Evidence Magistrate taking into account in favour of the Accused possibilities for which there was no supporting evidence. STATE v. MARUPING 1968 - 1970 B.L.R. 391 (HC), Young CJ Application for condonation of late filing of appeal and for leave to appeal out of time. NTIRANG SELOGELWA v. THE STATE 1982 (2) B.L.R. 64 (HC), O'Brien Quinn CJ Application for leave to appeal out of time No reasonable prospect of success of appeal. DANIEL SEEMA v. ATTORNEY - GENERAL 1968 - 1970 B.L.R. 268 (CA), Schreiner P, Maisels JA, Milne JA Arrest Arrest without warrant Legality of - Arrest before investigations completed - Policeman arrested on mere word of accuser who himself had been arrested on charge of being in possession of dagga - Whether police had reasonable grounds for arresting and detailing policeman. TLHARESEGOLO v. THE ATTORNEY - GENERAL [2001] 2 B.L.R. 730 (HC), Collins AJ Legality of - Effect of section 36 (1) of the Criminal Procedure and Evidence Act (Cap. 08: 02). TLHARESEGOLO v. THE ATTORNEY - GENERAL [2001] 2 B.L.R. 730 (HC), Collins AJ Reasonable suspicion - Murder - Power to arrest without warrant person suspected on reasonable grounds of having committed murder - Justification of arrest - Onus on defence to prove on balance of probabilities - Plaintiff's shoe - prints found near dead body - Failure to give reasonable explanation of presence of shoe - prints near dead body - Whether reasonable grounds of suspecting plaintiff having committed murder - Criminal Procedure and Evidence Act (Cap. 08:02), s. 28. THOKWANE v. THE ATTORNEY - GENERAL [1998] B.L.R. 221 (HC), Aboagye J Requirements - Search under s. 17 of Drugs and Related Substances Act No. 19 of 1992 USEYA v. THE STATE [1995] B.L.R. 708 (HC), Lesetedi AJ Legality Arrest in foreign country by police officers of that country and accused handed over to Botswana authorities and returned to Botswana to be tried for offences committed in Botswana - No violation of territorial sovereignty involved - Accused properly before court. NCUBE and Others v. THE STATE [2002] 1 B.L.R. 315 (HC), Chatikobo J Powers of arrest Arrest without warrant - When to exercise power - Appellants fighting in public place - Constables arresting appellants without warrant - Whether constables empowered to arrest without warrant - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 28. KGOSIEMANG and Another v. THE STATE [1989] B.L.R. 12 (HC), Livesey Luke CJ Validity of Protection afforded by section 42 of Criminal Procedure and Evidence Act (Cap. 08:02) - Extent of protection. APHIRI v. THE ATTORNEY - GENERAL [1997] B.L.R. 192 (HC), Aboagye J Whether police having acted on reasonable suspicion - Test of whether or not police having reasonable ground to suspect objective one - Police to satisfy themselves that there material before them of such a nature as to create in mind of reasonable person a well - grounded suspicion that suspect having committed offence - Criminal Procedure and Evidence Act (Cap 08:02), s 28. SEKOBYE v. THE ATTORNEY - GENERAL [2004] 2 B.L.R. 294 (HC), Lesetedi J Arrest without warrant Arrest on suspicion Detention of plaintiff - Action for false imprisonment - Intervention of judicial process - Remand of plaintiff in custody by magistrate - Whether action for false imprisonment maintainable. THOKWANE v. THE ATTORNEY - GENERAL [1998] B.L.R. 221 (HC), Aboagye J Attorney General Conduct of criminal proceedings - Delegation of power to subordinate officers to conduct prosecution - Legal practitioner concerned entitled to assume subordinate officer authorised to conduct proceedings - Courts entitled to rely on statements made by such officers - Constitution, s. 51(4). ATTORNEY - GENERAL v. MAFOJANE and Others [2000] 2 B.L.R. 74 (CA), Amissah P. J, Steyn J, Friedman J, Kumleben J and Lord Weir JA Authority to delegate - Relationship between section 51(3) and (4) of the Constitution and sections 7 and 8 of Criminal Procedure and Evidence Act. MPHUSU and Another v. THE STATE [1997] B.L.R. 845 (HC), Nganunu CJ Costs against - Court's powers to award. VISSAGE and Others v. THE STATE [1997] B.L.R. 308 (HC), Gittings J Automatic review Delay by magistrate in submitting record of proceedings Late review not prejudicial to accused - Judgment by magistrate found to be erroneous - Discretionary power of judge to enhance sentence - Rules of the High Court (Cap. 04:02) (Sub. Leg.), Order 61 r. 8. (d). STATE v. LELLO [1992] B.L.R. 46 (HC), Aboagye J Automatic review STATE v. MABILETSA 1981 B.L.R. 194 (HC), Corduff J Award of compensation linked with suspended sentence Undesirable Compensation to be fixed only after full evidence and enquiry - Section 312 of Criminal Procedure and Evidence Act. KEATLARETSE GOSIAME v. STATE 1982 (1) B.L.R. 76 (HC), Corduff J Bail After committal for trial Proper procedure - Criminal Procedure and Evidence Act (Cap 08:02), s 106. MARUMOLO and Another v. THE STATE [2005] 1 B.L.R. 474 (HC), Masuku J Although bail terminated upon taking of plea on indictment, court has discretion to order previously granted bail not terminated Criminal Procedure and Evidence Act (Cap 08:02), s. 142. TSHEKONYANE v. THE STATE (No 2) [1993] B.L.R. 206 (HC), Nganunu J Appeal against Magistrate's refusal of bail - procedure Onus. SELLO v. ATTORNEY - GENERAL 1977 B.L.R. 88 (HC), Edwards J Application Bail pending trial - Murder charge - Applicant serving soldier of BDF - Application for applicant to be kept in military barracks under military discipline without fear of absconding - Whether membership of BDF factor to be taken into consideration in granting bail - Whether magistrate's court jurisdiction to grant bail in murder case. PIHELO v. THE STATE [1987] B.L.R. 259 (HC), Murray J Application for Factors considered by court - Court to balance presumption that accused innocent until proven guilty and likelihood of him absconding if granted bail - To deny bail there should be some `cognizable indication' that accused would not stand trial or that he would otherwise obstruct proper course of justice. BINIKWA v. THE STATE [2005] 1 B.L.R. 285 (HC), Chinhengo J Hearing of - Whether court can proceed to enter onto appeal against conviction and sentence where parties in agreement on this and full record and reasons for judgment before court - No authority for this procedure. NCHINDO v. THE STATE [1996] B.L.R. 927 (HC), Levy AJ Application for bail before trial Charge of murder - Factors for consideration for grant - Accused's attendance at his trial - Severity of sentence - Bail seldom granted in cases of murder. SEBONI v. THE STATE [1983] B.L.R. 165 (HC), Hannah J Application for bail is not part of a trial Jurisdiction to deal with application for bail by a Judicial Officer other than the one seized with the trial. STATE v. VAN TANDER 1968 - 1970 B.L.R. 376 (HC), Dendy Young CJ Application for bail pending appeal Criminal proceedings pending before customary court - Appeal from lower customary court to higher customary court - Whether High Court power to grant bail - Record of proceedings showing discrepancies and contradictions in evidence adduced by prosecution - Whether reasonable prospects of success on appeal - Criminal Procedure and Evidence Act (Cap. 08:02), s. 114. MONNAESI v. THE STATE [2000] 1 B.L.R. 302 (HC), Dibotelo J Grounds for refusing application - Possibility of accused not standing trial - Likelihood of accused being convicted. BAIKEPI v. THE STATE [1984] B.L.R. 67 (HC), Isaacs AJ Plea of guilty - Appellant convicted and sentenced on plea of guilty - Appeal against sentence - Appellant absconding on hearng of appeal - Wrong practice in granting bail pending appeal where plea of guilty tendered - Bail to be granted only in exceptional circumstances. MMUATSHING v. THE STATE [1986] B.L.R. 197 (HC), Murray J Factors for consideration for grant - Likelihood of appeal succeeding - Application not opposed by State. SEBONI v. THE STATE (NO 2) [1983] B.L.R. 185 (HC), Hannah J Factors for consideration - Liberty of the subject - Likelihood of appeal succeeding - Applicant being a citizen not likely to abscond. MOKIBE v. THE STATE [1985] B.L.R. 520 (HC), O'Brien Quinn CJ Application for bail pending trial Considerations governing grant of bail - Balancing act between interests of accused and interests of society - Bail to be granted if accused not likely to commit further crimes - Bail to be refused if substantial probability of accused absconding - Nature of charge - Strength of charge - Strength of prosecution s case - Likelihood of accused being convicted - Severity of punishment - Character, antecedents, associations and community ties of accused. DIPHOLO v. THE STATE [2000] 2 B.L.R. 451 (HC), Nganunu CJ Considerations governing grant of bail - Liberty of applicant and interests of justice - Accused's attendance at his trial - Nature of charges - Severity of punishment - Bail to be refused if substantial probability of accused absconding. NTHAISANE v. THE STATE [2000] 1 B.L.R. 247 (HC), Nganunu CJ Considerations governing grant of bail - Balancing act between interests of accused and interests of prosecution - Bail to be granted if accused not likely to commit further crimes - Bail to be refused if substantial probability of accused absconding exist - Other criteria - Nature of charge - Strengh of charge - Strength of prosecution's case - Likelihood of accused being convicted - Severity of punishment. MZWINILLA v. THE STATE [1986] B.L.R. 168 (CA), O'Brien Quinn CJ, Murray J, and Muhammad AGJ Court to be guided by material placed before it - Threat posed to safety of complainant by applicant should he be released of concern - Court failing in its duty if knowingly exposing complainant to danger - Bail denied. Kelebekae v. The State [2006] 1 B.L.R. 115 (HC), Walia J Factors for consideration - Charges of murder, robbery, office breaking and stealing - Accused to be afforded fair hearing within reasonable time - Meaning of `reasonable time' - Delay in bringing accused to trial - Whether constitutional right infringed - Constitution, ss. 5(3) and 10(1). LOSO and Another v. THE STATE [1998] B.L.R. 518 (HC), Mosojane J Grounds for refusing bail - Non - appearance at trial if bail granted - Likelihood of commission of further offences whilst on bail - Interference with prosecution witnesses or obstruction of course of justice - Murder charge - Trial not likely to take place for quite some time - Applicants pledging not to jump bail - No allegation of State suffering prejudice if bail granted - Whether bail to be granted in circumstances. MOGOPODI and Others v. THE STATE [1999] 1 B.L.R. 345 (HC), Aboagye J Murder charge - Factors for consideration - Primary purpose - Attendance of accused at his trial - Delay in bringing accused to trial - Whether constitutional rights of applicants likely to be infringed - Constitution, s. 5(3). MOGOTSI and Another v. THE STATE [1990] B.L.R. 142 (HC), Gyeke - Dako J Power to grant bail - Discretion of court to decide on bail pending trial - Applicant charged with various offences attracting severe penalties - Bail denied on two previous occasions due to seriousness of offences, possibility of absconding, and failure by prosecution to ascertain whereabouts of State witness - Applicant filing affidavit supporting bail application showing her background and family ties - Whether circumstances of case warrant applicant to be indefinitely detained until witnesses be found - Whether fear of applicant absconding justified - Whether interests of justice served - Criminal Procedure and Evidence Act (Cap. 08:02), s. 114. MOLOSIWA v. THE STATE [1999] 2 B.L.R. 427 (HC), Mosojane J Application for variation of bail conditions Court in instant matter not satisfied that applicants having established that prosecution evidence against them so inefficient that conviction unlikely - Trial having been postponed indefinitely - This found to be contrary to provisions of s 10 of Botswana Constitution - No justification for detaining applicants indefinitely - Magistrate directed to resume trial within four weeks failing which applicants to return to court to be granted bail. MPITSE and Another v. THE STATE [2003] 1 B.L.R. 185 (HC), Phumaphi J Bail STATE v. KUNZ 1975 (1) B.L.R. 85 (HC), Rooney J LEBEREKI THATAHALO v. THE STATE 1972 (2) B.L.R. 67 (HC), Aguda CJ Bail pending appeal Bail application made under certificate of urgency - Bail to be granted only in exceptional circumstances - Grounds for granting bail - Likelihood or reasonable prospect of appeal succeeding - Exceptional or unusual grounds for application - Delay in processing record of proceedings likely to lead to applicant serving substantial part of sentence. KEMOKGATLA v. THE STATE [2000] 2 B.L.R. 413 (HC), Lisimba J Bail to be granted only in exceptional circumstances - Onus on applicant to show why he to be granted bail - Factors considered including prospects of success, likelihood that applicant would abscond, applicant's health and possibility that applicant would have served substantial portion of his sentence by time his appeal heard. KALEBA v. THE STATE [2003] 1 B.L.R. 425 (HC), Lesetedi J Bail to be granted only in exceptional circumstances - Grounds for granting bail - Likelihood or reasonable prospect of appeal succeeding - Exceptional or unusual grounds for application - Delay in processing documents for appeal likely to lead to appellant serving whole or substantial part of sentence - Necessity of conferring with counsel to prepare appeal papers. LAING v. THE STATE [1989] B.L.R. 54 (HC), Gyeke - Dako J Conversion of bail hearing into appeal - To determine suitability of applicant for grant of bail, court to have regard to facts on record supporting or negating conviction - Court then frequently also in position to determine appeal itself, provided no prejudice caused - Procedure not to be used to gain preference in chronological order of listed appeals. MONAU v. THE STATE [2003] 1 B.L.R. 255 (HC), Collins J Conviction of conspiracy to steal by magistrate - Sentence of 12 months effective term of imprisonment - Refusal of trial magistrate to grant bail - Urgent application to High Court for bail - Option of applicants to make application under section 113 or 114 of Cap. 08:02 - Necessity to indicate section under which application being made - Different considerations attach to procedure to be adopted - Criminal Procedure and Evidence Act (Cap. 08:02), ss. 113 and 114. CHARALAMBOUS and Another v. THE STATE [1990] B.L.R. 422 (HC), Gyeke - Dako J Court not entitled to determine prospect of appeal succeeding without having record of proceedings before it - Determination of prospects of success on appeal without record of proceedings in exceptional circumstances - Infringement of constitutional rights. KEMOKGATLA v. THE STATE [2000] 2 B.L.R. 413 (HC), Lisimba J Exceptional circumstances to exist - It to prima facie appear that appeal likely to be successful and that risk existing that sentence would be served by time appeal heard. DOUGLAS v. THE STATE [2005] 2 B.L.R. 461 (HC), Mosojane J If justice not endangered, liberty favoured, especially where reasonable prospect of success on appeal - Exceptional or unusual ground to exist for application - Time taken to prepare appeal for hearing also considered in relation to sentence of appealed against - Each element standing alone and not necessary for all to be present before court exercising discretion in favour of applicant. LEKAPANE v. THE STATE [2003] 1 B.L.R. 249 (HC), Monthe AJ Person pleading guilty to offence not generally entitled to bail unless it shown that plea could not be regarded as unequivocal - Proper procedure for entering plea in criminal cases set out - Failure to follow procedure exactly not necessarily meaning that on appeal or review plea would be set aside - In each case, Court to satisfy itself that plea unequivocal - Customary Courts (Procedure) Rules (Cap 04:05), Rule 18. MAPIWA v. THE STATE [2003] 1 B.L.R. 92 (HC), Mosojane J Refusal of magistrate to grant bail - Appeal against refusal made to High Court under certificate of urgency - Whether procedure adopted proper - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 112. LAING v. THE STATE [1989] B.L.R. 54 (HC), Gyeke - Dako J Refusal of trial court to grant bail - Urgent application to High Court for bail - Application unopposed by State - Effect. CHARALAMBOUS and Another v. THE STATE [1990] B.L.R. 422 (HC), Gyeke - Dako J Sentence of 12 months effective term of imprisonment - Refusal of trial magistrate to grant bail - Urgent application to High Court for bail - Principles governing grant of bail pending appeal - Existence of very special circumstances - Delay in processing documents for appeal likely to lead to applicants serving whole or substantial part of sentence - Whether ground for granting application. CHARALAMBOUS and Another v. THE STATE [1990] B.L.R. 422 (HC), Gyeke - Dako J Sentence of nine months' imprisonment - Refusal of magistrate to grant bail - Magistrate alleging prohibition by Cap. 08:02, s. 318 (b) of granting bail where custodial sentence imposed - Whether refusal on grounds alleged misdirection - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 318. LAING v. THE STATE [1989] B.L.R. 54 (HC), Gyeke - Dako J Grant of conditional bail - Application for order to review and set aside decision - Respondents charged with offence of obtaining large sums of money by false pretences - Respondents non - citizens of Botswana - Likelihood of respondents jumping bail and leaving jurisdiction - Whether proper to grant bail in circumstance. STATE v. MOYO and Others [1988] B.L.R. 113 (HC), Hallchurch J Bail proceedings Nature of proceedings - Whether administrative matter - Application for order to review decision of subordinate court in granting conditional bail - Whether High court jurisdiction to review decision - Constitution, s. 95 (1) and (5). STATE v. MOYO and Others [1988] B.L.R. 113 (HC), Hallchurch J Charge of rape Provisions of s 142(1)(i) of Penal Code (Cap 08:01) that any person charged with rape not entitled to be granted to bail - Such offending against provisions of s 5(3)(b) of Constitution of Botswana - Denial of bail where person alleged to have committed rape not in public interest - Section 142(1)(i) of Penal Code accordingly ultra vires the Constitution and to be struck down. ATTORNEY GENERAL'S REFERENCE: IN RE: THE STATE v. MARAPO [2002] 2 B.L.R. 26 (CA), Tebbutt AJP, Korsah, Lord Sutherland, Grosskopf and Akiwumi JJA Form of application to High Court considerations governing grant of ball. STATE v. SIKGOPI and Another 1968 - 1970 B.L.R. 163 (HC), Dendy Young CJ Grant of bail is a right for an accused person pending his appeal to the High Court from his conviction in the Magistrate's Court. STATE v. STANLEY MATENGE 1975 (1) B.L.R. 110 (HC), Dyke CJ If accused cannot be brought to trial within reasonable time he shall be released either unconditionally or upon reasonable conditions, even on murder charge. TSHEKONYANE v. THE STATE (1) [1993] B.L.R. 173 (HC), Mokama CJ Murder charge Bail only granted in exceptional circumstances. TSHEKONYANE v. THE STATE (No 2) [1993] B.L.R. 206 (HC), Nganunu J Pending appeal Fundamental difference between approach to liberty of individual between pre - trial bail and bail post - conviction - Applicant not showing special circumstances - Application dismissed - Constitution of Botswana s. 5. SALVADO v. THE STATE [2001] 2 B.L.R. 411 (HC), Nganunu CJ Pending trial Assessment of application - State, in order to oppose, should show that there is a reasonable suspicion that accused has committed the offence. MIHDA v. THE STATE [1997] B.L.R. 1147 (HC), Lesetedi AJ When to be granted Serious offences - Balancing exercise to be undertaken. KAGISO and Others v. THE STATE [1997] B.L.R. 372 (HC), Aboagye ACJ Bail applications Matters to be considered by the High Court. THE STATE v. GOPOLONG MACKENZIE 1968 - 1970 B.L.R. 308 (HC), Dendy Young CJ Bewitchment as a defence Extenuating circumstances. THE STATE v. LESEDI MOTHIBAMELA 1968 - 1970 B.L.R. 251 (HC), Dendy Young CJ Belief in having been bewitched Whether an extenuating circumstance on a charge of murder. STATE v. LESIDE MOTHIBANELA 1968 - 1970 B.L.R. 226 (CA), Roper JP, Schreiner JA, Maisels JA Burden of proof Proof of possession Mental element - Requirements - Person cannot possess a thing if he is unaware of its existence - Mere presence of object in accused's vehicle did not equate to possession unless accused knew of its existence and that it was forged - Magistrate had incorrectly placed onus of proving his innocence on accused. KOTSIWE v. THE STATE [1994] B.L.R. 11 (HC), Nganunu J Burglary Charge Burglary count - Addition of the words `and did steal therefrom' - Whether proper. STATE v. LESHETO and Another [1985] B.L.R. 127 (HC), O'Brien Quinn CJ Burglary count - Particulars of offence - Addition of words - and stole therefrom - Whether proper. STATE v. KHUPE (PRACTICE NOTE) [1985] B.L.R. 129 (HC), O'Brien Quinn CJ Burglary count - Words `with intent to steal' to be included in count - Failure to include words - Fatal to conviction in certain circumstances. STATE v. PHALE and Another [1985] B.L.R. 123 (HC), Hannah J Cap. 18, section 172 Failure to inform accused of right to call witnesses. OBONETSE NGAKAEMANG v. REGINA 1964 - 1967 B.L.R. 131 (HC), Weston CJ Cap. 18, s. 234 Accomplice evidence Cautionary rule - nature of corroboration. JELE DENNIS MBENGE v. THE STATE 1964 - 1967 B.L.R. 241 (HC), Hathorn ACJ Cattle Theft Withdrawal of Charges Cap.18 s.179(2) and s.10 - Stopping of Case by Attorney - General - Improper Order of Compensation. BLIND KOORAPETSE TOTENG v. REGINA 1964 - 1967 B.L.R. 105 (HC), Weston CJ Causation Novus actus interveniens STATE v. REETSANG 1979 - 1980 B.L.R. 48 (HC), Mahomed J Causing death by drunken driving Section 49(c) of Road Traffic Act (Cap:01) MOTLHALEFI LENTSWE MOFSWANE v. THE STATE 1982 (1) B.L.R. 119 (HC), O'Brien Quinn CJ Certiorari proceedings If tribunal has jurisdiction to determine matter before it, but only errs on point of law, remedy is either appeal or to proceed by certiorari Superior court can interfere with decision of inferior tribunal in certiorari proceedings but superior court can only examine order and not consider merits, as these are matters for appeal. LETSATSI v. THE STATE [1993] B.L.R. 11 (HC), Gyeke - Dako J Charge 'General deficiency' on charge of theft. STATE v. PHOLOBA 1981 B.L.R. 247 (HC), Corduff J `Making a false document' Accused charged with making false document contrary to Cap. 08:01, s. 345(a) and (d)(i) - Charge defective - Making false document not an offence - Definition of offence - Proper charge - Forgery - Mode of framing charges - Most serious charge which facts can legally support should be framed - Penal Code (Cap. 08:01) (1973 Rev.), s. 345. STATE v. MASHABILA (PRACTICE NOTE) [1984] B.L.R. 53 (HC), O'Brien Quinn CJ Accused charged with making false document contrary to Cap. 08:01, s. 345(c) - Charge defective - Making false document not an offence - Definition of offence - Proper charge - Forgery contrary to section 348 or 349(1) of Cap. 08:01 - Accused to be charged with additional charge of uttering false document contrary to section 252 of Cap. 08:01 - Penal Code (Cap. 08:01) (1973 Rev.), ss. 252, 345(c), 348 and 349(1). STATE v. SELEKA (PRACTICE NOTE) [1984] B.L.R. 13 (HC), O'Brien Quinn CJ A charge of theft by a servant does not disclose an offence unless it alleges that the Accused is a servant. STATE v. BORI NKWE 1974 (1) B.L.R. 63 (HC), Aguda CJ Alternative charge Conviction on alternative charge - Court to warn accused of possible conviction on another offence - No fixed time for giving warning but the sooner the better. STATE v. GAOFORWE [1999] 2 B.L.R. 334 (HC), Lisimba J Rape - Defilement of girl under age of 16 years as alternative count - Alternative charge unnecessary and superfluous - Prosecution to elect which count to proceed with - Criminal Procedure and Evidence Act (Cap. 08:02), s. 192. NYATHI v. THE STATE [1991] B.L.R. 1 (HC), Gyeke - Dako J Alternative count Alternative count based on same facts or transactions as substantive count and related to same act allegedly committed by accused at same place and time against same person - Whether proper. STATE v. BAPHARI [1991] B.L.R. 343 (HC), Gyeke - Dako J Alternative offence Accused not guilty of offence charged with - Convicting on alternative charge - Court to warn accused of alternative offence before invoking it - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 193. CHALAOMANE v. THE STATE [1986] B.L.R. 84 (HC), Murray J Charge of burglary and theft - Conviction on alternative offence of receiving stolen property - Accused unrepresented - Essential to warn accused of conviction on alternative offence - Warning to be given at any time but before delivery of judgment - Accused alleging receiving stolen property from co - accused - Accused having opportunity to defend case of possession - Defence of accused rejected by trial court - Whether accused prejudiced by conviction on alternative offence of receiving stolen property. STATE v. SETHUNYA [1986] B.L.R. 483 (HC), Hallchurch J Charge of rape - Conviction of lesser offence of indecent assault - Appellant unrepresented at trial - Failure to warn appellant of convicting of lesser offence - Effect - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 191. SEGAMETSI v. THE STATE [1986] B.L.R. 441 (HC), Murray J Charge of robbery with violence - Conviction on alternative offence of assault occasioning actual bodily harm - Failure to warn accused of being convicted on alternative offence - Denial by accused of commission of offence of robbery - Whether accused prejudiced by being convicted of alternative offence - Whether conviction proper - Application of Criminal Procedure and Evidence Act (Cap.08:02) (1973 Rev.), s. 321, proviso. STATE v. FIHLANI [1987] B.L.R. 225 (HC), Hallchurch J Charge of shopbreaking and theft - Conviction on alternative offence of receiving stolen property - Appellant unrepresented - Failure to warn appellant of convicting on alternative offence - Evidence led at trial related entirely to possession of stolen goods - Whether conviction proper - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 193. CHALAOMANE v. THE STATE [1986] B.L.R. 261 (CA), Maisels P,Van Winsen JA and Doyle JA Amendment Application to amend charge of indecent assault to that of rape - Substitution of charge of indecent assault to that of rape - Whether substitution an amendment of charge. MONYAMANE v. THE STATE [1985] B.L.R. 233 (HC), Barrington - Jones J Magistrate amending charge at end of trial - Accused not given opportunity to defend themselves on amended charge - Conviction on amended charge - Whether conviction sustainable. STATE v. GOREWANG and Another [1985] B.L.R. 369 (HC), O'Brien Quinn CJ Substitution of new charge - Proper course to be adopted - Prosecutor to apply to court to withdraw charge by substitution of new charge - Fresh charge laid to be tried by court differently constituted - Criminal Procedure and Evidence Act (Cap. 08:01) (1973 Rev.), s. 149, proviso. MONYAMANE v. THE STATE [1985] B.L.R. 233 (HC), Barrington - Jones J When properly made - Amendment to be made before judgment and not prejudicial to accused in his defence - Charge of forgery with intent to defraud or deceive - Application to delete intention to defraud leaving intention to deceive as operative intention on charge - Whether amendment of charge necessary. DITHAPO v. THE STATE [1990] B.L.R. 624 (CA), Amissah P, Aguda JA, Doyle JA, Bizos JA, Schreiner JA Amendment, after plea, introducing new charge. S v. THEKISO 1981 B.L.R. 267 (HC), Corduff J Arms of war Unlawful possession - Proper mode of framing charge - Arms and Ammunition Act (Cap. 24:01) (1973 Rev.), s. 9 (1) and (5). TSEKANE v. THE STATE [1988] B.L.R. 95 (CA), Amissah P, Aguda JA, Van Winsen JA, Doyle JA, and Bizos JA Assault common Alleged choking of complainant by appellant - No evidence adduced in support of choking - Evidence adduced indicating appellant moving in aggressive manner towards complainant causing fear in her - Whether charge of assault common sustainable - Penal Code (Cap. 08:01) (1973 Rev.), ss. 5 and 251. SELEBOGO v. THE STATE [1987] B.L.R. 320 (HC), O'Brien Quinn CJ Assault occasioning actual bodily harm Framing of charge - Charge to be framed under most appropriate section of enactment - Accused throwing knife with open blade at complainant - Knife striking complainant in lower region of his back causing minor laceration - Meaning of `laceration' - To tear, mangle; to tear in pieces - Proper charge - Unlawful wounding - Penal Code (Cap. 08:01) (1973 Rev.), ss. 5, 238 and 252. STATE v. BAIPHETHI (PRACTICE NOTE) [1984] B.L.R. 232 (HC), O'Brien Quinn CJ Attempted murder Evidence - Evidence not supporting charge laid - Conviction for lesser offence of assault occasioning actual bodily harm - Criminal Procedure and Evidence Act (Cap. 08:02), s. 187. STATE v. BAPHARI [1991] B.L.R. 343 (HC), Gyeke - Dako J Attempted rape Accused pleading guilty to charge of attempted rape - Summary of facts not disclosing offence charged - Facts amounting to act of preparation - More than one element of offence put to accused at a time - Whether plea unequivocal - Whether conviction for attempted rape proper. TLHONG v. THE STATE [1988] B.L.R. 13 (HC), Lawrence AJ Autrefois acquit Three accused persons jointly charged in one count with stealing by persons employed in public service - Quashing of charge and discharging accused persons on submission of no case to answer at close of prosecution case - Magistrate ruling charge to be prejudicial to accused persons and likely to embarrass them in their defence - Subsequent arraignment of accused persons on similar charges before another magistrate - Reference of case to High Court for review and direction - Whether plea of autrefois acquit available to accused persons. STATE v. BAKI and Others [1987] B.L.R. 488 (HC), Barrington - Jones J Burglary and theft Conviction for alternative offence - Trial court empowered to acquit accused of offence charged and convict of alternative offence provided for by Act - Appellants charged with offence of burglary - Offence probably committed before 6.30 p.m. or after 7 a.m. - Conviction for burglary incompetent - Whether in the circumstances court empowered to convict appellant of alternative offence of housebreaking - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 193. MONTSHIWA and Another v. THE STATE [1989] B.L.R. 592 (HC), Livesey Luke CJ Housebreaking and theft - Single or separate counts - Better way of framing charge - Offences to be charged severally in two separate counts. STATE v. MOKO [1986] B.L.R. 235 (HC), O'Brien Quinn CJ Charge of rape Conviction of defilement - Such only appropriate if court of opinion accused not guilty of rape - No indication in record that magistrate making finding to effect that appellant not guilty of rape - Nothing in record indicating magistrate informing accused that he answering case of defilement, not rape - Failure of magistrate to warn unrepresented acccused that he answering case of defilement and to advise him of available defence constituting irregularity - Conviction for defilement set aside - Criminal Procedure and Evidence Act (Cap 08:02), s 192. TSUNKE v. THE STATE [2004] 2 B.L.R. 155 (HC), Molokomme J Charge sheet Amendment - Plea of guilty to charge - Conviction on plea - Whether charge capable of amendment after conviction - Leave given for replacement of original charge sheet with new one after conviction - Effect - Leave given a nullity. AMOGELANG v. THE STATE [1984] B.L.R. 201 (HC), Hannah J Complainant Company wrongly described. S v. MUTAKUTI 1981 B.L.R. 230 (HC), Hannah J Composite charge Burglary and theft - Form 9, Third Schedule of Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.) be used. STATE v. KHUPE (PRACTICE NOTE) [1985] B.L.R. 129 (HC), O'Brien Quinn CJ Burglary and theft - Form 9, Third Schedule, Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.) to be followed. STATE v. LESHETO and Another [1985] B.L.R. 127 (HC), O'Brien Quinn CJ Housebreaking and theft - Irregular to charge housebreaking and theft in single count. STATE v. MOKONI and Another [1985] B.L.R. 471 (HC), O'Brien Quinn CJ Conspiracy Joinder of charges - Murder and conspiracy to commit murder - Charges brought under same indictment - Conspiracy charges adding nothing to effective charge of substantive offence undesirable - Whether proper to join charge of conspiracy with murder charge under same indictment. STATE v. MOGOTSI and Another [1990] B.L.R. 497 (HC), Gyeke - Dako J Contradiction between offence created by Statute and Charge. STATE v. SENDY JOSEPH and Another 1978 B.L.R. 40 (HC), Edwards J Conviction Consideration of convicting accused on alternative minor offence - Terms of alternative minor offence placing onus on accused - Accused to be given fair notice of any issues not stated in or apparent from substantive charge - Failure to inform accused of such issues likely to prejudice his defence. MOSANANA v. THE STATE [1985] B.L.R. 29 (HC), Hannah J Dealing in or possession of prohibited object or substance Disappearance of object or substance before arraignment - Proof of nature of object or substance - Circumstantial evidence to be adduced to ascertain nature of missing object or substance. TACHIPULU v. THE STATE [1987] B.L.R. 188 (HC), Murray J Defective Appellant in arrangement with shop assistants collected goods from shop without paying for them - Stolen goods never came into possession of shop assistants - Appellant charged with receiving stolen goods - Whether facts disclosing any offence of receiving - Whether proper to charge appellant of receiving stolen goods. MOKWENA v. THE STATE [1986] B.L.R. 331 (HC), Murray J Breaking into a building and committing an offence therein contrary to Cap. 08:01, s. 307)(a) - One composite offence - Accused charged with two offences - Housebreaking and theft common - Charge defective - Proper procedure for charging burglary or housebreaking and connected theft - Offence to be charged severally in two different counts - Penal Code (Cap. 08:01) (1973 Rev.), s. 307(a). STATE v. MABAKA (PRACTICE NOTE) [1984] B.L.R. 12 (HC), O'Brien Quinn CJ Charge disclosing no offence - Effect of plea of guilty to charge - Accused convicted and sentenced on plea of guilty - Whether accused can appeal against conviction. Criminal procedure - Trial - Retrial - Power of appellate court - When to order for retrial. KOK v. THE STATE [1983] B.L.R. 3 (HC), O'Brien Quinn CJ Charge laid under section not creating offence - Sufficient particulars given indicating section intended - Whether charge defective - Penal Code (Cap. 08:01), s. 276. MOLOME v. THE STATE [1992] B.L.R. 335 (HC), Gyeke - Dako J Charge not disclosing offence triable in Botswana - Accused pleading guilty to charge - Whether conviction proper. STATE v. BOTHA [1986] B.L.R. 232 (HC), O'Brien Quinn CJ Obtaining by false pretences - Wrong intent stated in charge - Magistrate failing to consider correct intent - Conviction - Whether proper. MOTLHANKE v. THE STATE [1998] B.L.R. 218 (HC), Aboagye J Plea of guilty to charge of receiving stolen goods - Appellant convicted and sentenced - Facts not disclosing offence of receiving stolen goods - Facts supporting offence of stealing - Appeal against sentence - Powers of appellate court - Power to give such judgment as ought to have been given by trial court - Whether appellate court power to convict of theft on charge of receiving - Whether power to permit fresh charge to be preferred - High Court Act (Cap. 04:02) (1973 Rev.), s. 9 - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), ss. 186, 199 and 321(c). MOKWENA v. THE STATE [1986] B.L.R. 331 (HC), Murray J Statement of offence incorrectly worded - Plea of guilty to charge - Conviction and sentence - Appeal against sentence - Whether accused prejudiced in his defence by defects in charge sheet. SEFOLANA v. THE STATE [1985] B.L.R. 337 (HC), O'Brien Quinn CJ Stock theft - Charge of possession of suspected stolen stock - Particulars offence stating appellant `unlawfully possessed' certain head of cattle - Failure to allege in particulars of offence of accused having been found in possession of stock reasonably suspected of being stolen - Whether charge defective - Whether charge disclosing any chargeable offence - Stock Theft Act, 1996 (No. 21 of 1996), ss. 3(1) and 4(a). MFETANE v. THE STATE [1998] B.L.R. 59 (HC), Mosojane J Wrong section of law cited - If offence correctly described in manner that accused cannot be said not to have understood what he charged with, then charge, though technically defective, not vitiating proceedings taken under it. July v. The State [2006] 1 B.L.R. 496 (HC), Mosojane J Defects in STATE v. MOLEBATSE 1979 - 1980 B.L.R. 212 (HC), Hannah J Defence Duty of prosecution to destroy defence raised. STATE v. NDIWENYU [1990] B.L.R. 409 (HC), Gyeke - Dako J Double jeopardy Person not to be punished twice for same offence - Life imprisonment for attempted murder - Arson as means of commission of attempted murder - Imposition of seven years' imprisonment for arson and made to regulate length of expected sentence to be served for life imprisonment - Sentence for arson disproportionate and manifestly excessive and incompetent to use as measure of sentence to be served on conviction of attempted murder. BOGOSI v. THE STATE [1986] B.L.R. 461 (CA), Maisels P, Amissah JA and Bizos JA Drafting Framing of charges under prohibitory section of enactment - Necessity of combining prohibitory section and section creating offence - Road Traffic Act (Cap. 69:01) (1973 Rev.), ss. 60 and 73. NAWA v. THE STATE [1989] B.L.R. 582 (HC), Gyeke Dako J Time of commission of offence - Charge sheet - Offence to be shown to have been committed within some period having reasonable approximation to date mentioned in charge sheet. STATE v. MOMPATI (PRACTICE NOTE) [1985] B.L.R. 89 (HC), O'Brien Quinn CJ Drafting of charge Proper mode of drafting charge. MBAYI v. THE STATE [1989] B.L.R. 527 (HC), Gyeke - Dako J Duplicity Charge of offence of offensive conduct conducive to breach of peace - Particulars of offence alleging accused persons using abusive or insulting words: to wit `car thief hypocrite' - Whether charge duplicitous - Penal Code (Cap.08:01), s. 90(1) - Criminal Procedure and Evidence Act (Cap. 08:02), s. 131(b)(i). KEATSUTSWE and Others v. THE STATE [1990] B.L.R. 176 (HC), Gyeke - Dako J Duplicity - Charge of using `abusive and insulting' words to wit: `nnywana' and `dithala' at public gathering - Words used alleged being abusive and insulting - Words contained in one count - Failure to reproduce full expressions containing allegedly abusive and insulting words - Failure to state essential ingredients of offence in charge sheet - Effect. LEGWAILA v. THE STATE [1990] B.L.R. 260 (HC), Gyeke - Dako J Duplicity - Charge of uttering three false documents in one count - Three false documents uttered as part of single criminal transaction - Whether charge bad for duplicity. STATE v. KETSHWANETSE [1998] B.L.R. 380 (CA), Amissah P, Lord Allanbridge JA and Beck AJA Duplicity - Omnibus nature of charge - Whether accused prejudiced - Maintenance Orders Enforcement Act (Cap. 29:05) (1973 Rev.), s. 4. KALABENG v. THE STATE [1983] B.L.R. 106 (HC), Hannah J Duplicity - Splitting of charges and duplication of convictions - Test for determining improper splitting of charges or duplication of convictions - Commission of two criminal acts with single intent both acts being necessary to carry out that intent - Evidence necessary to support one charge equally necessary to support other charge - Charge of breaking and entry with intent to steal therein contrary to section 303 and theft contrary to section 264 as read with section 271 of the Penal Code - Whether charge bad for duplicity and improper splitting - Penal Code (Cap. 08:01), ss. 264, 271 and 303. STATE v. MOSALA and Others [1990] B.L.R. 588 (HC), Gyeke - Dako J Duplicity in charge Each offence must be the subject of a separate paragraph of the indictment STATE v. NLEYA 1973 (1) B.L.R. 44 (HC), Aguda CJ Essential averments Charge of theft by public servant of State property - Failure to refer to section 27 of the Penal Code not fatal - Section 128 paramount - Purpose of section 131 merely to draw attention to certain indictments and summonses - Reference to section 271 not necessary in the circumstances. NDUBIWA v. THE STATE [1994] B.L.R. 30 (CA), Amissah JP, Schreiner JA, Trengove JA Evidence Variation between charge shee and evidence adduced at trial - Failure to make amendments to charge sheet - Whether miscarriage of justice resulted therefrom - Whether appellate court power to amend charge sheet - High Court Act (Cap. 04:02), s. 10(1), proviso - Criminal Procedure and Evidence Act (Cap. 08:02), s. 149. MODISE v. THE STATE [2001] 1 B.L.R. 380 (HC), Kirby J Failing to comply with court order contrary to section 4 (1) of Maintenance Order Enforcement Act Cap. 29:05 Duplicity JIMMY MABUA v. THE STATE 1982 (2) B.L.R. 82 (HC), Corduff J Failure to allege an essential element of charge But the element could be inferred from the charge as a whole. STATE v. SHADRACK TSHIBOGO 1976 B.L.R. 61 (HC), Hill J Failure to disclose an offence. STATE v. BOTOLAMANG MADI 1972 (2) B.L.R. 56 (HC), Aguda CJ Forgery and uttering Framing of charge - Forgery and uttering charged together in relation to same transaction - No need to charge obtaining by false pretences where that offence is included in uttering charge. STATE v. MATSHASI (PRACTICE NOTE) [1985] B.L.R. 242 (HC), O'Brien Quinn CJ General deficiency charged instead of separate counts of Theft No prejudice. STATE v. HABANGANA 1979 - 1980 B.L.R. 53 (HC), Mahomed J Habit Forming drugs - Importation or dealing - Habit - forming drugs found in accused's vehicle when entering Botswana - Accused charged with unlawful dealing in habit - forming drugs - Whether importation amounted to `dealing in' as in Habit - Forming Drugs Act (Cap. 63:04) (1973 Rev.). MUDZINGWA v. THE STATE [1985] B.L.R. 465 (HC), O'Brien Quinn CJ Forming drugs - Importation or possession - Habit - forming drugs found in accused's luggage when entering Botswana - Accused charged with unlawful possession - Whether accused should be charged with importation - Necessary to frame charge under appropriate section - Penalty same for both offences - Habit - Forming Drugs Act (Cap. 63:04) (1973 Rev.), ss. 3 and 7. STATE v. MAKHUBALA [1983] B.L.R. 33 (HC), O'Brien Quinn CJ Forming drugs - Unlawful possession - Issues for consideration and determination by court - Whether accused in possession of drugs - Whether accused knowledge of having possession of drugs - Whether drugs prohibited habit - forming drugs - Habit - Forming Drugs Act (Cap. 63:04) (1973 Rev.), s. 3 (1) (b). KALINGA v. THE STATE [1989] B.L.R. 490 (HC), Livesey Luke CJ The accused Where accused a company - Applicant not charged in his personal capacity - Penal Code (Cap. 08:01) s. 24 - Criminal Procedure and Evidence Act (Cap. 08:02) s. 332(1). MAKGEKGENENE v. THE STATE [1997] B.L.R. 626 (HC), Aboagye J Housebreaking Ingredients - Intent to commit of - fence to co - exist with breaking and entry - Lack of evidence to establish actual or constructive breaking - Conviction on charge therefor bad in law. MORUPULE and Another v. THE STATE [1989] B.L.R. 634 (HC), Gyeke - Dako J Housebreaking and Theft Single or separate counts - Sentence on separate counts - Counts constituting single transaction - Sentences to run concurrently. REGINA v. ELISHABE 1964 - 1967 B.L.R. 37 (HC), Weston CJ Housebreaking with intent to commit a serious offence. STATE v. JAMES LEGOTSE 1973 (1) B.L.R. 66 (HC), Aguda CJ Infanticide or murder Remand prisoner - Mental condition of prisoner - Necessity of magistrate to make enquiry as to mental state of prisoner. STATE v. MOKULA [1985] B.L.R. 66 (HC), Hannah J Joinder Joint charge of rape against two accused - Each accused committing separate offence of rape - Whether proper to charge both accused in one count. STATE v. NTABOLELA and Another [1985] B.L.R. 142 (HC), O'Brien Quinn CJ Joint charge of rape against two accused - Each accused committing separate offence of rape - Whether proper to charge both accused in same count. RAMALELE and Another v. THE STATE [1985] B.L.R. 204 (HC), O'Brien Quinn CJ Joint charge of rape against two accused - Whether charge defective - Conviction on charge - Appeal against conviction - Whether interests of justice require new trial - High Court Act (Cap. 04:02) (1973 Rev.), s. 9(1)(b). TUMETSANE and Another v. THE STATE [1985] B.L.R. 119 (HC), Murray J Joint charge of rape against two accused - Each accused committing separate offence of rape - Whether proper to charge both accused in one account. MODUNGWA and Another v. THE STATE [1985] B.L.R. 184 (HC), Hannah J Rape - Charge of rape against two accused persons in one count - Proper to charge accused persons in one count of rape without mention of aiders and abettors - Immaterial to trier of fact whether individual accused physically committed act of rape or assisted or encouraged some one else to do it. TSHWENE and Another v. THE STATE [1987] B.L.R. 92 (HC), Hallchurch J Two accused charged in one count - Accused, each charged with rape of same person at certain time and place - Though drafting of charge inelegant, nothing materially wrong therewith, particularly as evidence pointed to concerted action on part of accused - Where, as in present case, accused acting with common purpose in jointly committing offence on one victim, s. 130(a) of Criminal Procedure and Evidence Act (Cap. 08:02) making it possible for accused to be joined together in one count and tried for same offence committed in course of same transaction. MOATLHODI and Another v. THE STATE [1995] B.L.R. 265 (HC), Gyeke - Dako J Marginal note statement of offence Section 324 of Penal Code - Model charges should be followed as closely as circumstances permit - Statement of charge and particulars contradictory but no failure of justice - No legal or practical sanction `for taking offences into consideration' when passing sentence. STATE v. MONTSHIWA ADAM 1982 (1) B.L.R. 181 (HC), O'Brien Quinn CJ Murder Charge - Plea of guilty - Whether proper to convict accused pleading guilty to charge of murder - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 239(1). STATE v. SIBANDA [1984] B.L.R. 4 (HC), O'Brien Quinn CJ Plea of guilty - Accused not understanding implications of plea - Duties of defence counsel - Ensuring before arraignment of accused not only understanding case against him but also advising as how to plead. STATE v. MPOFU [1986] B.L.R. 487 (HC), Hallchurch J Murder charge Accused charged with murder - No plea taken - Entry of nolle prosequi by Attorney - General - Defence counsel submitting accused to be acquitted or be found guilty in terms of section 150 (4) of Cap. 08:02 - Whether submission sustainable - Criminal Procedure and Evidence Act (Cap. 08:02), s. 150 (4). STATE v. SEELETSO [1991] B.L.R. 195 (HC), Gyeke - Dako J Necessary averments Charges of unlawful possession of a firearm and unlawful possession of ammunition in contravention of s 9(1) of Arms and Ammunition Act (Cap 24:01) - State seeking to invoke minimum sentences provided for in s 9(5) on ground that accused possessed `arms of war' - Charge sheet not drawing accused's attention to provisions of s 9(5) - In fairness to accused charge sheet should clearly set out that particular is an `arm of war' as defined in s 2 of Act and that on conviction accused subject to mandatory sentence provided for in s 9(5) - Charge sheet failing to make such allegation, although on charge of possession of ammunition, words `as read with s 9(5)' appearing, with no explanation of significance of s 9(5) - In such circumstances court not entitled to sentence accused under s 9(5) of Act. JULY and Another v. THE STATE [2002] 2 B.L.R. 42 (CA), Zietsman, Plewman and Grosskopf JJA Nolle prosequi Accused charged with murder - Entry of nolle prosequi by Attorney - General - Effect - Discontinuance of criminal proceedings - Discharge but not acquittal on merits of case - Possibility of reinstituting proceedings against accused. STATE v. SEELETSO [1991] B.L.R. 195 (HC), Gyeke - Dako J Order for charge to lie on file English practice not found in Botswana - Practice not to be followed in Botswana. BOGOSI v. THE STATE [1986] B.L.R. 461 (CA), Maisels P, Amissah JA and Bizos JA Particulars of offence Duty of trial court, in every case, before any charge is put to accused, mero motu, to see that it is in proper form and draw prosecution's attention to any existing defect in charge. KOBE v. THE STATE [1995] B.L.R. 37 (HC), Gyeke - Dako J Section 263 of the Penal Code requires subject matter of theft must be thing capable of being stolen - Not sufficient to allege that person stole property valued at particular amount - Proper way of framing charge under section 302 of the Penal Code set out - Penal Code (Cap. 08:01), ss. 263 and 302. KOBE v. THE STATE [1995] B.L.R. 37 (HC), Gyeke - Dako J Section 264 of Penal Code (Cap. 08:01), being only definition section in respect of offence of theft, has no place in statement of offence - Offence - creating section for theft common is s. 271 of the Code - Penal Code (Cap. 08:01), s. 271. KOBE v. THE STATE [1995] B.L.R. 37 (HC), Gyeke - Dako J Theft - Particulars stating that accused came into possession of stolen money `on account of Barclays Bank' - Whether charge not disclosing ownership of stolen money. MAPHANE v. THE STATE [1991] B.L.R. 60 (HC), Gyeke - Dako J Theft common - Particulars not disclosing nature of stolen property - Conviction - Whether proper - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 130 (c)(i). NKGAGENG v. THE STATE [1989] B.L.R. 305 (HC), Aboagye J Particulars of statement of offence Enactment requiring such particulars as may be necessary for giving reasonable information as to nature of offence charged - Appellant alleged to have sold liquor through somebody else - Failure to give actual particulars of offence charged - Effect - Criminal - Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 127. MONAGENG v. THE STATE [1987] B.L.R. 355 (CA), Maisels P, Amissah JA and Van Winsen JA Plea Accused pleading to charge - Adjournment of case after plea - Accused arraigned after adjournment before court differently constituted - Charge read over second time - Statement made by accused after charge read second time - Whether statement a new plea. KWENAMORE v. THE STATE [1983] B.L.R. 208 (CA), Maisels P, Dendy - Young JA, Van Winsen JA Failure of trial court to take plea of accused - Accused tried and convicted without plea having been taken - Whether trial a nullity. KAMOGELO v. THE STATE [1985] B.L.R. 490 (HC), Barrington - Jones J Plea of guilty - Appellants charged on two counts of unlawful possession and unlawful dealing in habit - forming drugs - Appellants pleading guilty to both counts - Appellants giving similar statements merely agreeing to facts put to them - Magistrate entering plea of guilty without specifically asking whether appellants ordered dagga to be sold on their behalf - Magistrate convicting appellants on both counts - Whether appellants appreciated gravity of charge of dealing in habit - forming drugs - Whether their pleas unequivocal. NCUBE and Another v. THE STATE [1999] 1 B.L.R. 63 (CA), Amissah P J, Korsah J and Lord Morison JA Plea of guilty Conviction - Particulars Of offence - Defective - Particulars insufficient to show that offence committed - Whether conviction proper. STATE v. KOMPONE [1985] B.L.R. 139 (HC), O'Brien Quinn CJ Duty imposed on prosecutor and trial magistrate by direction contained in Judicial Circular No. 1 of 1975 - Compliance with direction mandatory - Failure to comply with direction - Plea equivocal - Conviction to be set aside. RAMODIMO v. THE STATE [1987] B.L.R. 112 (HC), Hallchurch J Improper acceptance of plea of guilty - Accused charged on two counts - Accused pleading guilty to first count and not guilty to second count - Magistrate entering plea of guilty to second count - Magistrate remanding accused in custody and fixing date for trial - Whether proper for magistrate to do so - Plea of guilty to be unequivocal. STATE v. BORAKANELO [1985] B.L.R. 361 (HC), O'Brien Quinn CJ Magistrate to put essential elements of offence to accused persons before accepting plea - Duty imposed on magistrate by Judicial Circular No. 1 of 1975 - Conviction not vitiated by failure to put essential elements to accused where facts of case having been explained to him - Facts on each count stating clearly what appellant alleged to have done - Whether failure by magistrate to put essential ingredients of charges to appellant vitiating conviction on counts 1 to 3. KEPALETSWE v. THE STATE [1990] B.L.R. 554 (HC), Aboagye J Possession Habit - forming drugs - Methaqualone (BP) otherwise known as mandrax tablets - Proof of substance - Whether incumbent on State of proving substance being either methaqualone as prescribed by British Pharmacopoeia or mandrax containing methaqualone produced by or under authority of person entitled by law to use name `mandrax' on such product - Habit - forming Drugs Act (Cap. 63:04) (1973 Rev.), s.3 (1) - Declaration (Extension of List) of Habit - forming Drugs Order, 1982, (S.I.37). MZWINILA v. THE STATE [1987] B.L.R. 382 (CA), Maisels JA, Amissah JA, Doyle JA Proof Standard of proof - Rape - Unsatisfactory features of case - Failure to call material witness - Conviction of accused - Conviction unsafe. STATE v. LEUWE [1987] B.L.R. 342 (HC), Barrington - Jones J Proper form Court's duty relating to. DIPHOKO v. THE STATE [1994] B.L.R. 377 (HC), Gyeke - Dako J Road traffic offence Charge of dangerous driving and driving motor vehicle being in condition likely to endanger other users of road - Failure of alleging offences taking place on road - Effect - Irregularity - Road Traffic Act (Cap. 69:01), ss. 60(1) and 63(1). MHALADI v. THE STATE [1990] B.L.R. 168 (HC), Aboagye J Robbery Applicant picking complainant's pocket and taking P20 note from it - Applicant running away and being chased by complainant and Others - Applicant producing knife and turning towards them - Applicant eventually apprehended by police - Whether charge of robbery proper - Whether appropriate charge stealing from person - Penal Code (Cap. 08:01) (1973 Rev.), ss. 280 (a), 296 and 297 (1). KGOSI v. THE STATE [1989] B.L.R. 213 (CA), Amissah P, Doyle JA, Schreiner JA Separate counts Charge containing alternative counts - Accused pleading guilty - Case record not disclosing to which alternative count accused pleaded - Practice to be followed when charge contains alternative counts. STATE v. KGEBETHE [1986] B.L.R. 230 (HC), O'Brien Quinn CJ Charge containing three counts - Third count alternative to first count - Accused pleading only once - Practice to be followed when charge contains separate or alternative counts. STATE v. RAMOLALE [1986] B.L.R. 215 (HC), O'Brien Quinn CJ Shopbreaking and theft Single offence - Not several offences - Offence to be charged only under one count - Penal Code (Cap. 08:01) (1973 Rev.), s. 307(a) STATE v. MOKO [1986] B.L.R. 235 (HC), O'Brien Quinn CJ Splitting or duplicity of charges Accused stealing suitcase containing mandrax tablets from courtroom - Accused charged on three counts - Unlawful possession of habitforming drugs - Theft - Contempt of court - Offences arising from one act but distinct from one another in terms of punishment - Whether offences to be encompassed in one all - embracing charge as offences having been committed simultaneously. KGOMANYANE v. THE STATE [1986] B.L.R. 62 (HC), O'Brien Quinn CJ Offences of driving without due care and attention contrary to Road Traffic Act (Cap 69:01) s 51(1) and driving whilst unfit to do so because of drinks or drugs contrary to s 46(1) as read with s 48(10) of the Act. MODISA v. THE STATE [2004] 1 B.L.R. 401 (HC), Chinhengo J Stealing Accused charge with stealing specified sum of money - Proof of money stolen more or less than sum specified in charge sheet - Whether any offence committed. MOLOME v. THE STATE [1992] B.L.R. 335 (HC), Gyeke - Dako J Acquittal - Forfeiture - Appellant acquitted of stealing stock - Court finding that cattle did not belong to him and ordering forfeiture - Whether forfeiture proper in the absence of a conviction. JOSEPH v. THE STATE [1999] 2 B.L.R. 114 (HC), Mosojane J Allegation of specific sum of money having been stolen in each of three months - Charge of total sum stolen in three months in one count - Charge defective - Effect - Whether miscarriage of justice resulting therefrom - High Court Act (Cap. 04:02), s. 10 (1), proviso. TOTO v. THE STATE [1990] B.L.R. 440 (HC), Livesey Luke CJ Proof - Rules to be borne in mind by judicial or prosecuting officers - Need to trace property allegedly stolen from possession of owner to possession of accused - When stolen property recovered - Production of property or identifiable part of property in court as exhibit - Failure to observe rules - Effect. SEKWAKWALALA v. THE STATE [1987] B.L.R. 458 (HC), Hallchurch J Stealing by servant Particulars of offence stating appellant being person employed by A. stole property of A. coming into his possession on account of his duties - Plea of guilty - Statement of facts silent as to ownership of property alleged to have been stolen - Whether proper to convict for stealing as servant - Penal Code (Cap. 08:01) (1973 Rev.), s. 282. RADIKOLOBE v. THE STATE [1985] B.L.R. 600 (HC), Murray J Stock theft Defective charge - Lack of particularity of charge - Particulars of offence alleging appellants having stolen `beasts' - Particulars vague and fatally defective - Particulars of offence to state whether animals allegedly stolen being cattle, goats, sheep donkeys, etc. - Animals to be described fully by colour, earmarks and brand marks - Particulars of offence of paramount importance to enable accused to know in advance exact charge against him - Charge of stealing stock describing stolen animals as beasts being vague and fatally defective. LESETEDI and Another v. THE STATE [2001] 1 B.L.R. 393 (HC), Dibotelo J Substitution by Court of different charge during course of trial. S v. LEPHOLE 1979 - 1980 B.L.R. 215 (HC), Corduff J Substitution of charge Irregular substitution of assault charge for grievous harm charge after complainant testified - Appellant having no objection to substitution of more serious charge - Appellant given opportunity to recall witnesses for further cross - examination - Defence being denial of assaulting complainant at all - Medical evidence of complainant's injuries led after substitution of charges - Appellant given opportunity to contest evidence - Appellant not prejudiced by irregular procedure - No miscarriage of justice - Court having discretion to dismiss appeal - Court of Appeal Act (Cap. 04:01), s. 13 (3). MOGATLA v. THE STATE [2001] 1 B.L.R. 192 (CA), Korsah, Zietsman and Sir John Blofeld JJA Sufficiency of Charge of theft of stock - Number of goats stolen, identity of complainant and description of goats not set out in charge - Deficiencies resulting in unfair trial. PAKI v. THE STATE [2005] 1 B.L.R. 479 (HC), Masuku J Written consent of Attorney - General - not required for prosecution of public servant for charge of Theft by false pretences on same facts as would justify a charge of contravening section 103 of Penal Code - Attorney - General entitled to prosecute for either offence. SEKGOMA v. S 1979 - 1980 B.L.R. 219 (HC), Corduff J Charge and indictment Against company Liability of director - Company the accused in criminal proceedings - Director of company not personally charged - Director of company imprisoned upon conviction of company - In order to fix director with liability he must be charged - Penal Code (Cap. 08:01), s. 24, Criminal Procedure and Evidence Act section 332(1). REFERENCE BY THE ATTORNEY - GENERAL IN RE: WRIGHT v. THE ATTORNEY - GENERAL [1996] B.L.R. 689 (CA), Amissah JP, Steyn and Hoexter JJA Splitting of charges Charge of stock theft contrary to s 3(1) of the Stock Theft Act (Cap 09:01) - Two cows grazing together stolen by accused - Prejudice to the accused is not cured by awarding the sentences to run concurrently or by passing a single sentence. GAEBOLAE v. THE STATE [2002] 1 B.L.R. 506 (HC), Mosojane J Test to be applied in determining improper duplication of charges - Charges of corruption - Circumstances of each charge different in time, amounts of money involved and number of accused involved - No improper duplication. DUBE v. THE STATE [1996] B.L.R. 694 (CA), Amissah JP Hoexter and Lord Allanbridge JJA Charge formal defects. STATE v. DISOTLHE MOLEFE 1976 B.L.R. 17 (HC), Rooney ACJ Charge of forgery Forged document not produced in court. KETLAMORENG JUSTICE POLOKO v. THE STATE 1982 (2) B.L.R. 3 (HC), O'Brien Quinn CJ Charge sheet Theft Sections 272 to 280 of Penal Code to be paired with s. 271 in charge sheet alleging theft. MOTSUMI v. THE STATE [1993] B.L.R. 131 (HC), Gyeke - Dako J Charge sheet or summons Amendment Cap. 08:02 providing for amendment of summons - Whether power to amend includes power to substitute or add new count - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 148(1). AMOGELANG v. THE STATE [1984] B.L.R. 201 (HC), Hannah J Substitution of new charge sheet for original - Practice not to be countenanced. AMOGELANG v. THE STATE [1984] B.L.R. 201 (HC), Hannah J Charge should have been amended in the Subordinate Court to bring it into conformity with the evidence Whether Court on Appeal could confirm the conviction where no amendment had been made. PINA MOTHONYANA v. THE STATE 1968 - 1970 B.L.R. 21 (HC), Maisels ACJ Charges Duplication of STATE v. MOSES MOEPI 1979 - 1980 B.L.R. 59 (HC), Edwards J Reference to Cap. 34 in stock theft charge surplusage Need for specificity - Criminal Law - Evidence Theft - Necessity to trace subject matter from owner to accused to court. MASUPI WEBB v. REGINA 1964 - 1967 B.L.R. 127 (HC), Weston CJ Splitting of charges Appellant stealing different cattle from different owners at same time - Several counts preferred according to number of owners - Whether amounted to improper splitting of charges. JOSEPH v. THE STATE [1999] 2 B.L.R. 114 (HC), Mosojane J Various charges against same accused Charges to be tried together as far as practicable. MATLOLELA v. THE STATE (PRACTICE NOTE) [1988] B.L.R. 185 (CA), Amissah P, Van Winsen J, Doyle J Committal for sentence Serious irregularities in trial before Magistrate. STATE v. PHONE NYAGWA and Another 1968 - 1970 B.L.R. 113 (HC), Dendy Young CJ Commital for sentence. STATE v. MPEDI MATLHABETLHABE 1971 (2) B.L.R. 57 (HC), Rooney ACJ STATE v. MOLAODI 1973 (1) B.L.R. 54 (HC), Rooney ACJ Committed for sentence because the compensation claim by Complainant exceeded the Magistrate's civil jurisdiction. STATE v. MONTSHIWA 1974 (1) B.L.R. 12 (HC), Rooney ACJ Committal for sentence on grounds not contemplated by C.P. and E. Proclamation Case remitted to Magistrate for sentence. THE STATE v. GAHATHASEFI 1968 - 1970 B.L.R. 38 (HC), Dendy Young CJ Company officer Criminal liability Offence in connection with management of company's affairs - Officer charged and convicted in personal and representative capacity - Whether proper - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 328(1). HAFFERJEE and Another v. THE STATE [1983] B.L.R. 18 (HC), Corduff J Compensation Award House - breaking and theft - Amount of P790 stolen - Recovery of P785 being part of stolen money recovered from accused's possession - Conviction of accused - No application for compensation made by complainant - - Court ordering compensation of P5 to be paid by accused to complainant - Whether order for compensation properly made - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), ss. 304 and 312. STAFF v. THE STATE [1984] B.L.R. 220 (HC), Corduff J Nature of award - Civil remedy as substitute for civil action - Procedure for making award - Application to be made by injured party on oath on recording of conviction before passing of sentence - Accused to be given opportunity to oppose award and give evidence - Question of compensation to be considered with sentence to be imposed - Award to be announced with sentence imposed - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 312. STATE v. DITLHARE and Another [1986] B.L.R. 134 (HC), Muhammad AJ Order for payment of compensation - Order similar to judgment for damages in civil action - Amount claimed to be proved as in civil action or to be agreed to by accused - Failure of proof of compensation claimed - Effect. STATE v. MPOA [1985] B.L.R. 106 (HC), O'Brien Quinn CJ Payment of compensation not to be made condition for suspension of sentence. TEMANE v. THE STATE [1987] B.L.R. 81 (HC), Murray J Unlawful wounding - Claim for compensation - Award of P50 by court - Lack of evidence in support of compensation award - Award incompetent. STATE v. BULA [1985] B.L.R. 32 (HC), O'Brien Quinn CJ Victim 1 of offence - Failure of victim to apply for compensation - Court awarding compensation - Award of compensation incompetent. STATE v. THAMAGE [1985] B.L.R. 35 (HC), O'Brien Quinn CJ Victim of offence - Compensation awardable only when applied for, proved and reasons given therefor - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev,.), s. 312(1). STATE v. MOTHOBI (PRACTICE NOTE) [1985] B.L.R. 19 (HC), O'Brien Quinn CJ Chapter 18, sec. 314 Alternative of imprisonment improper. REGINA v. SHAMBA 1964 - 1967 B.L.R. 65 (HC), Weston CJ Compensation order Award of P5 000 to victim of rape - No personal injury suffered - Whether court competent to make award of compensation in circumstances. NYATHI v. THE STATE [1991] B.L.R. 1 (HC), Gyeke - Dako J Determination of award - Court to determine compensation to be paid or liability of accused therefor - Agreement of compensation between accused and injured person - Failing agreement determination of amount payable to be based on evidence - Award made having effect of civil judgment - Award of compensation to injured person by court - No evidence as to agreement of compensation payable - Failure of court to indicate basis of awarding compensation - Whether compensation properly awarded. STATE v. MOKWENA [1988] B.L.R. 423 (HC), Livesey Luke CJ Order regularly applied for and competently granted by magistrate's court - Order having effect as civil judgment - Appeal to High Court against order - Whether High Court competent to set aside order - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s.312. ATTORNEY - GENERAL v. MOSWANG [1987] B.L.R. 377 (CA), Maisels P, Amissah JA and Doyle JA Power of High Court and subordinate courts to make order - Person entitled to apply for order - Injured person - Court not entitled suo motu to make award - Public prosecutor not entitled to apply for order unless authorised by injured person to do so - Criminal Procedure and Evidence Act (Cap.08:02) (1973 Rev.), s. 312. STATE v. MOKWENA [1988] B.L.R. 423 (HC), Livesey Luke CJ Prerequisite for making order - Recording of conviction against person whom order sought - Offence causing personal injury, damage or loss of property to some one else - Application by victim of offence for order for compensation - Conviction for obtaining P285,559 by false pretences - Compensation order made in respect of amount obtained by false pretences - Application for leave to appeal against order - Applicant alleging no enquiry made as to his having sufficient assets to meet order for compensation - Lack of funds to satisfy order - Whether ground for allowing application - Criminal Procedure and Evidence Act (Cap. 08:01), s.316. MOLEFE v. THE STATE [1992] B.L.R. 242 (CA), Amissah P Principles applicable in making order - Means and ability to comply with order - Compensation order for P79 424 - Imposition of custodial sentence suspended for three years conditional on payment of compensation within suspended period of sentence - Whether order for compensation payable within period of suspension of sentence proper. MAKHURA and Another v. THE STATE [1986] B.L.R. 36 (HC), Murray J Principles to be followed - Means and capacity of defendant to pay - Consideration to be borne in mind. MOSWANG v. THE STATE [1987] B.L.R. 238 (HC), Hallchurch J Suspended sentence - Payment of compensation as condition for suspending sentence - Power to do so - Condition for suspending sentence not to be unreasonable or unrealistic - Consideration of means of person against whom order made - Accused a labourer - Order involving sum of P1392.73 to be paid by three consecutive monthly instalments - Whether appropriate - Criminal Procedure and Evidence Act (Cap.08:02) (1973 Rev.), s. 304 (2). STATE v. MOKWENA [1988] B.L.R. 423 (HC), Livesey Luke CJ Innocent purchasers of stolen property. STATE v. SAREFO 1971 (1) B.L.R. 26 (HC), Young CJ Theft from employer Claim for Compensation by Bank as employer. STATE v. GAEBOLAE ONKABETSE 1979 - 1980 B.L.R. 60 (HC), Edwards J When Complainant should be awarded compensation in terms of Section 315 (1) of C.P. and E. Proclamation Complainants should be reminded of their rights in proper cases. THE STATE v. MMIPI 1968 - 1970 B.L.R. 32 (HC), Dendy Young CJ Compensation awarded to Complainant after conviction of the Accused. STATE v. LIMBO 1978 B.L.R. 78 (HC), Mahomed J Compensation for aggrieved Complainant STATE v. BOY TOU 1972 (1) B.L.R. 47 (HC), Rooney ACJ Compensation for Complainant STATE v. MMALA 1981 B.L.R. 218 (HC), Corduff J Compensation order Award of Stock theft - Compensation to be calculated - Sentence suspended on condition compensation order is complied with - Whether proper - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 312 - Stock,Theft Act (Cap. 09:01) (1973 Rev.), ss. 3, 4 and 12. DITLOTLO and Another v. THE STATE [1985] B.L.R. 317 (HC), Murray J Competency of witness Evidence of `spouse'. STATE v. SIMUULA 1975 (1) B.L.R. 101 (HC), Rooney J Competent verdict on charge of attempted rape Judicial Instruction No. 2 of 1965. STATE v. PHELEGO MACK 1968 - 1970 B.L.R. 258 (HC), Dendy Young CJ Condonation of late appeal STATE v. HOLMES 1981 B.L.R. 181 (HC), Corduff J Conduct of Defence case. Is Accused bound to give evidence himself before calling witnesses in his defence? STATE v. MOTSHEBE 1972 (2) B.L.R. 29 (CA), Schreiner P, Maisels JA, Milne JA Confession Made to a District Officer who was not a Magistrate or Justice of the Peace. STATE v. THAKO 1978 B.L.R. 31 (HC), Edwards J Pointing out of stolen property to police officer. STATE v. NDLELENI DUBE and Others 1981 B.L.R. 175 (HC), Corduff J Value of a voluntary confession of guilt in the absence of other corroborative evidence Section 229 (2) of Cap 08:02. STATE v. JOSEPH MURUNZI NCUBE 1982 (2) B.L.R. 73 (CA), Maisels JP, Aguda JA, Kentridge JA Voluntariness Accused subjected to long interrogation whilst under power and control of Police. STATE v. ZINDABA and Others 1976 B.L.R. 49 (HC), Rooney J What amounts to. MARTLOUW v. THE STATE [1993] B.L.R. 306 (HC), Nganunu J STATE v. MICLAS HABANE 1971 (2) B.L.R. 66 (HC), Rooney ACJ Whether free and voluntary and without inducement. STATE v. PHUSU and Others 1968 - 1970 B.L.R. 139 (HC), Dendy Young CJ Confession STATE v. MOITHOKE 1981 B.L.R. 219 (HC), Corduff J Confession freely and voluntarily made Lengthy interrogation of Accused by Police. STATE v. NFANYANA NJUANJE 1968 - 1970 B.L.R. 237 (HC), Dendy Young CJ Confession to a District Officer Form of Should not be required to take the oath. STATE v. UTLWANG 1979 - 1980 B.L.R. 64 (CA), Maisels P, Ogilvie - Thompson JA, Isaacs AJA Confessions Prolonged interrogation of an Accused by the Police may result in undue influence rendering a confession made by the Accused inadmissible. STATE v. BITSANG BAGWASI and Others 1968 - 1970 B.L.R. 129 (HC), Dendy Young CJ Considerations in Sentencing Deterrence STATE v. JOSEPH MURUNZI NCUBE 1982 (2) B.L.R. 1 (HC), O'Brien Quinn CJ Conversion of summary trial into Preparatory Examination. STATE v. SIGOLOLU 1968 - 1970 B.L.R. 157 (HC), Dendy Young CJ Conviction Charge Rape - Evidence - Alternative verdicts of guilty - Conviction for attempted rape - Whether on evidence conviction for attempted rape warranted - Whether proper to convict without warning accused Of alternative charge - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 191. MBAYI v. THE STATE [1989] B.L.R. 527 (HC), Gyeke - Dako J Rape Court putting accused on defence for lesser charge of defilement - Whether misdirection to convict on rape. STATE v. OAGENG (PRACTICE NOTE) [2000] 1 B.L.R. 457 (HC), Reynolds J Conviction on a plea of Guilty Adherence to Judicial Instruction Failure of Justice - Cap. 18 s. 235. VAN NIEKERK and Others v. THE STATE 1964 - 1967 B.L.R. 255 (HC), Hathorn ACJ Corroboration Lying by the Accused can be corroboration Degree of Corroboration of the Complainant on a charge of rape. STATE v. ELEX WIGGET 1974 (2) B.L.R. 64 (HC), Aguda CJ Sexual offences Cautionary rule - Quaere: whether such rule an outdated practice having no place in modern society. ROSS v. THE STATE [2003] 1 B.L.R. 563 (HC), Lesetedi J When required Test to be applied. SEBAKO v. THE STATE [1993] B.L.R. 300 (HC), Gyeke - Dako J Costs Against Attorney General - When costs may be awarded in criminal cases - Sections 12(5), 24(2), 25(1) and 312(3) of Criminal Procedure and Evidence Act. VISSAGE and Others v. THE STATE [1997] B.L.R. 819 (CA), Amissah JP, Schreiner and Lord Allanbridge JJA General - When court can award costs. VISSAGE and Others v. THE STATE [1997] B.L.R. 308 (HC), Gittings J Against Attorney - General When costs may be ordered - Court of Appeal Act (Cap 04:01), s 12(5). ATTORNEY - GENERAL v. ISHMAEL [2002] 1 B.L.R. 10 (CA), Tebbutt AJP, Zietsman and Plewman JJA When to be ordered - Where no bad faith but merely negligence at most. KHANDALA and Others v. THE STATE [2002] 2 B.L.R. 136 (HC), Lesetedi J Appeal Application by Attorney - General for leave from High Court judge to appeal to Court of Appeal - Granting of leave conditioned on payment of costs of respondent in any event - Whether power of court to do so. STATE v. JENKISON [1985] B.L.R. 531 (HC), Maisels P, Aguda JA and Amissah JA Counsel Right to address court Failure to allow counsel to address court before judgment - Irregularity - Whether accused prejudiced - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 180. CHIWAURA v. THE STATE [1985] B.L.R. 201 (HC), O'Brien Quinn CJ Counselling the commission of an office Counselling of an offence less than that actually committed. STATE v. MOKWENI 1981 B.L.R. 215 (CA), Maisels P, Aguda JA, Amissah JA Crime Proof Standard of proof - Onus on State - Proof beyond reasonable doubt. STATE v. RAMOLALE [1986] B.L.R. 215 (HC), O'Brien Quinn CJ Standard of proof - Rejection of appellant's evidence - Acceptance of State evidence as being more probable by trial magistrate - Whether correct standard of proof applied. SEWAGODIMO v. THE STATE [1986] B.L.R. 399 (HC), O'Brien Quinn CJ Customary Courts Powers of High Court to review judgments of Customary Courts. STATE v. (1) TSHEGOFATSO MORALE; STATE v. (2) MORALE SEIPONE 1972 (2) B.L.R. 68 (HC), Aguda CJ Defence Claim of right Defence of right to claim not raised by appellants - Court should consider the defence where evidence justifies it. THEBE and Another v. THE STATE [1989] B.L.R. 167 (HC), Livesey Luke CJ Self - defence Where accused raising self - defence, State bearing onus to negative such defence beyond reasonable doubt - Even if evidence suggesting existence of self - defence as reasonable possibility, accused entitled to acquittal. Bobe v. The State [2006] 1 B.L.R. 254 (CA), Grosskopf, Lord Coulsfield and Ramodibedi JJA Delay in bringing appeal STATE v. MOLEBATSE 1979 - 1980 B.L.R. 212 (HC), Hannah J Detective Charges Cap. 24, section 4 Essential averments - Identification of cattle - Conduct of case. THOMAS MACHOLA v. REGINA 1964 - 1967 B.L.R. 143 (HC), Weston CJ Difference between Summons and Charge Inefficiency of interpretation Appeal by the State. STATE v. TAX MOGOMOTSI 1968 - 1970 B.L.R. 176 (HC), Dendy Young CJ Discharge at close of State case Principles applicable. STATE v. RAMOCHA 1979 - 1980 B.L.R. 225 (HC), Hannah J Rules to be followed. STATE v. SHINGI MADAKALALA 1968 - 1970 B.L.R. 340 (HC), Dendy Young CJ Disclosure Privilege Privilege from disclosure of police informants on grounds of public policy - Disclosure necessary where accused's innocence can be proved. PANDOR v. THE STATE [1985] B.L.R. 177 (HC), Hannah J Disposal of Exhibits Property taken from possession of accused Not claimed by other persons - To be returned to accused. REGINA v. TSHIITE 1964 - 1967 B.L.R. 73 (HC), Weston CJ Doctrine of Common Purpose Extenuating Circumstances. STATE v. KOOS OCKHUIZEN and Another 1968 - 1970 B.L.R. 343 (CA), Schreiner JP, Maisels JA, Milne JA Doctrine of recent possession Possession must relate to some definite time or period. MOSEKI v. THE STATE [1995] B.L.R. 690 (HC), Aboagye J Duty of Court to ask the Accused whether he has witnesses to call and to note his reply on the record. STATE v. DAVID RANTABANA and Another 1981 B.L.R. 255 (HC), Hannah J Duty of Magistrate in badly prosecuted case. STATE v. PHOLOBA 1981 B.L.R. 247 (HC), Corduff J Duty of Police, Prosecutors, and Magistrates. STATE v. MUDONGO 1977 B.L.R. 16 (HC), Dyke CJ Effect of general provisions of the Penal Code on offences under other Statutes. NKGWEBANA v. STATE 1976 B.L.R. 64 (HC), Dyke CJ Emotive Language when sentencing The Magistrate, in sentencing the Accused used emotive Language. STATE v. ARON and Another 1981 B.L.R. 174 (HC), Hannah J Estreatment of Bail Appeal against order of estreatment. SELLO v. STATE 1977 B.L.R. 22 (HC), Dyke CJ Evidence Accomplice Corroboration - Although court entitled to convict accused on single evidence of accomplice where offence proved to have been actually committed, caution in dealing with evidence of accomplice still imperative - Corroboration required was corroboration directly implicating accused in commission of offence to be found in evidence of other competent witnesses independent of accomplice or some other assurance that evidence of accomplice reliable. July v. The State [2006] 1 B.L.R. 496 (HC), Mosojane J Corroboration - Evidence of accomplice corroborating evidence of another accomplice - Whether accomplice capable of corroborating another accomplice. BONYONGO v. THE STATE [1984] B.L.R. 159 (HC), Hannah J Corroboration - It desirable for court in dealing with accomplice evidence to warn itself of dangers attendant to such evidence and demonstrate by its critical assessment of evidence that it not merely paying lip service to cautionary rule. MASILO v. THE STATE [2004] 2 B.L.R. 263 (HC), Lesetedi J Corroboration - Uncorroborated testimony of accomplice admissible to convict accused person - Necessity of trial court to warn itself of danger of conviction without corroboration - Meaning of accomplice - Evidence of self - confessed accomplice - Corroborating evidence aliunde - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 238. MOTHOEMANG v. THE STATE [1989] B.L.R. 44 (HC), Livesey Luke CJ Single - Conviction on evidence of - Propriety of. MORUAKGOMO and Another v. THE STATE [1994] B.L.R. 25 (CA), Amissah JP, Aguda JA, Trengove JA Corroboration - Conviction on uncorroborated evidence of accomplices - Whether proper. MOKWENA v. THE STATE [1989] B.L.R. 30 (HC), Aboagye J Accused Election not to give evidence - Circumstances in which permissible for accused to change his mind to give evidence - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 273. STATE v. SAME alias TSHETLHA [1984] B.L.R. 64 (HC), Hannah ACJ Explanation given by accused for where he acquiring alleged proceeds of robbery rejected by court - No onus resting on accused to prove innocence or convince the court of explanation he presenting - Court only allowed to convict if it satisfied that explanation improbable and false beyond any reasonable doubt. PHALADI v. THE STATE [2003] 1 B.L.R. 389 (HC), Lisimba J Right to remain silent - Failure to give evidence - Whether factor in determining guilt or innocence of accused. STATE v. PHALE and Another [1985] B.L.R. 123 (HC), Hannah J Adequacy of Circumstantial evidence - Accused found in possession of a number of goods from house where deceased worked - Insufficient to prove that accused murdered deceased NDUMO v. THE STATE [1997] B.L.R. 738 (CA), Steyn, Tebbutt and Lord Cowie JJ.A Identification evidence - Special need for caution - Sworn evidence of two witnesses inconsistent with previous statements - Inconsistencies related to material issues - No police witnesses called to advance prosecution case - Whether prosecution evidence could found a conviction based on positive identification. STATE v. THOMAS [1996] B.L.R. 860 (HC), Gyeke - Dako J Adequacy of proof Evidence of accused - Court does not have to believe accused's version. LESOLAME v. THE STATE [1997] B.L.R. 60 (CA), Schreiner J, Tebbutt J and Lord Allanbridge JA Admissibility Admission in evidence of statement of investigating police officer - Statement containing admissions made by accused - Whether statement admissible in evidence - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), ss. 227 and 270(1). STATE v. MALEBADI [1986] B.L.R. 405 (HC), O'Brien Quinn CJ Admission made by accused extra - judicially or in court - Whether court entitled to take account of such admission. KWENAMORE v. THE STATE [1983] B.L.R. 208 (CA), Maisels P, Dendy - Young JA, Van Winsen JA Admission of inadmissible confession statement - Sufficient admissible evidence aliunde - Appeal - 'Substantial miscarriage of justice' - Meaning - Court of Appeal Act (Cap. 04:01) (1973 Rev.), s. 13(3) - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 227(1). MASHABILE v. THE STATE [1984] B.L.R. 96 (CA), Maisels P, Dendy - Young JA, and Van Winsen JA Confession statement - Admission in evidence without objection - Failure to give evidence or making statement from dock - Failure to call any evidence - Effect - Evidence adduced by prosecution deemed to have been admitted. STATE v. BASSON and Another [1988] B.L.R. 452 (HC), Aboagye J Confession statement - Confession made to police - Confession inadmissible. STATE v. GABATLWAELWE [1996] B.L.R. 540 (HC), Gyeke - Dako J Confession statement - What constitutes - Confession statement recorded and confirmed by magistrate - Whether contents evinced an unequivocal admission of guilt. STATE v. GABATLWAELWE [1996] B.L.R. 540 (HC), Gyeke - Dako J Extra - curial statement by accused - Accused alleging that he was kept in dirty cell and that the only way for him to get away from cell was by making statement to district commissioner - Investigating officer not called as a witness in trial within a trial - District commissioner's observations of the accused in a serene disposition could not exclude the pressure alleged by the accused - Statement inadmissible. STATE v. RAMATSWIDI [2005] 1 B.L.R. 452 (HC), Masuku J Hearsay evidence - Dying declaration - Statement by deceased not made in `settled, hopeless expectation of death' - Whether statement could be admitted as dying declaration. STATE v. GABATLWAELWE [1996] B.L.R. 540 (HC), Gyeke - Dako J Hunting of protected game - Finding of skulls of protected game - Oral statement made by accused to police officer - Accused alleged to have handed over rifle to police officer - Whether testimony of police officer admissible to prove rifle having been used to kill game - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 227. STATE v. HONKA [1985] B.L.R. 121 (HC), Hannah J Incriminating statement made in course of police investigation - Whether statement a confession. DESAI and Another v. THE STATE [1985] B.L.R. 582 (HC), O'Brien Quinn CJ Pointing out - Admissibility in terms of Cap. 08:02, s. 228 (2) - Admission of inadmissible confessional statement not permissible - Evidence of accused having pointed out something - Evidence admissible of discovery of fact or thing in consequence of information supplied by accused - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 228 (2) as amended by Criminal Procedure and Evidence (Amendment) Act, 1983 (No. 25 of 1983). NKGATOGANG v. THE STATE [1988] B.L.R. 219 (CA), Amissah P, Aguda JA, And Doyle JA Pointing out - Discovery of fact or thing in consequence of information given by accused - Statement by accused admitting commission of offence in respect of fact or thing discovered - Whether discovery of fact or thing admissible in evidence - Whether statement of commission of offence admissible in evidence. MOTLHALE v. THE STATE [1986] B.L.R. 304 (CA), Aguda JA, Amissah JA, Doyle JA Pointing out - Discovery of fact or thing in consequence of information given by accused - Whether admissible in evidence - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 228(2). MOTLHALE and Others v. THE STATE [1985] B.L.R. 330 (HC), O'Brien Quinn CJ Pointing - out - Admissible by virtue of Cap. 08:02, s. 228(2) - Evidence must establish commission of offence by accused - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 228(2). STATE v. HONKA [1985] B.L.R. 121 (HC), Hannah J Statement by accused - Mixed statement - Statement partly incriminating and partly exculpatory - Accused not giving evidence at trial - Whole statement should be considered by court to decide as to the truth. STATE v. LETLHOMA [1984] B.L.R. 115 (HC), Hannah ACJ Statement made by witness for defence - Admission of statement in evidence in absence of maker of statement - Whether proper to admit statement in evidence - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 270(1). PULE v. THE STATE [1986] B.L.R. 320 (HC), Murray J Verbal admission made to investigating officer by accused charged with murder - Section requires admission to be voluntary, made without undue influence and in writing before judicial officer - Court finding verbal admission not induced by undue influence or threats - Application of s 228 of Act excluded in situations where admission not confession to offence charged - Accused's admission in circumstances not excluding self - defence, provocation or other excusable factors and not able to be equated with admission to offence of murder - Taking relevant factual and circumstantial evidence and other factors into account, however, proof beyond reasonable doubt of accused's guilt of murder of deceased with extenuating circumstances able to be found in instant matter - Criminal Procedure and Evidence Act (Cap 08:02), s 228. MPHARITLHE v. THE STATE [2003] 1 B.L.R. 153 (CA), Akiwumi, Zietsman and Lord Sutherland JJA Admissibility of Illegally obtained evidence - Evidence obtained by means of search conducted contrary to provisions of s.52(2) of Criminal Procedure and Evidence Act (Cap. 08:02) - Whether such evidence should be excluded. MOLOI v. THE STATE [1995] B.L.R. 439 (CA), Amissah P, Lord Wylie, Hoexter JJA Statement of co - accused against accused - Such statement inadmissible unless made in the furtherance of joint criminal enterprise. MOTSUMI v. THE STATE [1997] B.L.R. 282 (HC), Gyeke - Dako J Admission Accusation made in presence of accused - Silence of accused - Accusation of possession of arms and ammunition - Accusation made by person speaking to accused on even terms - Conduct of accused matter for trial court to consider in assessing guilt of accused. PHIRI and Others v. THE STATE [1992] B.L.R. 317 (CA), Amissah P, Aguda JA, and Schreiner JA Credibility - Corroboration - Rape - Evidence of complainant corroborated by unchallenged medical evidence - Defence of amnesia due to drink - Trial magistrate disbelieving defence evidence - Whether magistrate right in convicting accused. KWENAMORE v. THE STATE [1983] B.L.R. 208 (CA), Maisels P, Dendy - Young JA, Van Winsen JA Infant - Unsworn statement - Cautionary rule - Appellant charged with raping complainant - No record of assessment by court of complainant being capable of telling the truth - Failure to admonish complainant to tell the truth - Whether unsworn statement of complainant admissible in evidence - Criminal Procedure and Evidence Act (Cap. 08:02), s. 221, proviso (i). SAMUEL v. THE STATE [1990] B.L.R. 515 (HC), Barrington - Jones J Admission of agreed facts Murder trial - Evidence consisting mainly of admitted agreed facts - Court deprived of hearing evidence being given viva voce - Procedure to be adopted only in exceptional cases - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 270. SEBONI v. THE STATE [1984] B.L.R. 69 (CA), Maisels P, Dendy - Young JA, and Van Winsen JA Admission of recorded statement by prosecution witness Court deprived of hearing evidence being given viva voce - Procedure irregular to be adopted only in exceptional cases. MONTSHIWA v. THE STATE [2000] 1 B.L.R. 163 (CA), Steyn J, Tebbutt J and Lord Weir JA Admissions Trial - within - a - trial as to admissiblity of admission only required when objection raised to admissibility. OLESITSE v. THE STATE [1995] B.L.R. 128 (CA), Amissah JP, Tebbutt JA, Lord Cowie JA Affidavit Proof of facts by affidavit - Affidavit to contain sufficient information for its contents to be acceptable as evidence - Substance alleged to be dagga - Proof by affidavit evidence - Court to be satisfied of substance possessing certain unique characteristics different from other substances of similar appearance - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 221(4). NKGAGENG v. THE STATE [1984] B.L.R. 230 (HC), Corduff J Alibi Murder - Appellant able to establish his whereabouts on night of murder - Prosecution unable to rebut appellant's evidence - Appellant alleging to have been in Radisele at time of murder - Murder occurring at Makoro lands - Distance between Makoro and Radisele between 10 and 12 kilometres - Evidence on time to walk distance varying - Evidence of short cut - No evidence of appellant having used short cut - Trial court finding that distance could be walked in an hour - That appellant could have got a lift - No evidence to that effect - Conviction on basis of speculations - Whether proper. NKGATOGANG v. THE STATE [1988] B.L.R. 219 (CA), Amissah P, Aguda JA, and Doyle JA Onus of proving alibi false resting with prosecution - Raising of alibi as defence not regulated by statute - Imperative that notice of alibi be given before or at commencement of trial - Appellant leaving alibi to last defence witness - Cross - examination of complainant not laying foundation for alibi - Magistrate rightly accepting testimony of complainant and rejecting alibi. MOGATLA v. THE STATE [2001] 1 B.L.R. 192 (CA), Korsah, Zietsman and Sir John Blofeld JJA Allegation of commission of offence in presence of accused Silence of accused - Adverse inference drawn by trial court - Whether misdirection. LEONARD v. THE STATE [1987] B.L.R. 6 (HC), Hallchurch J Appellate court Appeal on facts - Guidelines appellate court should observe - Appellate court not to disturb findings of trial court unless existence of misdirection on part of trial magistrate. DE GRAAF and Another v. THE STATE [1986] B.L.R. 19 (HC), O'Brien Quinn CJ When entitled to draw its inference from evidence adduced at trial - Evidence adduced by prosecution at trial not seriously challenged - Failure of appellants to give evidence or call any witnesses - Whether appellate court capable of drawing inferences as trial judge - Charge of causing grievous harm - Common purpose - Evidence indicating first appellant acting with others with common purpose to do an illegal act - Admission by first appellant of objective of common purpose being violent as well as illegal - Admission not applicable to second appellant. BASSON and Another v. THE STATE [1989] B.L.R. 217 (CA), Amissah P, Aguda JA, Doyle JA Assessment of Accomplice evidence - Conviction of rape on common purpose - Conviction depended on evidence and credibility of accomplice witness - Evidence inadequately treated by trial court - Whether conviction for rape could stand. MOTSUMI v. THE STATE [1996] B.L.R. 905 (HC), Nganunu J Accomplice evidence - When corroboration required - Section 240 of the Criminal Procedure and Evidence Act. MOUMAKWA v. THE STATE [1997] B.L.R. 1010 (HC), Gyeke - Dako J Blood alcohol Driving motor vehicle whilst blood alcohol content exceeding prescribed limit - Expert evidence - Proof beyond reasonable doubt - Findings of analyst based on informed assumptions - Trial magistrate accepting findings of analyst - Whether magistrate entitled to accept findings of analyst - Whether onus of proving beyond reasonable doubt that accused's alcohol level exceeded statutory limit discharged - Whether onus shifted to accused. GABORONE v. THE STATE [1988] B.L.R. 210 (HC), Goldblatt AJ Burden of proof State not required to close every avenue of escape - No onus rests on accused however - If any reasonable possibility that accused's explanation is true, then accused ought to be given the benefit of the doubt. STATE v. MAPHORISA and Others [1995] B.L.R. 568 (HC), Gyeke - Dako J Calling of witness by Court Cap. 18, sec. 197 - Crown and defence cases closed - no evidence to support conviction - Wrongful exercise of discretion. RAMENTEBA v. REGINA 1964 - 1967 B.L.R. 44 (HC), Weston CJ Calling of witnesses Power of court - Discretionary power in terms of Cap. 08:02, s. 200 of subpoenaing of witnesses or examination of persons in attendance in court - Power to be exercised to prevent justice being frustrated - Failure to exercise discretion - Not a ground for appeal - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 200. MACHENG v. THE STATE [1985] B.L.R. 533 (HC), Aguda JA, Amissah JA, Murray J Responsibility of person charged - Unrepresented defendant in custody - Court to take reasonable steps to secure attendance of witnesses in court - Defendant not entitled to adjournment as of right for purpose of securing attendance of witnesses in court. MACHENG v. THE STATE [1985] B.L.R. 533 (HC), Aguda JA, Amissah JA, Murray J Cautioned statement No evidence as to response to cautioned statement by accused - Whether accused bound to reply to warned and cautioned statement. KWENAMORE v. THE STATE [1983] B.L.R. 208 (CA), Maisels P, Dendy - Young JA, Van Winsen JA Character First prosecution witness giving evidence concerning accused's family background, his education and criminal record - Evidence totally irrelevant to issue of guilt - Evidence potentially prejudicial - Serious irregularity. STATE v. ZUZE (PRACTICE NOTE) [1985] B.L.R. 127 (HC), Hannah J Charge Assaulting police officer in due execution of his duty - Assault taking form of series of acts constituting one offence - Allegation of appellant poking complainant and butting him with head - Whether two separate offences committed - Insufficient proof of butting - Accused not to be acquitted solely on ground that prosecution failed to prove one of alleged acts. SESOLA v. THE STATE [1991] B.L.R. 7 (HC), Gyeke - Dako J Charge of attempted robbery Proof - Charge sheet alleging accused attempting to rob complainant by threatening to stab complainant with a knife - No mention of accused being in possession of a knife in complainant's evidence - Material variation between allegations in charge sheet and evidence adduced at trial - Whether guilt of accused proved beyond reasonable doubt. MGWELANI v. THE STATE [2000] 2 B.L.R. 109 (CA), Aguda J, Korsah J and Zietsman JA Charge of burglary No evidence that house broken into by appellant - Conviction - Whether proper. NKGAGENG v. THE STATE [1989] B.L.R. 305 (HC), Aboagye J Child Corroboration - Defilement of child of 12 years old - Victim giving sworn evidence - Necessity of court ensuring capability of child understanding nature of oath and religious obligation involved - Blood stains found in child's pants - Statement of accused while cross - examining victim - Whether corroborative evidence of accused having committed offence. STATE v. SEBUO [1983] B.L.R. 154 (HC), Hannah J Circumstantial evidence Arson - House set on fire - Appellant seen running away from scene - Inference of house being set on fire wilfully. MOKWENA v. THE STATE [1990] B.L.R. 650 (HC), Livesey Luke CJ Assessment of - Conviction based on circumstantial evidence - No witness as to actual shooting of deceased - Whether only reasonable inference from facts was that appellant shot deceased. BOGOSI v. THE STATE [1996] B.L.R. 702 (CA), Amissah JP, Tebbutt and Lord Cowie JJA Charge of causing grievous harm - Common purpose - Evidence indicating second appellant engaged with others with common purpose to do unlawful act overwhelming - Probability of violence being used in course of committing unlawful act - Evidence of appellant aiding and abetting persons carrying arms of war. BASSON and Another v. THE STATE [1989] B.L.R. 217 (CA), Amissah P, Aguda JA, Doyle JA Evidence of surrounding circumstances from which fact in issue to be inferred - Evidence to be narrowly examined - Complainant's two huts destroyed by fire - Evidence of threat by appellant to burn complainant's house and thereafter to beat up complainant - No evidence of appellant being seen in vicinity of burnt huts - Whether evidence adduced by prosecution sufficient for drawing inference of appellant's guilt therefrom. NYEPEDZI v. THE STATE [1990] B.L.R. 523 (HC), Livesey Luke CJ Inference to be drawn from circumstantial evidence - Whether reliance on factors not in issue justified. DINTWE v. THE STATE [1990] B.L.R. 601 (HC), Livesey Luke CJ Murder - Proof - Deceased shot and killed at Mochudi on 24 December 1996 - Accused found in possession of machine pistol with its ammunition on 27 May 1997 - Ballistics expert carrying out tests on machine pistol with its ammunition, and on a bullet and cartridge case found at scene of crime testifying that fatal shot having been fired from the machine pistol - Denial by accused of having been found in possession of machine pistol - Denial by accused of being in Mochudi on 24 December 1996 - Whether inference to be drawn accused having fired fatal shot. STATE v. KHAMA [2001] 1 B.L.R. 1 (HC), Reynolds J Murder - Proof - Person going missing and never found again - Absence of forensic evidence linking accused to death - Absence of evidence of animosity or motive - Predators and scavengers in area could wholly dispose of human being - Different versions of events given by accused - Doctor giving psychiatric report believing accused giving different versions due to fear of police - Circumstantial evidence to be cogent and compelling so as to leave no rational hypothesis other than murder to account for facts - Whether fact of death proved by such circumstances as to render commission of crime certain and leaving no ground for reasonable doubt. STATE v. MMESETSE and Another [2001] 1 B.L.R. 505 (HC), Gittings J Proved facts - Inference to be drawn - Inference to be consistent with all proved facts - Exclusion of every reasonable inference from proved facts except one sought to be drawn - Rape - Identity of rapist - Complainant giving description of alleged rapist but unable to say appellant being the rapist - Description characteristic appearance of large number of people - Whether only inference to be drawn as appellant being rapist. SECHELE v. THE STATE [1998] B.L.R. 399 (CA), Schreiner J, Tebbutt J and Korsah JA Proven facts - Inference to be drawn from proven facts - Accused setting fire to hut while victim asleep in it - Accused allegedly padlocking door to hut - Accused admitting setting hut on fire - Whether intent to kill or injure. STATE v. BOGOSI [1986] B.L.R. 95 (HC), Murray J Proven facts - Inference to be drawn from proven facts - Proved facts to be such as to exclude every reasonable inference from them save one to be drawn. Ping v. The State [2006] 1 B.L.R. 260 (CA), Grosskopf, Lord Coulsfield and Ramodibedi JJA Reasonable inference to be drawn - Armed robbery - Bank - Appellant furnishing vehicle used in robbing bank - Appellant seen driving vehicle with three men in it immediately before robbery - Vehicle observed departing from scene of robbery at high speed with three robbers seated at back of vehicle - Police stopping vehicle on road shortly after robbery with appellant driving alone - Appellant admitting dropping three persons near a bush - Whether inference to be drawn of appellant being involved in robbery. NDLOVU v. THE STATE [2000] 2 B.L.R. 158 (CA), Aguda J, Korsah J and Zietsman JA Robbery Large sums of money stolen - Discovery of large sums of money on accused in consequence of information given by accused - Refusal of accused to give evidence explaining possession of money - Whether guilt of accused established by failure to give evidence. MOTLHALE and Others v. THE STATE [1985] B.L.R. 330 (HC), O'Brien Quinn CJ Value of. HUMA v. THE STATE [1996] B.L.R. 40 (CA), Aguda, Tebbutt and Hoexter JJA Close of prosecution case Submission of no case to answer - Irreconcilable contradictions in testimony of prosecution witnesses - Court not required to make pronouncements or findings on credibility of witnesses at that stage of proceedings - No reasonable tribunal properly directed likely to convict accused on evidence adduced by prosecution - Criminal Procedure and Evidence Act (Cap. 08:02), s. 180(3). STATE v. MOREKI [2000] 1 B.L.R. 271 (HC), Dibotelo J Submission of no case to answer - When submission to be upheld - No evidence of accused having committed offence charged in indictment or summons or any other offence of which accused might be liable - Evidence not acceptable to court - Conflicting or contradictory evidence - No evidence upon which jury properly directed might convict - Criminal Procedure and Evidence Act (Cap. 08:02), s. 180(3). STATE v. DINGAKA [1990] B.L.R. 375 (HC), Gyeke - Dako J Competency as witness Spouse as witness for prosecution - Maintenance order - Failure of husband to comply with order - Competency of wife to give evidence - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), ss. 216 and 273 - Cap. 29:05, s. 4. KALABENG v. THE STATE [1983] B.L.R. 106 (HC), Hannah J Complainant giving evidence on oath Complainant of tender age - Discretion of trial magistrate to admonish witness prior to giving evidence - Whether discretion properly exercised - Criminal Procedure and Evidence Act (Cap. 08:02), s. 219. MOGAPI v. THE STATE [2000] 1 B.L.R. 264 (HC), Nganunu CJ Confession Admissibility - Confession statement inadmissible in evidence - Evidence otherwise inadmissible becoming admissible by virtue of provision of Cap. 08:02, s. 227(2) - Conditions for admitting such evidence - Evidence to be favourable to person making it - Discretion of presiding officer - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 227(2). STATE v. MPONDA [1986] B.L.R. 286 (HC), Murray J Admissibility - Issue of voluntariness of confession - Voir Dire - Denial of being author of statement - By - passing voir dire procedure - Issue of fact to be determined by trier of fact - Whether desirable to adopt bypassing voir dire procedure. STATE v. MHLANGA and Another [1986] B.L.R. 149 (HC), Barrington - Jones J Admissibility - Statement made to police in course of investigation - Statement neither confirmed nor reduced into writing in presence of judicial officer - Whether statement admissible in evidence - Criminal Procedure and Evidence Act (Cap. 08:02), s. 228 (1) proviso (ii). STATE v. NKWALI and Others [2001] 1 B.L.R. 397 (HC), Aboagye J Admissibility - Statement made to police officers in course of investigation - Whether statement a confession. MOHALENYANE v. THE STATE [1984] B.L.R. 291 (HC), O'Brien Quinn CJ Admissibility - Voire dire - Objection of defence to admit confession - Practice to be followed in voire dire. STATE v. JULIUS and Another [1985] B.L.R. 495 (HC), O'Brien Quinn CJ Admissibility - When confession statement admissible - Procedure for making confession statement. STATE v. MOSEKI [1986] B.L.R. 206 (HC), O'Brien Quinn CJ Admissibility of - Confession statement to police officer - Whether correctly admitted in evidence - Where same confession made to magistrate had already been admitted in evidence - Confession to police officer inadmissible simpliciter in terms of Criminal Procedure and Evidence Act (Cap. 08:02), s.228(1) and should not have been introduced into evidence. KGAODI v. THE STATE [1996] B.L.R. 23 (CA), Amissah JP, Schreiner and Lord Cowie JJA Admissibility of - Whether admissibility of confession statement, already admitted into evidence, open to later examination by trial court to determine its admissibility. KWAE v. THE STATE [1996] B.L.R. 159 (CA), Amissah JP, Aguda, Lord Wylie, Lord Cowie and Hoexter JJA Admissibility of - Whether confession freely and voluntarily made - Arrest of accused's mother - Arrest of mother designed, on possibilities, to induce confession - Court could not rely on confession. TSHEKISO v. THE STATE [1997] B.L.R. 22 (CA), Amissah P. J, Steyn J and Lord Cowie JA Admissiblity - Statement must be voluntarily and freely given. MASINA and Another v. THE STATE [1983] B.L.R. 237 (CA), Maisels P, Amissah JA, Kentridge JA Confession of commission of offence made to police officer - Statement inadmissible in evidence unless confirmed and reduced in writing in presence of judicial officer not being a member of police force. MASINA and Another v. THE STATE [1983] B.L.R. 237 (CA), Maisels P, Amissah JA, Kentridge JA Confession of commission of offence made to police officer - Statement not confirmed and reduced in writing in presence of judicial officer not being member of police force - Statement not admissible in evidence - Cross - examination referring to contents of confession statement - Whether proper. STATE v. MPONDA [1986] B.L.R. 286 (HC), Murray J Confession statement - Admissibility - Statement must be voluntarily and freely given - Allegation of involuntariness of statement - Allegation of statement induced by force - Statement recorded by judicial official - Compliance by judicial officer with rules for recording confession statement - No injuries shown by appellant and none recorded on statement - Whether statement voluntarily made - Criminal Procedure and Evidence Act (Cap. 08:02), s. 228 (1). TSHOLOFELO v. THE STATE [1992] B.L.R. 282 (CA), Amissah P, Aguda JA, and Bizos JA Inducement - Person in authority - Allegation of torture in extracting confession - Defence requesting voir dire to determine whether confession made voluntarily - Refusal by trial court - When voire dire to be held. SETSWALO v. THE STATE [1985] B.L.R. 298 (HC), O'Brien Quinn CJ Inducement - Undue influence - Police applying undue pressure on accused to confess - Trial magistrate admitting statement in evidence - Trial magistrate convicting accused - Whether statement properly admitted. TWALA v. THE STATE [1986] B.L.R. 371 (HC), Murray J Meaning of confession - Unequivocal acknowledgment of guilt - Clear admission of all facts and elements constituting offence and excluding all possible defences - Statement by accused to arresting detail - Statement made to arresting officer - Whether any opportunity for equivocation - Whether statement amounting to confession. STATE v. KHAMA [2000] 1 B.L.R. 209 (HC), Reynolds J Statement made by accused - Police questioning accused as to his knowledge of murder of deceased - Accused admitting to having shot deceased - Whether statement amounting to confession - Criminal Procedure and Evidence Act (Cap. 08:02), s. 228(1), proviso (ii). STATE v. KHAMA [2000] 1 B.L.R. 209 (HC), Reynolds J Statement recorded by judicial officer - Precautions to be taken by judicial officer before recording statement - Accused to be informed of judicial officer not belonging to the police - Judicial officer to enquire as to whether accused made any previous statement - Accused to be told he had nothing to fear and could speak freely - Whether judicial officer took such precautions. MASINA and Another v. THE STATE [1983] B.L.R. 237 (CA), Maisels P, Amissah JA, Kentridge JA To policeman - Meaning of `policeman' for purposes of s. 228 of Criminal Procedure and Evidence Act (Cap. 08:02). MOLOI v. THE STATE [1997] B.L.R. 260 (HC), Aboagye ACJ Trial - within - a - trial - Failure to invite appellant to give evidence in rebuttal of police witnesses called by the court - Whether substantial miscarriage of justice. KWAE v. THE STATE [1996] B.L.R. 159 (CA), Amissah JP, Aguda, Lord Wylie, Lord Cowie and Hoexter JJA Truthfulness of statement - Admission in evidence objected to by accused - Voire dire - Accused alleging statement given to judicial officer was dictated by police officer - Judge disbelieving accused and riding that statement was truthfulness of confession statement makes it voluntary. MASINA and Another v. THE STATE [1983] B.L.R. 237 (CA), Maisels P, Amissah JA, Kentridge JA Undue influence - Police A obtaining a statement by undue, influence - Subsequent statement taken by judicial officer - Onus on prosecution to prove undue influence used by police ceased to operate on mind of accused when subsequent statement made to judicial officer. MASINA and Another v. THE STATE [1983] B.L.R. 237 (CA), Maisels P, Amissah JA, Kentridge JA Verbal confession - What constitutes - Confession to murder not excluding self - defence, provocation or other factors - Criminal Procedure and Evidence Act (Cap 08: 02), s 228. MPHARITLHE v. THE STATE [2004] 1 B.L.R. 53 (CA), Zietsman, Lord Sutherland and Akiwumi JJA What amounts to - Contrast between confession and admission. MARTLOUW v. THE STATE [1994] B.L.R. 62 (CA), Amissah JP, Schreiner JA, Trengove JA What constitutes - Must be an unequivocal admission of guilt - Criminal Procedure and Evidence Act (Cap. 08:02), s 228(1), proviso (ii). MOSEKI v. THE STATE [1995] B.L.R. 690 (HC), Aboagye J Confession statement Admissibility - Admissibility of confession statement qua document - Admissibility of contents of confession statement to which objection raised - Proper procedure to be adopted regarding admissibility of confession statement - Criminal Procedure and Evidence Act (Cap. 08:02), s. 228(1). KABLAY v. THE STATE [1990] B.L.R. 279 (HC), Gyeke - Dako J Admissibility - Confession statement of accused admissible only if proved to have been made freely and voluntarily without promise of favour or use of fear or threat - Whether accused's extra - curial confession to judicial officer made voluntarily - Criminal Procedure and Evidence Act (Cap. 08:02), s. 228(1). STATE v. KOBEDI [1990] B.L.R. 458 (HC), Gyeke - Dako J Admissibility - Joint trial - Whether confession statement admissible as evidence against another person - When such evidence admissible against another person - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 229. BASSON and Another v. THE STATE [1989] B.L.R. 217 (CA), Amissah P, Aguda JA, Doyle JA Admissibility - Judicial officer not disclosing to accused not member of police force - Failing to translate statement while being made - Failure to ask accused to sign statement there and then and to have statement sealed with official date stamp - Omission to ask whether accused made previous statement and under what circumstances - Whether statement freely and voluntarily made - Criminal Procedure and Evidence Act (Cap. 08:02), s. 231. STATE v. SAULO [1999] 2 B.L.R. 176 (HC), Reynolds J Admissibility - Statement must be voluntarily and freely given - Statement made by accused in his sound and sober senses - Recording of statement by judicial officer - Precautions to be taken by judicial officer before recording statement - Accused to be informed of judicial officer not belonging to the police - Judicial officer to enquire as to whether accused made any previous statement - Accused to be told of having nothing to fear and to speak freely - Surrounding circumstances in which statement taken - Prolonged interrogation of accused may amount to undue influence - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 229A. MOKWENA v. THE STATE [1992] B.L.R. 14 (CA), Aguda JA, Doyle JA, Bizos JA Admissibility - Statement made to policeman - Policeman not acting in course of duty or in connection with case - Accused making statement to policeman as friend and nothing else - Whether such statement exempted from exclusionary rule enacted in Criminal Procedure and Evidence Act (Cap. 08:02), s. 228, proviso (ii). MOJE v. THE STATE [1999] 1 B.L.R. 38 (CA), Amissah P. J, Tebbutt J and Lord Morison JA Admissibility - Statement must be voluntarily and freely given - Onus on prosecution to prove voluntariness of statement - Issue of voluntariness of statement question of fact to be determined by trial judge and not by jury or trier of fact - Allegation of involuntariness of statement - Statement recorded by judicial officer - Compliance by judicial officer with all cardinal rules for recording confession statement - Whether statement voluntarily made - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), ss. 227 and 229A. STATE v. MOKWENA [1990] B.L.R. 1 (HC), Gyeke - Dako J Admissibility - Trial within a trial - When to challenge admissibility of confession statement - Whether permissible to hold trial within a trial after admission of confession statement in evidence. STATE v. JACK [2000] 2 B.L.R. 243 (HC), Dibotelo J Admission of confession statement made by first appellant as evidence against second appellant - Misdirection by trial judge - Whether misdirection occasioned substantial miscarriage of justice as to vitiate conviction of either appellant - Court of Appeal Act (Cap. 04:01) (1973 Rev.), s. 13 (1) (b) and (3). BASSON and Another v. THE STATE [1989] B.L.R. 217 (CA), Amissah P, Aguda JA, Doyle JA Exculpatory statement - Whether it amounts to confession. MPHAKELA v. THE STATE [1990] B.L.R. 42 (HC), Aboagye J Confession statement made to police Confession of guilt - Statement not reduced to writing before judicial officer - Statement recorded in court proceedings but excluded from judgment delivered by judicial officer - Statement inadmissible in evidence as not having been freely and voluntarily made in terms of Criminal Procedure and Evidence Act (Cap. 08:02), s. 228(1), proviso (i) KEIKABILE and Others v. THE STATE (PRACTICE NOTE) [2001] 1 B.L.R. 301 (HC), Mosojane J Conflict of fact Conflict of fact between evidence of prosecution witness and that of defence Duty of trial court - Trial court to consider not only merits and demerits of prosecution and defence witnesses but also probabilities of whole case. NKOBI alias MAKHULU v. THE STATE [1985] B.L.R. 219 (HC), Hannah J Conflict of facts Conflict of facts between evidence of prosecution witnesses and that of defence - Duty of trial court - Evaluation of evidence to decide where truth lies - Burden of proof resting on prosecution - Accused merely to raise reasonable doubt in mind of trial judge. STATE v. BAGANNE [1986] B.L.R. 416 (HC), O'Brien Quinn CJ Driving under influence of drinks - Detection of smell of alcohol on breath of accused by police - Evidence of police officers at variance with evidence of medical doctor - Conflict of evidence matter of assessment by trial court. KOOTHEPILE v. THE STATE [1985] B.L.R. 9 (HC), Murray J Inconsistencies between previous statement and testimony in court - Principle of testimony being negligible - Principle inapplicable to testimony of accused as witness - Court to give consideration to testimony whether or not possibility of testimony being true even if not probably so - Accused charged with murder of her newly born child - Accused stating no intention to kill child - Inability to appreciate nature of her action likely to cause death - Statement on oath in - consistent with previous statement - Weight to be attached to testimony - Whether existence of malice aforethought proved - Whether accused's action amounted to murder - Penal Code (Cap. 08:01) (1973 Rev.), s. 207. STATE v. RAMATHAKA [1989] B.L.R. 265 (HC), Gyeke - Dako J Conflicting evidence Contradictory evidence of witnesses for prosecution and defence - Manner of resolving conflict by court - Consideration of merits and demerits of case and also probabilities of case - Rejection of defence case - Reliance on strength of prosecution case - Whether irregularity resulting in miscarriage of justice. BOLOWE v. THE STATE [2001] 1 B.L.R. 170 (CA), Korsah, Kumbleben and Sir John Blofeld JJA Contradictory Resolution of conflicting evidence - Contradictory evidence of witnesses for prosecution and defence - Trial court to give reasons for preferring prosecution evidence to that of defence - Failure to give reasons - Effect. AKUJE v. THE STATE [1992] B.L.R. 41 (HC), Aboagye J Conviction Improper to convict solely on prosecution evidence. SAMPHANE v. THE STATE (PRACTICE NOTE) [1989] B.L.R. 209 (HC), Aboagye J Corroboration Accomplice - Appellant charged with stealing five motor vehicle tyres - Purchase of tyres by prosecution witnesses - Appellant alleging having legitimately obtained tyres at auction sale - Failure to cross - examine prosecution witnesses about purchase of tyres - Whether prosecution witnesses to be treated as accomplices. PHEKOETSILE v. THE STATE [1987] B.L.R. 297 (HC), Hallchurch J Accomplice - Cautionary rule - Appreciation of cautionary rule by trial court - Credibility of accomplice witness - No evidence on record indicating accomplice witness being credible - Whether conviction sustainable. MASUKU v. THE STATE [2000] 1 B.L.R. 389 (HC), Nganunu CJ Accomplice - Conviction on uncorroborated evidence of co - accused - Provision of Cap. 08:02, s. 238 permitting conviction of accused upon sole evidence of accomplice if commission of offence confirmed by independent evidence - Statutory provision addition to and not in substitution for common law requirement for corroboration - Failure of trial court to appreciate effect of statutory provision - Irregularity - Whether failure of justice resulted therefrom - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 238 - Rules of the High Court (Review Procedure) Rules, 1982 (S. 1. 66), r. 3. STATE v. CHARLIE and Another [1986] B.L.R. 145 (HC), Murray J Accomplice - Mutual corroboration - Rule against mutual corroboration no longer regarded as a general one - Danger of jointly fabricated story - Rule to be applied in such case - Complainant alleging having been taken by A. to appellant's house for purpose of abortion - A. admitting accompanying complainant to appellant's house for that purpose - Complainant aborting - Trial magistrate relying on evidence of A. as corroborating that of complainant - Whether A. an accomplice - Whether danger of jointly fabricating story - Whether magistrate relying on A.'s evidence misdirection. LETELA v. THE STATE [1985] B.L.R. 445 (HC), Maisels P, Baron JA and Amissah JA Accomplice - Nature of corroborative evidence - Evidence by itself not sufficient to support conviction - Tendency of evidence indicating truthfulness of accomplice's evidence and not falsely implicating accused - Complainant alleging appellant having performed abortion on her with sharp instrument - Appellant admitting treating complainant for abdominal pains with herbal remedy - Issue as to nature of treatment - Medical evidence proving procurement of abortion by introduction of sharp instrument - Whether medical evidence capable of corroborating that of complainant. LETELA v. THE STATE [1985] B.L.R. 445 (HC), Maisels P, Baron JA and Amissah JA Accomplice - Persons considered as accomplices - Cautionary rule - Failure of trial court to apply rule - Proof of commission of offence by evidence aliunde - Failure of accused to give evidence to contradict or explain evidence of accomplice - Conviction of accused - Whether conviction sustainable - Whether miscarriage of justice occasioned thereby. MOMPE v. THE STATE [1986] B.L.R. 107 (HC), Barrington - Jones J Accomplice - Trial magistrate warning himself of danger of convicting on accomplice evidence without corroboration - Trial magistrate dealing only with demeanour of accomplice without giving closer consideration to his evidence - Whether safe to convict on such evidence. KWALO v. THE STATE [1986] B.L.R. 71 (HC), Barrington - Jones J Accomplice witness - Duty of trial judge to warn himself of danger of convicting on uncorroborated evidence of suspect witness. KGAKGAMATSO and Another v. THE STATE [1991] B.L.R. 94 (HC), Livesey - Luke CJ Evidence capable of amounting to corroboration - Duty of judge or magistrate to refer to evidence relied on as corroboration - Rape - Evidence corroborating complainant's evidence - Trial magistrate adverting to pieces of admissible corroborative evidence as corroborating complainant's evidence - Injury inflicted on complainant by appellant - Medical doctor's testimony. KOWA v. THE STATE [1991] B.L.R. 72 (HC), Gyeke - Dako J Identification - Arson - Setting house on fire - Identification of appellant by complainant and her new boyfriend - Appellant former boyfriend of complainant - Necessity of warning and treating evidence of each witness with caution - Corroborative evidence desirable. MOKWENA v. THE STATE [1990] B.L.R. 650 (HC), Livesey Luke CJ Indecent assault - Failure of trial magistrate to advert his mind to necessity for corroboration - Whether failure of justice occasioned thereby - No failure of justice if reasonable tribunal properly directed arriving at same conclusion. SIMANE v. THE STATE [1990] B.L.R. 131 (HC), Livesey Luke CJ Lie - Sexual offences - Rape - Admission by appellant of sexual intercourse with consent of complainant - Subsequent denial by appellant of sexual intercourse with complainant - Complainant's panties damaged in course of having sexual intercourse - Failure of accused to explain damage to panties - Distress shown by complainant - Whether capable of amounting to corroboration. GABOREKWE v. THE STATE [1987] B.L.R. 157 (HC), O'Brien Quinn CJ Rape - Cautionary rule - Misdirection - Admission of inadmissible evidence - Eyewitness to commission of offence - Necessity of prosecution calling such witness - Failure to do so - Effect. MOKGATLENYANE v. THE STATE [2000] 1 B.L.R. 110 (CA), Aguda J, Tebbutt J and Kumbleben JA Rape - Complainant - Suspect witness - Application of cautionary rule - Medical evidence - Expression of dogmatic opinion - Whether competent. RAPONO v. THE STATE [1990] B.L.R. 206 (HC), Gyeke - Dako J Rape - Corroboration required as to absence of consent and identity as well as to sexual intercourse - Effect of failure of trial magistrate to advert his mind to necessity for corroboration - Whether failure of justice resulted therefrom - No failure of justice if reasonable tribunal properly directed arriving at same conclusion. NTSHAMBIWA v. THE STATE [1989] B.L.R. 48 (HC), Livesey Luke CJ Rape - Corroboration required as to absence of consent and identity as well as to sexual intercourse - Failure to adduce corroborative evidence confirming identity of complainant's assailant - Whether conviction safe. TAU v. THE STATE [1989] B.L.R. 51 (HC), Livesey Luke CJ Sexual offence - Rape - Complainant allegedly raped by appellants - Denial of charge of rape - Evidence of prosecution witness of complainant being assaulted by appellants - Trial court finding of prosecution evidence corroborating evidence of complainant of sexual intercourse having taken place - Whether such evidence corroborated evidence of complainant. KGOADI and Another v. THE STATE [1990] B.L.R. 202 (HC), Livesey Luke CJ Sexual offence - Rape - Demeanour of complainant - Distressed condition of complainant - Weight to be placed on distressed condition of complainant - Distinction from recent complaint. KING v. THE STATE [1990] B.L.R. 137 (HC), Gyeke Dako J Sexual offences - Rape - Complaint's evidence not credible - Necessity of exercising sufficient caution before convicting appellant - Conviction of appellant on uncorroborated evidence of unreliable witness - Whether safe to allow conviction to stand. GAOFELE v. THE STATE [1999] 1 B.L.R. 133 (CA), Aguda J, Korsah J and Lord Morison JA Sexual offences - Rape - Conviction of rape without corroboration - Complainant alleging having sustained injury as result of assault - Medical doctor on examination found no injury - Evidence indicating close relationship between complainant and appellant - Whether safe to convict without corroboration of complainant's evidence. MOSWEU v. THE STATE [1986] B.L.R. 138 (HC), O'Brien Quinn CJ Sexual offences - Rape - Demeanour of complainant - Distressed condition of complainant - Weight to be placed on distressed condition of complainant - Distinction from recent complaint. MBAYI v. THE STATE [1989] B.L.R. 527 (HC), Gyeke - Dako J Sexual offences - Rape - Distressed condition of complainant - Whether evidence of distress capable of being corroboration in cases of sexual misconduct. MABOTE v. THE STATE [2001] 1 B.L.R. 187 (CA), Tebbutt, Zietsman and Sir John Blofeld JJA Sexual offences - Rape - Evidence of recent complaint - Whether capable of amounting to corroboration. MABOTE v. THE STATE [2001] 1 B.L.R. 187 (CA), Tebbutt, Zietsman and Sir John Blofeld JJA Sexual offences - Rape - Suspect witness - Complainant's evidence and evidence of State witnesses containing contradictions - Failure of trial magistrate to identify evidence found to be corroborative of complainant's evidence - Failure of trial magistrate to satisfy himself of danger of wrongful incrimination - Conviction of accused - Whether proper. MMOPI and Another v. THE STATE [1986] B.L.R. 8 (HC), Murray J Corroboration - Sexual offences - Rape - Suspect witness - Complainant's evidence containing inconsistencies - Corroboration required only where witness credible - Distressful condition of complainant not to be overemphasised. DIANE v. THE STATE [1986] B.L.R. 16 (HC), O'Brien Quinn CJ Sexual offences - Rape - Suspect witness - Complainant's evidence containing contradictions and discrepancies - Corroboration required only where witness otherwise credible - Evidence to be rejected where witness not credible. MONAGENG v. THE STATE [1983] B.L.R. 254 (CA), Dendy - Young JA, Baron JA, Aguda JA Sexual offences - Rape - Suspect witness - Complainant and appellant lovers Appellant assaulting complainant sustaining injuries thereby - Complainant alleging appellant thereafter having sexual intercourse with her without her consent - Appellant admitting having sexual intercourse but with complainant's consent - No evidence corroborating complainant's evidence - Trial court believing in complainant's evidence alone - Whether reliance on complainant's evidence alone misdirection. MADIKWE v. THE STATE [1986] B.L.R. 90 (HC), Murray J Sexual offences - Rape - Suspect witness - Complainant's evidence containing contradictions - Proper approach to be taken by court in dealing with suspect evidence - Corroboration required only where witness credible - Evidence to be rejected where witness not credible - Cautionary rule to be applied. MAKGATLHE v. THE STATE [1991] B.L.R. 53 (HC), Gyeke - Dako J Sexual offences - Rape - Uncorroborated evidence of complainant - Admissibility - Whether trial court can convict on uncorroborated evidence - Duty of trial court to warn itself of danger of convicting on uncorroborated evidence. MBAYI v. THE STATE [1989] B.L.R. 527 (HC), Gyeke - Dako J Sexual offences - Recent complaint - Value of. MATLAPENG v. STATE [1995] B.L.R. 542 (HC), Lesetedi AJ Sexual offences - Unsworn testimony of children - Uncorroborated evidence of complainant - Non - corroboration of unsworn testimony of children - Need for corroboration. SMITH and Another v. THE STATE [1983] B.L.R. 179 (HC), O'Brien Quinn CJ Cross - examination Accused of - Prosecutor declining to cross - examine accused - Magistrate crossexamining accused at length - Whether proper. STATE v. MOSHOTLE [1985] B.L.R. 131 (HC), O'Brien Quinn CJ Accused opting not to give evidence on count - Accused cross - examined on count - Whether proper. MOKWENA v. THE STATE [1989] B.L.R. 30 (HC), Aboagye J Magistrate or judge - Examination of witnesses - Right of judge to ask questions to test, supplement or explain evidence given on both sides - Right to be exercised judiciously. STATE v. LEMME [1985] B.L.R. 159 (HC), O'Brien Quinn CJ Right of accused to cross - examine - Witness including accused giving evidence on oath or affirmation liable to be cross - examined by prosecution and co - accused - Accused denied right to cross examine co - accused - Effect of failure of court to allow accused to cross - examine co - accused. METSWEDI and Another v. THE STATE [1984] B.L.R. 223 (HC), O'Brien Quinn CJ Accused altering version between cross - examination and testimony - Court entitled to reject his evidence. MODISAEMANG v. THE STATE [1993] B.L.R. 167 (HC), Mokama CJ Failure of public prosecution to put State's case in cross - examination to accused - Effect - Duty of trial court in circumstance. DIKEZI v. THE STATE [1986] B.L.R. 474 (HC), Murray J Magistrate or judge - Right to cross - examine witness - Guiding principles. LEMME v. THE STATE [1985] B.L.R. 576 (CA), Aguda JA, Amissah JA, Murray J Material facts in issue - Failure to cross - examine on - Effect. RAMOJELA v. THE STATE [1986] B.L.R. 396 (HC), O'Brien Quinn CJ Demeanour of witnesses Important role in resolving issues of credibility. SELLO v. THE STATE [1984] B.L.R. 87 (HC), Hannah ACJ Admissibility Evidence of accomplice - Necessary to analyse and sift possible motives for false incrimination. KEREBU v. THE STATE [1997] B.L.R. 570 (HC), Nganunu J Document Admissibility of document - Admissibility dependent on proper custody and relevance - Nature of proper custody - Production from maker or part - maker of document - Analyst as maker of certificate proper person to produce it in evidence - Certificate not admitted in evidence in pursuance of section 47(6) of Road Traffic Act - Whether magistrate's reliance on certificate proper - Road Traffic Act (Cap. 69:01), s. 47(6). KALANE v. THE STATE [1991] B.L.R. 11 (HC), Gyeke - Dako J Contents of document - Proof - Whether document capable of proving truth of its own contents. PITORO v. THE STATE [1985] B.L.R. 152 (HC), Hannah J Documentary evidence Admission - Appellant charged with causing death - Prosecution tendering documentary evidence - Documents admitted without giving appellant opportunity to examine them - Post - mortem reports admitted when deceased not properly identified - Whether court erred in admitting documentary evidence - Whether guilt of appellant proved. PONO v. THE STATE [1999] 2 B.L.R. 10 (HC), Mosojane J Medical report of HIV status - Admissibility - Medical report to be produced and placed on record as exhibit with consent of accused admitting correctness thereof - Failure of accused to consent to admission of report - Author of report to be called as witness. NQUBI v. THE STATE (PRACTICE DIRECTION) [2001] 1 B.L.R. 154 (CA), Tebbutt, Kumleben, and Lord Weir JJA Proof that machine used to measure quantity of alcohol in breath working properly - Calibration certificate handed in by policeman who was not author of document and who had no specific expertise in technical matters. KWENAETSILE v. THE STATE [2002] 1 B.L.R. 162 (HC), Marumo J Dying declarations When to be admitted in evidence. STATE v. KELEEMETSE [1985] B.L.R. 365 (HC), Barrington - Jones J Evidence illegally obtained If evidence relevant, it should be admitted no matter how it was obtained, provided it involves neither reference to inadmissible confession nor admission of act of contempt of court. KENOSI v. THE STATE [1993] B.L.R. 329 (HC), Gyeke - Dako J Evidence in matters where motor vehicle driven while driver having consumed alcohol Where accused unable to give specimen of breath for test on medical grounds, police officer to require him to provide specimen of blood - Where person already having given specimen of breath, police officer to inform him of results and his rights to challenge results by providing specimen of blood - Sections 46(A)(4) and (5) of Road Traffic Act (Cap 69:01). GAAMANGWE v. THE STATE [2003] 1 B.L.R. 198 (HC), Lisimba J Evidence in sexual cases Cautionary rule - Application of - Charge of rape - Complainant in case a minor - Determination of credibility of complainant necessary before requiring any evidence in corroboration of complainant's evidence. RAMOSWEU and Others v. THE STATE [1996] B.L.R. 889 (HC), Nganunu J Evidence of a child Sexual offence - Cautionary rule - Status of rule in light of trend in other jurisdictions away from the rule. MPONA v. THE STATE [2001] 2 B.L.R. 503 (HC), Reynolds J Evidence of a child in a sexual case. STATE v. NGWANAWADIJO 1979 - 1980 B.L.R. 65 (HC), Edwards J Evidence of retrieval in case of larceny Evidence of retrieval of subject - matter of a larceny only relevant to mitigation of punishment - Production of goods stolen not condition precedent to conviction for theft. MOLETSANE v. THE STATE [1995] B.L.R. 83 (HC), Gyeke - Dako J Evidence of signature Witnesses giving evidence of signatures purporting to be theirs but which they alleged were forgeries - Whether expert evidence required. MONTSHIWA v. THE STATE [2001] 2 B.L.R. 97 (HC), Lesetedi J Expert evidence Court's reliance on - Expert required to qualify and explain opinion - Doctor took vaginal smear for testing in rape case - Smear contained non - motile spermatozoa - Doctor coming to conclusion that there had been sex with penetration and ejaculation - Opinion expert came to clearly within ordinary knowledge of the court - Not necessary for expert to qualify and explain opinion in the circumstances. NATO v. THE STATE [1996] B.L.R. 567 (HC), Nganunu J Expert witness Fingerprints - Evidence of expert relied upon without independent assessment by court - Value of expert evidence. MOTSWAISO v. THE STATE [1990] B.L.R. 667 (HC), Aboagye J Scientific analysis of drug - Mandrax - Habit - forming drug - Production of affidavits setting out findings - Explanation of finding by viva voce - Expert witness cross - examined on findings - Whether evidence sufficient to etablish nature of drug in question. DESAI and Another v. THE STATE [1985] B.L.R. 582 (HC), O'Brien Quinn CJ Extenuating circumstances Deceased's utterances provoking accused - Whether deceased's actions sufficient to reduce moral blameworthiness of accused. STATE v. NDIWENYU [1990] B.L.R. 409 (HC), Gyeke - Dako J Extra - curial statement Testimony in court - Conflict of facts - Total rejection of evidence - Misdirection - Procedure to be adopted in circumstance. JONATHAN v. THE STATE [1985] B.L.R. 277 (CA), Baron JA, Amissah JA, Van Winsen JA Failure to testify Prima facie case made against accused - Adverse comments made on failure to testify - Whether proper to do so. MPHAKELA v. THE STATE [1990] B.L.R. 42 (HC), Aboagye J False evidence Accused giving false evidence - Failure to give satisfactory explanation regarding fact requiring explanation - Effect. STATE v. KHAMA [2001] 1 B.L.R. 1 (HC), Reynolds J Finger prints Evidence by expert - Function of Court. NAMENG v. REGINA 1964 - 1967 B.L.R. 33 (HC), Roper ACJ Fresh evidence Appeal - When fresh evidence admissible on appeal - Unavailability of evidence at time of trial - Application to adduce fresh evidence - Witness available at time of trial - Alleged failure of appellant's counsel to call witness - No affidavit or statement from witness tendered to court - Whether application sustainable. MOSINYI v. THE STATE [1987] B.L.R. 371 (CA), Maisels P, Amissah JA and Doyle JA Habit - forming drugs Large number of mandrax tablets found in possession of accused - Discrepancies in number of tablets counted - Effect. MOHALENYANE v. THE STATE [1985] B.L.R. 542 (HC), Aguda JA, Amissah JA and Murray J Handwriting Expert witness - Circumstantial evidence - Need for corroboration by extrinsic evidence. NTHOBELANG v. THE STATE [1983] B.L.R. 192 (CA), O'Brien Quinn CJ, Dendy - Young JA, Hannah J Expert witness - Function of expert witness - Pointing out similarities and differences to court - Court to draw its own conclusion. NTHOBELANG v. THE STATE [1983] B.L.R. 192 (CA), O'Brien Quinn CJ, Dendy - Young JA, Hannah J Expert witness - Similarities and differences observed by court - Necessity to afford expert witness to comment on court's observations. NTHOBELANG v. THE STATE [1983] B.L.R. 192 (CA), O'Brien Quinn CJ, Dendy - Young JA, Hannah J Hearsay Admissibility of - Dying declarations - Requirement that statement be made under a settled hopeless expectation of death - Whether statement made after cry for assistance could qualify as dying declaration. STATE v. MONAKWANE [2002] 1 B.L.R. 117 (HC), Chatikobo J Identification - Accused identified by complainant at identification parade - Failure to adduce evidence at trial from complainant as to identification - Evidence of identification given by another person - Whether evidence hearsay. KWENAMORE v. THE STATE [1983] B.L.R. 208 (CA), Maisels P, Dendy - Young JA, Van Winsen JA Hearsay evidence Inadmissibility of hearsay evidence - Statutory exceptions to rule against hearsay - Affidavit by geologist in public service or institutions mentioned in Cap. 08:02, s. 221 (4) possessing requisite skill and ascertaining article or substance to be rough or uncut precious stone admissible in evidence - Certificate by government geologist or by some other qualified geologist certifying article or substance to be rough or uncut precious stone admissible under Cap. 66:03, s. 22(a) - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 221 (4) - Precious and Semi - Precious Stones (Protection) Act (Cap. 66:03) (1973 Rev.), s. 22 (a). MOGOPODI v. THE STATE [1989] B.L.R. 296 (HC), Livesey Luke CJ Statutory exception to rule against hearsay evidence - Admission in evidence of affidavit by geologists in terms of Cap. 08:02, s. 221 (4) - Effect - Statements therein constituting evidence notwithstanding non - admission in terms of Criminal Procedure and Evidence Act (Cap.08:02) (1973 Rev.), s. 270 (1). MOGOPODI v. THE STATE [1989] B.L.R. 296 (HC), Livesey Luke CJ Valuation certificate in respect of rough or uncut precious stone - Statement in certificate containing hearsay evidence - Statement wrongly admitted in evidence - Value of stone not essential ingredient of offence - Whether admission of valuer's certificate resulted in failure of justice. MOGOPODI v. THE STATE [1989] B.L.R. 296 (HC), Livesey Luke CJ Identification Appellant identified by two witnesses at identification parade without hesitation - Identification parade conducted in proper manner - Whether identification of appellant flawed. MOLEFE v. THE STATE [1999] 1 B.L.R. 471 (CA), Amissah P. J, Korsah J and Kumleben JA Fingerprints - Expert witness - No evidence connecting fingerprints allegedly taken at scene of crime to those examined by expert witness - Origin of sets of fingerprints examined by expert witness not established - Whether conviction of appellant proper. MOTSHEGWE v. THE STATE [1990] B.L.R. 285 (HC), Livesey Luke CJ Fingerprints - Sole ground of identification - Shop - breaking and theft - Impression of palm print taken at scene identical with that of one `Emmanuel Dick' - Inference to be drawn - No other evidence connecting accused to offence - Whether conviction in circumstances proper. DICK v. THE STATE [1991] B.L.R. 50 (HC), Livesey Luke CJ Fingerprints - Sole ground of identification - Housebreaking and theft - Photographs of impressions of fingerprints taken at scene of crime identical with fingerprints of accused - Inference to be drawn - Evidence of accused having been at scene of crime or handled subject matter of charge at time in question. SIBANDA v. THE STATE [1989] B.L.R. 629 (HC), Livesey Luke CJ Footprints and shoe prints - Identification capable only by an expert. JIMMY v. THE STATE (NO 2) [1984] B.L.R. 271 (CA), Maisels P, Kentridge J, Hannah J Footprints and shoe - prints - Evidence given by lay witness - No expert evidence adduced - Conviction of accused - Whether conviction safe. STATE v. LEPELONG [1988] B.L.R. 449 (HC), Livesey Luke CJ Murder - Identification of assailant - Allegation that assailant wearing jean shorts - Conviction on basis of allegation - Witness alleging hitting assailant thrice on face with thorn bush - Medical evidence showing two superficial scratches on appellant, one on chest and other on wrist - Court not reconciling evidence of witness with medical evidence - Whether conviction proper. NKGATOGANG v. THE STATE [1988] B.L.R. 219 (CA), Amissah P, Aguda JA, And Doyle JA No identification parade held - Value of testimony of witness identifying criminal for the first time in the dock. HUMA v. THE STATE [1996] B.L.R. 40 (CA), Aguda, Tebbutt and Hoexter JJA Visual identification - Court to approach such evidence with caution and circumspection and needing to warn itself against dangers inherent in such evidence. KOBEDI v. THE STATE [2005] 2 B.L.R. 1 (CA), Aguda, Steyn and Friedman JJA Identification parade Identification of accused by complainant - Caution to be exercised by court in deciding whether identity of accused proved satisfactorily - In properly held identification parade, nothing to indicate to witness which one of persons held by police believed to be culprit - Identification of accused person at such parade more satisfactory and carrying far more weight than dock identification or identification of person known by witness to have been arrested by police. MONARE v. THE STATE [2005] 2 B.L.R. 216 (CA), Zietsman, McNally and Moore JJA Identity Reliability - Guidelines to be observed by court - Special need for caution before convicting in reliance on correctness of identification - Circumstances in which identification made to be closely examined - Judge to remind himself of any specific weaknesses appearing in identification evidence - Recognition more reliable than identification of stranger, but mistakes in recognition occur - Complainant knowing appellant from childhood, recognizing him in bright daylight, remembering his clothing and having a few minutes' conversation with him - Recognition of appellant by complainant reliable and could not be flawed. MOGATLA v. THE STATE [2001] 1 B.L.R. 192 (CA), Korsah, Zietsman and Sir John Blofeld JJA Illegally obtained Admissibility - Test to be applied in considering admissibility - Relevance to matters in issue - Search without warrant and in contravention of Cap. 08:02, s. 52 - Discovery of stolen articles - Whether evidence relating to search and stolen articles found therein admissible - Criminal Procedure and Evidence Act (Cap. 08:02), ss. 52 and 229. SEELETSO v. THE STATE [1992] B.L.R. 71 (HC), Gyeke - Dako J Inconsistent and contradictory evidence adduced by prosecution Failure by magistrate to consider or reconcile evidence - Whether conviction secured in such circumstances safe. STIGHLING and Another v. THE STATE [2001] 1 B.L.R. 388 (HC), Lisimba J Inference to be drawn Stolen property - Possession - Conviction of appellant of being in possession of motor vehicle knowing and having reason to believe same to have been stolen outside Botswana - Imputation of knowledge based on following facts - False address given by alleged owner to licensing authority - Sale of vehicle to appellant within few days of registration of vehicle by owner - Sale of vehicle within short time of purchase by appellant - Whether reasonable inference to be drawn of vehicle being stolen vehicle. JOHANA MODISE v. THE STATE [1988] B.L.R. 85 (HC), Livesey Luke CJ Inferences In reasoning by inference at least two cardinal rules of logic cannot be ignored: (i) inference sought to be drawn consistent with all proved facts and (ii) proved facts to be such that they exclude every reasonable inference from them, save one sought to be drawn - If facts not excluding other reasonable inferences, then there is doubt whether inference sought so be drawn is correct. TSHIPINARE v. THE STATE [1993] B.L.R. 434 (HC), Gyeke - Dako J Inspection in loco Taking evidence at inspection in loco - Irregularity - Contravention of Criminal Procedure and Evidence Act (Cap. 08:02), s. 178(1). MAIPHETLHO and Others v. THE STATE [1990] B.L.R. 580 (HC), Livesey Luke CJ Witnesses Previous inconsistent statements - Value of such statements. STATE v. MACHILIDZA and Others [1997] B.L.R. 703 (HC), Gyeke - Dako J Judicial notice Matters to be judicially noticed - When court entitled to take judicial notice of any matter - Trial court taking judicial notice of matter in dispute - Whether proper. MATHUMO and Others v. THE STATE [1985] B.L.R. 487 (HC), Barrington - Jones J Of tracking spoor - Witnesses simple rural people. STATE v. MOYO [1995] B.L.R. 532 (HC), Mokama CJ Identification Visual identification - European identifying an African at night after very short glimpse - Possibility of mistaken identity - Caution against relying on such identification. JIMMY v. THE STATE [1984] B.L.R. 218 (CA), O'Brien Quinn CJ Medical evidence Failure by State to call medical officer who examined complainant in rape case - Medical reports tendered in terms of s. 223 of Criminal Procedure and Evidence Act (Cap. 08:02) - Despite provision in s. 223 that medical report prima facie proof of facts recorded therein, where facts in report go to root of dispute between State and accused, necessary for medical practitioner who made report to testify - Failure of accused or counsel to request that medical practitioner be called to testify - Effect of. MOATLHODI and Another v. THE STATE [1995] B.L.R. 265 (HC), Gyeke - Dako J Medical report Admissibility - Doctor not available to give evidence - Whether medical report admissible - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 222. MONAGENG v. THE STATE [1983] B.L.R. 254 (CA), Dendy - Young JA, Baron JA, Aguda JA Admissibility - Rape - Report expressing matters of opinion - Opinion evidence admissible only in case of cause of death - Cap. 08.02, s. 222 - Whether report admissible. MOIYA v. THE STATE [1984] B.L.R. 234 (HC), Hannah J Admissibility - Report treated as evidence of its contents - Report not purporting to be signed by medical practitioner - Signatory of person making report illegible - Failure of report to comply strictly with Cap. 08:60, s. 222 - Whether report admissible in evidence - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 222. MOIYA v. THE STATE [1984] B.L.R. 234 (HC), Hannah J Admission under Cap. 08:02, s. 222 - Whether obligatory on part of court to explain proviso to accused - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 222, proviso. KOOTHEPILE v. THE STATE [1985] B.L.R. 9 (HC), Murray J Contents challenged by accused - Report drawn up by medical practitioner handed in by police officer - Irregular for court to admit the document in the absence of its writer, save by consent. STATE v. RAMATSWIDI [2005] 1 B.L.R. 452 (HC), Masuku J Reception without objection - Whether party affected entitled to object to report on appeal. TEACHER v. THE STATE [1983] B.L.R. 76 (HC), O'Brien Quinn CJ Murder Confession statement - Accused confessing to hitting deceased on head with blunt edge of axe - Medical evidence stating injuries could have been caused by sharp edge of axe - No other evidence to prove deceased was murdered - Whether prosecution proved that deceased was murdered - Whether confession statement alone sufficient to sustain charge - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.) s. 179 (3) and 239 (2). STATE v. KGABOETSILE [1988] B.L.R. 396 (HC), Aboagye J Murder trial Close of prosecution case - Submission of no case to answer - Defence alleging failure of prosecution establishing a prima facie case against accused - Appellant injuring deceased by hitting his head with a brick - Deceased suffering from high blood pressure - Pathologist reporting death having been caused by a `coma due to intra - cerebral haemorrhage' - Pathologist indicating death likely to have been caused either by accused hitting deceased's head with a brick or deceased's high blood presure rupturing a blood vessel - Whether prima facie proof of accused causing death of deceased. STATE v. SEITHAMO [2001] 1 B.L.R. 129 (HC), Dibotelo J Of age Evidence by person of own age is inadmissible hearsay evidence. TSHEKO v. THE STATE [2004] 1 B.L.R. 80 (HC), Chatikobo J Of identification Assessment of evidence - Persons involved in group assault - Whether degree of detail witness saw established beyond reasonable doubt that appellants were the persons who inflicted harm upon deceased. KEMOREILE v. THE STATE [1996] B.L.R. 34 (CA), Schreiner JA, Lord Wylie J.A and Lord Cowie JA Sufficiency of - Witnesses not having pointed to any particular identifying features although they knew the accused. KALAFATIS v. THE STATE [1997] B.L.R. 328 (HC), Nganunu J Office breaking and theft Doctrine of recent possession - Appellant found in possession of stolen property soon after breaking and theft - Positive identification of stolen property found in possession of appellant by prosecution witnesses - Whether sufficient evidence connecting appellant to crime charged - Whether fingerprints at scene of crime an essential element of charge. MAGAPU v. THE STATE [1991] B.L.R. 79 (HC), Livesey - Luke CJ Onus of proof Court shifting onus on appellants - No onus on accused person to establish innocence. MORUPULE and Another v. THE STATE [1989] B.L.R. 634 (HC), Gyeke - Dako J Rape - Accused denying raping complainant - Doctor's report not supporting complainant's allegation - Complainant's story consistent with accused's - Sharp conflict in evidence of key prosecution witnesses - Magistrate placing onus on accused to prove his innocence - Magistrate rejecting evidence of accused - Conviction - Whether proper. STATE v. MASOWA [1989] B.L.R. 24 (HC), Aboagye J Rape - Burden on prosecution to prove charge against appellant beyond all reasonable doubt. MPAKU v. THE STATE [1998] B.L.R. 211 (HC), Aboagye J Stock theft - Accused putting identity of alleged stolen stock in issue - Onus on prosecution to prove beyond reasonable doubt identity of alleged stolen stock - Evidence led by prosecution confusing and full of discrepancies - Whether in circumstances of case onus on prosecution discharged. EDWARD v. THE STATE [1988] B.L.R. 187 (HC), Livesey Luke CJ Stock theft - Stolen cattle loaded onto rail truck on route to BMC - Cattle loaded onto truck by appellant's herd boys - No evidence of appellant having pointed out cattle to herd boys prior to them being driven to loading pens - Failure of prosecution to call herd boys as witnesses - Whether appellant's guilt proved beyond reasonable doubt. JOSEPH v. THE STATE [2000] 1 B.L.R. 93 (CA), Aguda J, Tebbutt J and Lord Weir JA Unlawful possession of arms and ammunition - Explanation of possession of arms and ammunition - No onus on accused to convince trial court of truth of explanation - Court entitled to reject explanation if satisfied not only that explanation improbable but false beyond reasonable doubt - Rejection of explanation as being beyond human credulity. MAJILA and Others v. THE STATE [1987] B.L.R. 123 (HC), Barrington - Jones J Palm print Expert witness - Breaking into a school and stealing therefrom - Access gained into school by removal of window pane - Identification of culprit - Applicant's palm print found on window pane - No explanation for presence of palm print on window pane - Inference to be drawn from such evidence. MAKWAPENG v. THE STATE (No 2) [1985] B.L.R. 229 (HC), Hannah J Pointing out Conviction on evidence of pointing out - When inference of guilt to be drawn solely from evidence of pointing out - Knowledge of accused of commission of offence - Knowledge based on participation in commission of offence - Evidence to be beyond reasonable doubt as being the only inference that can be drawn. TWALA v. THE STATE [1986] B.L.R. 371 (HC), Murray J Presumption Ownership - Stock theft - Appellants in possession of cattle - Claim of right of possession to cattle - Failure of prosecution to rebut appellants' claim - Presumption of ownership of cattle by appellants. NYANDENI and Another v. THE STATE [2000] 2 B.L.R. 22 (HC), Mwaikasu J Presumptions Burden on accused to rebut presumption - Burden can be discharged by evidence of witnesses for prosecution as well as by evidence for defence. TSHIPINARE v. THE STATE [1993] B.L.R. 434 (HC), Gyeke - Dako J Presumption in s. 386 of Penal Code (Cap. 08:01) - Presumption coming into play when proved that: (i) accused was `agent' in terms of s. 383(1) and under s. 386 `a person in the employment of government'; (ii) he received `any money, gift or other consideration'; and (iii) money, gift or other consideration received from person or agent of person seeking to obtain contract from government - Burden on accused to rebut presumption on balance of probabilities - Penal Code (Cap. 08:01), ss. 383(1) and 386. TSHIPINARE v. THE STATE [1993] B.L.R. 434 (HC), Gyeke - Dako J Privilege Statement made by prosecution witness to police - Admissibility of previous statement made by prosecution witness to police - Statement made in contemplation of criminal trial - Whether such statement privileged - Criminal Procedure and Evidence Act (Cap. 08:02), ss. 98 and 99 STATE v. FANE [2001] 1 B.L.R. 319 (HC), Mwaikasu J Prosecution evidence Disclosure of sources of information - Confidentiality - Evidence admissible to avoid miscarriage of justice. ATTORNEY - GENERAL v. LEBOTSE [1987] B.L.R. 462 (HC), Hallchurch J Evidence of witness having purpose of own to serve - Disclosure of information to defence - Grant of immunity from prosecution to witness - Whether prosecution under duty to disclose grant of immunity to defence - Whether failure to disclose information denial of fair trial occasioning miscarriage of justice. BOSCH v. THE STATE [2001] 1 B.L.R. 71 (CA), Aguda AJP, Nganunu CJ and Tebbutt JJA Prosecution witness contradicting previous statement Duty on prosecutor. KENOSI v. THE STATE [1993] B.L.R. 268 (CA), Amissah JP, Schreiner JA, Puckrin JA Rape Complainant in sexual offence - Need for complainant's testimony to be corroborated - Court believing complainant - Court under duty to warn itself of danger of convicting on complainant's uncorroborated evidence - Effect of omission to warn. MORWANENG v. THE STATE [2001] 1 B.L.R. 343 (HC), Lesetedi J Corroboration - Cautionary rule - Appellant charged with rape - Complainant's evidence credible - Medical report showing likelihood of complainant having been raped - Appellant telling lies - Significance of falsehoods - Whether danger of drawing possibly erroneous inference removed. MALAOLO v. THE STATE [2000] 1 B.L.R. 99 (CA), Aguda J, Korsah J and Friedman JA Corroboration - Eyewitness to event - Appellant convicted on charge of rape - Appeal - Appellant alleging contradictions and inconsistencies in State evidence - Whether contradictions and inconsistencies relating to vital points in proving case - Whether conviction sound. PHETO v. THE STATE [2000] 1 B.L.R. 105 (CA), Aguda J, Tebbutt J and Lord Weir JA Penetration - Absence of medical report showing penetration - Whether court can convict in absence of report. MORWANENG v. THE STATE [2001] 1 B.L.R. 343 (HC), Lesetedi J Trial magistrate - Direction - Matters requiring direction on before entry of conviction - Corroboration of act of intercourse - Absence of consent by complainant - Identity of accused - Failure of direction on such matters - Conviction of accused - Whether conviction sustainable. STATE v. NTSEKE [1986] B.L.R. 252 (HC), Barrington - Jones J Res gestae When acts given in evidence to constitute part of res gestae - Acts to be closely connected in time, place and circumstance. KGAKGAMATSO and Another v. THE STATE [1991] B.L.R. 94 (HC), Livesey - Luke CJ Sexual offences Attempted rape - Need for corroborative evidence - Inconclusive medical evidence - No other corroborative evidence - Whether in circumstances conviction proper. GAOAGELWE v. THE STATE [1990] B.L.R. 198 (HC), Gyeke - Dako J Cautionary rule - Manner of application of. MOETEDI v. THE STATE [1997] B.L.R. 285 (HC), Gyeke - Dako J Collaboration - Rape. MOIYA v. THE STATE [1984] B.L.R. 234 (HC), Hannah J Corroboration - Complainant - Suspect witness - Application of cautionary rule - Whether trial magistrate considered cautionary rule. MOGAPI v. THE STATE [2000] 1 B.L.R. 264 (HC), Nganunu CJ Corroboration - Complainant - Suspect witness - Application of cautionary rule - Danger of false incrimination - Not sufficient for trial court merely to warn itself of dangers of false incrimination - Court to look for something more other than credibility of suspect witness. NTEKOLA v. THE STATE [1985] B.L.R. 594 (HC), Murray J Corroboration - Evidence of victim of offence - Need to look for corroborative evidence in cases of alleged sexual offences. SOUL v. THE STATE [1987] B.L.R. 216 (HC), Hallchurch J Corroboration - Evidence of victim of offence - Need to look for corroborative evidence in cases of alleged sexual offences. TSHELEKU v. THE STATE [1985] B.L.R. 61 (HC), Hannah J Corroboration - Indecent assault on girls - Evidence of system - Evidence of others alleging similar offences against themselves - Admission of accused of ordering girls to undress before him - Whether evidence of girls capable of constituting corroboration of each other's evidence. MAKHAYA v. THE STATE [1985] B.L.R. 147 (HC), O'Brien Quinn CJ Corroboration - Indecent assault - Accused charged with rape - Trial court finding no corroborative evidence - Conviction of accused of lesser offence of indecent assault - Whether proper. SEGAMETSI v. THE STATE [1986] B.L.R. 441 (HC), Murray J Corroboration - Rape - Complainant alleging lack of consent - Insufficient evidence to support lack of consent. KGOBOKI v. THE STATE [1985] B.L.R. 283 (HC), Murray J Corroboration - Rape - Complainant menstruating - Blood grouping of bloodstains found on appellant's underpants matching blood grouping of menstrual blood - Appellant having different blood grouping - Failure to satisfactorily explain source of blood stains found on underpants - Effect. NTWAETSILE v. THE STATE [1985] B.L.R. 504 (HC), O'Brien Quinn CJ Corroboration - Rape - Complainant alleging lack of consent - Admission by appellant of having had sexual intercourse with complainant - Evidence of police officer of admission by appellant of having had sexual intercourse with complainant - Testimony of prosecution witness of seeing complainant half naked on day in question and assisting her to collect her clothes at the scene - Witness seeing struggle marks at the scene - Complainant telling witness of having been raped - Whether corroboration of complainant's evidence. NSHWARELANG v. THE STATE [1986] B.L.R. 383 (HC), Murray J Corroboration - Rape - Corroborative evidence required to confirm in some material particular - Incident of sexual intercourse having taken place - Lack of consent - Identification of accused as culprit. TSHWENE and Another v. THE STATE [1987] B.L.R. 92 (HC), Hallchurch J Rape - Corroboration - Applicant not denying rape - Trial court relying on non - denial as corroboration - Whether misdirection - Whether conviction safe. MMOLAWA v. THE STATE [1990] B.L.R. 323 (CA), Aguda JA, Doyle JA, Bizos JA Similar fact evidence Not competent for prosecution to adduce evidence of criminal acts other than those charged - Exception - Whether similar fact evidence positively probative to crime charged - Court discretion to exclude evidence if prejudicial effect outweighs probative value - Duty of court to advert mind to prejudicial effect and probative value. KGAKGAMATSO and Another v. THE STATE [1991] B.L.R. 94 (HC), Livesey - Luke CJ Specimens of handwriting Admissibility - statement made by accused - free and voluntary nature. MAITSWARELO DABUTHA v. THE STATE 1964 - 1967 B.L.R. 189 (CA), Roper P, Schreiner JA, Maisels JA Assessment of Unsworn statement from dock - Value to be accorded to. MAAUWE v. THE STATE and Another [1997] B.L.R. 693 (CA), Steyn J, Tebbutt J and Hoexter JA Stealing stock Evidence of prosecution witnesses conflicting - Owner of cattle not clearly established - Magistrate reconstructing evidence of prosecution in endeavour to reconcile conflicting evidence - Whether proper. MOSARWA v. THE STATE [1990] B.L.R. 231 (HC), Livesey Luke CJ Stock theft Charge of - Proof - Material variation between description of cattle allegedly stolen in particulars of offence and evidence adduced at trial - Failure to identify owner of cattle allegedly stolen - Whether conviction of appellants of stock theft sustainable. NYANDENI and Another v. THE STATE [2000] 2 B.L.R. 22 (HC), Mwaikasu J Sufficiency of Common purpose - Two accused charged with murder and robbery - Case resting on circumstantial evidence that accused in possession of large sums of money for which they gave exculpatory explanations - Cumulative effect of evidence not such as to sustain as only reasonable inference that each appellant guilty of either or both crimes. MONTSHO and Another v. THE STATE [1996] B.L.R. 664 (CA), Aguda, Schreiner and Hoexter JJA Contradictions and inconsistencies in evidence of witnesses for the prosecution - Effect of on prosecution of accused for manslaughter. STATE v. MAKHURA [1997] B.L.R. 445 (HC), Gittings J Evidence of pointing out - Must be some evidence that a crime has been committed and that the accused committed it before accused can be convicted - Not sufficient to infer from accused's knowledge of whereabouts of missing cash - box that she had been involved in its theft. AKANYANG v. THE STATE [1997] B.L.R. 513 (HC), Aboagye J Summing up Judge advocate commenting on evidence - Whether judge usurping function of court by commenting on evidence. SOLOMON v. THE STATE [1991] B.L.R. 86 (HC), Livesey - Luke CJ Omission by trial court to invite accused to make closing address or summation not per se an irregularity vitiating the proceedings. MOLETSANE v. THE STATE [1995] B.L.R. 83 (HC), Gyeke - Dako J Suspect witness Complainant in sexual offence - Need to adopt two - stage cautionary rule - Believing witness - Corroboration - Failure by trial court to adopt cautionary rule - Effect of omission. STATE v. GAOFORWE [1999] 2 B.L.R. 334 (HC), Lisimba J Sworn statement Unsworn statement - Weight to be attached to respective statements - Greater weight to be attached to sworn statement than that of unsworn statement - Both methods of giving evidence legitimate - Whether proper for trial court to state that unsworn evidence viewed in unfavourable light. STATE v. KENAOPE [1986] B.L.R. 199 (HC), O'Brien Quinn CJ Trap Agent provocateur - Unlawful possession of ammunition of war - Information of possession given to police by informer - Investigation by police and finding of appellant to be in possession of ammunition of war - Whether commission of offence instigated by police informer - Whether police informer agent provocateur. MOLELEKEDI v. THE STATE [1990] B.L.R. 630 (CA), Amissah P, Aguda JA, Bizos JA Trial Inspection in loco - When to order inspection - Observation made at inspection in loco - Duty of court. MODISE v. THE STATE [1989] B.L.R. 126 (HC), Livesey Luke CJ Unsworn statement Formal voluntary statement made to magistrate - Accused failing to give evidence - Defence relying on self - serving extra - curial statement - Effect of. STATE v. POGISO [1983] B.L.R. 54 (HC), Corduff J Weight to be attached to statement - Statement likely to have persuasive value. STATE v. HONKA [1985] B.L.R. 121 (HC), Hannah J Weight to be attached to statement - Not as great as that to be given to sworn evidence - Trial magistrate stating that unsworn statement to be viewed in poor light - Whether such explanation proper. STATE v. MPONAPI [1986] B.L.R. 120 (HC), O'Brien Quinn CJ Weight to be attached to statement - Statement likely to have persuasive value. STATE v. PHALE and Another [1985] B.L.R. 123 (HC), Hannah J Weight to be attached to statement - Whether proper in stating sworn statement to be viewed in good light whilst unsworn statement to be in poor light. SEWAGODIMO v. THE STATE [1986] B.L.R. 399 (HC), O'Brien Quinn CJ Unsworn statement Weight to be attached to statement - Statement to be given same consideration as an extra - curial statement made by accused. STATE v. MOSHOTLE [1985] B.L.R. 131 (HC), O'Brien Quinn CJ Weight to be attached to statement - Whether proper in stating sworn statement to be viewed in good light whilst unsworn statement to be in poor light. STATE v. RAMOLALE [1986] B.L.R. 215 (HC), O'Brien Quinn CJ Uttering false document Magistrate's findings at variance with prosecution case - Falsity alleged by prosecution being in respect of Toyota Cressida car - Falsity found by magistrate being in respect of BMW car - Magistrate convicting accused on false basis - Whether evidence supported conviction of uttering false document. KABLAY v. THE STATE [1988] B.L.R. 55 (HC), Livesey Luke CJ Evaluation of Evidence of accused - Where accused gives evidence, wrong for trial court to take the view that since it believes the evidence of the prosecution witnesses it must in consequence reject the evidence of the accused without more. MANGOYI and Others v. THE STATE [1997] B.L.R. 553 (HC), Nganunu J What is required of presiding officer - Presiding officers required to analyse evidence of both sides and weigh such evidence and must state reasons for rejecting defence of an accused. BADI and Others v. THE STATE [1997] B.L.R. 538 (HC), Aboagye J What is required of presiding officer - Not sufficient for magistrate to state that he or she believed the evidence of the prosecution's witness - Some explanation called for in light of apparent contradiction in witness' evidence. MANGOYI and Others v. THE STATE [1997] B.L.R. 553 (HC), Nganunu J Witness Calling of witness - Jurisdiction of court - Accused wishing court to call witness - Failure of court to call witness - Effect. MACHENG v. THE STATE [1985] B.L.R. 294 (HC), O'Brien Quinn CJ Accomplice - Corroboration - Nature of in trial for murder. TSHABANG v. THE STATE [1995] B.L.R. 132 (CA), Amissah JP, Lord Wylie JA and Steyn JA Accomplice - Evidence which accomplice can give. TSHABANG v. THE STATE [1995] B.L.R. 132 (CA), Amissah JP, Lord Wylie JA and Steyn JA Accomplice - Suspect witness - Corroboration - Witness credible - Corroboration from independent witness required SELLO v. THE STATE [1984] B.L.R. 87 (HC), Hannah ACJ Accomplice - Suspect witness credible - Corroboration from independent witness required - Whether evidence of accused capable of corroborating evidence of accomplice - Criminal Procedure and Evidence Act (Cap. 08:02), s. 240. IKUTLWENG v. THE STATE [2001] 1 B.L.R. 367 (HC), Nganunu CJ Admonishment to tell truth - Whether properly executed - In addition to being told to tell truth, record of proceedings reflecting that complainant admonished in manner calculated to impress on her mind and bind her conscience - Criminal Procedure and Evidence Act (Cap 08:02), s 221. TSUANENG v. THE STATE [2003] 2 B.L.R. 60 (CA), Zietsman, Plewman and Akiwumi JJA Calling of witnesses - jurisdiction of court to call witnesses - Court permitting prosecution to call witnesses to rebut evidence of accused - Whether court had power to do so - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), ss. 200 and 273. KOOTHEPILE v. THE STATE [1985] B.L.R. 9 (HC), Murray J Competence - Spouse - Murder charge - Accused charged with murder - Whether husband of accused competent to give evidence for prosecution - Criminal Procedure and Evidence Act (Cap. 08:02), ss. 217 (1), (2) and 218. STATE v. MARIPANE [1991] B.L.R. 151 (HC), Gyeke - Dako J Credibility - Demeanour - Evidence of witness given through an interpreter - Finding as to credibility of witness based on demeanour - Whether such finding satisfactory. MAFOKATE v. THE STATE [1986] B.L.R. 269 (CA), Maisels P, Aguda JA, and Amissah JA Credibility - Sexual offences - Rape - Magistrate believing complainant credible - Failure to take into account evidence of other prosecution witnesses - Whether credibility of complainant determinable without recourse to evidence of other witnesses - Whether conviction sustainable. MPAKU v. THE STATE [1998] B.L.R. 211 (HC), Aboagye J Demeanour - Application of in evaluation of credibility. MATLAPENG v. STATE [1995] B.L.R. 542 (HC), Lesetedi AJ Essential for the purpose of arriving at a just decision - Duty of court to call - Section 201 of the Criminal Procedure and Evidence Act. KEIPHEDITSE v. THE STATE [1994] B.L.R. 204 (HC), Nganunu J Evidence of co - accused - Charges against co - accused withdrawn after some evidence led whereafter he was called as a witness in same trial - Whether such procedure permissible. PILANE v. THE STATE [1995] B.L.R. 409 (CA), Amissah JP, Steyn, Hoexter JJA Expert witness - Not within competence of medical doctor to express conclusive opinion that victim examined had been raped - Such the function of the court. STATE v. MODISAOTSILE [1993] B.L.R. 102 (HC), Gyeke - Dako J Nine - year old child - Oath or affirmation - Witness not sworn or affirmed - Duty of court to witness - Duty of witness to speak truth to be emphasised - Admonition impressing mind and binding conscience to tell court truth to be administered - Failure to administer admonition rendering witness's evidence inadmissible - Whether complainant's evidence admissible - Criminal Procedure and Evidence Act (Cap. 08:02), s. 221, proviso (i). ISAAC v. THE STATE [1991] B.L.R. 248 (HC), Aboagye J Order of calling - Accused to be called before his witness. MATSHEGO v. THE STATE [1989] B.L.R. 106 (HC), Livesey Luke CJ Prosecution witness - Whether duty on prosecution or discretion to call witness. GABOREKWE v. THE STATE [1987] B.L.R. 157 (HC), O'Brien Quinn CJ Single witness evidence - When court may convict on evidence of single witness - Witness to be competent and credible - Power of court to recall witness - Court entitled to recall witness at any stage of proceedings if evidence appearing essential for arriving at just decision - Evidence available ab initio to prosecution and remedying prosecution case inadmissible - Whether evidence of prosecution's fifth witness properly before court - Criminal Procedure and Evidence Act (Cap. 08:01), ss. 201 and 239. MOSALA v. THE STATE [1991] B.L.R. 212 (HC), Gyeke - Dako J Witness statement Prosecution witness statement - Whether duty to make available to defence - In order to ensure fair hearing and provision of adequate facilities for preparation of defence, prosecution should disclose to defence all witnesses' statements and documents on which prosecution intends to found - If prosecution able to justify privilege and privilege not hampering defence, then able to withhold statement - General rule was disclosure, privilege the exception. ATTORNEY - GENERAL v. AHMED [2003] 1 B.L.R. 158 (CA), Tebbutt JP, Zietsman, Lord Sutherland, Akiwumi and Grosskopf JJA Witnesses Accomplice - Assessment of - Corroboration - In confession statement of co - accused. STATE v. MAAUWE and Others [1997] B.L.R. 381 (HC), Gyeke - Dako J Accomplice - Effect of provisions of section 240 of Criminal Procedure and Evidence Act (Cap. 08:02) - Provisions do not dispense with requirement of corroboration as well as the rule that corroboration is only required if the witness requiring corroboration is credible. STATE v. MAPHORISA and Others [1995] B.L.R. 568 (HC), Gyeke - Dako J Calling of - Witnesses for the prosecution - Discretion of prosecution to call such witnesses - Court's powers where discretion not properly exercised - Criminal Procedure and Evidence Act (Cap. 01:02), s. 201. STATE v. THOMAS [1996] B.L.R. 860 (HC), Gyeke - Dako J Credibility - Identification Of appellant - Appellant in vehicle involved in accident resulting in death of passenger - Appellant's lip injured in accident - Prosecution alleged appellant being driver of vehicle - Denial by appellant - Six witnesses identifying appellant as driver of vehicle - Identifying feature - Cut lip - No evidence indicating conspiracy amongst witnesses identifying appellant to wrongly implicate him - Appellant convicted and sentenced by trial court - Appeal against conviction and sentence by appellant - Whether any grounds existing for overruling decision of trial court. MOSWETSI v. THE STATE [1985] B.L.R. 263 (CA), Baron JA, Amissah JA, Van Winsen JA Cross - examination of - Failure to cross - examine - Effect of failure. MARKUS v. THE STATE [2004] 2 B.L.R. 468 (HC), Chinhengo J Cross - examination of - Failure to cross - examine - Unrepresented accused - Failure to cross - examine could not be held against unrepresented accused. MOETEDI v. THE STATE [1997] B.L.R. 285 (HC), Gyeke - Dako J Expert witness - Manner of adducing evidence of examination and findings. MOLOI v. THE STATE [1995] B.L.R. 439 (CA), Amissah P, Lord Wylie, Hoexter JJA Expert witness - Qualifications of - Ballistics expert. MOLOI v. THE STATE [1995] B.L.R. 439 (CA), Amissah P, Lord Wylie, Hoexter JJA Witnesses called by court - Whether trial judge entitled to mero motu call police witnesses during trial - within - a - trial - Criminal Procedure and Evidence Act (Cap. 08:02), s. 201. KWAE v. THE STATE [1996] B.L.R. 159 (CA), Amissah JP, Aguda, Lord Wylie, Lord Cowie and Hoexter JJA Young children Reception of evidence from young children - Child produced for purpose of giving evidence found not to understand nature of oath - Child nevertheless entitled to give unsworn testimony - Court to admonish child to tell the truth, the whole truth and nothing but the truth - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s.220. STATE v. KAEKWE (PRACTICE NOTE) [1984] B.L.R. 303 (HC), Hannah J Evidence after conviction of extenuating circumstances canvassed during trial STATE v. PHUSU MOTSHWA 1968 - 1970 B.L.R. 317 (HC), Dendy Young CJ Evidence called by Court. STATE v. BOY SEKGWANA 1975 (1) B.L.R. 99 (HC), Dyke CJ Evidence of Accomplices. STATE v. CHIDE CHOKWE and Another 1977 B.L.R. 7 (CA), Maisels P, Doyle JA, Ogilvie Thompson JA Evidence of an accomplice Substitution of conviction on one alternative charge by conviction on another. STATE v. PALLIS MACHENG 1968 - 1970 B.L.R. 189 (HC), Dendy Young CJ Evidence of identification Guidelines to be followed when assessing evidence of identification set out. BOY v. THE STATE (PRACTICE NOTE) [1993] B.L.R. 83 (HC), Cotran J Evidence of shoe prints Duty of Court at close of State case to discharge an unrepresented Accused if there is no case for him to meet. STATE v. NYAMBE and Others 1973 (1) B.L.R. 58 (HC), Rooney ACJ Evidence of young child Not safe to rely on such evidence unless corroborated Failure by trial court to treat uncorroborated evidence of young child with caution amounting to irregularity. HAMMINGTON v. THE STATE (PRACTICE NOTE) [1993] B.L.R. 99 (HC), Gyeke - Dako J Evidence of Young Children Corroboration STATE v. KAHEE SECHONI and Another 1975 (1) B.L.R. 33 (CA), Maisels P, Milne JA, Doyle JA Evidence on change of defilement of a girl under 16 of intercourse with her on occasions other than the occasion charged. STATE v. NTEMA 1979 - 1980 B.L.R. 228 (HC), Corduff J Exculpatory statement Proof that it was made voluntarily. STATE v. MODISA 1981 B.L.R. 226 (HC), Corduff J Extenuating circumstances on proved charge of assault Charge dismissed. STATE v. COLLINS 1971 (1) B.L.R. 15 (HC), Young CJ Extra - curial statements by Accused persons should be recorded in language in which made. STATE VS MOPIRWA 1981 B.L.R. 211 (HC), Corduff J Failure by Subordinate Court to send case for review within a reasonable time. STATE v. N SENTO 1973 (1) B.L.R. 73 (HC), Aguda CJ Failure of Accused to give evidence Whether contrary to Constitution to take such fact into account. ATTORNEY - GENERAL v. MOAGI 1982 (2) B.L.R. 124 (CA), Maisels P, Dendy - Young JA, Baron JA, Aguda JA, Kentridge JA ATTORNEY GENERAL v. MOAGI 1981 B.L.R. 1 (CA), Maisels PJ, Dendy - Young J, Baron JA, Aguda JA, Kentridge JA Failure of Magistrate to record reasons for judgment Irregularity. STATE v. ALBERT KEBINAKGABO MASIELA 1972 (2) B.L.R. 52 (HC), Aguda CJ Failure to adjourn case to enable defence witness to be called. STATE v. KGOPISO 1978 B.L.R. 56 (HC), Edwards J Failure to allege and prove that the Accused was driving on a public road when charged with driving whilst under the influence of liquor. STATE v. D NAKEDI 1973 (1) B.L.R. 56 (HC), Rooney ACJ Failure to allow counsel to address court before judgment Duty of judicial officers Irregularity. WALTER MADISA v. REGINA 1964 - 1967 B.L.R. 157 (HC), Weston CJ Failure to give an Accused person the opportunity of cross - examining a co - accused Irregularity. STATE v. TSATSI PIET and Another 1971 (2) B.L.R. 59 (HC), Rooney ACJ Forfeiture Section 15 (4) read with section 2 (b) (1) of the Fauna Conservation Act (Cap. 38:01) application for the return of a rifle by the true owner in terms of section 89 (4) of (Cap. 38:01). PELAELO MOSHETI v. THE STATE 1982 (2) B.L.R. 77 (HC), O'Brien Quinn CJ Forfeiture of vehicle used in commission of crime STATE v. TSATSIMPE 1979 - 1980 B.L.R. 226 (HC), Hannah J Forfeiture of vehicles in terms of section 315 (2) of the Criminal Procedure and Evidence Act (Cap. 08:02). MATSHWENYEGO MOYO and Another v. THE STATE 1982 (2) B.L.R. 85 (HC), O'Brien CJ Forfeiture of weapons and vehicle used for unlawful hunting of game. STATE v. PUTTER and PUTTER 1974 (2) B.L.R. 57 (HC), Rooney J Forfeiture order Instrument used in commission of offence Power of court to make forfeiture order - Instrument must have been used in commission of offence - Instrument to be produced before court - Appellant convicted of attempting to rob a bank - Attempted robbery made with toy pistol and knife - Appellant leaving bank in vehicle parked not far from bank - Forfeiture order made in respect of vehicle - Whether proper - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 315(2). MONETH v. THE STATE [1989] B.L.R. 188 (HC), Livesey Luke CJ Property Conviction for causing grievous harm - Forfeiture order made in respect of vehicles conveying appellants - Whether offence of causing grievous harm committed by means of the vehicles - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 315 (2). BASSON and Another v. THE STATE [1989] B.L.R. 217 (CA), Amissah P, Aguda JA, Doyle JA Ground of appeal that 'the conviction was against the evidence and the weight of the evidence' Such ground inexplicit and does not raise the real issue before the Court. GOOLAM SAIDOO v. THE STATE 1968 - 1970 B.L.R. 47 (HC), Dendy Young CJ Grounds of appeal Magistrates expected to comment on grounds of appeal not covered by their judgments. STATE v. SEJABOPE 1981 B.L.R. 257 (HC), Corduff J Handing in of medical certificate. STATE v. JAKOPO 1972 (1) B.L.R. 21 (HC), Aguda CJ Hearsay evidence not prejudicial to Accused. STATE v. NTEMA 1979 - 1980 B.L.R. 228 (HC), Corduff J Homicide Murder Charge - Plea of guilty - Conditions for acceptance by trial court - Plea to be unequivocal - Accused having full knowledge of nature and extent of his admission - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 239 (1). STATE v. MOTHELESI [1989] B.L.R. 78 (HC), Gyeke - Dako J Hostile State witness joined as co - accused. Irregularity STATE v. MARE MOTSHEGWE 1971 (2) B.L.R. 70 (HC), Rooney ACJ House Breaking and Theft Law 2 of 1964, section 302(a) Single offence. REGINA v. RANTOLOLOKTANE 1964 - 1967 B.L.R. 76 (HC), Weston CJ Possession of stolen property Doctrine of recent possession of stolen property - Applicability - Prosecution to prove premises broken into and entered and property found in accused's possession soon thereafter - Appellant found in possession of stolen property before entry into premises proved to have taken place - Whether doctrine of recent possession applicable. MONTSHIWA and Another v. THE STATE [1989] B.L.R. 592 (HC), Livesey Luke CJ Suspended Sentence by a Customary Court activitated to run concurrently with sentence last imposed. BADISA JOSEPH DIBOTELO v. THE STATE 1982 (1) B.L.R. 74 (HC), O'Brien Quinn CJ Housebreaking with intent Averment of specific intention. REGINA v. BOTSHUME 1964 - 1967 B.L.R. 58 (HC), Weston CJ Identification Case depending solely or substantially on evidence of identification Defence of mistaken identity - Substantial corroboration of complainant's evidence - Guidelines to be followed by judicial officer in deciding case. RAMOKOTO v. THE STATE [2001] 1 B.L.R. 357 (HC), Lisimba J Impropriety of prejudicial description of accused in charge sheet Impropriety of prejudicial language by prosecutor calculated to inflame and to cause prejudice. JOEL KHUMALO v. THE STATE 1968 - 1970 B.L.R. 1 (HC), Maisels ACJ Inability to plead because of mental abnormality. STATE v. MARIAM GEORGE HASKINS 1968 - 1970 B.L.R. 72 (HC), Dendy Young CJ Inconsistent previous statement by witness. STATE v. EDWIN MOTSHABI 1976 B.L.R. 39 (HC), Rooney J Increase of sentence on automatic review Principles applicable STATE v. MAUNGE 1971 (2) B.L.R. 73 (HC), Rooney ACJ Procedure to be followed STATE v. SHADRACK NLEYA 1971 (2) B.L.R. 55 (HC), Rooney ACJ Indictment Duplicity Joinder of counts - Housebreaking and theft - Particulars of offence as framed disclosing two separate offences - Lack of separate counts of stealing - Court proceeding to try appellants on counts as framed - Whether conviction for theft proper despite lack of separate counts of stealing - Whether counts bad for duplicity. MORUPULE and Another v. THE STATE [1989] B.L.R. 634 (HC), Gyeke - Dako J Joinder Accessory after the fact - Nothing wrong with accessory being charged in same indictment as principal offender. STATE v. MAAUWE and Others [1997] B.L.R. 381 (HC), Gyeke - Dako J Improper joinder - Court's duty to determine whether proper joinder - Criminal Procedure and Evidence Act (Cap. 08:02), s. 129. SEKGA v. THE STATE [1997] B.L.R. 972 (HC), Gyeke - Dako J Two separate counts in one charge - Two unrelated counts not to be joined in one summons - Criminal Procedure and Evidence Act (Cap. 08:02), s. 129. SEKGA v. THE STATE [1997] B.L.R. 972 (HC), Gyeke - Dako J Joinder of counts Offences of the same or similar character - Whether indictment severable - Discretion - Avoidance of embarrassment or prejudice to accused - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s.128. STATE v. SELETSE [1987] B.L.R. 11 (HC), O'Brien Quinn CJ Joinder of offences Count of unlawful possession of a firearm where firearm in question an incident of count of robbery which had also been laid against accused - Nothing wrong in joining different offences in the same indictment if they are founded on the same facts or form or are part of a series of offences of the same or a similar character. STATE v. MAPHORISA and Others [1995] B.L.R. 568 (HC), Gyeke - Dako J Substituted charge sheet Trial proceeding on substituted charge sheet - No law precluding prosecution presenting fresh charge sheet or court suo motu causing amendments to be made provided no prejudice caused to accused. MORUPULE and Another v. THE STATE [1989] B.L.R. 634 (HC), Gyeke - Dako J Unconnected charges should not be joined in the same indictment. STATE v. MOSIMANEGAPE SELEBOGO BACKSTYLE 1972 (2) B.L.R. 69 (HC), Aguda CJ Indictment and charge Charge against company Director, not charged in his personal capacity convicted and sentenced - Penal Code (Cap. 08:01) s. 24 - Criminal Procedure and Evidence Act (Cap. 08:02) s. 332(1). WRIGHT v. THE ATTORNEY - GENERAL [1996] B.L.R. 405 (HC), Gittings J Joinder Of charges - Different offences charged in same indictment - Section 129 of the Criminal Procedure and Evidence Act (Cap. 08:02). KETSHWANETSE v. THE STATE [1997] B.L.R. 1067 (HC), Aboagye ACJ Indictment or charge Defective Charge of offence of armed robbery - Particulars of offence alleging stealing by accused whilst armed - Evidence adduced at trial establishing offence of robbery - Failure to amend charge sheet to conform with evidence adduced - Conviction of accused on defective charge - Duty of appellate court on appeal against conviction - Penal Code (Cap. 08:01), ss. 291 and 292 - Criminal Procedure and Evidence Act (Cap. 08:02), s. 149. MOGALE v. THE STATE [2001] 1 B.L.R. 427 (HC), Mwaikasu J Indictment or summons Amendment Summons amended after two prosecution witnesses having given evidence on arraignment - Substitution of more serious offence than that charged in original summons - Whether proper - Magistrates' Courts Act (Cap. 04:04) (1973 Rev.), s.67 (1) - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 148(1). RAKHUDU v. THE STATE [1988] B.L.R. 237 (HC), Livesey Luke CJ Arms or ammunition of war Unlawful possession - Charges - Proper mode of drafting charges - Arms and Ammunition Act (Cap. 24:01) (1973 Rev.), ss. 2 and 9 (1) and (5). TSHITE v. THE STATE (PRACTICE NOTE) [1989] B.L.R. 386 (HC), Gyeke - Dako J Defective Accused charged and convicted of offence of possession of suspected stolen stock contrary to Cap.09:01, s. 4 - Offence charged not created by section 4 - Cap. 08:02, s. 130 (a) requiring section of law creating offence to be stated in statement of offence - Mandatory statutory requirement - Non - compliance with statutory requirement tantamount to material defect in indictment or summons - Whether indictment or summons a nullity - Whether defect curable - Criminal Procedure and Evidence Act (Cap.08:02) (1973 Rev.), ss. 130 (a) and 142 - Stock Theft Act (Cap.09:01) (1973 Rev.), s.4. KEHUTHILWE v. THE STATE [1988] B.L.R. 401 (HC), Livesey Luke CJ Joinder of counts Appellant charged with others in same indictment for different offences - Whether joinder of various accused charged with different offences in same indictment or summons proper - Whether appellant's trial regular - Criminal Procedure and Evidence Act (Cap. 08:02), ss. 129 (1) and 130. KESIMOLOTSE v. THE STATE [1991] B.L.R. 279 (CA), Amissah P, Bizos JA, and Schreiner JA Plea Defence pleading to charge - Entitlement of demanding to be acquitted or found guilty - Withdrawal of charges by prosecutor - Defence applying for acquittal and return of property seized from respondents - Prosecutor not opposing application for acquittal or return of property except two specified items - Acquittal of respondents and order for restoration of seized property - Whether order of acquittal and restoration of property justified - Criminal Procedure and Evidence Act (Cap. 08:02), s. 150(4). ATTORNEY - GENERAL v. MAFOJANE and Others [2000] 2 B.L.R. 74 (CA), Amissah P. J, Steyn J, Friedman J, Kumleben J and Lord Weir JA Prosecutor Withdrawal of charges by prosecutor - Whether Attorney - General's authority required to withdraw charges by prosecutor - Criminal Procedure and Evidence Act (Cap. 08:02), s. 278(3). ATTORNEY - GENERAL v. MAFOJANE and Others [2000] 2 B.L.R. 74 (CA), Amissah P. J, Steyn J, Friedman J, Kumleben J and Lord Weir JA Insanity Defence of irresistable impulse. STATE v. MASE 1979 - 1980 B.L.R. 70 (CA), Maisels P, Ogilvie - Thompson JA, Isaacs AJA Plea Nature of plea on arraignment - Plea of not guilty - Onus of proof - Failure of accused to give evidence - Admission of prosecution statements by defence - Evidence of insanity given by prosecution - Special finding of guilty but insane - Penal Code (Cap. 08:01), s. 11 - Criminal Procedure and Evidence Act (Cap. 08:02), s. 160(1). STATE v. MOGAMPANA [1990] B.L.R. 534 (HC), Gyeke - Dako J Interpretation Policeman being used as an Interpreter. MOKWENA v. STATE 1975 (1) B.L.R. 24 (CA), Maisels P, Milne JA, Doyle JA Interpretation in Court by a police officer who had taken part in the investigations Irregularity. STATE v. ROMAN GALEBOE 1968 - 1970 B.L.R. 364 (HC), Dendy Young CJ Interpretation of Section 166 H of the Criminal Procedure and Evidence Proclamation (Cap. 18) `Safety of Accused' in inquiry into metal state. THE STATE v. SEGANA NTIBI 1968 - 1970 B.L.R. 330 (HC), Dendy Young CJ Interpreter Person used as interpreter Necessity to avoid using person relating to witness or involved in investigation of case as interpreter. XIXAE v. THE STATE (PRACTICE DIRECTION) [1989] B.L.R. 244 (CA), Amissah P, Doyle JA, Schreiner JA Intra - curial confessions Not necessary for the State to prove that an intra - curial confession was made freely and voluntarily and without inducement. STATE v. PHUSU (2) 1968 - 1970 B.L.R. 142 (HC), Dendy Young CJ Irregular acceptance of Plea of Guilty STATE v. GABOBEWE MOLATLHEGI 1982 (1) B.L.R. 209 (HC), O'Brien Quinn CJ Irregular to interpose evidence of a defence witness during State case Principles applicable to sentence. VISSER v. THE STATE 1974 (1) B.L.R. 68 (HC), Aguda CJ Irregularities Court ordering the Accused to give their evidence separately and not in the presence of their co - Accused Accused, without their consent, being recalled for further cross - examination at close of case for the Defence. STATE v. ETSANG THAI and Others 1971 (2) B.L.R. 25 (HC), Young CJ Cumulative effect of several irregularities. STATE v. TILLER 1975 (1) B.L.R. 104 (HC), Rooney J Lack of Adequate Corroboration of Accomplice STATE v. SOLOMON THOGO and Another 1968 - 1970 B.L.R. 362 (HC), Dendy Young CJ Irregularities STATE v. NORMAN KADISA 1968 - 1970 B.L.R. 360 (HC), Dendy Young CJ Irregularities resulting in failure of justice. STATE v. MATHETHENYANE and Another 1968 - 1970 B.L.R. 83 (HC), Dendy Young CJ Joint trial Rights of Accused to cross - examine co - Accused. STATE v. FRANS MOYO and Others 1972 (2) B.L.R. 63 (HC), Aguda CJ Joint trial when one Accused pleads guilty and the other not guilty Trial to be separated and the Accused who Pleads guilty to be sentenced before he is called as a witness against the other Accused. STATE v. KGOTANE and Another 1973 (1) B.L.R. 71 (HC), Aguda CJ Judges Rules Specimen of Accused's handwriting obtained from him without cautioning him. STATE v. SIBANDA 1981 B.L.R. 261 (HC), Corduff J Judgment Alteration of Award of costs after judgment handed down - Court functus officio after it hands down its order and not permitted to alter other than to effect formal corrections to patent errors or ambiguities. ATTORNEY - GENERAL v. ISHMAEL [2002] 1 B.L.R. 10 (CA), Tebbutt AJP, Zietsman and Plewman JJA Appeal against Conviction of respondent on charge of uttering false documents - Appellate court mero motu allowing appeal on ground of charge being bad for duplicity without hearing argument of parties in case - Whether court right to do so. STATE v. KETSHWANETSE [1998] B.L.R. 380 (CA), Amissah P, Lord Allanbridge JA and Beck AJA Content Delivery of judgment by trial magistrate - Failure to date judgment delivered - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 288(1). STATE v. THAMAGE [1985] B.L.R. 35 (HC), O'Brien Quinn CJ Contents and language used. JIMMY MOTSHEGWA SECHELE and Another v. THE STATE 1982 (2) B.L.R. 79 (HC), Hannah J Contents of judgment Enactment requiring magistrate to give reasons for decision - Cogent practical reasons necessitating reasons to be given for decision - Failure of magistrate to give reasons for decision - Effect - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 288(1). JENKISON v. THE STATE (PRACTICE NOTE) [1985] B.L.R. 275 (HC), Barrington - Jones J Judgment to contain points or points for decision - Magistrate to analyse evidence of witnesses - Reason to be given for believing or disbelieving witnesses. SOUL v. THE STATE [1987] B.L.R. 216 (HC), Hallchurch J Delivery of By magistrate other than magistrate who had heard case - Trial magistrate signed judgment - Four accused charged with two counts of robbery - Fourth accused indisposed - Matter postponed for reading of judgment by another magistrate - Whether second magistrate could receive plea in mitigation of sentence and sentence - Criminal Procedure and Evidence Act (Cap. 08:02), subss. 290(1)(iii), 297(1) and 297(3). STATE v. MORAPEDI and Others [1996] B.L.R. 1003 (HC), Gyeke - Dako J Review High Court - Review of judgment - Conviction on plea of guilty - Judgment confirmed on automatic review - Subsequent application to set aside judgment - Circumstances in which judgment may be set aside - Whether another judge competent to deal with application for review of same judgment - Rules of the High Court (Cap. 04:02) (Sub. Leg.) (Cap. 1973 Rev.), Order 43. KHOZA and Others v. GABORONE CHIEF MAGISTRATE and Another [1983] B.L.R. 22 (HC), Hannah J Judicial Officer functus officio MONOMETSE THAPELO J LESHONA v. THE STATE 1972 (1) B.L.R. 2 (CA), Agunda CJ Judicial Officer's Unjustified Criticism of Police. STATE v. MOTHOSE SEBETHELO 1968 - 1970 B.L.R. 379 (HC), Dendy Young CJ Jurisdiction Extra - Territoriality. STATE v. JACOBS 1974 (2) B.L.R. 48 (HC), Rooney J Juvenile Sentence STATE v. JANE MOSEKI 1968 - 1970 B.L.R. 406 (HC), Young CJ Juvenile offenders Accused no longer juveniles at time of trial Court not constrained by provisions of Children's Act - Children's Act (Cap 28:04), s 28. MOGODU v. THE STATE [2005] 1 B.L.R. 384 (HC), Chinhengo J Sentence Non - - custodial sentence - Accused 16 years of age convicted of murder committed when he was 13 years of age - Accused ordered to be placed under custody of mother in terms of s. 304(1) of the Penal Code. STATE v. MALUBA [1997] B.L.R. 893 (HC), Gaefele J Magistrate deciding to enter a plea of not guilty after prosecutor's summary on plea of guilty in terms of Judicial Instruction No. 2 All facts must then be proved as if there had been a plea of not guilty. SAIDOO v. THE STATE 1968 - 1970 B.L.R. 89 (HC), Dendy Young CJ Magistrate giving undue weight to factors not wholly relevant in assessing punishment. LEON STEINBERG v. THE STATE 1968 - 1970 B.L.R. 16 (HC), Maisels ACJ Magistrate questioning Accused on points raised in the evidence for the Prosecution as such evidence was given during the State case Gross irregularity. STATE v. MOTSAMAI 1972 (1) B.L.R. 42 (HC), Rooney ACJ Magistrates' courts Commencement of criminal proceedings Summons - Charge sheet - Cap. 08:02 prescribing commencement of proceedings by issue of summons - Practice of initiation of proceedings by charge sheet - Practice so entrenched as to be regarded as part of legal system - Reference to summons in Cap. 08:02 to be construed as including reference to charge sheet - Criminal procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 148(1). AMOGELANG v. THE STATE [1984] B.L.R. 201 (HC), Hannah J Malicious prosecution Proof of Elements to be proved stated - Onus resting with plaintiff. Moleboge v. Botswana Police Service [2006] 1 B.L.R. 430 (HC), Sarkodie - Mensah AJ Matter of appeal brought on review. ISAAC MOLEFHE v. THE STATE 1968 - 1970 B.L.R. 321 (HC), Dendy Young CJ Medical Report Admissibility of Explanation to Accused of his options at close of State case. STATE v. GAOTLHOBOGWE and Another 1981 B.L.R. 178 (HC), Hannah J Mental condition of Accused Guilty of lesser offence than that charged because of mental condition. STATE v. MOHIWA 1981 B.L.R. 203 (HC), Corduff J Mental condition of the Accused when he committed the offence. STATE v. UPE NYEPETSI 1974 (1) B.L.R. 109 (HC), Rooney J Murder Extenuating circumstances Factors to be taken into account. STATE v. DITODI [1995] B.L.R. 25 (HC), Gyeke - Dako J Principles to be followed in determining whether extenuating circumstances exist. STATE v. DITODI [1995] B.L.R. 25 (HC), Gyeke - Dako J MMATOU SIMANE v. STATE 1975 (1) B.L.R. 21 (CA), Maisels P, Milne JA, Doyle JA Intention to kill Defence - Self - defence - Accused persons striking deceased on head with spade handle - Whether intent to cause death or grievous harm - Whether force used so excessive as to negative self - defence - Penal Code (Cap. 08:01) (1973 Rev.), ss. 18 and 209. STATE v. MHLANGA and Another [1986] B.L.R. 149 (HC), Barrington - Jones J Self - defence Onus of proof - Defence of self - defence to be negatived by State - Accused to show reasonable possibility of acting in self - defence. STATE v. MPOTSANG [1985] B.L.R. 63 (HC), O'Brien Quinn CJ Sentence Death sentence - Extenuating circumstances - Premeditated murder - Emotional state arising out of jealousy - Whether extenuating factor - Commission of murder to take over friend's husband an aggravating circumstance - Whether existence of any extenuating circumstances - Penal Code (Cap. 08:01), s. 203. STATE v. BOSCH [2000] 1 B.L.R. 180 (HC), Aboagye J Notice of Appeal Particulars of Grounds of Appeal to be given. STATE v. ISAIAH NSUMIWA 1971 (2) B.L.R. 52 (HC), Rooney ACJ Noting of Appeal. STATE v. LIMBO 1978 B.L.R. 78 (HC), Mahomed J One of four accused pleading guilty Separation of Trials Plea of guilty of murder - Not acceptable - Cap. 18, sec. 235(1)(a) - Evidence - Voluntary statement by accused to detective sergeant - Inadmissible. MARETWANG and Another v. REGINA 1964 - 1967 B.L.R. 28 (CA), Harragin P, Roper JA, Schreiner JA Onus of proof STATE v. BOY NTIBELA 1968 - 1970 B.L.R. 74 (HC), Dendy Young CJ Onus of proof Accused under 14 years of age. STATE v. JAMPI CHAHERANI and ORS 1976 B.L.R. 10 (HC), Rooney ACJ Alibi Burden of proof on prosecution throughout - Whether any onus on accused of proving alibi. STIGHLING and Another v. THE STATE [2001] 1 B.L.R. 388 (HC), Lisimba J Whether onus on accused to prove alibi. STATE v. KENAOPE [1986] B.L.R. 199 (HC), O'Brien Quinn CJ Stealing by person employed in public service Respondent revenue officer - Funds collected by respondent missing - Explanation by respondent of having duly accounted for funds recovered by him - No onus on respondent to convince court of truth of explanation - Onus on prosecution throughout - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 265. STATE v. MATLAPENG [1986] B.L.R. 123 (HC), Murray J Onus wrongly placed upon the Accused STATE v. JONAS KASANGA 1972 (1) B.L.R. 4 (CA), Aguda CJ Order for Compensation of Complainant STATE v. B JANI 1974 (1) B.L.R. 92 (HC), Aguda CJ Order for disposal of seized exhibits. STATE v. SEJAKGOMO and Another 1979 - 1980 B.L.R. 207 (HC), Hannah J Order of Forfeiture of Motor Vehicle At date of forfeiture ownership had not passed to the Accused as purchaser under Hire - Purchase Agreement Claim by seller for release of vehicle from forfeiture. SOLLY ESSACK v. ATTORNEY - GENERAL 1973 (1) B.L.R. 47 (HC), Aguda CJ Order of Forfeiture of Stock cannot be made on conviction by Court of Contravening Section 3 read with Section 11 of Diseases of Stock Regulations. STATE v. JACOBUS VAN STADE 1968 - 1970 B.L.R. 328 (HC), Dendy Young CJ Pardon By whom a pardon may be given Criminal Procedure and Evidence Act (Cap 08:02) s 150(1)(e). MOGOFU v. THE STATE [2002] 2 B.L.R. 308 (HC), Walia AJ Particulars of Charge Recording of extra - curial confession Effect of extra - curial statements, portions of which are in the Accused's favour when the Accused does not give evidence at his trial. STATE v. BANTUMETSE LOBI and Another (2) 1974 (1) B.L.R. 24 (HC), Rooney J Penal Code, section 229(a) Criminal intent Evidence - Production of confession - Confession not read in court - Admissibility. SOOTAK MALOPE v. REGINA 1964 - 1967 B.L.R. 133 (CA), Schreiner JA, Hathorn JA, Weston JA Petition Requirements for Failure to comply with requirements - Warning that provisions of rules to be complied with - Criminal Procedure and Evidence Act (Cap 08:02), s 106(2); Rules of the High Court (Cap 04:02) (Sub - Leg) Ord 12 r 4(1). MAMADI v. THE STATE [2005] 1 B.L.R. 295 (HC), Masuku J Plea Arraignment No evidence on record of plea having been taken - Trial and conviction of appellant - Whether failure to take plea an irregularity - Whether trial a nullity. RANKALO v. THE STATE [2000] 2 B.L.R. 164 (CA), Amissah P. J, Aguda J, Steyn J, Korsah J and Friedman JA No plea taken - Appellants not given opportunity to plead - Trial and conviction of appellants - Whether failure to take plea an irregularity - Whether conviction vitiated by irregularity - Criminal Procedure and Evidence Act (Cap. 08:02), s. 141. MMATLI and Another v. THE STATE [1999] 1 B.L.R. 4 (CA), Aguda J, Steyn J and Kumleben JA Autrefois convict Failure to raise plea at trial - Whether competent to raise plea first time on appeal. MOSUTLE v. THE STATE [2000] 2 B.L.R. 154 (CA), Amissah P. J, Kumleben J and Lord Weir JA Principles of plea - When applicable - Conviction on charge of being in possession of stolen property - Subsequent trial and conviction on charges of burglary and theft - Whether plea sustainable on subsequent trial. MOSUTLE v. THE STATE [2000] 2 B.L.R. 154 (CA), Amissah P. J, Kumleben J and Lord Weir JA Charge Accused pleading guilty to charge - Trial court entering plea of not guilty - Trial proceeding on plea of not guilty - Whether trial nullity. STATE v. RAMOLALE [1986] B.L.R. 215 (HC), O'Brien Quinn CJ Defilement Statutory defences open to accused person - Reasonable cause to believe or belief that complainant was of or above 16 years - Unrepresented accused - Nature of statutory defence to be explained to accused before plea of guilty accepted - Plea to be unequivocal - Penal Code (Cap. 08:01) (1973 Rev.), s. 147(3). STATE v. BOIKANYO [1986] B.L.R. 131 (HC), O'Brien Quinn CJ Failure to plead Effect of STATE v. KEBOLETSE 1979 - 1980 B.L.R. 74 (HC), Hayfron - Benjamin CJ Guilty but insane Whether such plea available to accused person - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 149(1). STATE v. MASINGA [1990] B.L.R. 47 (HC), Gyeke - Dako J Guilty of lesser offence Refusal of trial judge to accept plea - Accused charged with murder of her newly born child - Accused pleading not guilty to murder but guilty to infanticide - Nothing on deposition or summary of evidence to warrant reduction of offence to lesser offence - Duty of prosecution to present offence as charged and to leave it to trier of fact to decide whether to find lesser verdict - Criminal Procedure and Evidence Act (Cap.08:02) (1973 Rev.), ss. 188(1) and 239(1). STATE v. RAMATHAKA [1989] B.L.R. 265 (HC), Gyeke - Dako J Plea of autrefois acquit Accused's conviction at previous trial set aside on review as a nullity - Accused who raises plea of autrefois acquit or convict should have been lawfully tried and by competent court with jurisdiction - Where court had no jurisdiction and proceedings a nullity, accused was never lawfully liable to suffer judgment for offence tried - In such case he can be retried. STATE v. MATERE [1993] B.L.R. 465 (HC), Nganunu J Test for autrefois acquit is that if man tried and found not guilty of offence by court of competent jurisdiction, acquittal is a bar to second indictment or summons for same offence and any offence of which he could properly be convicted in trial of first indictment or summons - Accused must have been in jeopardy in first trial and only so if (1) court was competent to try him, (2) trial was upon good indictment or summons on which valid judgment of acquittal or conviction could be entered, (3) acquittal was on the merits - Court should look at substance and not form of record - Court entitled to go behind entry of acquittal on record to see what really occurred. STATE v. WILLIAMS [1993] B.L.R. 69 (HC), Gyeke - Dako J Plea of guilty Charge of unlawful dealing in habit - forming drug - Admission of having cultivated plant found to be dagga - Meaning of the word `cultivate' - Failure of trial magistrate to explain meaning of word `cultivate' to applicant amounting to misdirection adversely affecting applicant's plea - Whether applicant's plea in circumstances unequivocal - Drugs and Related Substances Act, 1992 (Act No. 18 of 1992), s. 16(6). MOSHOKOA v. THE STATE [1999] 1 B.L.R. 172 (HC), Aboagye J Conviction on plea of guilty - Charge sheet improperly framed - Omission to state essential ingredients in charge sheet - Failure to give necessary information to appellant in respect of offence allegedly committed - Summary of facts not supporting charge as laid - Whether plea of guilty in such circumstances unequivocal - Road Traffic Act (Cap. 69:01). ss. 46(1), 47(11) and 49(c). MANGOLE v. THE STATE [1992] B.L.R. 80 (HC), Gyeke - Dako J Conviction on plea of guilty - Plea to be unequivocal - Appellant pleading guilty to rape charge - Appellant stated that there was consent after applying force - Magistrate entering plea of not guilty - Appellant insisting on pleading guilty - Magistrate altering plea to guilty - Whether plea equivocal. MATLAPENG v. THE STATE [2001] 1 B.L.R. 161 (CA), Tebbutt, Lord Weir and Zietsman JJA Statement of facts put to accused - What needs to be put to accused - Judicial Circular No. 1 of 1975 NCUBE and Another v. THE STATE [1997] B.L.R. 993 (HC), Aboagye J Statement of facts put to accused - Status of allegations in statement of facts. NCUBE and Another v. THE STATE [1997] B.L.R. 993 (HC), Aboagye J Withdrawal of - When permitted - After conviction. DITSHEKO and Others v. THE STATE [1996] B.L.R. 345 (HC), Gyeke - Dako J Procedure when one Accused in a joint trial pleads guilty and the other not guilty. STATE v. NTEBELE 1979 - 1980 B.L.R. 92 (HC), Edwards J Unequivocal plea Inherent jurisdiction of court - Power of court to treat plea of guilty as plea of not guilty. STATE v. RAMOLALE [1986] B.L.R. 215 (HC), O'Brien Quinn CJ Plea of autrefois acquit Accused having been discharged and acquitted in terms of section 275 (1) of Cap. 08:02 NWEZI NZEHENGWA v. THE STATE 1982 (2) B.L.R. 15 (HC), O'Brien Quinn CJ Plea of autrefois convict `Conviction' in Customary Court Lack of jurisdiction of such Court - Accused not in legal jeopardy of conviction. STATE v. SELLO MOGATSE and Others 1968 - 1970 B.L.R. 310 (HC), Dendy Young CJ Plea of guilty Accused pleading guilty in error because she did not appreciate or understand charge or procedure Conviction and sentence set aside. LENTSWE v. THE STATE [1993] B.L.R. 107 (HC), Gyeke - Dako J Admissions Which admissions accused can make - Charge of possession of suspected stolen property - Admission as to reasonableness of suspicion as required - Whether accused can admit to facts not within his personal knowledge - Penal Code (Cap. 08:01), s. 318. NCHINDO v. THE STATE [1996] B.L.R. 927 (HC), Levy AJ Appeal against or review of Circumstance in which such allowed set out. MONNAESI v. THE STATE [1993] B.L.R. 86 (HC), Gyeke - Dako J Appeal from Conviction of appellant of unlawful dealing in rough or uncut precious stones - Admission by appellant at trial of stones being rough or uncut precious stones - Appellant security guard at mine - Whether proper to allow appellant to retract admission on appeal. TACHIPULU v. THE STATE [1987] B.L.R. 188 (HC), Murray J Conviction of appellant on plea of guilty for careless and inconsiderate driving - Appeal on ground of plea being equivocal - Appellant's reply to stated facts of case inconsistent with plea of guilty - Whether conviction fatal. MOIPEI v. THE STATE [1986] B.L.R. 14 (HC), Barrington - Jones J Conviction of appellant on plea of guilty for illegally possessing mandrax tablets - Habit - forming drug - Appeal on ground of failure of prosecution to adduce scientific evidence as to nature of tablets - Discretion of trial court to convict on plea of guilty - Discretion to be exercised only if considered safe to do so - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 239(1). Criminal procedure - Evidence - Affidavit - Enactment prescribing facts to be contained in affidavit - Deviation from prescribed form - Whether fatal - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 221(4). MAKUNI v. THE STATE [1984] B.L.R. 257 (HC), Hannah J Conviction of appellant on plea of guilty for illegally possessing mandrax tablets - Habit - forming drug - Appeal on ground of failure of prosecution to adduce scientific evidence as to nature of tablets - Appellant alleging plea of guilty equivocal - Discretion of trial court to convict on plea of guilty - Whether discretion properly exercised - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 239(1). RAMALOKO v. THE STATE [1983] B.L.R. 204 (CA), Dendy - Young JA, Baron JA, Kentridge JA Conviction of unlawful dealing in rough or uncut precious stones - Plea of guilty to summary of facts - Appellant on appeal alleging summary of facts disclosing no offence for failing to refer to `rough or uncut' diamonds - Reference to `rough or uncut' diamonds in both statement of offence and particulars of offence - Whether appeal sustainable. TACHIPULU v. THE STATE [1987] B.L.R. 188 (HC), Murray J Rape - Failure of court to explain elements constituting offence to accused - Accused alleging committing offence without intending to do so - Accused alleging inability to think properly at time of commission of offence - Whether plea to charge equivocal. LEDIMO v. THE STATE [1986] B.L.R. 78 (HC), Barrington - Jones J Unequivocal plea of guilty entered by accused - Facts of case supporting charge - Accused convicted and sentenced - Whether accused entitled to appeal against conviction - When appeal allowable in case of plea of guilty. TEACHER v. THE STATE [1983] B.L.R. 76 (HC), O'Brien Quinn CJ Change of after conviction but before sentencing Court not functus officio after conviction. SEEIE and Another v. THE STATE [1993] B.L.R. 137 (HC), Aboagye J Change of plea to not guilty after conviction. STATE v. ROY MORRIS 1979 - 1980 B.L.R. 80 (HC), Hayfron - Benjamin CJ Conviction Guidelines for accepting plea - Plea must be unequivocal. MAKUNI v. THE STATE [1984] B.L.R. 257 (HC), Hannah J Conviction on unequivocal plea of guilty Guiding principles. JUDICIAL CIRCULAR NO 1 OF 1975; (Conviction on an unequivocal plea of guilt) (PRACTICE DIRECTION) [1984] B.L.R. 256 (HC), Dyke CJ Duress by police Where accused alleges duress by police court cannot ignore information which creates possibility that accused was incorrectly convicted after plea of guilty - Court obliged to interfere even where there is reasonable possibility, as distinct from probability, that alleged failure of justice has been occasioned - Fact that possibility not revealed in evidence or at time accused pleaded guilty and convicted, but only makes its appearance in statements drawn up ex post facto, becomes irrelevant - Fact that accused chose for himself to plead guilty not valid prohibition against interference by court called upon to determine alleged failure of justice. MONNAESI v. THE STATE [1993] B.L.R. 86 (HC), Gyeke - Dako J Failure to comply with Judicial Circular 1 of 1975. STATE v. MONTHOPITSA 1981 B.L.R. 207 (HC), Corduff J Failure to enter conviction Passing sentence without entering conviction - Whether irregularity. MOLEFE v. THE STATE [1986] B.L.R. 329 (HC), Barrington - Jones J Judicial Instruction No. 1 of 1975 STATE v. KABELO 1979 - 1980 B.L.R. 241 (HC), Corduff J Judicial Instruction No. 2 Procedure adopted Whether compliance with that instruction is peremptory or directory - When an irregularity amounts to a failure of justice - How far does the mandate of an attorney or Counsel extend? - Whether the procedure under Section 235 of the Criminal Procedure and Evidence Proclamation is sound. VAN NIEKERK and Another v. THE STATE 1968 - 1970 B.L.R. 60 (CA), Roper P, Schreiner JA, Caney JA Judicial Instruction No. 2. STATE v. TAPISO MAPII 1968 - 1970 B.L.R. 245 (HC), Dendy Young CJ Magistrate investigating and taking into account matters extranous to the charge Adverse comments by magistrate on a plea of guilty. STATE v. RAHII 1981 B.L.R. 252 (HC), Corduff J Plea to be unequivocal Accused charged with offence of causing grievous harm - Accused not represented by counsel at trial - Self - defence possible defence to charge - Failure of trial magistrate to explain self - defence as possible defence to charge - Whether plea unequivocal. KGOPISO v. THE STATE [1986] B.L.R. 446 (HC), Murray J Accused pleading guilty to charges of housebreaking and stealing - Accused in his plea of mitigation stating of having no intention to steal - Whether plea of guilty equivocal. STATE v. MAPHORISA [1988] B.L.R. 65 (HC), Livesey Luke CJ Appellant pleading guilty to charge of theft common - Appellant in amplification of plea stating having no intent to steal - Summary of facts not acknowledged by appellant as correct - Essential elements of offence not put to appellant - Failure of trial magistrate to comply with Judicial Circular No. 1 of 1975 - Effect on proceedings. NTSHUTELANG v. THE STATE [1991] B.L.R. 207 (HC), Sapire AJ Charge of failing to comply with maintenance order - Plea of guilty to charge - Plea in mitigation - Appellant alleging failure to comply with order due to lack of means not due to unwillingness to work or misconduct - Whether plea of guilty unequivocal - Maintenance Orders Enforcement Act (Cap. 29:05) (1973 Rev.), s. 4 (1) and (4). BALESENG v. THE STATE [1988] B.L.R. 59 (HC), Livesey Luke CJ Failure to comply with Judicial Circular No. 1 of 1975 - Failure not necessarily to result in ordering for new trial - High Court to satisfy itself whether plea unequivocal. TACHIPULU v. THE STATE [1987] B.L.R. 188 (HC), Murray J Sufficiency of proof in terms of Judicial Instruction No. 2 as to what is a public road under the Motor Vehicles and Road Traffic Proclamation. STATE v. LIBETHE LEKEME 1968 - 1970 B.L.R. 185 (HC), Dendy Young CJ Plea of guilty but Accused in his plea in mitigation raises facts which are inconsistent with an unconditional plea of guilty Procedure. THE STATE v. DAVID MOTLHABANI 1968 - 1970 B.L.R. 27 (HC), Dendy Young CJ Plea of guilty to charge of drunken driving failure of Prosecutor to mention all the relevant facts in his summary in terms of Judicial Instruction No. 2. MANOWE v. THE STATE 1968 - 1970 B.L.R. 43 (HC), Dendy Young CJ Plea of guilty to Charge of unlawful wounding Accused's Defence that he was too drunk to remember what he did Case should have been tried out on plea of not guilty. STATE v. FASARE JUWAO 1968 - 1970 B.L.R. 69 (HC), Dendy Young CJ Plea of guilty to main charge after case had proceeded on a plea of not guilty to the main and alternative charges. STATE v. VAN SCHALKWYK 1972 (2) B.L.R. 61 (HC), Aguda CJ Plea that Accused unfit to plead through being of unsound mind. STATE v. MPHAPHO 1979 - 1980 B.L.R. 232 (HC), Hannah J Possession of stolen property Charge of Elements of offence - Accused found by peace or police officer in possession of property suspected of being unlawfully obtained or stolen - Omission of reference to peace or police officer in charge fatal - Penal Code (Cap. 08:01), s.318. KEPALETSWE v. THE STATE [1990] B.L.R. 554 (HC), Aboagye J Powers of arrest Bringing of arrested person before the Court. STATE v. DECORATION ORAPELENG 1974 (1) B.L.R. 85 (HC), Rooney J Presiding officer Duties of Questions by - Limits to be placed on questions by presiding officer - No indication of hostility on part of presiding judge. GABAAKANYE v. THE STATE [1994] B.L.R. 17 (CA), Amissah JP, Aguda JA, Schreiner JA Procedure for reconciliation in terms of section 117 of the Criminal Procedure and Evidence Act. STATE v. TAWENGWA 1981 B.L.R. 264 (HC), Corduff J Procedure to be adopted when the Accused is guilty of contempt of Court in facie curiae STATE v. DOUGLAS MAKGETHO 1971 (1) B.L.R. 18 (HC), Young CJ Proceeds of serious crime Confiscation order When applicable - Application for order dependent on conviction of person for serious crime - Order applicable to person receiving proceeds of serious offence - Proceeds of Serious Crime Act, 1990 (Act No. 19 of 1990), ss. 2(5), 3(1), 4(2)(b) and 5. ATTORNEY - GENERAL v. BATENG'S BUILDING CONSTRUCTION (PTY) LTD and Others [1999] 1 B.L.R. 431 (CA), Amissah P. J, Tebbutt J and Friedman JA When applicable - Meaning of `serious crime' - Respondents charged with offence of obtaining money by false pretences - Acquittal and discharge of respondents - Application for confiscation order against respondents - Whether application sustainable - Whether offence charged serious crime - Penal Code (Cap. 08:01), s. 308 - Proceeds of Serious Crime Act, 1990 (Act No. 19), 3(1). ATTORNEY - GENERAL v. BATENG's BUILDING CONSTRUCTION and Others [1999] 1 B.L.R. 169 (HC), Reynolds J Proof `Beyond reasonable doubt' STATE v. OAKE 1981 B.L.R. 228 (HC), Hannah J Proof of previous convictions STATE v. NDIWA 1968 - 1970 B.L.R. 219 (HC), Dendy Young CJ Property Ownership Proof - Stolen goods belonging to daughter - in - law - Goods under care of mother - in - law - Count alleging goods to be property of mother - in - law - Whether count properly drawn - Meaning of `special owner' - Penal Code (Cap. 08:01) (1973 Rev.), s. 269 (1). TSHABATAU v. THE STATE [1987] B.L.R. 282 (HC), Murray J Return of to person entitled thereto in terms of s 319(1) of Criminal Procedure and Evidence Act (Cap 08:02) Accused wrongly acquitted of robbery of money from complainant - State not appealing against acquittal - Trial court having ordered forfeiture of money - Appeal court not empowered to overturn acquittal but can analyse evidence on that count and make proper order for return of property to owner thereof. SEIKANELO and Others v. THE STATE [2002] 2 B.L.R. 1 (HC), Collins J Seizure by police Enactment empowering police to seize property believed on reasonable grounds as capable of affording evidence as to commission of offence - Seized property to be retained by police until otherwise indicated by Attorney - General - Capricious exercise of discretion by Attorney - General relating to seized property or inordinate delay in commencing prosecution relating to seized property - Aggrieved party - Remedy - Application to High Court for judicial review or relief. KABLAY and Others v. ATTORNEY - GENERAL and Others [1985] B.L.R. 20 (HC), Murray J Vehicle allegedly used in commission of crime - Seizure of vehicle in terms of section 56A of Cap. 08:02 as an exhibit at trial - Application by owner for order to release vehicle - Trial magistrate making order for release - Whether proper to make order for release of vehicle - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 56A. ATTORNEY - GENERAL v. DINTWA [1987] B.L.R. 88 (HC), O'Brien Quinn CJ Seizure under Cap. 08:02, s. 56A Provision of entirely new process - Section 56A entirely independent of sections 51 and 52 except in case of search of property not otherwise seized - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), ss. 51, 52 and 56A. KABLAY and Others v. ATTORNEY - GENERAL and Others [1985] B.L.R. 20 (HC), Murray J Prosecutor and defence bargaining and compromising criminal cases. PILLAR v. THE STATE 1974 (1) B.L.R. 65 (HC), Aguda CJ Punishment for an attempt. STATE v. GABRIEL MOAGI 1968 - 1970 B.L.R. 213 (HC), Dendy Young CJ Rape Charge of Bail - Enactment prohibiting grant of bail to accused charged with rape - Accused applying for order declaring enactment unconstitutional - Withdrawal of charge before hearing of application - Ruling of enactment being unconstitutional - Whether ruling made in course of criminal proceedings - Effect of ruling - Penal Code (Cap. 08: 01), s. 142(1)(i) as amended by Penal Code (Amendment) Act, 1998 (Act No. 5 of 1998). STATE v. DINTWA [2000] 2 B.L.R. 72 (CA), Amissah P. J, Aguda J, Steyn J, Korsah J and Friedman JA Competence of a boy of nine years to give evidence Sentence. STATE v. BADO BASANA 1982 (1) B.L.R. 186 (HC), O'Brien Quinn CJ Re - opening of case for further evidence STATE v. PULENG 1974 (1) B.L.R. 44 (CA), Schreiner P, Milne JA, Smit JA Recalling of State witnesses Order of calling of Defence witnesses. STATE v. MOFFAT KELOBONYE SEKALABA 1973 (1) B.L.R. 79 (HC), Rooney J Reconciliation in terms of Section 318A of the Criminal Procedure and Evidence Proclamation. STATE v. JAMES SEVEN 1972 (2) B.L.R. 59 (HC), Aguda CJ Recusal Bias Likelihood of bias must appear not only from materials ascertained by the party complaining, but from such further facts as might readily be ascertained and easily verified in course of enquiries - Must be reasonable evidence from which real likelihood of bias can be inferred - Mere vague suspicions cannot be standard to regulate determination of recusal. MOLETSANE v. THE STATE [1995] B.L.R. 83 (HC), Gyeke - Dako J Recusation Judicial Officer having exercised administrative functions in the case Proof of actual bias not necessary - it is sufficient if there are facts which might indicate a likelihood of bias. ALI KHAN and Others v. THE STATE 1968 - 1970 B.L.R. 4 (HC), Maisels ACJ Recusation. STATE v. PHETEGO MACK 1968 - 1970 B.L.R. 323 (HC), Dendy Young CJ Reference of case to the High Court by a Subordinate Court in terms of Section 18 (3) of the Constitution. STATE v. POWE MOLEFHE 1974 (1) B.L.R. 75 (HC), Aguda CJ Remittal to Court a quo for retrial STATE v. MATTHEWS 1981 B.L.R. 201 (HC), I Maisels P, Dendy - Young JA, Baron JA, Aguda JA, Kentridge JA Restitution order Except in case of perishable goods, all restitution orders made after criminal trial should be made subject to appeal and such order only executed at the expiration of the time for appeal or in accordance with the result of appeal. KOBE v. THE STATE [1995] B.L.R. 37 (HC), Gyeke - Dako J Retrial When retrial to be ordered. MAPHANE v. THE STATE [1991] B.L.R. 60 (HC), Gyeke - Dako J Review Powers of judge on review Order that accused be re - arraigned - Such order in error - Order subverting constitutional powers of the Attorney - General and exceeding the judge's own powers - Order ultra vires. RAMARUMO and Another v. THE STATE [1994] B.L.R. 14 (CA), Aguda JA, Schreiner JA, Trengove JA Review or appeal Interlocutory decision Conditions for review or entertaining appeal - Unusual circumstances calling for such procedure - Likelihood of grave injustice or failure of justice ensuing on refusal to review or entertain appeal - Principle against hearing of appeals piecemeal - Application for review of decision of magistrate refusing to recuse himself - Magistrate ruling on submission of no case by defence counsel without calling upon prosecution for reply - Allegation of bias - Whether proper case for review by High Court. TLHOMELANG v. THE STATE [1987] B.L.R. 210 (CA), Maisels P, Van Winsen JA, and Hallchurch J Review powers High Court judges Judges having concurrent jurisdiction - Whether one High Court judge jurisdiction to review decision or order of another High Court judge. ATTORNEY - GENERAL v. JABA [1988] B.L.R. 225 (CA), Amissah P, Aguda JA, Van Winsen JA, Doyle JA, and Bizos JA Review proceedings Decision of customary court Sentence - Imposition of a fine for stealing stock - Enactment prescribing mandatory minimum sentence of five years' imprisonment - Revision of sentence by Customary Courts Commissioner - Substitution of term of imprisonment without hearing applicant - Whether substituted sentence valid - Customary Courts Act (Cap. 04:05), s. 38 - StockTheft Act, 1996 (Act No. 21 of 1996), s. 3(1). MPHAFE v. THE STATE [2000] 2 B.L.R. 239 (HC), Dibotelo J Right to not be tried twice by competent court for same offence in terms of s. 10(5) of Constitution Provisions of s. 10(5) designed to prevent double jeopardy and applies where common law doctrines of autrefois acquit or autrefois convict would apply Competent court has to be one with jurisdiction - Constitution, s. 10(5). STATE v. MATERE [1993] B.L.R. 465 (HC), Nganunu J Search and seizure Search in terms of s. 52(2) of Criminal Procedure and Evidence Act (Cap 08:02) Absence of two or more independent and respectable inhabitants at search not, per se, rendering search unlawful - Use of expression `as far as possible' in section indicative of permissive nature of requirement and dependency of circumstances of case, although only good and reasonable reasons can justify non - compliance with provisions. KENOSI v. THE STATE [1993] B.L.R. 329 (HC), Gyeke - Dako J Section 200 of the Criminal Procedure and Evidence Act (Cap. 08:02) Right of trial magistrate to mero motu call a witness at the end of the defence case to establish the truth of accused's alibi. BIKO DUBE and Another v. THE STATE 1982 (2) B.L.R. 57 (HC), O'Brien Quinn CJ Section 235 (1)(a)(i) of the C.P. & E. proclamation Requirements for convicting on plea of guilty without hearing evidence. PALAZI MADONGO v. THE STATE 1968 - 1970 B.L.R. 15 (HC), Maisels ACJ Sentence Accused Conviction of arson - Imposition of five years' imprisonment - Accused aged 43 years - First offender - Accused father of seven children all of school going age - Accused bread winner - Offer by accused to rebuild burnt hut and to pay compensation to victim of offence - Appeal against sentence - Order of monetary compensation coupled with suspended sentence likely to meet demand of justice in circumstances - Criminal Procedure and Evidence Act (Cap. 08:02), s. 316. MASWIKITI v. THE STATE [1999] 1 B.L.R. 334 (HC), Mosojane J Address in mitigation Duty of court after conviction - Failure of trial court to afford appellant opportunity to address court in mitigation - General practice of affording defence opportunity of addressing court in mitigation - Whether failure to afford such opportunity amounts to irregularity - Whether sentence imposed proper. OFETOTSE v. THE STATE [1989] B.L.R. 314 (CA), Amissah P, Aguda JA, Bizos JA Alteration of sentence Question of sentence matter for exercise of discretion by trial judge - Court would only interfere with sentence imposed where court a quo exercising its discretion on wrong principles or if sentence imposed so disproportionate to offence as to induce sense of shock. GAOTALE v. THE STATE [2005] 2 B.L.R. 181 (CA), Tebbutt JP, Lord Sutherland and McNally JJA Alteration of sentences Imposition of corporal punishment - Medical officer declaring accused unfit to undergo corporal punishment - Trial magistrate in consequence substituting custodial sentence for corporal punishment - Whether trial magistrate competent to alter sentence imposed by him. STATE v. MOLEEJANE [1986] B.L.R. 13 (HC), O'Brien Quinn CJ Ante - dating Discretionary - No rule of law - Trial court required to exercise its discretion to back - date sentence - Record of proceedings to reflect consideration of back - dating of sentence - Failure to give effect to practice of back - dating sentence - Whether Court of Appeal to give effect to practice of back - dating - Criminal Procedure and Evidence Act (Cap. 08:02), s. 309. KOLOJANE v. THE STATE [1999] 1 B.L.R. 70 (CA), Aguda J, Tebbutt J and Lord Allanbridge JA Antedating sentence Power of court to antedate sentence - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 305. KGOSIEMANG and Another v. THE STATE [1989] B.L.R. 12 (HC), Livesey Luke CJ Appeal against Appellants appealing against sentence on grounds that it not backdated to date of arrest - Sentence imposed by no means excessive - Sentence not having been backdated to date of arrest as had become usual practice - Sentences ordered backdated to date of arrest. KEMONYATSE and Others v. THE STATE [2005] 2 B.L.R. 210 (CA), Tebbutt JP, Zietsman and McNally JJA Factors taken into account when appeal court considering whether to interfere with sentence imposed. Mosiiwa v. The State [2006] 1 B.L.R. 214 (CA), Tebbutt JP, Akiwumi and Moore JJA Appeal against sentence Appellate court - Approach to be adopted in evaluating propriety of sentence imposed by lower court - Appellants convicted of murder with extenuating circumstances - Imposition of 25 years' imprisonment - Factors taken into consideration by court a quo in imposing sentence - Personal circumstances and ages of appellants - Opportunity of learning from their behaviour and remoulding themselves so as to play a meaningful role in society - Whether inappropriate exercise of its discretion by imposing sentence of 25 years' imprisonment - Whether sentence manifestly excessive. METLHALENG and Another v. THE STATE [1999] 1 B.L.R. 66 (CA), Amissah P. J, Steyn J and Friedman JA Appellate court - Conditions for interfering with sentence imposed by lower court - Passing of wrong sentence - Misdirection in approaching question of sentencing - Sentence disproportionate to offence committed - Whether sentence proper under the circumstances. MUSVAMHIRI v. THE STATE [2001] 1 B.L.R. 325 (HC), Lisimba J Duty of appellate court - Whether sentence can be varied according to changed conditions of appellant. MZWINILA v. THE STATE [1989] B.L.R. 357 (HC), Aboagye J Prescribed mandatory minimum sentence imposed - Court allowed discretion to impose sentence other then prescribed minimum sentence if exceptional extenuating circumstances found to exist making imposition of such minimum sentence totally inappropriate - Amendment to Penal Code, s 27 (Amendment Act 39/04). Seme and Another v. The State [2006] 1 B.L.R. 35 (HC), Phumaphi J Appellate court Appeal against sentence - Consideration of mitigating factors before imposing sentence - Appellant credited with informing court that he committed offence - Court regarding admission as indication of regret - Effect on sentence. MACHAA v. THE STATE [1999] 2 B.L.R. 150 (HC), Gittings J Conditions for interfering with sentence imposed by trial court - Sentence manifestly excessive - Failure to consider matter on record bearing on question of punishment - Wrong principles followed in imposing sentence - Excess of jurisdiction - Availability of fresh material unavailable to trial court. MOJAGI v. THE STATE [1985] B.L.R. 560 (HC), Aguda JA, Amissah JA, Murray J Conditions for interfering with sentence imposed by trial court - Misdirection of court on sentence - Appellate court at large to impose appropriate sentence. DIJO v. THE STATE [1985] B.L.R. 566 (HC), Aguda JA, Amissah JA, Murray J Conditions for interfering with sentence imposed by trial court - Passing of wrong sentence - Misdirection in approaching question of sentencing - Sentence disproportionate to offence committed. NGOMA v. THE STATE [1986] B.L.R. 173 (CA), O'Brien Quinn CJ, Murray J, and Muhammad AJ Conditions for interfering with sentence imposed by trial court - When sentence substantially different from what appellate court likely to impose. TSHABUE v. THE STATE [1984] B.L.R. 76 (CA), Maisels P, Van Winsen JA, and Isaacs AJ Court a quo considering every mitigating factor before imposing sentence - Appeal against sentence - Allegation of unsatisfactory handling of case by counsel - Whether any misdirection or other principle upon which appellate court likely to interfere with court a quo's sentence. MOTALAOTE v. THE STATE [1991] B.L.R. 275 (CA), Amissah P, Bizos JA, Schreiner JA Court entitled to assess whether sentence imposed by lower court appropriate - Appellant charged on four different counts - Magistrate ordering sentences to run concurrently - High Court enhancing magistrate's sentence by ordering sentences to run consecutively - Appellant not afforded opportunity to make representations on enhanced sentence - Whether sentence appropriate - Whether enhancement of sentence misdirection. NTHEBOLANG v. THE STATE [1998] B.L.R. 1 (CA), Schreiner J, Tebbutt J and Hoexter JA Increasing of sentence imposed by lower court - Factors to be taken into consideration by appellate court - Essential procedure in interests of justice and individual appellants for appellants to be given opportunity to make representations or submissions to court - Failure to allow appellants to make representations - Increased sentence to be set aside on appeal. MEGONO v. THE STATE (PRACTICE DIRECTION) [1998] B.L.R. 63 (CA), Aguda J, Hoexter J and Lord Allanbridge JA Power to review sentence - Attorney - General asked to make representations on proposed review - Whether proper. MUDANGULE v. THE STATE [1986] B.L.R. 265 (CA), Aguda JA, Amissah JA, Doyle JA Power to review sentence - Guiding principles - Trial court having advantage of observing witnesses - Findings of trial court based upon fact - Appellate court not to disturb decision of trial court unless manifestly wrong. MADUME v. THE STATE [1986] B.L.R. 49 (HC), Barrington - Jones J Power to review sentence - Power to increase or reduce sentence imposed by trial court - Desirability of consistency in sentencing not to overshadow principle that sentence should be appropriate to circumstances Of particular case. MUDANGULE v. THE STATE [1986] B.L.R. 265 (CA), Aguda JA, Amissah JA, Doyle JA Power to review sentence - Right to enhance or reduce sentence imposed by lower court - Guiding principles - Dictates of justice - Misdirection by failure to consider certain factors by lower court - Appellate court to consider sentence afresh. MAHUHUMELA v. THE STATE [1983] B.L.R. 226 (CA), O'Brien Quinn CJ, Dendy - Young JA, Hannah J Power to review sentence - Right to enhance or reduce sentence imposed by lower court - Guiding principles - Desirability of consistency in sentencing not to overshadow principle that sentence to be appropriate to the particular offender and the particular offence before the court. RAMALOKO v. THE STATE [1983] B.L.R. 204 (CA), Dendy - Young JA, Baron JA, Kentridge JA Right to enhance or reduce sentence imposed by lower court - Accused convicted of brutal murder by stabbing former girlfriend with knife - Trial court finding extenuating circumstances - Accused sentenced to 10 years' imprisonment. LETSHOLO v. THE STATE [1984] B.L.R. 273 (CA), Maisels P, Baron JA, Murray J Right to enhance or reduce sentence imposed by lower court - Accused convicted of murder by stabbing with knife - Trial court finding extenuating circumstances - Serious nature of offence - Range of least serious of offences where knife used in committing offence of murder - Sentence of nine years imposed reduced to six years. PHOMETSI v. THE STATE [1984] B.L.R. 275 (CA), Maisels P, Baron JA, Murray J When to interfere with discretion of lower court in imposing sentence - Trial court exceeding its jurisdiction or exercising discretion on wrong principles - Consideration of extraneous matters in imposing sentence - Failure to consider matters essential in assessing sentence - Sentence imposed so disproportionate to offence committed as to induce sense of shock in court - Imposition of seven years' imprisonment for an offence but for luck being plain cold, calculated murder without extenuating circumstances - Sentence inducing grave sense of shock in court - Whether proper to interfere with sentence imposed by trial court. MAGUBANE v. THE STATE [1991] B.L.R. 286 (CA), Amissah P, Bizos JA, and Schreiner JA Appellate or review court Conditions for enhancing sentence - Sentence being grossly inadequate and wrong in principle. STATE v. REGOENG [1987] B.L.R. 476 (HC), Lawrence AJ Application to appeal against Applicant sentenced by magistrate's court to seven years' imprisonment on charge containing three counts - Three years of sentence suspended - Conviction on two counts quashed by High Court on appeal - High Court substituting sentence of five years' imprisonment and suspending two years thereof - Actual term of imprisonment ordered remaining unaltered - No effective reduction in sentence - Whether sentence substituted proper - Whether misdirection by High Court judge. MOGOROSI v. THE STATE [1987] B.L.R. 161 (CA), Murray J Arms and Ammunition Proclamation. K M HO v. STATE 1976 B.L.R. 70 (HC), Isaacs JA Arson Appellant wiring up door of hut in which complainant, her lover and child of complainant and appellant sleeping and then setting it alight - Hut burnt down but persons therein managing to escape - Although mitigating circumstances (appellant's girlfriend, the complainant sleeping with another man) and appellant had rebuilt hut and compensated complainant for damaged property, wiring up of door constituting evidence of premeditation - Sentence of six years' imprisonment of which three years suspended held not to be excessively severe - No misdirection by trial judge - Appeal against sentence dismissed. KHUWA v. THE STATE [2002] 2 B.L.R. 8 (CA), Tebbutt AJP, Plewman and Grosskopf JJA Part of custodial sentence suspended - Mitigating factor - Irrational belief of appellant - Appellant submitting sentence to be wholly suspended - Circumstances requiring wholly suspended sentence - Exceptional circumstances - Whether irrational circumstance exceptional. BOLOKANG v. THE STATE [1985] B.L.R. 26 (HC), Hannah J Attempted rape Reasons for imposing stiff sentence - Whether reasons given by magistrate apposite in circumstances of instant case. TLHONG v. THE STATE [1988] B.L.R. 13 (HC), Lawrence AJ Award of custodial sentence Effect of ill - health - Whether factor in assessing sentence. MASUGA v. THE STATE [1983] B.L.R. 134 (HC), O'Brien Quinn CJ Back - dating of sentence Factors to be taken into account - Judicial discretion of trial magistrate - Failure by trial magistrate to exercise discretion judiciously - Effect. RAMOKOTO v. THE STATE [2001] 1 B.L.R. 357 (HC), Lisimba J Binding over Complainant bitten by uncontrolled dogs belonging to appellant - Conviction of reckless and negligent acts contrary to sections 244 and 245 of Cap. 08:01 - Imposition of custodial sentence wholly suspended - Appellant first offender - Whether imposition of custodial sentence proper - Appropriate sentence in circumstance - Binding over on payment of reasonable sum under Penal Code (Cap. 08:01) (1973 Rev.), s.33 (2). TEMANE v. THE STATE [1987] B.L.R. 81 (HC), Murray J Burglary Appropriate sentences to be imposed. STATE v. NKAPESANG and Another (PRACTICE NOTE) [1989] B.L.R. 33 (HC), Livesey Luke CJ Causing death by driving whilst unfit to drive Sentence of three years' imprisonment with two years conditionally suspended - Fine of P500 or six months' imprisonment in default of payment - Magistrate having no evidence of applicant's financial means - Applicant earning P120 a month - Whether imposition of fine as well as prison sentence proper. RAMOROKA v. THE STATE [1986] B.L.R. 129 (HC), Murray J Causing death by reckless driving Imposition of two years' imprisonment wholly suspended for two years and P500 fine - Six months' imprisonment in default of payment of fine - Disqualification from driving for five years - Appellant person of good character - No exacerbating feature such as drink - Whether sentence imposed appropriate - Road Traffic Act (Cap. 69:01) (1973 Rev.), s.49 (a). MOPHALE v. THE STATE [1987] B.L.R. 69 (HC), Murray J Commencement Imposition of sentence commencing on date prior to commission of offence - Whether justification for imposition of such sentence - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 305. SEAKWA and Others v. THE STATE [1984] B.L.R. 226 (HC), Corduff J Committal to High Court for sentencing Court's powers on committal - Criminal Procedure and Evidence Act (Cap 08:02), s 296. STATE v. RAMATSWIDI [2005] 1 B.L.R. 452 (HC), Masuku J Computation of Whether sentences imposed on different dates are to run concurrently or consecutively. GUPTER v. THE ATTORNEY - GENERAL [1994] B.L.R. 209 (HC), Nganunu J Concurrent or consecutive Court empowered to backdate sentence to commence on date prior to imposition of sentence - Court not obliged to backdate sentence but expected to apply its mind to consider appropriateness or otherwise of doing so - Found that if current sentence allowed to run consecutively with previous sentence passed, would amount to brutal, inhuman and degrading punishment - Sentence ordered to run concurrently - Criminal Procedure and Evidence Act, s 309 (Cap 08:02). THWANE v. THE STATE [2003] 2 B.L.R. 256 (HC), Chatikobo J Discretion of court - Discretion to be exercised judicially - Conviction for offences arising out of same transaction - General rule of imposing sentences - Sentences to run concurrently. GARE v. THE STATE [1990] B.L.R. 74 (HC), Livesey Luke CJ Imposition - Sentences not to exceed period of imprisonment proportionate to overall gravity of offences. GARE v. THE STATE [1990] B.L.R. 74 (HC), Livesey Luke CJ Concurrent sentence Guidelines for ordering that sentences run concurrently set out. RAMATLHOMANE v. THE STATE [1993] B.L.R. 118 (HC), Gyeke - Dako J When to pass concurrent sentence - Similar offences committed at same time - Heavy sentence to be passed on each count to run concurrently. STATE v. MAKANKU [1986] B.L.R. 240 (HC), O'Brien Quinn CJ When sentences to be ordered to run concurrently. STATE v. NKAPESANG and Another (PRACTICE NOTE) [1989] B.L.R. 33 (HC), Livesey Luke CJ Consecutive sentence When to award consecutive sentence - Appellant committing offence while in prison - Concurrent sentence seen to be no penalty. TLHONG v. THE STATE (PRACTICE NOTE) [1985] B.L.R. 470 (HC), Murray J When to award consecutive sentences. STATE v. MUNDANGULE [1983] B.L.R. 1 (HC), O'Brien Quinn CJ When to pass consecutive sentences - Disparity in offences committed at same time. STATE v. MAKANKU [1986] B.L.R. 240 (HC), O'Brien Quinn CJ Conviction of hunting without licence Conviction on seven counts of unlawfully hunting springbok on each count - Imposition of sentence on each of seven counts - Acts constituting offence committed during one continuous operation - Sentences imposed incompetent - All charges to be treated as one for purpose of sentence. MOLOSIWA v. THE STATE [1990] B.L.R. 511 (HC), Aboagye J Corporal punishment Accused aged 24 years - Conviction on charge of using abusive, obscene or insulting language in relation to President - Whether imposition of corporal punishment competent - Penal Code (Cap. 08:01) (1973 Rev.), ss. 30(4) and 93. MOKGOTHU v. THE STATE [1986] B.L.R. 34 (HC), O'Brien Quinn CJ Accused sentenced to undergo corporal punishment for contravening provisions of Cap. 69:01 and Cap. 69:02 - Accused 19 years of age - Whether imposition of corporal punishment competent - Penal Code (Cap. 08:01) (1973 Rev.), s. 30(1) and (4) - Road Traffic Act (Cap. 69:01) (1973 Rev.) and Motor Vehicle Insurance Act (Cap. 69:02) (1973 Rev.). STEADY v. THE STATE [1983] B.L.R. 153 (HC), Hannah J Burglary and theft - Award of strokes mandatory. STATE v. LESHETO and Another [1985] B.L.R. 127 (HC), O'Brien Quinn CJ Causing grievous harm - Imposition of 10 years' imprisonment with eight strokes of cane - Corporal punishment coupled with long prison sentence undesirable - Punishment no benefit to convict nor to complainant or society - Imposition of corporal punishment for causing grievous harm not mandatory - Sentence of Corporal punishment to be deleted - Penal Code (Cap. 08:01) (1973 Rev.), s. 235. BASSON and Another v. THE STATE [1989] B.L.R. 217 (CA), Amissah P, Aguda JA, Doyle JA Concurrent sentences - Whether proper to order sentences of corporal punishment to be concurrent. STATE v. MAHEYA [1987] B.L.R. 244 (HC), O'Brien Quinn CJ Conviction of causing grievous harm - Custodial sentence with three strokes of cane - Corporal punishment not prescribed penalty for offence of causing grievous harm - Whether proper to award corporal punishment in circumstance - Penal Code (Cap. 08:01), s. 230 - Penal Code (Amendment) Act, 1993 (No. 13). GEORGE v. THE STATE [2000] 1 B.L.R. 365 (HC), Dibotelo J Conviction on charge of stealing - Whether imposition of corporal punishment competent - Penal Code (Cap. 08:01) (1973 Rev.), ss. 30 and 276. NGURIWA v. THE STATE [1984] B.L.R. 8 (HC), O'Brien Quinn CJ Grievous harm - Enactment providing person contravening provision of enactment `liable' to imprisonment for fourteen years, with corporal punishment - Whether word `liable' referable to imprisonment or corporal punishment - Whether sentence of corporal punishment mandatory - Penal Code (Cap.08:01) (1973 Rev.), s. 235 - Penal Code (Amendment) Act, 1982 (No.20 of 1982), s.3. STATE v. GASEBAME [1988] B.L.R. 446 (HC), Livesey Luke CJ Housebreaking - Whether imposition of corporal punishment mandatory - Penal Code (Cap. 08:01) (1973 Rev.), s. 305 (1). STATE v. MAPHORISA [1988] B.L.R. 65 (HC), Livesey Luke CJ Imposition of long prison sentence - Whether proper to impose corporal punishment. MOKGADI and Others v. THE STATE [1990] B.L.R. 617 (CA), Amissah P, Aguda JA, Doyle JA Imposition of undesirable where accused person sentenced to long term of imprisonment. DUBE v. THE STATE [2001] 2 B.L.R. 312 (CA), Tebbutt Ag P, Korsah and Zietsman JJA Juvenile - Whether corporal punishment awardable in terms of Children's Act, 1981 (Act No. 5), s. 28. STATE v. LOTTERING [1986] B.L.R. 444 (HC), O'Brien Quinn CJ Mitigation - Plea of suffering from asthma - Procedure for imposing sentence of corporal punishment - Reference of accused for medical examination pending imposition of sentence - Alternatively sentence to be imposed conditional upon accused being certified medically fit to undergo corporal punishment. KOMBONI v. THE STATE [1983] B.L.R. 163 (HC), Corduff J Not mandatory where accused convicted of housebreaking - Penal Code (Cap. 08:01), s. 300(1)(a). DUBE v. THE STATE [2001] 2 B.L.R. 312 (CA), Tebbutt AP, Korsah and Zietsman JJA Rape - Imposition of corporal punishment mandatory - Whether males above 40 years of age exempted - Penal Code (Cap.08:01) (1973 Rev.), ss. 30(3) (c) and 142. STATE v. MARUAPULA (PRACTICE NOTE) [1988] B.L.R. 434 (HC), Livesey Luke CJ Total of fifteen strokes - Youth of seventeen years - Bad in law. REGINA v. KAUTE 1964 - 1967 B.L.R. 75 (HC), Weston CJ Custodial sentence Enactment prescribing maximum term of three months' imprisonment for first offender - Accused first offender - Imposition of six months' imprisonment - Whether proper - Road Traffic Act (Cap. 69:01) (1973 Rev.) NAWA v. THE STATE [1989] B.L.R. 582 (HC), Gyeke Dako J Imposition of 10 years' imprisonment - Failure of trial court to consider mitigating factors - Accused 21 years of age - Whether sentence imposed excessive. OMPHILE v. THE STATE [1990] B.L.R. 654 (HC), Livesey Luke CJ Practice of not sending first offenders to prison - Practice not invariable one but depending on circumstances and background of accused. STATE v. SETHUNYA [1986] B.L.R. 483 (HC), Hallchurch J Date of commencement of. STATE v. GAHAKATSENE MOTIMANE 1968 - 1970 B.L.R. 67 (HC), Dendy Young CJ Death sentence Consitutionality - Provisions of Penal Code (Cap. 08:01) dealing with death penalty not ultra vires Constitution of Botswana. NTESANG v. THE STATE [1995] B.L.R. 151 (CA), Aguda JA, Lord Wylie JA, Steyn JA, Tebbutt JA and Lord Cowie JA Enquiry into existence of extenuating circumstances - Provocation - Effect of - Not function of court to determine whether facts amounted to provocation within definition of ss. 205 and 206 of Penal Code (Cap. 08:01) but rather to determine whether facts relevant to extenuation had a bearing on accused's state of mind sufficiently to abate moral blameworthiness of accused. NDLOVU v. THE STATE [1995] B.L.R. 432 (CA), Amissah JP, Steyn JA, Hoexter JA Extenuating circumstances - Youthful immaturity - Appellant aged 19 years at time of commission of crime - Circumstances of commission of crime tended to point to immaturity - Trial court finding no extenuating circumstances - Court holding deviation from moral conduct expected of member of appellant's community and repugnance of crime committed overriding any extenuating circumstances - Whether trial court misdirected itself - Whether existence of any extenuating circumstances - Penal Code (Cap. 08:01), s. 203. PUSO v. THE STATE [1998] B.L.R. 421 (CA), Amissah P, Tebbutt J and Korsah JA Extenuating circumstances - Emotional state of accused. STATE v. SELEKE [1997] B.L.R. 422 (HC), Gyeke - Dako J Extenuating circumstances - What constitutes - Rustic background of accused. STATE v. MAAUWE and Others [1997] B.L.R. 381 (HC), Gyeke - Dako J Imposition of - Enquiry into extenuating circumstances - Procedure after extenuating circumstances found to exist - Telescoping of two - phase enquiry into single procedure only permissible in certain circumstances. KALIMUKWA v. THE STATE [1995] B.L.R. 425 (CA), Amissah P, Steyn JA, Lord Wylie JA Imposition of - Extenuating circumstances - What constitutes - Absence of premeditation - Combined with youthfulness - Evidence showing cold calculation on part of accused. TSHABANG v. THE STATE [1995] B.L.R. 132 (CA), Amissah JP, Lord Wylie JA and Steyn JA Imposition of - Extenuating circumstances - What constitutes - Emotional distress of accused. NTESANG v. THE STATE [1995] B.L.R. 151 (CA), Aguda JA, Lord Wylie JA, Steyn JA, Tebbutt JA and Lord Cowie JA Imposition of - Extenuating circumstances - Onus of proof - No question of accused or State having to prove existence or absence of extenuating circumstances - Penal Code (Cap. 08:01) s. 203. KELALETSWE and Others v. THE STATE [1995] B.L.R. 100 (CA), Amissah JP, Lord Wylie JA and Steyn JA Imposition of - Extenuating circumstances - What constitutes - Youth - No arbitrary age could be set as by itself affording decisive factor. TSHABANG v. THE STATE [1995] B.L.R. 132 (CA), Amissah JP, Lord Wylie JA and Steyn JA Imposition of - Extenuating circumstances - What constitutes - Murder committed on spur of moment. KELALETSWE and Others v. THE STATE [1995] B.L.R. 100 (CA), Amissah JP, Lord Wylie JA and Steyn JA Imposition of - No onus on accused to show extenuating circumstances - If such circumstances clearly exist in evidence a court may find extenuation without calling upon accused to tender further evidence or make further submissions - However, court cannot hold such circumstances do not exist without affording accused opportunity to show they exist. NTESANG v. THE STATE [1995] B.L.R. 151 (CA), Aguda JA, Lord Wylie JA, Steyn JA, Tebbutt JA and Lord Cowie JA Imposition of - No onus on accused to prove that extenuating circumstances exist - Trial court has responsibility and duty of examining such evidence as placed before it during trial before conviction, as well as after conviction. MOLALE v. THE STATE [1995] B.L.R. 146 (CA), Aguda JA, Lord Wylie JA, Steyn JA, Tebbutt JA and Lord Cowie JA Defilement Appropriate sentence - Imposition of five years' imprisonment by trial court - Failure to give appellant opportunity of advancing arguments in mitigation - Misdirection by trial court - Appellate court at large to impose appropriate sentence - Reduction of sentence to three years' imprisonment with three strokes. MASUPATSELE v. THE STATE [1987] B.L.R. 96 (HC), O'Brien Quinn CJ Defilement of person under 16 years HIV status - Prescription of mandatory minimum sentence - Precondition of imposition of sentence - Proof of convicted person having HIV syndrome at the time of commission of offence - Penal Code (Cap. 08:01), s. 147(3)(a). LEJONY v. THE STATE [2000] 2 B.L.R. 145 (CA), Amissah P. J, Aguda J, Steyn J, Korsah J and Friedman JA HIV status - Committal of accused to High Court for sentence - Court to be satisfied of accused being HlV positive at time of commission of offence - Penal Code (Cap. 08:01), s. 147(3)(a) - Penal Code (Amendment) Act, 1998 (No. 5), s. 8. STATE v. LEJONY [2000] 1 B.L.R. 326 (HC), Mosojane J Deterrence sentence Circumstances calling for imposition - Imposing 15 years' imprisonment on conviction of murder - Whether sentence excessive. TOTOWE v. THE STATE [2001] 1 B.L.R. 166 (CA), Tebbutt, Lord Weir and Zietsman JJA Circumstances calling for imposition - Habit - forming drugs - Drugs creating serious social problems - Prevalence and lucrative nature of trafficking in drug - Personal gain. MAHOMED v. THE STATE [1984] B.L.R. 78 (CA), Maisels P, Dendy - Young JA and Van Winsen JA Stealing of Government money by public servants - Appeal against sentence - Young offenders - First offenders - Whether proper to impose deterrent sentence. DIKGANG and Another v. THE STATE [1985] B.L.R. 498 (HC), O'Brien Quinn CJ Discretion of court Question of sentence matter for exercise of discretion of court and Appeal Court only interfering if judge exercising discretion on wrong principles, misdirecting himself or if sentence manifestly excessive. NTHATSI v. THE STATE [2005] 2 B.L.R. 227 (CA), Tebbutt JP, Akiwumi and McNally JJA Death sentence Extenuating circumstances - What constitutes - Rustic background of accused. MAAUWE v. THE STATE and Another [1997] B.L.R. 693 (CA), Steyn J, Tebbutt J and Hoexter JA Effect of ill - health STATE v. MADUMETSE 1981 B.L.R. 195 (HC), Hannah J Enactment prescribing imprisonment and fine Whether trial court obliged to impose both sentences - Interpretation and General Provisions Act (Cap. 01:02) (1973 Rev.), s. 53(2). STATE v. MAKHUBALA [1983] B.L.R. 33 (HC), O'Brien Quinn CJ Escape from lawful custody Custodial sentence - Sentence wholly suspended - Whether proper to suspend sentence - Prisons Act (Cap 21:03) (1973 Rev.), s. 96. STATE v. MAKOMPO [1987] B.L.R. 494 (HC), Barrington - Jones Ag CJ Excessive Importation of habit - forming drugs - Factors in assessing sentence - Habit - Forming Drugs Act (Cap. 63:04) (1973 Rev.). GABELA and Another v. THE STATE [1983] B.L.R. 125 (HC), Corduff J Importation of habit - forming drug - Imposition of maximum sentence - Accused first offender - Whether punishment excessive. MAHOMED v. THE STATE [1983] B.L.R. 73 (HC), Corduff J Theft by clerk - Factors to be considered - Appropriate sentence to be imposed. GAOKGETHELWE v. THE STATE [1985] B.L.R. 236 (HC), Hannah J Extenuating circumstances Accused to be given opportunity to give evidence or point to any facts in case bearing on question of extenuating circumstances - If such circumstances already existing clearly in evidence, court may so find without need to call upon accused to tender evidence or make submissions. TSAE v. THE STATE [2003] 2 B.L.R. 55 (CA), Tebbutt JP, Plewman and Grosskopf JJA Mental disability - Appropriate sentence to impose - Whether determinate or indeterminate sentence. SHIMANE v. THE STATE [1990] B.L.R. 256 (CA), Amissah P, Aguda JA, Puckrin JA Procedure discussed - Extenuating circumstances differed from mitigation - Important for judicial officer to concentrate on extenuating circumstances when convicting for murder. GABAAKANYE v. THE STATE [1994] B.L.R. 17 (CA), Amissah JP, Aguda JA, Schreiner JA Trial judge having failed to give sufficient weight to mitigating factors and consider further mitigating factors revealed in record - Appeal court justified, in interests of justice, in interfering with sentence imposed. Bogosinyana v. The State [2006] 1 B.L.R. 206 (CA), Tebbutt JP, Akiwumi and Ramodibedi JJA Factors in assessing sentence Habit - forming drugs - Mandrax - Court relying on its personal knowledge of harmful qualities of drug - Exact nature and effect not common knowledge for judicial notice to be taken - Imposition of maximum sentence - Misdirection on sentence. MAHOMED v. THE STATE [1984] B.L.R. 78 (CA), Maisels P, Dendy - Young JA and Van Winsen JA Mitigation - Address by accused or his legal representative - Disbelief of plea in mitigation - Defence to be afforded opportunity to lead evidence. KOMBONI v. THE STATE [1983] B.L.R. 163 (HC), Corduff J Mitigation - Charge of using insulting language - Offence of negligible effect on society - Imprisonment likely to reduce accused's family to penury - Whether imposition of sentence of imprisonment proper. DINTWE v. THE STATE [1983] B.L.R. 159 (HC), Corduff J Mitigation - Failure to adduce evidence - Accused unrepresented - Non - appreciation of purpose and importance of adducing evidence Duty of court. KELEBILE v. THE STATE [1983] B.L.R. 92 (HC), Corduff J Previous convictions - Nature and gravity of offence - Sentence not to be disproportionate on account of accused's bad criminal record - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s.294(1). MOSIME v. THE STATE [1985] B.L.R. 54 (HC), O'Brien Quinn CJ Robbery with violence - Accused having previous convictions - Primary regard to be had to nature and circumstances of crime - Due weight to be given to previous convictions in determining sentence to be imposed - Trial court imposing custodial sentence partially suspended - Sentence suspended incompetent - Duty of appellate court - Right to exercise its duty in defining and imposing appropriate sentence. PILANE v. THE STATE (PRACTICE NOTE) [1985] B.L.R. 262 (CA), Maisels P, Baron JA, Winsen JA Young offender - Imposition of custodial sentence - Offender not having particularly bad or long record - Court to be reluctant in imposing lengthy sentence of immediate imprisonment. STATE v. MOSEKENG (PRACTICE NOTE) [1984] B.L.R. 239 (HC), Hannah J Fine Minimum sentence provided for by section 49(1) of Road Traffic Act (Cap. 69:01) - Word `or' in section 49(1) used disjunctively - Minimum period of imprisonment not applicable as alternative to fine. SEITSHIRO v. THE STATE [2001] 2 B.L.R. 228 (HC), Kirby J Suspension - Whether sentence of fine suspendible - Criminal Procedure and Evidence Act (Cap.08:02) (1973 Rev.) s.304 (2). STATE v. BAMBO [1988] B.L.R. 431 (HC), Livesey Luke CJ Fine and imprisonment Enactment prescribing both fine and term of imprisonment as penalties for an offence - Imposition of one or both penalties permissible - Interpretation Act, 1984 (No. 20), s. 38(2). LUBALA v. THE STATE [1986] B.L.R. 237 (HC), O'Brien Quinn CJ Forgery contrary to section 348 of the Penal Code and Uttering a false document contrary to section 382 of the Penal Code. STATE v. KABELO NKETSO 1982 (2) B.L.R. 122 (HC), O'Brien Quinn CJ Global sentence Accused charged on three counts - Global sentence passed - Whether proper. STATE v. BOTHA [1986] B.L.R. 232 (HC), O'Brien Quinn CJ Accused convicted of more than one offence - Global sentence imposed - Whether sentence competent - No power on court - martial to backdate sentence - Sentence to run from date of pronouncement - Pre - trial period spent in custody to be taken into account - Botswana Defence Force Act (Cap. 21:05) (1973 Rev.), s. 104. KELAPILE v. THE STATE [1985] B.L.R. 113 (HC), Maisels P, Van Winsen JA, and O'Brien Quinn CJ Habit - forming drugs Possession - Serious nature of offence - Necessity to award custodial sentence - Habit - Forming Drugs Act (Cap. 63:04). STATE v. MAKHUBALA [1983] B.L.R. 33 (HC), O'Brien Quinn CJ Dagga - Dealers and possessors of large quantities of dagga - Guide line on sentencing offenders - Habit - forming Drugs Act (Cap. 63:04) (1973 Rev.), s.3 (1) and (4). MOATSHE and Another v. THE STATE [1987] B.L.R. 139 (HC), Murray J Possession - Assessment of sentence - Serious nature of offence - Accused first offender - Consideration of mitigating circumstances. MUDZINGWA v. THE STATE [1985] B.L.R. 465 (HC), O'Brien Quinn CJ Hit and Run case. MICHAEL DONJEANY v. THE STATE 1982 (1) B.L.R. 7 (HC), Hannah J HIV status Prescription of mandatory minimum sentence - Precondition for imposing sentence - Proof of convicted person having HIV syndrome at the time of commission of offence - Penal Code (Cap. 08:01), s. 142(4)(a). MATLAPENG v. THE STATE [2001] 1 B.L.R. 161 (CA), Tebbutt, Lord Weir and Zietsman JJA Housebreaking and theft Property stolen valued at P3030.00 - Appellant sentenced to four years' imprisonment plus four strokes with cane - Appellant having string of previous convictions - Whether sentence imposed severe or unjustified. DIKOTSI v. THE STATE [1988] B.L.R. 11 (HC), Lawrence AGJ Imposition Backdating - It is a practice, though not a rule of law, to backdate sentences to date accused remanded in custody. OLEBILE v. THE STATE [1995] B.L.R. 126 (CA), Aissah JP, Tebbutt JA and Lord Cowie JA Charge containing several counts - Desirability of clearly setting down sentence imposed in respect of each count - Erroneous to lump several counts together to impose single sentence. MATLAPENG and Another v. THE STATE (PRACTICE NOTE) [1991] B.L.R. 369 (CA), Amissah P JA, Aguda JA, Doyle JA Consideration for assessing sentence - Nature of crime - Condition of offender - Interests of society - Stealing of article valued at less than P20 - Accused first offender - Aged 38 years with children - Unemployed - Imposition of three months' custodial sentence - Whether proper in circumstance. KOLAGANO v. THE STATE [1992] B.L.R. 49 (HC), Gyeke - Dako J Discretionary - Enactment providing for option of fine over imprisonment - Discretion to be exercised judicially to reflect legislative intention - Imposition of custodial sentence - Whether circumstances of case justified refuse to give appellant option. NAWA v. THE STATE [1989] B.L.R. 582 (HC), Gyeke - Dako J Main purposes of punishment - Deterrent, preventive, reformative and retributive - Appellant sentenced to 10 years' imprisonment for murder with extenuating circumstances - Assessment of appropriate sentence - Factors to be taken into account - Circumstances of case to be examined in determining proper sentence to be imposed. OFETOTSE v. THE STATE [1989] B.L.R. 314 (CA), Amissah P, Aguda JA, Bizos JA Previous conviction - Consideration of previous conviction in imposing sentence - Previous conviction not proved or admitted - Whether misdirection on part of trial judge to take into account for purpose of sentencing previous conviction not proved or admitted - Criminal Procedure and Evidence Act (Cap.08:02), ss. 286 and 287. TLHALEFANG v. THE STATE [1999] 1 B.L.R. 555 (CA), Amissah P. J, Lord Brand J and Lord Wylie JA Imposition Global Sentence - Accused convicted on number of counts containing distinct charges - Necessity to state clearly sentence imposed on each count - Failure to do so - Effect - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 288 (2). STATE v. NTUMISANG [1989] B.L.R. 590 (HC), Aboagye J Imposition of Maximum sentence - When to be imposed - Should be reserved for most serious type of case. JOHNSON v. THE STATE [1996] B.L.R. 636 (HC), Aboagye J Mitigating factors - Duties of court in recording - Not necessary for court to record each circumstance taken into account. MOLAO v. THE STATE [1996] B.L.R. 678 (CA), Aguda, Lord Cowie and Lord Allanbridge JJA Imposition of minimum sentence Long term of imprisonment with corporal punishment - Whether punishment inhuman or degrading - Habit - Forming Drugs Act (Cap. 63:04) (1973 Rev.) as amended by Habit - Forming Drugs (Amendment) Act, 1984 (Act No. 11 of 1984). DESAI and Another v. THE STATE [1985] B.L.R. 582 (HC), O'Brien Quinn CJ Imprisonment Abortion - Accused - Inducement of abortion on self - Accused already having one illegitimate child - First offender - Imposition of custodial sentence - Whether appropriate in circumstance. SEJABODILE v. THE STATE [1985] B.L.R. 82 (HC), Murray J Imprisonment with hard labour Award of 10 strokes of the cane - Sentencing policy - Young or first offenders - Consideration of suspending sentence in whole or part - Whether imprisonment with hard labour cognisable in Botswana - Whether award of 10 strokes of the cane competent - Magistrates' Courts Act (Cap. 04:04) (1973 Rev.), s. 61(2)(b). STATE v. LEE [1985] B.L.R. 345 (HC), O'Brien Quinn CJ Indecent assault Factors to be taken into consideration in determining appropriate sentence - Personal circumstances of accused - Accused aged 40 - Newly married - Wife pregnant - Accused's mother dependent on him - Use of violence in sexual cases regarded as aggravating factor - Exclusion of use of violence in particulars of offence - Necessity of trial magistrate satisfying himself of admission by accused of summary of facts alleging use of violence - Imposition of 18 months' imprisonment - 12 months of sentence suspended - Trial magistrate ignoring elements of personal circumstances of accused but taking into consideration aggravating factors - Whether sentence imposed appropriate. KETUMILE v. THE STATE [1989] B.L.R. 579 (HC), Livesey Luke CJ Infanticide Factors to be taken into consideration - Circumstances of appellant - Premature birth - Shock - Loss of job - Worsening conditions of family. OATLHOTSE v. THE STATE [1988] B.L.R. 232 (CA), Amissah P, Doyle JA, Bizos JA Juvenile Conviction for rape - Imposition of four years' imprisonment and three strokes by magistrate - Whether magistrate jurisdiction to impose custodial sentence - Children's Act, 1981 (No. 5), s. 28. MOLAUDI and Others v. THE STATE [1988] B.L.R. 48 (HC), Livesey Luke CJ Death penalty - Sentence of death not to be pronounced against person convicted if appearing that person under age of 18 years when offence committed - Section 26(2), Penal Code (Cap 08:01). STATE v. MOJAKI [2005] 2 B.L.R. 106 (CC), Kirby J Operative date of provisions relating to sentencing of juveniles - Crucial determination in age of young person at date of sentence rather than date of commission of crime - Children's Act (Cap 28:04), s 28. Oodira v. The State [2006] 1 B.L.R. 225 (CA), Tebbutt JP, Akiwumi and Grosskopf JJA Juvenile offender Accused aged 16 - Manslaughter - Factors to be taken into consideration in imposing sentence - Young offender - Gravity of offence - Court's duty to society to take firm action against offenders - Imposition of custodial sentence not favourable when considering HIV/AIDS scourge in the country and young offenders mixing with HIV/AIDS rapists in prisons - Imposition of five years' imprisonment wholly suspended for three years on certain conditions. STATE v. SKILA [2001] 1 B.L.R. 378 (HC), Dibotelo J Juvenile offenders Correct approach to sentencing of - Cut - off point at which person ceases to be regarded as juvenile and is treated as adult is 18 years - Various sections in Penal Code (Cap 08:01) and Criminal Procedure and Evidence Act (Cap 08:02) provide for sentencing of juveniles - Such provisions there for protection of juveniles and take precedence over general punishment provisions of s 292(2) of Penal Code and other provisions decreeing statutory minimum punishments - After age of 18 young person to bear responsibilities of adulthood. MOATSHE and Another v. THE STATE [2003] 1 B.L.R. 65 (HC), Kirby J Juveniles. STATE v. MOOKETSI KGABI and ORS 1976 B.L.R. 11 (HC), Rooney ACJ Life imprisonment Imposition in cases other than homicide - Circumstances of imposing sentence - Exceptional circumstances - Marked degree of mental instability - Attempted murder - No incidence of mental abnormalities - Whether life imprisonment justified. BOGOSI v. THE STATE [1986] B.L.R. 461 (CA), Maisels P, Amissah JA and Bizos JA Life imprisonment to be confined to the most serious convictions of murder with extenuating circumstances. STATE v. NKANI 1979 - 1980 B.L.R. 195 (CA), Maisels P, Doyle JA, Dendy Young JA Mandatory minimum sentences Whether mandatory minimum sentences prescribed in s 3 of Stock Theft Act (Cap 09:01) contravening Constitution and invalid - Terms of imprisonment prescribed, while harsh, not so excessive as to be disproportionate to gravity of offences they designed to curb - Cumulative effect of consecutive harsh mandatory sentences would result in excessiveness to extent that it would constitute `inhuman or degrading' punishment in violation of s 7(1) of Constitution - Section 3(5) of the Stock Theft Act struck down - Stock Theft Act (Cap 09:01), s 3(5). TLHABIWA and Another v. THE STATE [2003] 2 B.L.R. 39 (CA), Tebbutt JP, Zietsman, Lord Sutherland, Akiwumi and Grosskopf JJA Manifestly excessive sentence Consecutive sentences making globular 29 year sentence - 15 years for rape plus seven years on each of two grievous harm counts - Where murder with extenuating circumstances sentences from 10 to 25 years - In instant case no life lost - Globular sentence of 29 years manifestly excessive - Sentences altered - Grievous harm sentences to run concurrently, making globular sentence of 22 years' imprisonment. MOGATLA v. THE STATE [2001] 1 B.L.R. 192 (CA), Korsah, Zietsman and Sir John Blofeld JJ A Manslaughter resulting from drunken or reckless driving. STATE v. ANKGOLOTSE RADISO 1968 - 1970 B.L.R. 91 (HC), Dendy Young CJ Minimum sentence Imposition of - Constitutionality of sentences running consecutively - Minimum sentence not per se unconstitutional but to be regarded as unconstitutional if amounting to inhuman or degrading punishment if grossly disproportionate to severity of offence - Provision in s 3(5) of the Motor Theft Act (Cap 09:04) that sentences to run consecutively in violation of s 7(1) of Constitution and accordingly falls to be struck out - Position as it existing that s 300(2) of Criminal Procedure and Evidence Act (Cap 08:02) applying, that is, that normally several sentences of imprisonment running consecutively unless court directing that such punishments to run concurrently - Motor Theft Act (Cap 09:04), s 3(5). MOATSHE v. THE STATE; MOTSHWARI and Another v. THE STATE [2004] 1 B.L.R. 1 (CA), Tebbutt JP, Zietsman, Lord Sutherland, Akiwumi and Grosskopf JJA Imposition of - Sentence not a competent sentence at time of imposition thereof - Committal for sentence to High Court - Magistrate in judgment referred to minimum sentence - Minimum sentence only introduced by later amendment - Amended section not applicable at time of offence - Whether magistrate's reasons for committal for sentence erroneous - Criminal Procedure and Evidence Act (Cap. 08:02), subss. 292(1) and 292(2). STATE v. MORAPEDI and Others [1996] B.L.R. 1003 (HC), Gyeke - Dako J. Imposition of - Sentences running consecutively - Minimum sentences imposed approximating sentence for murder with extenuating circumstances if allowed to run consecutively - Such inducing sense of shock - Portion of sentence allowed to run concurrently - Stock Theft Act (Cap 09:01), s 3(5). MOOKETSI v. THE STATE [2004] 1 B.L.R. 18 (CA), Korsah, Zietsman, and Akiwumi JJA Imposition of mandatory minimum sentence prescribed by legislature - Discretionary powers of courts to impose appropriate sentences taken away by legislature - Motor Vehicle Theft Act, 1995 (Act No. 17 of 1995), s. 3(1). MATOMELA and Another v. THE STATE [2000] 1 B.L.R. 396 (HC), Dibotelo J Mandatory sentence - Minimum or mandatory sentence not suspendible. STATE v. GASEBAME [1988] B.L.R. 446 (HC), Livesey Luke CJ Mitigating factors Appellate Court - Power to interfere with sentence imposed by trial court - Appellant sentenced to seven years' imprisonment - Appeal against sentence - Appellant pleading mitigating factors - That long prison sentence would cause disaster to family life - That first offender - Whether trial court not taken mitigating factors into consideration when sentencing - Whether sentence imposed improper - Whether in circumstances of case appellate court could interfere with sentence imposed. CHIBIDU v. THE STATE [1989] B.L.R. 210 (CA), Amissah P, Doyle JA, Schreiner JA Mitigation Accused - Right to give evidence in mitigation - Failure to permit accused to address court in mitigation of sentence - Effect. GAOTLHOBOGWE v. THE STATE [1992] B.L.R. 286 (CA), Amissah P, Aguda JA, and Bizos JA Accused's opportunity to address court in mitigation of sentence - Such opportunity not afforded accused - In circumstances, minimum sentence allowed by legislation imposed on accused - Nothing accused could have said would accordingly have resulted in lesser sentence being imposed - Even if irregularity in procedure existing, no prejudice having resulted. KUTSANZA and Another v. THE STATE [2004] 2 B.L.R. 58 (CA), Zietsman, Akiwumi and Moore JJA Denial of right of accused to give evidence or address court in mitigation - Denial of right serious irregularity. SEAKWA and Others v. THE STATE [1984] B.L.R. 226 (HC), Corduff J Factors for consideration - Habit - forming drug - Comparative youth of offender - Accused first offender - No harm resulting to society from venture of accused in crime - Protection of society not to obviate interests of accused. MAHOMED v. THE STATE [1984] B.L.R. 78 (CA), Maisels P, Dendy - Young JA and Van Winsen JA Monetary compensation to aggrieved complainant as part of sentence. S v. BOGAPU 1979 - 1980 B.L.R. 243 (HC), Corduff J Motor vehicle theft Minimum sentence in terms of s 3(2) of Motor Vehicle Theft Act (Cap 09:04) - In absence of evidence of use of real firearm or other offensive weapon, enhanced minimum sentence in s 3(2) not applying - But pointing of gun - like object at wife of owner witnessing theft involving threat of violence - Sentence of between 10 and 15 year's imprisonment applicable in terms of s 3(2). SEIKANELO and Others v. THE STATE [2002] 2 B.L.R. 1 (HC), Collins J Murder MOLAMBANI MOTHOBI v. THE STATE 1982 (2) B.L.R. 89 (CA), O'Brien CJ Murder Death sentence - Extenuating circumstances - Factors reducing moral blameworthiness of accused person as distinct from legal cupability on charge of murder - No onus on accused to prove extenuating circumstances or on State to negative their existence. PUSO v. THE STATE [1998] B.L.R. 421 (CA), Amissah P, Tebbutt J and Korsah JA Extenuating circumstances - Deinviduation - Court needing scientific evidence of expert to show that deindividuation able to apply beyond situation of mob and that it could affect individual acting alone under pressure of powerful woman lover combined with fear or by reason of other factors - No such evidence as court not in position to accept that process existing - No extenuating circumstances found. STATE v. PHIRI [2003] 2 B.L.R. 117 (HC), Nganunu CJ Extenuating circumstances - Factors to be taken into consideration - Past relationship between accused and deceased. MOKWENA v. THE STATE [1992] B.L.R. 14 (CA), Aguda JA, Doyle JA, Bizos JA Extenuating circumstances - Marital disharmony - Appellant shooting wife - Appellant convicted of murder with extenuating circumstances - Sentence of eight years' imprisonment imposed - Whether sentence proper in circumstances of case. MOTHELESI v. THE STATE [1989] B.L.R. 237 (CA), Doyle JA, Aguda JA, Bizos JA Extenuating circumstances - Motive for murder the concealment of another crime - Fear of being imprisoned not constituting extenuation. STATE v. KELEFITLHETSE [2004] 1 B.L.R. 272 (CA), Korsah, Zietsman JJA and Diboleto AJA Finding of premeditated murder - Imposition of 20 years' imprisonment - Evidence adduced not necessarily supportive of finding of premeditated murder - Whether in circumstance sentence imposed proper. MONTSHIWA v. THE STATE [2000] 1 B.L.R. 163 (CA), Steyn J, Tebbutt J and Lord Weir JA Mother killing her new born - child - Extenuating circumstances - Traumatic experience of giving birth to child - Accused first offender - Penalty - Imposition of moderate custodial sentence. STATE v. POGISO [1983] B.L.R. 54 (HC), Corduff J Provocation left out of account in determining sentence - Material misdirection - Court obliged to consider question of sentence afresh. GONTSE v. THE STATE (PRACTICE DIRECTION) [2001] 1 B.L.R. 205 (CA), Aguda AP, Kumleben and Lord Weir JJA Office breaking and theft Appellant sentenced to four years' imprisonment, two years conditionally suspended - Seriousness of offence - Antecedents of appellant - Four previous convictions for theft and one for burglary and theft - Whether in circumstances sentence imposed proper. MAGAPU v. THE STATE [1991] B.L.R. 79 (HC), Livesey - Luke CJ Order for extra - Mural labour - When such an order can be made - Form of order. STATE v. MOTSHOTSHO 1968 - 1970 B.L.R. 68 (HC), Dendy Young CJ Pardon Conviction for entering Botswana through ungazetted point of entry - Magistrate pardoning accused for commission of offence - Whether pardon a sentence - Whether court power to pardon convicted person - Penal Code (Cap. 08:01) (1973 Rev.), s. 27. STATE v. NDLOVU and Others (PRACTICE NOTE) [1989] B.L.R. 10 (HC), Livesey Luke CJ Passing sentence Detention of accused in custody pending trial - Court to take cognisance of period of detention in passing sentence. STATE v. ISHMAEL [1984] B.L.R. 10 (HC), O'Brien Quinn CJ Detention of accused person in custody pending trial - Cognisance of period of detention - No statutory requirement - Practice discretionary - Record of proceedings to reflect exercise of discretion in matter. SETHULU v. THE STATE [1986] B.L.R. 272 (CA), Aguda JA, Amissah JA, Doyle JA Essential that reasons for sentence be recorded in writing. SEKOTO v. THE STATE [1983] B.L.R. 140 (HC), Corduff J Pre - requisite for passing sentence Setting out maximum permissible sentence for offence in question before delivery of sentence - Practice to be commended to all magistrates - Maximum sentence to be borne in mind when actually pronouncing sentence. STATE v. THAOBE; STATE v. TEMAPO (PRACTICE NOTE) [1985] B.L.R. 126 (HC), Hannah J Principle behind the imposition of a suspended sentence. TAFI BONTSHETSE v. THE STATE 1982 (2) B.L.R. 47 (HC), O'Brien Quinn CJ THE STATE v. MOMPATI MOREBOLE 1982 (2) B.L.R. 45 (HC), Corduff J Punishment Meaning of `shall be liable' - Enactment providing person found guilty of offence `shall be liable' to punishment prescribed - Whether punishment prescribed mandatory or discretionary - Immigration Act (Cap.25:04) (1973 Rev.), s.17 (5). STATE v. DLODLO [1988] B.L.R. 419 (HC), Livesey Luke CJ Rape Appellant sentenced to minimum ten year imprisonment - Seriousness of offence - Brutality of appellant - Existence of aggravating features - Multiple rape - Presence of another person when rape occurred - Humiliation of complainant - Whether in circumstances sentence imposed adequate. MACHAA v. THE STATE [1999] 2 B.L.R. 150 (HC), Gittings J Appropriate sentence - Factors to be taken into consideration - Mitigation and aggravating factors - Each case to be determined on its factors - Raping complainant on several occasions over extended period and robbing her of considerable sum of money - Imposition of seven years' imprisonment - Whether sentence justified. MPOTOKWANE v. THE STATE [1987] B.L.R. 364 (CA), Maisels P, Van Winsen JA and Doyle JA Appropriate sentence - Guidelines on sentence to be imposed - Accused 20 years of age - First offender - Accused throttling complainant and threatening to kill her - Threat of death without exhibiting any weapon - Imposition of eight years' imprisonment and five strokes - Whether sentence proper. STATE v. BATSIMAKO [1986] B.L.R. 412 (HC), O'Brien Quinn CJ Appropriate sentence for rape without aggravating circumstances - Part of sentence suspended - Whether proper - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), Sched. II. MAKARA v. THE STATE [1983] B.L.R. 59 (HC), Corduff J Appropriate sentence to impose - Accused having unlawful sexual intercourse three times after threatening to stab complainant with knife - Complainant accused's girlfriend - Accused first offender aged 20 years - Desirability of having uniform sentence for rape - Proper sentence - Five years' imprisonment and six strokes. STATE v. JACKSON [1985] B.L.R. 325 (HC), O'Brien Quinn CJ Attempted rape - Imposition of same sentence for rape and attempted rape - Seven years' imprisonment and four strokes for attempted rape - Complainant 50 years of age - Accused 32 years of age - First offender - No weapon used - Tearing of complainant's clothes and throttling her - Mutual biting of each other - Whether sentence imposed proper - Penal Code (Cap. 08:02) (1973 Rev.), ss. 142 and 143. STATE v. GABAAKANYE [1986] B.L.R. 437 (HC), O'Brien Quinn CJ HIV status - Imposition of mandatory minimum sentence - Trial by magistrate's court - Case remitted to High Court for sentencing - Imposition of 15 years' imprisonment without reference to time of contracting syndrome by accused - High Court judge failing to satisfy himself whether precondition of imposition of 15 years' imprisonment established - Whether enactment unconstitutional - Penal Code (Cap. 08:01), s. 142(4)(a). DAVID v. THE STATE [2000] 2 B.L.R. 142 (CA), Amissah P. J, Aguda J, Steyn J, Korsah J and Friedman JA HIV status - Prescription of mandatory minimum sentence - Trial by magistrate's court - Committal to High Court for sentencing - Sentencing judge to satisfy himself of correctness of conviction and expressly record it in judgment imposing sentence - Failure to comply with requirements for imposing sentence - Whether miscarriage of justifice occasioned thereby - Criminal Procedure and Evidence Act (Cap. 08:02), s. 296. MAKUTO v. THE STATE [2000] 2 B.L.R. 130 (CA), Amissah P. J, Aguda J, Steyn J, Korsah J and Friedman JA Imposition of six years' imprisonment - Complainant being restrained by another person to enable appellant to rape her - Consideration of rape per se as aggravating factor - Whether imposition of six years' imprisonment proper. SEIRWANG v. THE STATE [1987] B.L.R. 336 (HC), Barrington - Jones J Imposition of six years' imprisonment and eight strokes - Appellants first offenders and relatively young - Whether sentence proper. RAMALELE and Another v. THE STATE [1985] B.L.R. 204 (HC), O'Brien Quinn CJ Imposition of six years' imprisonment with corporal punishment - Complainant accused's mistress - Whether sentence imposed proper in circumstances. MODUNGWA and Another v. THE STATE [1985] B.L.R. 184 (HC), Hannah J Seriousness of offence - Age of accused mitigating factor - Accused having previous convictions of non - sexual nature - Accused to be regarded as first offender - Sentence of nine years imposed reduced to six years. SOUL v. THE STATE [1987] B.L.R. 216 (HC), Hallchurch J Suspended sentence - Whether suspended sentence awardable in case of rape. STATE v. MOTHATEGO [1985] B.L.R. 303 (HC), Murray J Remission Possibility of remission of sentence not to be taken into account when imposing sentence. BOGOSI v. THE STATE [1986] B.L.R. 461 (CA), Maisels P, Amissah JA and Bizos JA Remission of Trial judge taking remission of sentence as provided for in legislation into account when imposing sentence - Clear that judge seeking to impose 20 years imprisonment but imposing 30 years to take one third remission into account - Such action constituting misdirection which allowing appeal court to reconsider matter and impose appropriate sentence. SEKOBOLO v. THE STATE [2003] 2 B.L.R. 50 (CA), Korsah, Zietsman and Akiwumi JJA Review by High Court Right to enhance or reduce sentence imposed by lower court - Wrong sentencing principle - Accomplice co - operating with police and assisting administration of justice by giving evidence for prosecution - Lower court imposing higher sentence on accomplice than that of co - accused - Whether proper. STATE v. CHARLIE and Another [1986] B.L.R. 145 (HC), Murray J Robbery and armed robbery STATE v. TEBAGANO SEKWATI 1982 (2) B.L.R. 120 (HC), O'Brien Quinn CJ Robbery Aggravated robbery - Compulsory sentence in terms of s 292(2) of Penal Code - Legislature, in decreeing such sentence, aware it would be imposed on young first offenders over age of 18 years - Legislature intending to send message to young and old alike that armed robber gangs would not be tolerated and not be allowed to make a career of crime. MOATSHE and Another v. THE STATE [2003] 1 B.L.R. 65 (HC), Kirby J Commission of convicted accused to High Court for sentence - High Court required to inquire into circumstances of case and, if satisfied as to accused's guilt, to proceed as if accused pleading guilty before High Court for offence for which he so committed - Criminal Procedure and Evidence Act (Cap 08:02), ss 295 and 296(3). KENOSI v. THE STATE [2004] 2 B.L.R. 51 (CA), Korsah, Plewman and Grosskopf JJA Robbery with violence Criteria to be used in assessing sentence - Mitigating factors - Appropriate sentence. MTHIMKHULU v. THE STATE [1985] B.L.R. 311 (HC), Murray J Prescription of mandatory minimum sentence of 10 years' imprisonment - Conviction of accused on guilty plea - Imposition of 18 months' imprisonment wholly suspended and six strokes with cane - Accused undergoing corporal punishment and paying compensation to victim of offence - Appeal by Attorney - General against sentence imposed as being incompetent - Whether appeal sustainable accused having served part of sentence imposed by trial court. ATTORNEY - GENERAL v. RAMOCHA and Another [2001] 1 B.L.R. 376 (HC), Dow J Running of sentences Whether sentences should run consecutively or concurrently - Effect of amendment of s 142(5) of the Penal Code (Cap 08:01) which came into effect on 30 April 1998 on offences committed before Act came into effect. NTWAYAMAKGALAGADI v. THE STATE [2002] 1 B.L.R. 325 (HC), Chatikobo J Second plea after amendment. STATE v. THEKISO 1981 B.L.R. 267 (HC), Corduff J Sentence Habit - forming drugs - Importation and dealing - Suspension of sentence - Factors to be considered - Reasons to be given for suspending sentence. MUDZINGWA v. THE STATE [1985] B.L.R. 465 (HC), O'Brien Quinn CJ Sentence. STATE v. COOPER 1974 (2) B.L.R. 67 (HC), Aguda CJ STATE v. ACHESON and Another 1976 B.L.R. 13 (HC), Rooney ACJ Sentence in Illicit Diamond Dealing Cases. STATE v. SAMSON PHIRI 1974 (1) B.L.R. 60 (HC), Aguda CJ Sentence of death Application for stay of execution - Application under incorrect legislative provision - Whether High Court empowered to make orders sought - Criminal Procedure and Evidence Act (Cap. 08:02), s. 325(d) - Constitution, s. 95(1). DITSHWANELO and Others v. THE ATTORNEY - GENERAL and Another [1999] 2 B.L.R. 56 (HC), Reynolds J Sentence on one count before others are disposed of. STATE v. THEKISO 1981 B.L.R. 267 (HC), Corduff J Sentence one or more accused charged jointly, one pleading guilty the others pleading not guilty. STATE v. JOSEPH MURUNZI MORE 1982 (2) B.L.R. 10 (HC), O'Brien Quinn CJ Sentences to run concurrently. STATE v. MOALUSI GAOMODIMO 1968 - 1970 B.L.R. 166 (HC), Dendy Young CJ Sentencing Back - dating of sentence - Failure to back - date sentence - Whether tantamount to patent error or omission - Application to have sentence back - dated - Whether court has jurisdiction. MMINAKGOMO and Others v. THE STATE [1998] B.L.R. 395 (CA), Amissah P, Lord Allanbridge JA and Beck AJA Severity Act providing for option of fine to custodial sentence - Magistrate imposing both - Appellant first offender - Damage to complainant's vehicle minimal - Custodial sentence suspended on wide and imprecise conditions - Whether in circumstances sentence proper - Road traffic Act (Cap. 69:01), s. 46 (1). TLHOMELANG v. THE STATE [1991] B.L.R. 33 (HC), Gyeke - Dako J Appellant effectively sentenced to three years' imprisonment - Offences for which appellant convicted carrying maximum term of seven years' imprisonment each - Whether in circumstances sentences imposed severe. MAPHANE v. THE STATE [1991] B.L.R. 60 (HC), Gyeke - Dako J Appellant sentenced to two years' imprisonment for theft common - Appellant having five previous convictions, two relating to motor vehicle offences - Whether in circumstances sentence imposed severe. THWANE v. THE STATE [1991] B.L.R. 45 (HC), Gyeke - Dako J Minimum sentence for robbery imposed - A constitutional violation could only be found to exist where sentence so unfit having regard to offence and the offender as to be grossly disproportionate - Decision as to whether sentence grossly disproportionate involving value judgement by court - Such value judgement based on objective factors. MOKONE and Another v. THE STATE [2003] 2 B.L.R. 225 (HC), Molokomme J Severity of sentence Minimum sentence prescribed by enactment - Whether appellate court competent to vary sentence - Habit Forming Drugs Act (Cap. 63:04) (1973 Rev.), s. 3 (1) (b). MZWINILA v. THE STATE [1989] B.L.R. 610 (CA), Amissah P, Aguda JA, Doyle JA, Schreiner JA, Puckrin JA Minimum sentence prescribed by enactment - Whether appellate court competent to vary sentence - Habit Forming Drugs Act (Cap. 63:04) (1973 Rev.), s. 3 (1) (b). MZWINILA v. THE STATE [1989] B.L.R. 357 (HC), Aboagye J Sentence of 10 years' imprisonment, fine of P15 000 or three years' imprisonment in default and six strokes of the cane - Whether sentence unconstitutional as being cruel, unusual or inhuman - Constitution, s. 7(2). KGOMANYANE v. THE STATE [1986] B.L.R. 62 (HC), O'Brien Quinn CJ Short terms of imprisonment. STATE v. MABONGO 1978 B.L.R. 72 (HC), Mahomed J Statute providing for imprisonment only whether fine compentent. STATE v. MERE 1972 (1) B.L.R. 44 (HC), Rooney AJ Stock theft Imposition of four years' imprisonment for stealing heifer valued P250 - Two and half years' sentence suspended - Accused, persons of previous good character - Accused driven by hunger to steal - Whether sentence imposed proper. STATE v. DITLHARE and Another [1986] B.L.R. 134 (HC), Muhammad AJ Stock theft offence Imposition of sentence - Sentence must be consecutive to and not concurrent with any sentence imposed on same accused person - Stock Theft Act, 1996 (Act No. 21 of 1996), s. 3(5). JOSEPH v. THE STATE [2000] 1 B.L.R. 93 (CA), Aguda J, Tebbutt J and Lord Weir JA Stock Theft STATE v. BILTON 1975 (2) B.L.R. 18 (HC), Rooney ACJ Suspended sentence Accused - Foreigner - Conviction - Whether proper to suspend sentence in circumstance. LELLO v. THE STATE [1992] B.L.R. 196 (CA), Amissah P, Bizos JA, and Puckrin JA Activated suspended sentence - Activated sentence to run consecutively to new sentence. STATE v. MOKONI and Another [1985] B.L.R. 471 (HC), O'Brien Quinn CJ Activation - Commission of fresh offence - Activated sentence to run consecutively to sentence for fresh offence. STATE v. SECHELE (PRACTICE NOTE) [1985] B.L.R. 130 (HC), O'Brien Quinn CJ Activation - Procedure to be followed in activating suspended sentence - Public prosecutor to apply to subordinate court for warrant to arrest offender - Application to be supported by evidence in form of affidavit or oath - Court to read or cause to be read to accused application and evidence in support thereof - Failure to follow procedure - Effect - Criminal Procedure and Evidence Act (Cap.08:02) (1973 Rev.), s.307. STATE v. MOKWENA [1988] B.L.R. 423 (HC), Livesey Luke CJ Activation of suspended sentence - Suspended sentence activated after expiration of period of suspension - Whether proper. NTHAWE v. THE STATE [1991] B.L.R. 349 (HC), Livesey Luke CJ Attachment of conditions to suspended sentence - Order of payment of compensation to injured party - Whether attachment of conditions to suspended sentence proper. BOLOKANG v. THE STATE [1985] B.L.R. 26 (HC), Hannah J Attempted rape - Whether proper to suspend part of sentence for attempted rape - Criminal Procedure and Evidence Act (Cap. 08:02), s. 308(1). KABLAY v. THE STATE [1990] B.L.R. 279 (HC), Gyeke - Dako J Bringing into operation - Hearing to be held before suspended sentence brought into operation - Presiding officer required to apply his mind to consideration as to whether or not original order to be brought into operation. THLOGO v. THE STATE [1995] B.L.R. 142 (CA), Amissah JP, Lord Wylie JA and Steyn JA Circumstances warranting sentence - Accused hitting complainant with brick causing serious injury - Partial loss of vision in one eye - Sentence imposed wholly suspended - Whether appropriate. STATE v. GASEBAME [1988] B.L.R. 446 (HC), Livesey Luke CJ Condition for suspension - Accused not to be convicted of offence of `similar' nature - Wording of condition of offence of similar nature objectionable - Condition of suspension to be clearly expressed. TEMANE v. THE STATE [1987] B.L.R. 81 (HC), Murray J Condition for suspension - Practicability of following future conduct of accused to be taken into account - Sentence not to be suspended if impracticable for accused to observe condition - Accused person foreigner - Possibility of accused returning to his country of origin after serving sentence - Conditional suspension of no practical meaning - Criminal Procedure and Evidence Act (Cap. 08:02), s. 311(1). STATE v. LELLO [1992] B.L.R. 46 (HC), Aboagye J Condition for suspension - Practicability of following future conduct of accused to be taken into account - Sentence not to be suspended if impracticable for accused to observe condition - Accused persons foreigners - Possibility of accused persons returning to their country of origin after serving sentence - Conditional suspension of no practical meaning - Criminal Procedure and Evidence Act (Cap. 08:02), s. 311 (1). TSHALIBE and Another v. THE STATE (PRACTICE NOTE) [1990] B.L.R. 522 (HC), Aboagye J Condition of suspension - Condition to bear relationship to circumstances of crime punished - Condition not to be too wide, ambiguous or vague. STATE v. MFETANE and Another [1989] B.L.R. 457 (HC), Livesey Luke CJ Conditions for activating suspended sentence - Failure of appellant to comply with court order - Issuing of warrant by magistrate committing appellant to prison without enquiring as to reason for failure to comply with court order - Whether committal of appellant to prison valid - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), ss. 304 and 307. BALESENG v. THE STATE [1988] B.L.R. 59 (HC), Livesey Luke CJ Conditions of suspension - Conditions to be formulated sufficiently wide to deter accused from committing same or similar offence. STATE v. RAMOSONOKO (PRACTICE NOTE) [1987] B.L.R. 183 (HC), O'Brien Quinn CJ Dishonestly going through marriage ceremony - Sentence imposed partly suspended - Mitigating circumstances - Sentence to be wholly, rather than partly, suspended. MORWALELA and Another v. THE STATE [1985] B.L.R. 50 (HC), Hannah J First offender - Sentencing policy - Major portion of sentence to be suspended. STATE v. THAMAGE [1985] B.L.R. 35 (HC), O'Brien Quinn CJ Non - resident foreign offender - Whether part of sentence suspendible. LUBALA v. THE STATE [1986] B.L.R. 237 (HC), O'Brien Quinn CJ Prescription of mandatory minimum sentence by enactment - Whether sentence suspendable. GARMROUDI v. THE STATE [1987] B.L.R. 409 (HC), Barrington - Jones AJ Putting into operation of suspended sentence - Accused's rights - Accused entitled to be afforded a hearing - Penal Code (Cap 08:01), s 311(4) - (6). ANNENG and Another v. THE STATE [2002] 2 B.L.R. 209 (HC), Lisimba J Rape - Whether suspended sentence awardable in case of rape - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 304 and Sched.II. KWENAMORE v. THE STATE [1983] B.L.R. 208 (CA), Maisels P, Dendy - Young JA, Van Winsen JA Reactivation of - The order for reactivation of the suspended portion of a previous sentence can only be made if, during the period of suspension, there is a breach of the conditions of suspension - The subsequent offence must have been committed during the period of suspension, not before or after - Sections 308 and 311 of the Criminal Procedure and Evidence Act. MAGOSI v. THE STATE [1994] B.L.R. 241 (HC), Gyeke - Dako J Reasons for imposing suspended sentence - Deterrence not leniency. STATE v. PHILLIMON [1983] B.L.R. 30 (HC), O'Brien Quinn CA Sentence of imprisonment on juvenile - Sentence wholly suspended - Juvenile court - Whether empowered to pass suspended sentence of imprisonment. STATE v. MOSEKI [1990] B.L.R. 171 (HC), Livesey Luke CJ Sentence suspended conditionally - Conditions to be expressed so as to be clear to appellate or review court. MOATSHE and Another v. THE STATE [1987] B.L.R. 139 (HC), Murray J Sentencing policy - Improper - to pass an immediate sentence of imprisonment and suspended sentence for another offence. NTHEBOLANG v. THE STATE (PRACTICE NOTE) [1986] B.L.R. 411 (HC), Hallchurch J Stock theft - Factors to be considered - Serious crime - Habitual offenders - Sentence partially suspended - Whether sentence imposed appropriate. DITLOTLO and Another v. THE STATE [1985] B.L.R. 317 (HC), Murray J When sentence not to be suspended - Accused administering in cold - blood cruel and potentially crippling whipping to person accused believed to have committed offence against his property - Trial court wholly suspending sentence imposed - Suspended sentence falling far short of extreme disproval by court of conduct of accused - Accused in circumstance to be required to serve at least short term of imprisonment. STATE v. TLHASELO [1985] B.L.R. 44 (HC), Hannah J Conditions for imposition - Suspension to be related to each sentence - Award of compensation to victim of offence. GOBUDZWA v. THE STATE [1984] B.L.R. 171 (HC), Hannah J When to be imposed - Whether magistrate entitled to take into account fact that accused a foreigner and that practical difficulties arise in implementing such sentence. DUBE v. THE STATE [1996] B.L.R. 694 (CA), Amissah JP Hoexter and Lord Allanbridge JJA Theft Concurrent sentences - When to be imposed - Numerous offences forming part of the same design. NOAH v. THE STATE [2003] 2 B.L.R. 333 (HC), Walia J Two accused First accused pleading guilty - Second accused not pleading guilty - Procedure to be adopted in passing sentence - Conviction of accused pleading guilty but sentence to be passed after trial and conviction of second accused - Both accused to be sentenced together unless first accused required to be witness in trial of second accused. STATE v. MATLHODI (PRACTICE NOTE) [1984] B.L.R. 9 (HC), O'Brien Quinn CJ Unlawful possession of diamonds contrary to section 6 (1) (c) read with section 6 (3) of the Precious Stones Industry Protection Act (Cap 66:03) policy - meaning of a trap. GOABAMODIMO SILAS RADITHOLO v. THE STATE 1982 (2) B.L.R. 30 (CA), Maisels JP, Aguda JA, Dendy - Young JA Unlawful possession of diamonds Nature of sentence to be imposed - Immediate custodial sentence warranted - Diamond industry mainstay of country's economy - Imposition of two years' imprisonment proper. SETSWALO v. THE STATE [1985] B.L.R. 298 (HC), O'Brien Quinn CJ Unlawful possession of large quantities of arms and ammunition Imposition of seven years' imprisonment - Appellants first offenders - Sentence not inducing sense of shock in appellate court - Court declining to interfere with sentence. MAJILA and Others v. THE STATE [1987] B.L.R. 123 (HC), Barrington - Jones J Whipping. LUNGA v. THE STATE 1975 (2) B.L.R. 38 (CA), Maisels P, Smit JA, Doyle JA Young offender First offender - Conviction on charge of unlawful wounding - Defendant aged 24 sentenced to three years' imprisonment - Eighteen months of sentence conditionally suspended for three years - Whether offence meriting sentence. STATE v. MPOA [1985] B.L.R. 106 (HC), O'Brien Quinn CJ Sentencing Accused committed to High Court for sentencing Magistrate committing accused for sentencing as she having no jurisdiction to pass prescribed sentence for offence accused charged with - Magistrate not to take case just to pass on to High Court if other magistrate available with jurisdiction to finish case - This avoiding keeping of accused in indefinite suspense for sentence. State v. Fu and Others [2006] 1 B.L.R. 486 (HC), Mosojane J Accused committed to High Court for sentencing upon conviction in magistrates' court High Court to enquire into circumstances of case and, if satisfied of accused's guilt, shall proceed as if accused pleading guilty to offence for which he committed in High Court - Should High Court then pass any sentence, it shall be deemed that accused having been tried and convicted of offence concerned by High Court - Criminal Procedure and Evidence Act (Cap 08:02), s 296(3) and (4). STATE v. MONTSHO [2003] 1 B.L.R. 230 (HC), Nganunu CJ Aggravating circumstances Severe sentences to be passed for offences committed in aggravating circumstances - Appellant invading privacy of complainant's home and taking advantage of and terrorizing her by robbing and raping her - Whether sentences imposed warranted by circumstances of case. LESOLE v. THE STATE [1990] B.L.R. 532 (HC), Livesey Luke CJ Crime of violence Rape and robbery - Appropriate sentence to be imposed. STATE v. MUNDANGULE [1983] B.L.R. 1 (HC), O'Brien Quinn CJ Discretionary Need for consistency - Sentencing practice - Sentence imposed must depend on personal circumstances both aggravating and mitigating circumstances - Sentence imposed in one case not likely to be appropriate in another case. METLHALENG and Another v. THE STATE [1999] 1 B.L.R. 66 (CA), Amissah P. J, Steyn J and Friedman JA Extenuating circumstances Honest belief in witchcraft - Whether belief in witchcraft constituted extenuating circumstance. STATE v. MONATO [1995] B.L.R. 628 (HC), Gyeke - Dako J Factors for consideration Balancing interests of accused and society - Prospects of accused's rehabilitation and of being reformed - Punishment to fit criminal as well as crime - Defilement of girl under 16 years - Imposition of eight and a half years' imprisonment with corporal punishment - Accused sole breadwinner of family - Part of sentence in circumstance to be suspended - Criminal Procedure and Evidence Act (Cap. 08:02), s. 308(2). MALIKONGWA v. THE STATE [2000] 2 B.L.R. 12 (HC), Mwaikasu J Extenuating and mitigating factors - Aggravating factors - Guidance by sentences passed by another court and approved by appellate court - Accused first offender - Likelihood of accused losing employment. MOLAODI v. THE STATE [1984] B.L.R. 197 (HC), Corduff J Fact that police officer contributing to crime being committed a factor in sentencing. KGAKGE v. THE STATE [1993] B.L.R. 145 (HC), Gyeke - Dako J Most important factors in determining sentence are person and character and circumstances of crime - Court should not be over - influenced by seriousness of type of offence and fail to pay sufficient attention to other factors which are of no less importance in actual case before court. MOTSUMI v. THE STATE [1993] B.L.R. 131 (HC), Gyeke - Dako J Person, character and circumstances of crime - Determination of quantum of punishment to bear relationship to moral blameworthiness of accused. MOSALA v. THE STATE [1991] B.L.R. 212 (HC), Gyeke - Dako J Infanticide Murder - Vast distinction between infanticide and murder - Sentencing policy to recognise difference - Imposition of lengthy custodial sentence normal in case of murder - Consideration of non - imposition of custodial sentence in some cases of infanticide beneficial to accused - Need to judge each case on its merits. STATE v. MOKULA [1985] B.L.R. 66 (HC), Hannah J Policy Custodial sentence - Criteria of imposing sentence - Consideration of case and particular circumstances of accused - Charge of stealing by person employed in public service - Offence involving breach of trust - Accused pleading guilty - Circumstances of accused - Aged 26 years, pregnant and having young children - First offender - Imposition of 18 months' imprisonment - Suspension of nine months of sentence - Whether proper to award custodial sentence in circumstances of accused. KEIRETSWE v. THE STATE [1988] B.L.R. 81 (HC), Livesey Luke CJ Custodial sentence - Criteria of imposing sentence - Consideration of circumstances of case and particular circumstances of accused - Young first offenders - Need to be kept out of jail as far as possible - Appellant charged with offences of giving false information to person employed in public service, personation and obtaining by false pretences - Plea of guilty to charges - Imposition of 18 months' imprisonment - Appellant aged 19, first offender and pregnant - Whether proper to impose custodial sentence in circumstances of appellant. NDIWENYU v. THE STATE [1988] B.L.R. 91 (HC), Livesey Luke CJ First Offender - Offences involving dishonesty - Breach of trust - Bank clerk - Stealing money - Imposition of custodial sentence - Appellant having dependent children - Whether imposition of custodial sentence proper. JOSEPH v. THE STATE [1987] B.L.R. 48 (HC), O'Brien Quinn CJ Maximum sentence for lesser offence imposed - Lenient sentence for more serious offence - All offences arising out of one transaction - Sentences ordered to run consecutively - Whether magistrate erred in passing sentence - Whether case proper for consecutive sentences. NTSATSI v. THE STATE [1989] B.L.R. 8 (HC), Livesey Luke CJ Stealing by person employed in public service - Imposition of immediate custodial sentence - Sentence imposed need not be too long - Factors to be taken into account when passing sentence. STATE v. TSWIIO [1988] B.L.R. 19 (HC), Hallchurch J Young offender - First offence - Avoidance of imposing custodial sentence - Where custodial sentence imposed greater portion of sentence should be suspended. PULE v. THE STATE [1984] B.L.R. 276 (CA), O'Brien Quinn CJ, Auda JA, Kentridge JA Young or first offenders - Appropriate sentence to impose - Sentencing matter of discretion - Imposition of short prison sentence appropriate in certain circumstances. PIET and Another v. THE STATE [1985] B.L.R. 339 (HC), Murray J Previous convictions Convictions between time of commission of offence and passing of sentence - Conviction relevant in determining appropriate sentence to be imposed - Failure of trial court to consider such convictions - Misdirection - Appellate court at large to enhance sentence imposed by trial court. SERUMOLA and Another v. THE STATE [1986] B.L.R. 28 (HC), Murray J Theft by servant Stealing of diamonds - Plea of guilty - Accused first offender of previous good character - Recovery of stolen property - Accused sentenced for unlawful possession of diamonds - Accused not charged under Precious and Semi - Precious Stones (Protection) Act (Cap. 66:03) (1973 Rev.) - Whether proper in sentencing accused for unlawful possession of diamonds. MONAMODI v. THE STATE [1984] B.L.R. 47 (HC), Hannah J Serious irregularities in trial Evidence nevertheless overwhelmingly strong and conviction confirmed. STATE v. PHAUSE NYAGWA and Another (2) 1968 - 1970 B.L.R. 86 (HC), Dendy Young CJ Serious misdirection by Magistrate Statement not on oath Evidence of co - Accused wrongly taken into account against the Appellant. J MSENA v. THE STATE 1968 - 1970 B.L.R. 12 (HC), Maisels ACJ Sexual offence Weight to be attached to another witness' evidence of a child's distress. LUCKY MAGOGE v. THE STATE 1982 (2) B.L.R. 100 (HC), Hannah J Sketch plan as evidence STATE v. SEGATHI 1981 B.L.R. 260 (HC), Corduff J Special order of restitution Property produced at trial When court to exercise discretion - Doubt as to ownership of property - Whether criminal court correct forum for deciding issue - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 315(1). KERENG v. THE STATE [1986] B.L.R. 495 (HC), Hallchurch J Splitting of Charges A Person may be convicted of Arson in burning down his own House Increase of Sentence by High Court on Automatic Review. STATE v. SIZE MAKAUSU and Another 1968 - 1970 B.L.R. 333 (HC), Dendy Young CJ Consideration for assessing punishment in drunken driving cases. STATE v. MAMPATI BELANG 1968 - 1970 B.L.R. 35 (HC), Dendy Young CJ Statements or admissions made by the accused person at the time of plea Accused pleading not guilty. JOHN SEATHOLO KWENAMORE v. THE STATE 1982 (2) B.L.R. 5 (HC), Corduff J Statutory offence Possession of goods stolen outside Botswana in contravention of section 320 of the Penal Code (Cap. 08:01) Elements of the offence - Failure to allege and prove. DIPHOKO v. THE STATE [1994] B.L.R. 377 (HC), Gyeke - Dako J Stay of prosecution Application for Unjustifiable delay in investigation of matter - This delay not causing significant demonstrable prejudice to applicants. KEITUMETSE and Another v. THE STATE [2004] 2 B.L.R. 445 (HC), Marumo J Stealing Charge Stealing by person employed in public service - Accused employed by land board - Proper charge - Stealing by clerk or servant - Theft of money - Accused admitting responsibility for shortage. KEITUMETSE v. THE STATE [1984] B.L.R. 188 (HC), O'Brien Quinn CJ Stealing and forging and obtaining money by false pretences Charges bad for duplicity Prejudice - No retrial ordered. THE STATE v. MATLHOGONOLO MASOLE 1982 (1) B.L.R. 202 (HC) Stock Theft Chapter 109, sec. 5(1) Cumulative or alternative charges - Compensation - Cap. 18, sec. 314 - Must sound in money - Alternative of imprisonment bad. REGINA v. LEBEKWE 1964 - 1967 B.L.R. 62 (HC), Weston CJ Charge properly laid under Law 2 of 1964, sections 271 and 274 Charges under section 6(1)(a) of Chapter 24 not proper. REGINA v. BOSETLHE 1964 - 1967 B.L.R. 72 (HC), Weston CJ Penalties Cap. 24, sec. 10 - Implied repeal by sec. 274 of Law 2 of 1964. REGINA v. XIKO and Others 1964 - 1967 B.L.R. 60 (HC), Weston CJ Sentence Compensatory Fine - Obligatory - Chapter 24, sec. 12. REGINA v. XUKUDI and Another 1964 - 1967 B.L.R. 61 (HC), Weston CJ Subordinate Court Sentence Plurality of counts - Consecutive terms of imprisonment - Not to exceed appropriate penal jurisdiction - Committal to High Court. REGINA v. KOBITA 1964 - 1967 B.L.R. 40 (HC), Weston CJ Subordinate Court not functus officio until the Accused has been sentenced. STATE v. SHIBI 1968 - 1970 B.L.R. 241 (HC), Dendy Young CJ Sufficiency of Charge STATE v. GEORGE MALOKWANE 1971 (1) B.L.R. 2 (CA), Schreiner JP, Maisels JA, Milne JA Summary Trial converted to Preparations Examination Use of the word `Alias' in describing the Accused. STATE v. GORILLA GOGWE alias JOHN 1974 (2) B.L.R. 70 (HC), Rooney J Summons Amendment Magistrate amending summons during course of judgment - Whether proper - Criminal Procedure and Evidence Act (Cap.08:02) (1973 Rev.), s. 148. EDWARD v. THE STATE [1988] B.L.R. 187 (HC), Livesey Luke CJ Magistrate amending summons to avoid duplicity - Magistrate joining five counts to form one count - Whether intention of avoiding duplicity achieved EDWARD v. THE STATE [1988] B.L.R. 187 (HC), Livesey Luke CJ Suspended Sentence Compensation calling of witness in terms of section 200. STATE v. MANYAMA B LEPHEPHE;GIBSON KUTJWE 1982 (1) B.L.R. 199 (HC), Corduff J Uncertain condition of suspension. S v. BAITSOLI 1979 - 1980 B.L.R. 244 (HC), Corduff J The accused Less serious offences Use of alternative forms of justice - More use should be made of s 19 of the Customary Courts Act (Cap 04:05). MOGATWE v. THE STATE [2004] 1 B.L.R. 389 (HC), Molokomme J The prosecution Power to prosecute Delegation to prosecutor by Attorney - General - Validity of such delegation - Penal Code ss. 131, 307, 308, Corruption and Economic Crime Act No. 13 of 1994, ss. 7, 8 Criminal Procedure and Evidence Act. MPHUSU and Another v. THE STATE [1997] B.L.R. 845 (HC), Nganunu CJ Theft By person employed in the Public Service Contravention of section 271 read with section 276 of the Penal Code (Cap. 08:01) - Unrepresented accused tendered unequivocal plea of guilty - Appeal or review can then only be entertained when exceptional circumstances present - Such present in casu - Magistrate had failed to ask whether accused wished representation - Effect. BOJANG v. THE STATE [1994] B.L.R. 146 (HC), Gyeke - Dako J Magistrate altering charge sheet after judgment had commenced. HLUPEKILE CONSTANCE MOTSENYANE v. THE STATE 1982 (1) B.L.R. 134 (HC), O'Brien Quinn CJ Sections 275 to 280 of Penal Code not offence - creating sections Sections alter and enhance maximum sentence stipulated under s. 271 of Code - Sections cannot stand alone but must be married to s.271. GAREKWE v. THE STATE [1993] B.L.R. 94 (HC), Gyeke - Dako J To attract enhanced punishment provided for in ss. 276 or 277 of Penal Code property should either belong to employer or come into possession of offender by virtue of his employment. GAREKWE v. THE STATE [1993] B.L.R. 94 (HC), Gyeke - Dako J Those concerned with the administration of justice should make themselves acquainted with elementary rules of procedure. STATE v. GAESAMY SEGOLE and Another 1968 - 1970 B.L.R. 235 (HC), Dendy Young CJ 'Trapping'. STATE v. ROSINAH MMAMITWA 1973 (1) B.L.R. 2 (HC), Aguda CJ STATE v. ROSINAH MMAMITWA 1974 (1) B.L.R. 41 (CA), Schreiner P, Milne JH, Smit JA Trial Accused Confession statement - Denial of accused access to recorded confession statement - Confession statement handed to trial court as part of prosecution evidence - Statement not having been read in court - Proper mode of dealing with confession statement at trial. MOGALE v. THE STATE [2001] 1 B.L.R. 427 (HC), Mwaikasu J Discharge at close of prosecution case - Application in terms of Cap. 08:02, s. 179 (3) to discharge accused - Circumstances for granting application - Discretion of court to be exercised judicially - Grant of application when no evidence of accused having committed offence charged or of permitted alternative charge - Test applicable being whether reasonable tribunal of fact might convict accused of offence charged or of permitted alternative offence - No question of proof beyond reasonable doubt or demeanour or credibility of witnesses being determined at close of prosecution case - Meaning of `evidence' in terms of Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 179 (3). STATE v. VIVIER and Others [1988] B.L.R. 327 (HC), Livesey Luke CJ Entitlement to presence throughout trial - Accused out of court during trial - Proceedings continued and concluded in accused's absence - Necessity to warn accused of consequences of disrupting proceedings before being removed from court - Accused to be afforded opportunity at close of prosecution's case to put up defence - Whether magistrate exercised powers under Criminal Procedure and Evidence Act judiciously - Criminal Procedure and Evidence Act (Cap. 08:02), s 178(1). MAFUNYE v. THE STATE [1990] B.L.R. 474 (HC), Aboagye J Evidence - Accused making unsworn statement from dock - Cross - examination of accused by court - Right of trial court to ask questions - Right to be exercised with greatest discretion. STATE v. JEREMANE [1984] B.L.R. 169 (HC), O'Brien Quinn CJ Evidence - Conclusion of evidence at trial - Right of accused or his legal representative to address court at conclusion of evidence - Failure of trial court to call upon accused or his legal representative to address court - Whether fatal irregularity resulting in setting aside judgment - Criminal Procedure and Evidence Act (Cap. 08:02), s. 181. MAKWAPENG v. THE STATE [1999] 1 B.L.R. 48 (CA), Amissah P. J, Aguda J, Korsah J, Friedman J and Lord Morison JA Evidence - Conclusion of evidence at trial - Right of accused to address court at conclusion of evidence - Appellant not given opportunity to address court at close of evidence - Whether irregularity ipso facto fatal or amounting to failure of justice. PHETO v. THE STATE [2000] 1 B.L.R. 105 (CA), Aguda J, Tebbutt J and Lord Weir JA Evidence - Conclusion of evidence at trial - Right of accused or his legal representative to address court at conclusion of evidence in terms of section 181 of the Criminal Procedure and Evidence Act - Guidelines to be followed in application of section - Whether failure of trial court to call upon accused or his legal representative to address court fatal irregularity resulting in setting aside of proceedings - Criminal Procedure and Evidence Act (Cap. 08:02), s. 181. MOLETSANE v. THE STATE [1996] B.L.R. 73 (CA), Amissah P., Tebbutt and Lord Cowie JJA Inability to appreciate seriousness of proceedings - Procedure to be followed in circumstance - Accused drunk during part of proceedings - Court unaware of accused's condition - Trial adjourned when condition of accused became apparent - Accused remanded in custody and subsequently brought to court when sober - Conviction and sentence of accused - Whether miscarriage of justice occurred - Criminal Procedure and Evidence Act (Cap. 08:02), s. 163. LEKGOTLA v. THE STATE [1990] B.L.R. 445 (HC), Livesey Luke CJ Legal representation - Constitutional right to - Legal representative for all accused withdrew after 15 months - New legal representative engaged on same day for one accused - Application for postponement to read bulky record refused - Trial delayed through numerous postponements for various reasons - Postponements granted at instance of defence well grounded - These postponements considered in deciding whether or not to grant accused persons opportunity to engage another lawyer after their attorney withdrew - Whether accused denied their constitutional right to legal representation - Constitution of Botswana, ss. 10(2). MOSALA and Others v. THE STATE [1996] B.L.R. 978 (HC), Lesetedi AJ Legal representation - Continuation of trial when accused not legally represented - Trial postponed on a number of occasions because accused's attorney did not appear or appeared late - Such not conducive to proper and expeditious administration of justice - Magistrate exercising discretion to proceed with trial where accused's attorney had not appeared - Nothing to show that magistrate had not exercised discretion judicially - Accused's right to legal representation, constitutional though it is, is not absolute - Such right to be balanced with public interest of of administering justice without undue hindrance or delay - Court cannot allow abuse of such right to lead to proceedings being delayed unnecessarily or frustrated. HARRISON v. THE STATE [2003] 1 B.L.R. 584 (HC), Lesetedi J Legal representation - Unrepresented accused - Duty of judicial officers to inform unrepresented accused right of legal representation - Failure to inform accused of his right of representation might result in miscarriage of justice in certain circumstances. MELORE v. THE STATE [1998] B.L.R. 449 (HC), Reynolds J Plea of ill health - Duty of trial court under circumstances - Necessity of court to ascertain whether accused in need of medical attention - Court obliged to order accused to be examined by doctor - Trial proceeding without accused having received medical attention - Effect of trial. KGARI v. THE STATE [2001] 1 B.L.R. 47 (HC), Mosojane J Plea of not guilty - Charge of rape - Election of accused to give unsworn statement at close of prosecution case - Accused admitting commission of offence in his unsworn statement - Trial court holding accused guilty as charged without concluding trial - Whether trial irregular - Whether miscarriage of justice occasioned thereby. SAMUEL v. THE STATE [1990] B.L.R. 515 (HC), Barrington - Jones J Right to have proceedings interpreted where he did not understand the language of the court - Whether breach of right rendering trial unfair - Right a fundamental one - Constitution of Botswana s. 10(1)(f). MASANGO v. THE STATE [2001] 2 B.L.R. 616 (HC), Kirby J Right to legal representation - Defendant given ample time to obtain legal representation - Numerous postponements granted to enable accused to obtain legal representation - Trial proceeding without accused having legal representation - Whether court under duty to enquire about accused's legal representative - Effect of non - enquiry. TALANE v. THE STATE [2001] 1 B.L.R. 150 (CA), Korsah, Kumbleben and Sir John Blofeld JJA Right to legal representation - Magistrate failing to advise on right to legal representation - Whether omission fatal to proceedings. MATLAPENG v. THE STATE [2001] 1 B.L.R. 161 (CA), Tebbutt, Lord Weir and Zietsman JJA Right to legal representation - Salutary rule of practice that accused be advised of such right - Whether failure to advise of such right led to failure of justice. MASANGO v. THE STATE [2001] 2 B.L.R. 616 (HC), Kirby J Right to remain silent - Failure of accused to give evidence - Comments made by court on failure - Discretionary power of court to comment on accused's failure to give evidence - Whether unconstitutional - Constitution, s. 10(7) - Criminal Procedure and Evidence Act (Cap. 08:02), s. 180(4). NKWE v. THE STATE [1991] B.L.R. 18 (HC), Gyeke - Dako J Trial in absence of accused - Conditions to be satisfied before accused ordered out of court during trial - Accused to be warned of consequences of disrupting proceedings - Accused to be afforded opportunity to put up defence at close of prosecution's case - Appellants not warned of consequences of refusal to appear before court - Whether trial of appellants satisfactory - Criminal Procedure and Evidence Act (Cap. 08:02), s. 178 (1). TSHUPO and Others v. THE STATE [1991] B.L.R. 230 (HC), Aboagye J Unrepresented accused - Advising accused of his rights - Not enough for trial court merely to state that accused advised of his rights - Trial court to at least record in summary form what it advised accused of and in particular of the right to call witness. TSIE v. THE STATE [1999] 2 B.L.R. 305 (HC), Dibotelo J Unrepresented accused - Charge of carnal knowledge of a girl under 16 years - Statutory defence to charge - Special defence - Accused unaware of special defence - Trial court to draw accused's attention to special defence - Failure of trial court to draw accused's attention to special defence - Whether a denial of fair trial - Penal Code (Cap. 08:01), s. 147(5). GAOSENKWE v. THE STATE [2001] 1 B.L.R. 324 (HC), Reynolds J Unrepresented accused - Duty of court - Where person on trial for serious offence and not having advantage of legal representation, it essential for magistrate offer advice by way of explaining court procedure - Unrepresented accused under such severe disadvantage that if he given no assistance on matters of procedure, injustice could easily result - Magistrate further having duty to inform unrepresented accused of his constitutional rights to call witnesses and remain silent - Failing this, accused could not be said to have received fair trial. MOROBATSENG and Others v. THE STATE [2003] 1 B.L.R. 466 (HC), Walia J Unrepresented accused - Duty of presiding legal officer to inform accused of right to legal representation - Duty not peremptory but a salutary practice - Failure to do so vitiates proceedings if failure of justice results - Identity of appellant as rapist disputed - Whether despite irregularity in procedure totality of evidence established identity beyond reasonable doubt - Whether failure of justice vitiating proceedings - Constitution of Botswana, s. 10. MOROKA v. THE STATE [2001] 1 B.L.R. 134 (CA), Tebbutt, Korsah and Sir Blofeld JJA Unsworn statement by - Accused having right to make unsworn statement from dock without being cross - examined - Such statements to be considered alongside other evidence and given weight it deserves - Constitution, s. 10(2). STATE v. NOTI [1995] B.L.R. 325 (HC), Gyeke - Dako J Accused absconding Dismissal of case against accused and discharge of accused - Re - arrest and trial of accused - Continuation of trial on dismissed charges - Whether continuation of trial on dismissed charges proper - Criminal Procedure and Evidence Act (Cap. 08:02), s. 150 (4), proviso. MASAKGONA v. THE STATE [1991] B.L.R. 199 (HC), Aboagye J Accused Evidence - Failure by trial magistrate to give reasons for rejecting defence proffered by appellant - Whether fatal to conviction - Whether failure to give reasons amounting to substantial miscarriage of justice - High Court Act (Cap. 04:02), s. 10(1), proviso - Criminal Procedure and Evidence Act (Cap. 08:02), s. 291(1). MOTSHEGARE v. THE STATE [1999] 1 B.L.R. 437 (CA), Tebbutt J, Korsah J and Kumleben JA Unrepresented accused - Charge of carnal knowledge of a girl under 16 years - Statutory defence to charge - Special defence - Accused unaware of special defence - Trial court to draw accused's attention to special defence - Failure of trial court to draw accused's attention to special defence - Whether a denial of fair trial - Penal Code (Cap. 08:01), s. 147(5) GARE v. THE STATE [2001] 1 B.L.R. 143 (CA), Aguda AJP, Lord Weir and Zietsman JJA Acquittal in terms of s. 150(4) of Criminal Procedure and Evidence Act (Cap 08:02) Where application made for reasons other than withdrawal court may decide application without reference to proviso to s. 150(4) - Where acquittal founded on proper and reasonable grounds it constitutes acquittal sui generis which is not dependant on whether or not merits of case have been gone into - Where application under s.150(4) triggered off by adjournment and not withdrawal section contemplated final verdict such as would prevent accused being tried again. STATE v. WILLIAMS [1993] B.L.R. 69 (HC), Gyeke - Dako J Appeal against conviction Role of State Counsel - Right not to seek to uphold conviction where evidence in support manifestly unsatisfactory - Minor inconsistencies revealed in evidence in support of conviction - Improper for State Counsel to refuse to uphold conviction. KOOTHEPILE v. THE STATE [1985] B.L.R. 9 (HC), Murray J Charge Plea - Failure to read charge to accused and record plea at commencement of trial - Omission to read charge to accused and record plea discovered in course of trial - Trial court enquiring from defence counsel whether omission occasioned any prejudice to accused - Defence counsel stating no prejudice occasioned by omission - Charge sheet being subsequently read and explained to accused - Accused pleading not guilty and trial continuing - Conviction and sentencing of accused - Whether conviction vitiated by omission of reading charge to and taking plea of accused at commencement of trial - Criminal Procedure and Evidence Act (Cap. 08:02), s. 141. BASUPI v. THE STATE [2000] 2 B.L.R. 1 (CA), Steyn J, Friedman J and Lord Weir JA Charge sheet Duty of trial magistrate - Careful reading and consideration of each charge sheet before putting it to accused - Necessity of ensuring necessary amendments are effected. STATE v. SEITSANG (PRACTICE NOTE) [1984] B.L.R. 55 (HC), Hannah ACJ Charges Withdrawal of charges against accused before close of prosecution case - Conditional acquittal and discharge of accused - Accused subsequently charged with same offence before another court - Whether proper - Failure to take fresh plea - Whether proceedings a nullity - Criminal Procedure and Evidence Act (Cap. 08:02), s. 150(4). STATE v. KGALAENG and Another [1990] B.L.R. 119 (HC), Gyeke - Dako J Conduct of case Prosecution witness - Hostile - Magistrate taking conduct of case out of hands of prosecutor - Cross - examination of witness by magistrate - Magistrate finding witness guilty of perjury - No evidence supporting charge of perjury - Witness not given any opportunity of calling witnesses or giving evidence in defence - Proper procedure to follow when witness considered hostile. STATE v. NTSHUPETSANG [1984] B.L.R. 1 (HC), O'Brien Quinn CJ Conduct of trial Close of prosecution case - Duty of trial court - Court required to ask accused whether he intends to adduce evidence in his defence - Failure of trial court to ask such question of accused - Effect - Fatal to conviction - Criminal Procedure and Evidence Act (Cap. 08:02), s. 180(4). MHALADI v. THE STATE [1990] B.L.R. 168 (HC), Aboagye J Court - martial Role of judge advocate - Duty to advise court - martial on relevant matters of law - Failure to advise court - martial on standard and burden of proof - Failure to advise on need for prosecudon to establish requisite mens rea - Failure to advise on how to treat unsworn statement - Whether convictions should stand in view of misdirections Botswana Defence Force Act (Cap. 21:05) (1973 Rev.) - Defence Force (Procedure) Rules (Cap. 21:05) (Sub. Leg.) (1973 Rev.), r. 79(4). KELAPILE v. THE STATE [1985] B.L.R. 113 (HC), Maisels P, Van Winsen JA, and O'Brien Quinn CJ Court language English - Evidence to be recorded in English - Evidence given in any other language to be translated into English - Effect of non - translation. KGARI v. THE STATE [2001] 1 B.L.R. 47 (HC), Mosojane J Cross - examination of accused Where prosecution wishing to contend that accused's evidence to be rejected, cross - examination necessary to give him opportunity to deal with case against him - Failure to cross - examine where accused's version undermines essentials of prosecution's case serving to give credence to accused's version and providing no basis for court to reject it. MAKEPE v. THE STATE [2003] 1 B.L.R. 303 (HC), Lesetedi J Defendant Representation - Defendant represented by counsel - Counsel withdrawing from case on date of hearing on grounds of having difficulties in obtaining instructions - Trial proceeded whilst defendant unrepresented - Whether constitutional rights of defendant infringed. NGWENYA v. THE STATE [1983] B.L.R. 187 (HC), Corduff J Delay in What constitutes - Effect of s. 10(1) of Constitution. KGOLAGANO v. THE STATE [1997] B.L.R. 914 (HC), Gyeke - Dako J Delay in prosecution of Application to court in terms of s 18(3) of Constitution to determine whether constitutional right to fair hearing within reasonable time in terms of s 10 of Constitution denied him - Attorney - General filing direction to discontinue proceedings against applicant - Stopping of trial having no effect on question before court referred in terms of s 18(3) of Constitution - Applicant's allegations to be considered and appropriate order made. Silas v. The Attorney - General [2006] 1 B.L.R. 37 (HC), Sapire AJ Computation of period of delay - Word `charged' in section 10(1) of Constitution not to be given restricted meaning - In case of withdrawal of charges, period terminating when withdrawal completely, unconditionally and unequivocally extricates person from prejudicial situation that would otherwise result from the delay. NTWA v. THE STATE [2001] 2 B.L.R. 212 (HC), Marumo J Effect of - Delay explained sufficiently - Constitution s. 10(1). HUMA v. THE STATE [1996] B.L.R. 40 (CA), Aguda, Tebbutt and Hoexter JJA Effect of section 26 of the Criminal Procedure Evidence Act which conferred on State a right to prosecute at any time within a period of 20 years - Section 26 would have to yield to the supremacy of section 10 of the Constitution which conferred a right to a fair trial within a reasonable period after being charged. NTWA v. THE STATE [2001] 2 B.L.R. 212 (HC), Marumo J Whether delay amounting to violation of accused's right to trial within a reasonable period - Delay of some three years and five months in circumstances of case constituting unreasonable delay but permanent stay of prosecution not the appropriate remedy - Matter remitted to magistrate's court for continuation of trial - Constitution section 10(1). NTWA v. THE STATE [2001] 2 B.L.R. 212 (HC), Marumo J Whether such entitling accused to permanent stay in prosecution - Nature and seriousness of offence and fact that in public interest that offender stand trial outweighing offender's right to speedy trial. Kelaotswe v. The Attorney - General [2006] 1 B.L.R. 229 (CA), Tebbutt JP, Zietsman, Akiwumi, Moore and McNally JJA Discharge of accused at close of prosecution case If there is some evidence that accused committed offence, discharge should not be granted - Court's discretion to be exercised judicially, not capriciously - Test not whether reasonable man should convict, but whether reasonable man acting carefully might properly convict - Words `no evidence' in s 180(3) of Criminal Procedure and Evidence Act (Cap 08:02) meaning no evidence to go to a jury, ie no evidence upon which reasonable man might convict - In such application question of proof beyond reasonable doubt and of demeanour, credibility and reliability of witnesses not arising. STATE v. LEKGOWE and Others [2003] 1 B.L.R. 54 (HC), Lisimba J Mental state of accused Insanity arising from intoxication - Proper verdict - Penal Code (Cap. 08:01), ss. 10, 12, Criminal Procedure and Evidence Act (Cap. 08:02) s. 160(1). STATE v. GAOPATWE [1997] B.L.R. 522 (HC), Gyeke - Dako J Evidence Accused giving false evidence on a point - Effect - Where State fails to adduce evidence to disprove defence on point on which accused gave false evidence, State case remains unproved - Falsity of accused's evidence only supports State case where State has led credible evidence on the point. STATE v. PINTO [2003] 1 B.L.R. 600 (HC), Chatikobo J Alibi defence - As onus to prove falsity of alibi on prosecution and such would require prosecution to investigate alibi, imperative that notice of alibi defence would be raised and its particulars be given to prosecution before or at commencement of trial - Where defence sprung on prosecution after close of its case, prosecution unfairly disadvantaged - Court could consider such defence a mere afterthought. ROSS v. THE STATE [2003] 1 B.L.R. 563 (HC), Lesetedi J Close of prosecution case - Submission of no case to answer - Murder trial - Evidence adduced by prosecution disclosing defence of self - defence for accused - Whether premature to consider defences open to accused - Whether accused to be called upon to make his defence - In ruling on submission evidence before court to be considered in its totality - Criminal Procedure and Evidence Act (Cap. 08:02), s. 180(3). STATE v. BASINYI [2000] 1 B.L.R. 172 (HC), Dow J Close of prosecution case - Submission of no case - Role of trial judge at that stage of proceedings - Criminal Procedure and Evidence Act (Cap. 08:02), s. 180(3). SESOLA v. THE STATE [1991] B.L.R. 7 (HC), Gyeke - Dako J Close of prosecution case - Submission of no case - Role of trial judge at stage of proceedings - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 179 (3). MBAYI v. THE STATE [1989] B.L.R. 527 (HC), Gyeke - Dako J Close of prosecution case - Submission of no case to answer - When to uphold submission - No evidence led to prove essential element or ingredient of offence - Meaning of `no evidence' - Evidence adduced discredited by Cross - examination - Contradictory evidence or evidence adduced manifestly unreliable - Role of trial judge at that stage of proceedings - Criminal Procedure and Evidence Act (Cap. 08:02), s. 180(3). STATE v. GURA [1990] B.L.R. 102 (HC), Gyeke - Dako J Conclusion of evidence at trial - Right of legal representative or accused to address court - Failure to allow unrepresented accused to address court before judgment - Irregularity - Criminal Procedure and Evidence Act (Cap. 08:02), s. 182. GOLETILWENG v. THE STATE [1998] B.L.R. 64 (CA), Schreiner J, Lord Cowie J and Hoexter JA Cross - examination - Denial of defence to cross - examine prosecution witness - Prosecution withdrawing witness after having given evidence - in - chief - Effect - Irregularity. STATE v. KEBADIRENG [1984] B.L.R. 167 (HC), O'Brien Quinn CJ Evaluation of evidence - Test to be applied. STATE v. KEADIBELE and Another [1993] B.L.R. 513 (HC), Gyeke - Dako J Proof of facts ascertained by medical practitioner - May be proved by written report signed by medical practitioner - Criminal Procedure and Evidence Act (Cap 08:02), s 223 - Accused entitled to apply to court to require medical practitioner to attend court to give evidence - Where accused unrepresented and could not be expected to be aware of his rights under s 223, court should advise him of his rights under s 223 and give him opportunity to demand that doctor be called to give evidence - Failure to do so amounting to irregularity - Effect thereof is that medical report to be struck off record. ROSS v. THE STATE [2003] 1 B.L.R. 563 (HC), Lesetedi J Witness - Conclusion of evidence at trial - Court mere motu calling witness to testify - Failure to afford accused opportunity of leading further evidence - Whether irregularity. GOLETILWENG v. THE STATE [1998] B.L.R. 64 (CA), Schreiner J, Lord Cowie J and Hoexter JA Explanation of accused's rights at close of State's case Statute not requiring presiding officer to linguistically proceed through requirements of section - Presiding officer to ensure that the procedure followed. TSAE v. THE STATE [2003] 2 B.L.R. 55 (CA), Tebbutt JP, Plewman and Grosskopf JJA Findings of court Assessment of credibilty of witnesses - Court to give adequate reasons for accepting or rejecting evidence of witnesses - Failure to do so consituting misdirection. MOGOMOTSI v. THE STATE [1993] B.L.R. 112 (HC), Nganunu J Inspection in loco Duties of court - Both parties to be given opportunity to be present and agreed record of impressions to be drawn up. TSHIPIDI v. THE STATE [2004] 1 B.L.R. 166 (HC), Chatikobo J Interpretation No record of interpretation during defence case - Record showing magistrate alert to quality of interpretation permissible in court - Applicants having participated fully in proceedings - Issue not raised genuinely - Whether absence of record of interpretation per se vitiates proceedings - Whether resultant failure of justice - Constitution of Botswana, s. 10 (2) (b) and (f) - High Court Act (Cap. 04:02), s. 10 (1), proviso. NGUASENA and Others v. THE STATE [2001] 1 B.L.R. 61 (HC), Mosojane J Irregularity Misdirections by trial court - Burden of proof - Alibi - Shifting of burden of proof of alibi on defence - Misdirection on previous inconsistent statement by witness - Whether misdirections occasioning no substantial miscarriage of justice - Court of Appeal Act (Cap. 04:01), s. 13(3). BOSCH v. THE STATE [2001] 1 B.L.R. 71 (CA), Aguda AJP, Nganunu CJ and Tebbutt JJA Postponement refused - Trial magistrate denied accused's application for adjournment after abrupt withdrawal of his legal representative - Accused unable to organise his defence, thus denying his rights under section 10(2)(d) of the Constitution - In addition, the magistrate arranged for Zulu - speaking interpreters to interpret at the trial after the seventh witness had testified but after the interpreters had acted for one day only they were replaced by the court's regular interpreter, who understood no Zulu. MAZIBUKO v. THE STATE [1994] B.L.R. 460 (HC), Aboagye J Request for written submissions by court - Failure by trial magistrate to note written submissions from prosecution and appellant before proceeding to write judgment - Failure to make enquiry about absence of written submissions - Whether irregularity resulted in failure of justice - High Court Act (Cap. 04:02), s. 10(1), proviso. MOSALA v. THE STATE [1999] 2 B.L.R. 405 (HC), Mwaikasu J Judge Conduct of trial - Allegation of intervention by judge during course of trial - Questioning of witnesses by putting leading questions to them - Entry into arena of conflict - Refusal to grant appellant postponement to obtain copy of court record - Whether trial irregularly conducted - Whether irregularity occasioned miscarriage of justice. KEFILWE v. THE STATE [1992] B.L.R. 276 (CA), Amissah P, Bizos JA, and Schreiner JA Magistrate Conduct of trial - Accused unrepresented by counsel - Duty of trial magistrates. STATE v. MPONDA [1986] B.L.R. 286 (HC), Murray J Extra - judicial opinion - Magistrate forming adverse opinion of character of applicant without any apparent foundation - Magistrate convicting applicant - Whether proper. MAKWAPENG v. THE STATE [1985] B.L.R. 217 (HC), Hannah J Magistrate or judge Examination of witness - Right to ask leading questions - Interventions not to be excessive. STATE v. NTSHUPETSANG [1984] B.L.R. 1 (HC), O'Brien Quinn CJ Murder trial Conviction of accused persons of murder - Imposition of death sentence - Appeal against conviction and sentence dismissed by Court of Appeal - Application to the High Court to set aside conviction and sentence and to order retrial - Applicants alleging unfair hearing at the trial in the High Court and subsequent appeal hearing resulting in failure of justice - Whether court jurisdiction to entertain application - Constitution, ss. 18 and 95(1). DITSHWANELO and Others v. THE ATTORNEY - GENERAL and Another (No 2) [1999] 2 B.L.R. 222 (HC), Reynolds J Victims of murder - Description in record of evidence and judgment as `D1' and `D2' - Description improper and distasteful. MAFOKATE v. THE STATE [1986] B.L.R. 269 (CA), Maisels P, Aguda JA, and Amissah JA Permanent stay of prosecution Application for - Factors to be taken into account to determine whether there had been an unreasonable delay in prosecution articulated. Moyo v. The State [2006] 1 B.L.R. 29 (HC), Gaongalelwe J Postponement Discretion of court - Right to legal representation - Application for postponement brought in presence of accused's attorney who sought leave to withdraw - Matter postponed on nine occasions previously - Convenience of court also a factor. MALELA v. THE STATE [1997] B.L.R. 561 (HC), Gaefele AJ Plea Autrefois acquit - Plea cannot be raised for first time on appeal - For plea to succeed accused must have been acquitted by a competent court on the merits. MOKGATLA v. THE STATE [2002] 1 B.L.R. 311 (HC), Chatikobo J Accused pleading before competent and properly constituted court - Court to conduct case to its conclusion - No other court entitled to conduct case. MAKABA v. THE STATE [1989] B.L.R. 574 (HC), Aboagye J Accused pleading to a charge before a magistrate - Transfer of case to another magistrate - Continuation of trial without taking fresh plea from accused - Effect - Trial a nullity - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), ss. 140 and 155. MAKABA v. THE STATE [1989] B.L.R. 574 (HC), Aboagye J Appellant pleading to charge before court properly constituted and appointed to try him - Court seised with trial - In absence of any contrary provisions court obliged to try case - No other court entitled to conduct case. REUBEN and Another v. THE STATE [1989] B.L.R. 647 (HC), Gyeke - Dako J Appellant pleading to charge before magistrate - Transfer of case to another magistrate - Continuation of trial by new magistrate without fresh plea being taken from appellant - No statutory provision providing for judicial officer to continue trial commenced by another judicial officer - Effect of trial - Trial a nullity. REUBEN and Another v. THE STATE [1989] B.L.R. 647 (HC), Gyeke - Dako J Arraignment - Constituents of arraignment - Calling of accused to the bar - Reading indictment or summons to accused - Asking accused whether he is guilty or not - Court cannot exercise its jurisdiction to try accused person without taking his plea - Trial in absence of plea a nullity. KGATHWANE v. THE STATE [1989] B.L.R. 597 (HC), Gyeke - Dako J Formalities - Any failure of Court to read charge to accused in open Court and give such accused opportunity to plead rendering any conviction subsequently recorded null and void - In present matter, plea of not guilty entered by magistrate but trial proceeding before different magistrate who had not re - taken plea - No authority suggesting that irregularity occurring in circumstances where plea taken by magistrate who not trying accused and trial proceeding before another magistrate - Even if irregularity occurring, Court still having discretion to decide whether such irregularity resulting in failure of justice - Criminal Procedure and Evidence Act (Cap 08:02), s 141. RAMATEBELE v. THE STATE [2003] 1 B.L.R. 120 (HC), Monthe AJ Omission to take plea of accused - Effect on proceedings - Serious and irreparable irregularity in proceedings - Commencement of trial by one magistrate - Continuation of trial by another magistrate without taking fresh plea - Proceedings a nullity - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 140. KGATHWANE v. THE STATE [1989] B.L.R. 597 (HC), Gyeke - Dako J Plea of guilty - Application of Judicial Circular No 1 of 1975 - Restricted to magistrates but the guiding principles on the question of whether pleas were equivocal or not were of general application and could be applied by any court sitting in its original jurisdiction. KAMBURA v. THE STATE [2002] 1 B.L.R. 121 (HC), Lisimba J Plea of guilty - Conviction - Appeal against conviction - Circumstances in which appellate court may disturb convictions based on plea of guilty - Plea of guilty by mistake - Plea to non - existent crime - Plea being ambiguous - Explanation of accused amounting to defence or negativing plea of guilty - Plea considered not to be plea at all - Admitted facts disclosing no offence to support charge - Acceptance of plea occasioning miscarriage of justice. MOLOME v. THE STATE [1992] B.L.R. 335 (HC), Gyeke - Dako J Plea of guilty - Plea becoming equivocal by virtue of accused's statements in mitigation of sentence - Court obliged to take into account what is said in mitigation and satisfy itself that accused had made an unequivocal plea - Penal Code (Cap. 08:01), s. 277. MMOLOTSI v. THE STATE [2001] 2 B.L.R. 621 (HC), Lisimba J Plea of guilty - Plea to be unambiguous - Withdrawal of plea - Substitution of plea of not guilty - When substitution permissible - Whether withdrawal of plea of guilty permissible after conviction. KOLAGANO v. THE STATE [1992] B.L.R. 49 (HC), Gyeke - Dako J Requirement that proceedings be brought to finality after plea - Effect of recusal which not properly recorded - Criminal Procedure and Evidence Act (Cap 08:02), ss 150(4), 156. KEYBONYE v. THE STATE [2004] 1 B.L.R. 38 (CA), Tebbutt JP, Plewman and Lord Sutherland JJA Plea of accused Judicial officer - Accused pleading before one judicial officer - Trial of accused before another judicial officer without taking fresh plea - Enactment providing for accused person pleading to indictment or summons being entitled to demand to be either acquitted or found guilty - Whether accused pleading before one judicial officer triable before another judicial officer without fresh plea being taken - Criminal Procedure and Evidence Act (Cap. 08:02), s. 150(4). STATE v. NGWAKO [1990] B.L.R. 563 (CA), Amissah P, Aguda JA, Doyle JA Plea of guilty Unequivocal admission of guilt required. KEBIDITSWE v. THE STATE [2004] 1 B.L.R. 386 (HC), Walia J Postponement Adjournment of trial on four occasions mostly at request of defence - Intimation by court of no further adjournment - Absence of key prosecution witness on adjourned date - Application by prosecution for an overnight adjournment to trace witness - Refusal of application - Whether proper exercise of discretion. STATE v. JABA [1987] B.L.R. 315 (HC), O'Brien Quinn CJ Application by prosecution for adjournment to summon witnesses - Refusal by trial magistrate to grant adjounment - Whether proper to refuse to grant application. STATE v. STEWART [1987] B.L.R. 449 (HC), Hallchurch J Discretion of court - Prosecution not able to continue as court file with Attorney - General's office - Court not exercising discretion judicially in refusing postponement. STATE v. WILLIAMS [1993] B.L.R. 69 (HC), Gyeke - Dako J Discretion of court - Right to legal representation - Non appearance of attorney on trial date - Court previously informed that accused engaged an attorney - No explanation on record why case not called up for trial on date set - Trial date re - set casually and arbitrarily - No clarity whether trial date convenient to parties - Court proceeding - Trial in absence of attorney - Whether proper - Whether court to blame for non - appearance of accused's counsel on trial date - Whether provisions of Constitution infringed - Constitution, s. 10(2). DIKGANG v. THE STATE [1999] 2 B.L.R. 154 (HC), Mwaikasu J Discretion of court - Right to legal representation - Non - appearance of lawyer on trial date - Accused informing court of his engagement of a lawyer - Accused asking for postponement - Prosecutor objecting to request - Court sustaining objection - Court proceeding with trial in absence of lawyer - No investigation by court as to whether non - appearance of lawyer due to fault of accused - Whether proper - Whether non - appearance of lawyer on trial date to be taken against accused - Procedure to be adopted by trial court in such situations - Constitution, s. 10 (2) (d). MAPHANE v. THE STATE [1991] B.L.R. 304 (CA), Amissah P, Aguda JA, Doyle JA, Bizos JA, Schreiner JA Effect of section 138 of Criminal Procedure and Evidence Act - Section restricted to cases where case not yet commenced. REFERENCE BY THE ATTORNEY - GENERAL IN RE: DYNAMIC SERVICES (PTY) LTD AND THE ATTORNEY - GENERAL and Another [1996] B.L.R. 49 (CA), Amissah JP, Aguda JA and Schreiner JA Right to legal representation - Discretion of court - Appellant not sufficiently instructing attorneys - Attorneys unable to represent appellant - Appellant given sufficient time to engage attorneys before trial - Appellant not making effort to engage other attorneys - Trial commencing - Appellant applying for postponement to obtain legal representation - Court refusing application - Substantial reasons for refusal - Whether proper use of discretion by court - Whether appellant's constitutional right to legal representation infringed - Constitution, s. 10 (2) (a) and (d). KAANG v. THE STATE [1991] B.L.R. 39 (HC), Barrington - Jones J Presiding officer Duties of - Language of court should at all times be measured and in keeping with its dignity - If judge or magistrate forms unfavourable view of conduct of one of parties or witness before him, he is perfectly entitled to say so in judgment in order to explain decision and, provided accuracy not sacrificed, judgment is not necessarily the worse for it being couched in vigorous terms. MOLETSANE v. THE STATE [1995] B.L.R. 83 (HC), Gyeke - Dako J Recusal - Grounds for - Reasonable apprehension of bias. DYNAMIC SERVICES (PTY) LTD v. THE ATTORNEY - GENERAL [1997] B.L.R. 1070 (HC), Aboagye ACJ When court functus officio - After conviction. DITSHEKO and Others v. THE STATE [1996] B.L.R. 345 (HC), Gyeke - Dako J Previous conviction Denial of previous conviction - Duty of trial court - Necessity of court satisfying itself as to truth of previous conviction - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 284(3). KOMBONI v. THE STATE [1983] B.L.R. 163 (HC), Corduff J Prosecutor leading evidence to establish criminal record of applicant - Applicant not given opportunity of himself leading evidence regarding such record - Whether proper. MAKWAPENG v. THE STATE [1985] B.L.R. 217 (HC), Hannah J Refusal to give applicant opportunity to give evidence on issue of previous convictions - Magistrate relying on his previous ruling in another case involving applicant for purpose of establishing applicant's previous criminal record - Whether proper. MAKWAPENG v. THE STATE (No 2) [1985] B.L.R. 229 (HC), Hannah J List of previous convictions read over to accused - Accused made no reply when asked if he agreed or denied previous convictions - Reference made to previous convictions when passing sentence - Necessity of court satisfying itself as to truth of previous convictions - Criminal Procedure and Evidence Act (Cap. 08.02)(1973 Rev.) s.284(3). NGWENYA v. THE STATE [1983] B.L.R. 187 (HC), Corduff J Prosecuting counsel and public prosecutors Duties and responsibilities - Performance of functions as ministers of justice - Improper to urge,court to impose particular sentence or more severe sentence. MOJAGI v. THE STATE [1985] B.L.R. 560 (HC), Aguda JA, Amissah JA, Murray J Prosecution Investigating officer acting as prosecutor or witness - Undesirable combination of functions in one person - Special circumstances permitting such combination - Whether prosecution took part in investigation. PITSO v. THE STATE [1987] B.L.R. 203 (HC), Barrington - Jones J Investigating officer acting as prosecutor or witness - Undesirable combination of functions in one person - Circumstances in which such combination is permissible. GAOGANE v. THE STATE [1983] B.L.R. 181 (HC), O'Brien Quinn CJ Investigating police officer acting as prosecutor - Whether proper to do so. MOGALE v. THE STATE [2001] 1 B.L.R. 427 (HC), Mwaikasu J Public prosecutor Appellant alleging prosecutor having been involved in investigation of case - Whether appellant prejudiced thereby. RADITLADI v. THE STATE [1987] B.L.R. 434 (HC), Hallchurch J Record Not recorded whether witnesses sworn in, affirming truth of evidence or admonished to tell the truth - Cannot be concluded from fact that witnesses cross - examined that they were sworn in - State on appeal not seeking to call evidence under s 10(1)(c) of High Court Act (Cap 04:02) to cure defect - No evidence before court of appeal upon which court could uphold conviction. HASKINS v. THE STATE [2003] 2 B.L.R. 353 (HC), Marumo J Recusal Application for recusal of magistrate - Appropriate grounds - Whether right to apply for recusal honestly exercised. MAFEELELA v. THE STATE [1996] B.L.R. 15 (CA), Aguda J, Tebbutt J and Hoexter J Test - Existence of reasonable suspicion of bias - Whether reasonable suspicion exists. MAFEELELA v. THE STATE [1996] B.L.R. 15 (CA), Aguda J, Tebbutt J and Hoexter J Retrial Appeal from magistrate's court - Power of High Court to order retrial - When to order for retrial - When trial before magistrate null or affected by irregularity departing from fundamental procedures of criminal trial - Whether proper to order retrial in instant case. DITHAPO v. THE STATE [1990] B.L.R. 624 (CA), Amissah P, Aguda JA, Doyle JA, Bizos JA, Schreiner JA Appeal from court - martial - Jurisdiction of High Court - Whether power to order for retrial - Constitution, s. 95 - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), ss. 6(2) and 321 - Botswana Defence Force Act (Cap. 21:05) (1973 Rev.), s. 132. KELAPILE v. THE STATE [1985] B.L.R. 113 (HC), Maisels P, Van Winsen JA, and O'Brien Quinn CJ Appellate court - Factors to be considered - Expense and inconvenience - Half of effective sentence virtually having been served - Whether proper to order for new trial. PHALADZE v. THE STATE [1987] B.L.R. 166 (HC), Murray J Court of Appeal - Power to order retrial - When power exercisable - Court of Appeal Act (Cap. 04:01), s. 13(4). MAKWAPENG v. THE STATE [1999] 1 B.L.R. 48 (CA), Amissah P. J, Aguda J, Korsah J, Friedman J and Lord Morison JA Power of appellate court - When to order for retrial - Power not to be exercised where reason for setting aside verdict being insufficient evidence to justify conviction - Conviction of appellant not resulting from any fault of prosecution - Conviction based on errors in procedure perpetrated by trial court in conduct of trial - Whether proper in instant case to order retrial. SAMUEL v. THE STATE [1990] B.L.R. 515 (HC), Barrington - Jones J Power of appellate court - When to order for retrial - Conviction considered to be unsafe and unsatisfactory - Effluxion of time since commission of alleged offence - Whether proper to order for retrial. STATE v. BALOLE [1987] B.L.R. 291 (HC), Barrington - Jones J Power of appellate court - When to order for retrial. KGOBOKI v. THE STATE [1985] B.L.R. 283 (HC), Murray J Power of appellate court - When to order for retrial - Appellate court finding conviction based on insufficient evidence - Whether proper to order retrial. MOLAPISI v. THE STATE [1985] B.L.R. 538 (HC), Maisels P, Aguda JA, and Amissah JA Power of appellate court - When to order for retrial - Appeal to High Court against conviction and sentence for driving under influence of alcohol - One ground of appeal being rejection of appellant's evidence of possible contamination of blood specimen - High Court remitting case to court a quo to enable defence to cross - examine on issue of contamination of blood specimen - Whether any onus on defence to cross - examine on issue - Whether proper to remit case to court a quo - High Court Act (Cap. 04:02), s. 9(1)(c). MOSWEUNYANE v. THE STATE [1986] B.L.R. 308 (CA), Aguda JA, Amissah JA, Van Winsen JA Prejudice to accused - Accused not being oppressed merely because same witnesses and same facts involved second trial nor do financial and emotional considerations constitute such factors - High Court has inherent power, in appropriate circumstances, to stop trial where accused being oppressed. STATE v. MATERE [1993] B.L.R. 465 (HC), Nganunu J When to order for retrial - Application for adjournment to enable prosecution to summon witnesses - Refusal to grant adjournament - Dismissal of case against accused in absence of prosecution evidence - Magistrate acquitting and discharging accused - Whether proper for High Court to order for retrial. STATE v. STEWART [1987] B.L.R. 449 (HC), Hallchurch J Right to trial within a reasonable time What constitutes a reasonable time - The fact that appellants not incarcerated did not mean that they were not prejudiced by the delay - A very long delay inherently gave rise to a strong presumption of prejudice to an accused. SEJAMMITLWA and Others v. THE ATTORNEY - GENERAL and Others [2002] 2 B.L.R. 75 (CA), Tebbutt AJP, Nganunu CJ, Zietsman, Plewman and Grosskopf JJA When period commences - Meaning of `charge' in s 10(1) of Constitution of Botswana. SEJAMMITLWA and Others v. THE ATTORNEY - GENERAL and Others [2002] 2 B.L.R. 75 (CA), Tebbutt AJP, Nganunu CJ, Zietsman, Plewman and Grosskopf JJA Withdrawal of charge - Effect of for purposes of s 10(1) of Constitution of Botswana. SEJAMMITLWA and Others v. THE ATTORNEY - GENERAL and Others [2002] 2 B.L.R. 75 (CA), Tebbutt AJP, Nganunu CJ, Zietsman, Plewman and Grosskopf JJA Rights of accused Unrepresented accused - Explanation to accused of his rights at close of prosecution case - Necessity of trial court fully explaining rights to accused - Explanation to be reflected in record of proceedings - Failure to do so might be fatal to conviction. TSHUKUDU v. THE STATE [2000] 1 B.L.R. 400 (HC), Dibotelo J Role of magistrate Direction and control of proceedings - Role to be exercised diplomatically KALABENG v. THE STATE [1983] B.L.R. 106 (HC), Hannah J Role of public prosecutor Undesirable for prosecutor to suggest appropriate sentence to magistrate. MTHIMKHULU v. THE STATE [1985] B.L.R. 311 (HC), Murray J Sentence Extenuating circumstances - Differs from mitigation - Court failing to invite evidence and argument on issue of extenuating circumstances - Serious irregularity - What steps to be taken - Accused given benefit of doubt regarding possible existence of extenuating circumstances. GABAAKANYE v. THE STATE [1994] B.L.R. 17 (CA), Amissah JP, Aguda JA, Schreiner JA Stay of prosecution Application for - Application brought on basis that accused believing he would not be afforded fair trial - Accused having right to challenge continuation of his prosecution - Proper factual foundation for application to exist, requiring reasonable assertion premised on reasonable factual grounds - Court having discretion, to be exercised judicially, as to appropriate corrective measures necessary to right wrongs found to exist, including power to stay prosecution. MUZILA v. THE ATTORNEY - GENERAL [2003] 1 B.L.R. 471 (HC), Marumo J Submission of no case Submission overruled - Evidence of appellant committing offence charged - Trial magistrate holding that absence of any reasonable explanation from appellant inference to be drawn of appellant having committed offence charged - Trial allowed to continue - Appellant proved guilty - Appellate court holding finding of trial court improper - Whether improper finding made by trial court nullifies subsequent conviction. MASUNGA v. THE STATE [1985] B.L.R. 506 (HC), Barrington - Jones J Submission of no case to answer At close of prosecution case - Submission only upheld where no evidence that accused committed offence as charged or any other offence of which accused might be convicted thereon - Test to determine sufficiency of evidence whether evidence presented of such nature that reasonable tribunal of fact, properly instructed, might convict accused. STATE v. NTELAMO [2005] 2 B.L.R. 453 (HC), Mosojane J Submission of no case to answer Close of prosecution case - Submission to be considered in two stages - Consideration as to whether no evidence of commission of offence charged - Court further to consider any other offence not charged accused might lawfully be convicted thereon - Criminal Procedure and Evidence Act (Cap. 08:02), s. 180(3). STATE v. PILANE [1990] B.L.R. 669 (HC), Gyeke - Dako J Close of prosecution case - Court considering whether no evidence of commission of offence by accused - Meaning of `no evidence' - Criminal Procedure and Evidence Act (Cap. 08:02), s. 180(3). STATE v. GABOPYE [1990] B.L.R. 646 (HC), Gyeke - Dako J Guidelines to be followed by trial judge - Prosecution evidence - Trial judge concluding that jury properly directed could not properly convict - Duty of judge to stop case on submission being made. STATE v. LETSHOLO [1987] B.L.R. 465 (HC), Hallchurch J Murder charge - Question to be considered by trial judge - Consideration as to whether prosecution adduced reasonable evidence to discharge burden lying on it - Trial judge to decide as matter of law whether evidence adduced attained standard of proof prescribed by law - Standard of proof need not be proof beyond reasonable doubt at that stage of proceeding - Duty of judge to consider whether reasonable tribunal of fact might convict accused of offence charged or permitted alternative offence if it believed evidence adduced by prosecution - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s 179(3). STATE v. PELOEWETSE [1989] B.L.R. 327 (HC), Gyeke - Dako J No evidence of accused persons committing offences charged - Lack of evidence of accused persons committing offences charged entitling court to return verdict of not guilty - Submission of no case to answer by defence - When submission sustainable. STATE v. MOGOTSI and Another [1990] B.L.R. 497 (HC), Gyeke - Dako J The accused Access to State witness statements - Whether accused has such right - Limitations on such right where access may compromise the ends of justice - Constitution s 10(2)(c), (e), 18(1), (2)(a). MOTSHWANE and Others v. THE STATE [2002] 2 B.L.R. 368 (HC), Phumaphi J Explanation of rights at close of prosecution case - Effect of failure to explain rights - Section 180(4) of Criminal Procedure and Evidence Act (Cap. 08:02). STATE v. MOLATLHEGI [1997] B.L.R. 911 (HC), Dibotelo J Legal representation of - Unrepresented accused - Duties of presiding judicial officer to advise of such rights - Effect of failure to so advise. LEOW v. THE STATE [1995] B.L.R. 564 (HC), Lesetedi AJ Mental state of - Where state of mind of accused at time of offence may give rise to a key defence it is essential for the accused to be sent for psychiatric examination as soon after the offence as possible. STATE v. OTHUSITSE [2001] 2 B.L.R. 394 (HC), Lesetedi J Mental state of accused - Expert evidence necessary to determine - Nature of evidence - Where evidence equivocal but inconsistencies explained. STATE v. MOTLHALE [2002] 2 B.L.R. 283 (HC), Lesetedi J Right of access to contents of police docket - Accused entitled to copies of state witness statements, documentary evidence in possession of either the State or the police pertaining to the charges against the applicant - Constitution of Botswana s 10(2)(c) and (e). AHMED v. THE ATTORNEY - GENERAL [2002] 2 B.L.R. 431 (HC), Collins J Right to copies of witness statements - Refusal of magistrate to order prosecutor to hand over copies of witness statements - Whether such refusal occasioned a failure of justice. STATE v. MATSHEGO [2003] 2 B.L.R. 328 (HC), Collins J Unrepresented accused - Explanation of rights by magistrate at end of prosecution case - Insufficient merely to tell accused that he has right to make a defence. BONIFACE v. THE STATE [2002] 1 B.L.R. 183 (HC), Dibotelo J Mental state of - Proof of insanity - Statement by accused that he was `possessed by the devil'. KGAODI v. THE STATE [1996] B.L.R. 23 (CA), Amissah JP, Schreiner and Lord Cowie JJA Three accused One accused absconding during adjournment of trial - Trial proceeding in absence of absconding accused - Subsequent arrest and arraignment of absconded accused - Procedure of conducting the trial - Discretion of trial court. SENOKWANE v. THE STATE [1984] B.L.R. 265 (HC), Hannah J One accused absconding during adjournment of trial - Trial proceeding in absence of absconded accused - Subsequent arrest and arraignment of absconded accused before same magistrate - Magistrate re - opening case instead of starting proceedings de novo against accused - Trial court permitting evidence at previous trial before accused absconded given against him in his presence to stand - Trial continuing from point where accused absconded - Whether magistrate should have ordered trial against accused to start de novo. SENOKWANE v. THE STATE [1985] B.L.R. 243 (CA), Maisels P, Baron JA and Amissah JA Unrepresented accused Duty of trial court - Essential of trial court to offer advice by way of explaining court procedure to unrepresented accused - Failure of trial court to offer such advice - Prosecution failing to cross - examine accused - Conviction of accused persons. MMOPI and Another v. THE STATE [1986] B.L.R. 8 (HC), Murray J Witness Evidence - Witness for appellant present in court throughout proceedings - Refusal of court to allow appellant's witness to be called - Whether refusal occasioned miscarriage of justice. KOTLHAO v. THE STATE [1999] 1 B.L.R. 364 (HC), Steyn J, Lord Allanbridge J and Friedman JA Presence of witness in court before giving evidence - Whether proper for such witness to be called to give evidence - Criminal Procedure and Evidence Act (Cap. 08:02), s. 180(4). LUFU v. THE STATE [1998] B.L.R. 562 (HC), Gaefele J Witnesses Failure of prosecution to call material witnesses - Inference - Trial unsatisfactory - Prosecution unable to prove its case beyond reasonable doubt. MONAGENG v. THE STATE [1987] B.L.R. 355 (CA), Maisels P, Amissah JA and Van Winsen JA Trial accused Unrepresented accused Charge of carnal knowledge of a girl under 16 years - Statutory defence to charge - Special defence - Accused unaware of statutory defence - Indications that magistrate had defence in mind but had failed to bring it to the attention of the accused - Denial of fair trial - Penal Code (Cap 08:01), s 147(5). GALEBONWE v. THE STATE [2002] 1 B.L.R. 46 (CA), Weir, Blofeld and Sutherland JJA 'Trial within a trial' to determine questions of voluntariness. STATE v. PETER PILLAR 1968 - 1970 B.L.R. 204 (HC), Dendy Young CJ Unavailability of witness at trial who had given evidence at the Preparatory Examination. STATE v. BANTUMETSE LOBI and Another 1974 (1) B.L.R. 15 (HC), Rooney J Undesirability of bringing serious cases before tribunals which have limited powers. STATE v. LEHATSHE MOKHOKWA 1971 (2) B.L.R. 50 (HC), Rooney ACJ Undesirability of delay in bringing criminal case to Court Breach of Botswana Constitution to do so Illiterate Accused should be advised by police of their rights to bail. STATE v. MASILO SETSBAGO (1); STATE v. BOIKI THOME (2) 1968 - 1970 B.L.R. 54 (HC), Dendy Young CJ Unlawful arrest and detention Arrest on suspicion Detention for 22 hours - Action for damages - Whether police had reasonable suspicion that appellant committed offence of murder - Whether period of detention excessive - Criminal Procedure and Evidence Act (Cap. 08:02), s. 28(b). APHIRI v. THE ATTORNEY - GENERAL [2000] 1 B.L.R. 65 (CA), Steyn J, Friedman J and Lord Weir JA Unreasonable delays in bringing Accused to trial. STATE v. MAKWEKWE 1981 B.L.R. 196 (HC), Corduff J Unsworn statement by Accused Effect of STATE v. BANANI 1979 - 1980 B.L.R. 240 (HC), Hannah J Unsworn statement by the Accused Effect thereof Duty of prosecuting Counsel to tender evidence of witnesses who made depositions. STATE v. GAORATWE XHAA 1974 (1) B.L.R. 117 (HC), Aguda CJ Unsworn statement by the Accused STATE v. BATHUSI 1978 B.L.R. 20 (HC), Dyke CJ Use of shorthand writer to record evidence in Subordinate Court. STATE v. POLOKO SUPELEKAE 1973 (1) B.L.R. 62 (HC), Rooney ACJ Verdict Entitlement to Provisions of section 150(4) of the Criminal Procedure and Evidence Act (Cap. 08:02) - Fact that order does not contain judge's reason for choosing option of discharge does not violate requirements of section 150(4). BUSI v. THE STATE [1997] B.L.R. 69 (CA), Amissah P. J, Aguda J, Steyn J, Tebbutt J and Lord Cowie JA Verdict of receiving on charge of breaking and entering Not competent. STATE v. JOHANNES MORAPEDI 1964 - 1967 B.L.R. 183 (HC), Thompson ACJ Vesting order Proper application of Application of vesting order provision not dependent on a conviction - Section allowing court to make special order after any trial - Criminal Procedure and Evidence Act (Cap 08:02), s 319. SEIKANELO and Others v. THE STATE [2003] 2 B.L.R. 45 (CA), Zietsman, Plewman and Akiwumi JJA Whether an appeal may be upheld because of the condition of the Court record. J B MOUMAKWA v. THE STATE 1968 - 1970 B.L.R. 201 (HC), Dendy Young CJ Whether a verdict of `reckless driving' is competant on a charge of `driving at a speed dangerous to the public' A `minor' charge considered. OBERT SEBINYAWE v. THE STATE 1968 - 1970 B.L.R. 56 (HC), Dendy Young CJ Withdrawal, after plea, of some charges leaving others to be tried. STATE v. THEKISO 1981 B.L.R. 267 (HC), Corduff J Withdrawal of charge after Accused had pleaded Accused entitled to acquittal unless withdrawal was strictly in terms of Section 149 (4) of the C.P. & E. Proclamation. ATTORNEY - GENERAL v. PHENYO PHOLOA 1976 B.L.R. 84 (HC), Isaacs AJ Withdrawal of charge in High Court after plea Accused entitled to acquittal. STATE v. ZINDABA and Others (2) 1976 B.L.R. 55 (HC), Rooney J Withdrawal of charges Discretion of Court. WHITE MAROBELA v. STATE 1977 B.L.R. 31 (HC), Dyke CJ Witness Accomplice Corroboration - Test to be applied. STATE v. THEBE and Others [1993] B.L.R. 484 (HC), Gyeke - Dako J Who is. KENOSI v. THE STATE [1993] B.L.R. 329 (HC), Gyeke - Dako J Calling of witness by court When court may call witness - Court having complete discretion to call witness, even after prosecution has closed its case - No definite restrictions on when court may call witness - General rule of practice that, after close of defence case, court may call witness only if defence has set up a case ex improviso, ie when prosecution taken by surprise and evidence in rebuttal necessary. PHILIP and Others v. THE STATE [2003] 2 B.L.R. 181 (HC), Mosojane J Evidence Hostile witness - Evidence at trial inconsistent with previous statement made by witness - Prosecution to seek permission to treat witness as hostile witness - Admission of previous statement in evidence - Effect to be given to previous statement and sworn statement - Evidence negligible. MICKSON v. THE STATE (PRACTICE NOTE) [1987] B.L.R. 468 (HC), Hallchurch J Failure to call material witness Issue of material witnesses arises when there are two contending versions which can only be settled one way or other by testimony of person not called. KENOSI v. THE STATE [1993] B.L.R. 329 (HC), Gyeke - Dako J Material witness Failure to call material witness - Effect. STATE v. MAKOMPO [1987] B.L.R. 494 (HC), Barrington - Jones ACJ Oath or affirmation Witness not sworn or admonished to tell the truth - Such not a mere formality which can be dispensed with - Profoundly important part of proceedings to which proper attention to be given - Should be noted on record - Oath, affirmation or admonition intended to impress on mind of witness gravity of testifying to anything other than truth - Processes of swearing in, affirming and admonition are statutory imperatives - Testimony given in violation thereof in law no evidence at all - Criminal Procedure and Evidence Act (Cap 08:02), s 219, s 220(1). HASKINS v. THE STATE [2003] 2 B.L.R. 353 (HC), Marumo J Single witness evidence When court may convict on evidence of single witness - Trial Judge or magistrate enjoined to weigh evidence, consider its merits and demerits and decide whether it is trustworthy and whether, despite fact that there are shortcoming or defects or contradictions in testimony, he was satisfied that truth had been told. KENOSI v. THE STATE [1993] B.L.R. 329 (HC), Gyeke - Dako J Witness statements Appellant alleging that he denied access to prosecution witness statements at trial - Statements not privileged but even if defence not granted access, no fatal irregularity occurring if no failure of justice resulting from denial of access. Masilo v. The State [2006] 1 B.L.R. 250 (CA), Tebbutt JP, Akiwumi and Moore JJA Witnesses Hostile witness Procedure for declaring witness a hostile witness - Propriety of imprisonment of - Effect of witness having a subsequent change of heart after being declared hostile witness. BOINGOTLO v. THE STATE [2003] 2 B.L.R. 356 (HC), Gaongalelwe J Wrongful arrest and detention To justify arrest and detention, police to prove on balance of probabilities that reasonable ground existing at time of arrest for suspecting that person arrested involved in commission of offence in question Test objective. Sekobye v. The Attorney - General [2006] 1 B.L.R. 270 (CA), Tebbutt JP, Moore and Ramodibedi JJA CURATOR Curator ad litem Appointment Application to be vested with legal power to manage patient's personal affairs - A person vested with such power not curator ad litem but curator bonis and curator personae. EX PARTE CHIRAMBO [1999] 2 B.L.R. 160 (HC), Williams AJ Curator bonis Appointment Practice - Appointment of curator ad litem prior to appointment of curator bonis - Practice to be dispensed with in exceptional circumstances - Patient diagnosed with retroviral disease and mentally disorientated - Inability of patient to manage his affairs - Whether existence of exceptional circumstances necessitating departure from usual practice. EX PARTE CHIRAMBO [1999] 2 B.L.R. 160 (HC), Williams AJ Curator personae Appointment Authority of appointee - Factors to be considered in appointing curator personae - Applicant intending to move patient out of jurisdiction - Whether proper to appoint applicant curator personae in circumstances. EX PARTE CHIRAMBO [1999] 2 B.L.R. 160 (HC), Williams AJ CUSTOMARY LAW Seantlo (arrangement of levirate nature) GABORONE v. GABORONE 1981 B.L.R. 94 (CA), Hayfron - Benjamin CJ Adoption What constitutes Bogadi not essential element - Adoption constituted by agreement to adopt along with implementation thereof - Deceased having acted in terms of such agreement by taking in respondents and changing their surnames to correspond with his - Found that respondents having been adopted and entitled to inherit deceased's estate. MARMAN v. MARMAN and Others [2003] 1 B.L.R. 97 (HC), Mosojane J Burial Burial rights Deceased married into Babirwa tribe - Deceased's deceased husband having desired her to be buried in Bobonong - Deceased having expressed wish to be buried in Mochudi after death of husband - Applicants not caring for or visiting deceased while sick - Whether husband's wish to override that of wife. BAETI v. MPETE and Another [1999] 2 B.L.R. 318 (HC), Nganunu CJ Cattle trespass Damage to food crops Liability of owner of cattle - Payment of compensation for damaged crops - Right of owner of food crops to impound trespassing cattle - Owner of cattle to be informed of damage caused by cattle and given opportunity to inspect and assess damage done. GAESI v. TEBAPE [1992] B.L.R. 215 (HC), Mokama CJ Corporal punishment Award Action for damages - Plaintiff alleging being subjected to corporal punishment at instance of chief without first being tried for any offence - Defendant denying liability - Defendant alleging corporal punishment administered at instance of plaintiff's father for insulting behaviour - Whether proper to award corporal punishment in accordance with customary law - Whether administration of corporal punishment in contravention of Customary Courts Act (Cap. 04:05) (1973 Rev.) - Whether corporal punishment administered unreasonable or excessive or both - Customary Courts Act (Cap. 04:05) (1973 Rev.) s. 17. KGALAENG v. ATTORNEY - GENERAL [1988] B.L.R. 21 (HC), Barrington - Jones ACJ Customary courts Customary Court of Appeal Procedure in such courts - Whether oral hearing required - Customary Courts Act (Cap 04:05) and Rule 14 of the Customary Courts of Appeal Rules (Cap 04:05) (Sub Leg). SETSOGO v. SABUBI [2002] 1 B.L.R. 142 (HC), Nganunu CJ Land Arable family land Donation - Essentials of valid donation. MOLEFE v. SEKETEME [1992] B.L.R. 226 (HC), Nganunu J Land board Application of audi alteram partem principle - Distinction between preliminary investigations and actual consideration of applications. TEMANE v. TAWANA LAND BOARD [2005] 1 B.L.R. 500 (HC), Walia J Land tenure Customary ownership - Bakwena tribal custom - Whether ownership of land include right of sale of such land - Whether customary law static or developing. KWENENG LAND BOARD v. MATLHO and Another [1992] B.L.R. 292 (CA), Amissah P, Aguda JA, and Bizos JA Customary ownership - Whether ownership of land included right of sale of such land - Nature of personal and private ownership of tribal land - Tribal Land Act (Cap 32:02). MPOFU and Another v. KWENENG LAND BOARD [2004] 1 B.L.R. 213 (HC), Collins J Eviction - Land board applying for eviction of defendant who claimed title under person who held customary rights to land in question - Board not seeking relief against person who had granted him those rights - Tribal Land Act (Cap 32:02), s 10. KWENENG LAND BOARD v. SELAKI [2004] 1 B.L.R. 154 (HC), Chatikobo J Privately owned tribal land - Whether law had developed to accommodate the demands of modern society - Tribal Land Act (Cap 32:02), s 10. KWENENG LAND BOARD v. SELAKI [2004] 1 B.L.R. 154 (HC), Chatikobo J Tribal land Effect of s 10(2) of the Tribal Land Act (Cap 32:02) - Not intended to create a class of private ownership within the customary law. KWENENG LAND BOARD v. MPOFU and Another [2005] 1 B.L.R. 3 (CA), Tebbutt JP, Korsah, Zietsman, Akiwumi and Moore JJA Mafisa cattle Ownership of mafisa cattle Applicable law - Roman Dutch law applied - Proper law applicable - Personal law of parties to be applied - Expert witness or assessors to be consulted - Customary Courts Act (Cap. 04:05) (1973 Rev.), s.37. MOTSOPA v. OBAKENG [1987] B.L.R. 278 (HC), Murray J Ngwato custom Disposal of deceased estate Open well - Well indivisible - Award of well to one of the heirs - Whether proper. LETSHOLO v. SETE [1998] B.L.R. 676 (HC), Gaefele J Inheritance Adopted child - Whether adopted child any right in property of adopted parents. LETSHOLO v. SETE [1998] B.L.R. 676 (HC), Gaefele J Widow Property - Disposal of property of deceased husband - Whether widow of deceased husband power or authority to dispose of properties of deceased estate. LETSHOLO v. SETE [1998] B.L.R. 676 (HC), Gaefele J Succession Jurisdiction of customary court Where estate of deceased who was a tribesman was valued at more than P4 000 - Customary Courts Act (Cap 04:05), s 11(1); Interpretation Act (Cap 01:04) ss 26, 27; Administration of Estates Act (Cap 31:01) s 3. OBOPILE v. THE ATTORNEY - GENERAL and Others [2005] 1 B.L.R. 86 (CA), Tebbutt JP, Lord Sutherland and Akiwumi JJA Tshwaiso Such not disentitling child receiving livestock from father during his lifetime from participating in his inheritance. MOKALAKE and Others v. TSHENKEGO and Another [1993] B.L.R. 22 (HC), Nganunu J Tswana custom Burial rights Right to bury deceased child - Deceased child issue born of lawful wedlock - Dissolution of marriage between parties - Custody of child awarded to respondent with access to applicant - Order of maintenance of child made against applicant - Death of child - Person entitled to bury deceased child. SEGWAI v. SARONA and Others [1998] B.L.R. 474 (HC), Aboagye J Tswana customary law Maintenance Illegitimate minor child - Application for maintenance order - Whether maintenance existing under Tswana customary law - Whether maintenance same thing as seduction - Whether customary court jurisdiction to determine issues of maintenance of illegitimate children - Affiliation Proceedings Act (Cap. 28:02), s.2. MASHABANE v. MOLOSANKWE [2000] 1 B.L.R. 185 (HC), Lisimba J Villages Naming of Inhabitants jointly and severally having interest to prevent unnecessary interference with existence of place of birth and right to bring action to protect such interest - Group of villages amalgamated into single traditional court jurisdiction with new name - New name subsequently extended to refer not only to such jurisdiction but to newly proclaimed, amalgamated village - Inhabitants never consulted and those of one village objecting to new name - Inhabitants and headman of said village possessed of locus standi to challenge amalgamation - New name meant to apply to traditional court and never to new `village' - Purported proclamation wrongful - Will of minority to be recognised and respected - Order making new name applicable to residents of above - mentioned village null and void. SELEKA RESIDENTS v. THE ATTORNEY - GENERAL [1995] B.L.R. 372 (HC), Gyeke - Dako J D DAMAGES Action for Arising from motor vehicle collision General damages and loss of earnings - General damages awarded to be reasonable, fair and just - Duty of court to review level of damages at regular intervals so as to consider that what previously acceptable remaining appropriate - Not enough for plaintiff claiming loss of earnings merely to show reduction in earning capacity - Must show that estate having diminished as result of loss of income. Botswana Motor Vehicle Accident Fund v. Kneuttel NO [2006] 1 B.L.R. 7 (CA), Tebbutt JP, Zietsman and Grosskopf JJA Negligence - Driver blinded by lights of oncoming vehicle - Driver's duties in such circumstances. MALEJANE v. THE ATTORNEY - GENERAL and Another [1997] B.L.R. 1244 (HC), Gaefele AJ Proof of negligence - Use of sketch plan of scene of accident - Draftsman's duties in compiling sketch plan. MALEJANE v. THE ATTORNEY - GENERAL and Another [1997] B.L.R. 1244 (HC), Gaefele AJ Arising from repudiation of claim by insurer Claim for damages arising from loss through fire of insured motor vehicle - Claim repudiated on grounds that fire deliberately caused by plaintiff - Plaintiff failing to prove that motor vehicle overheating - Plaintiff failing to prove claim on balance of probability. JNG Express (Pty) Ltd v. Botswana Insurance Co Ltd [2006] 1 B.L.R. 421 (HC), Sarkodie - Mensah AJ Cattle trespass Liability for - No absolute liability - Culpa had to be shown to render the owner of an animal liable for damage caused by it to another but such negligence would readily be presumed where cattle strayed from a man's land to that of another as it was the duty of the owner to keep them within the confines of his own property. RAMOSU v. NTSIMANYANA [2002] 2 B.L.R. 344 (HC), Kirby J Motor vehicle collision Duty of support - Proof that party indigent - The fact that party had not approached the authorities to be considered a destitute not necessarily indicative of person not being indigent. MOLETLANYI and Another v. BOTSWANA MOTOR VEHICLE INSURANCE FUND [1997] B.L.R. 1298 (HC), Dibotelo J Negligence - What constitutes - Driver failing to adapt his speed to visibility and condition of road. PRICE & QUALITY BAKERY (PTY) LTD v. BOPHELO (GEORGE's BAKERY) and Another [1997] B.L.R. 1282 (HC), Gyeke - Dako J Proof of damages - Receipts for parts replaced not required where witness who is experienced in field testifies as to the reasonable cost of repairs. PRICE & QUALITY BAKERY (PTY) LTD v. BOPHELO (GEORGE's BAKERY) and Another [1997] B.L.R. 1282 (HC), Gyeke - Dako J Negligence Plaintiff failing to prove that damage caused by activity of defendant and that defendant acting negligently - Plaintiff failing to prove quantum of damages - Claim dismissed. RAMATLAPENG v. GRINAKER WHYLE BOTSWANA (PTY) LTD/WBHO (PTY) LTD t/a GRINAKER WHYLE/WBHO JOINT VENTURE [2005] 2 B.L.R. 164 (HC), Kirby J What constitutes - Plaintiff claiming damages from bank in circumstances where plaintiff missing appointment, and therefore business opportunity, due to time spent attempting to sort out bank query - Plaintiff not physically restrained while sorting out bank query and non - attendance at meeting accordingly of his own making - No evidence that business deal would have been successful for plaintiff had he attended meeting - Damages not proved. TOMASEVIC v. FIRST NATIONAL BANK OF BOTSWANA [2003] 2 B.L.R. 259 (HC), Chatikobo J Proof of damages Employee of appellant fraudulently crediting his credit card account with alleged `refunds' to clients - Amounts credited to employee's account debited against appellant's bank account - Employee never repaying amounts - Appellant having proved patrimonial loss as result of employee's fraud and quantum of loss. CAR RENTALS BOTSWANA (PTY) LTD t/a AVIS RENT - A - CAR v. SIMON [2005] 2 B.L.R. 322 (CA), Korsah, Grosskopf and Moore JJA Plaintiff failing to produce invoices for items of expenditure or prove that he had incurred the expenditure - Not function of court to assist by calling for further evidence. SETIKO v. BOTSWANA MOTOR VEHICLE INSURANCE FUND [2001] 2 B.L.R. 43 (HC), Kirby J Unlawful killing Liability of police - Deceased an unarmed suspect killed when stopped by police suspecting him of vehicle theft - Alleged attempt to escape - Warning shots ignored - Three policemen armed with two AK47 rifles - Policeman not acting in self defence and killing not justifiable. SELEPE v. THE ATTORNEY - GENERAL [1996] B.L.R. 960 (HC), Nganunu J Loss of support - Quantum of damages - Claim by surviving spouse - No evidence to support net multiplier method or year by year method - Court looking at amount of support which deceased could reasonably have provided and looking at in light of deceased's age at time of his death. SELEPE v. THE ATTORNEY - GENERAL [1996] B.L.R. 960 (HC), Nganunu J Whether claims against driver or owner of vehicle extinguished by Motor Vehicle Insurance Fund Act (Cap 69:02). SETUMO v. MOTOR VEHICLE INSURANCE FUND [2002] 1 B.L.R. 405 (HC), Kirby J Assault Burden of proof Plaintiff to prove assault. MOSANINDA v. THE ATTORNEY - GENERAL [1994] B.L.R. 411 (HC), Aboagye J Wrongful arrest and detention Quantum - Factors affecting. MOSANINDA v. THE ATTORNEY - GENERAL [1994] B.L.R. 411 (HC), Aboagye J Assessment For adultery Action against number of defendants - Judgment for damages given in default against a defendant - Action proceeding against other defendants - Assessment of damages under default judgment to be assessed at trial in main action - Damages for adultery - Total picture of marriage and relationship of parties would only be revealed during trial - Assessment of damages inextricably linked to, and dependent upon, evidence to be led at trial. FAZIRI v. FAZIRI and Others [2003] 1 B.L.R. 605 (HC), Molokomme J Guiding principles Ejectment and demolition of plaintiffs building - Plaintiff to be put in good financial position pertaining prior to tortious act. ESSACK v. BAMANGWATO CONCESSIONS LTD [1983] B.L.R. 307 (HC), Hannah J Assessment of damages Factors to be taken into consideration Plaintiff's planter purchased for P550 in 1978 - Planter damaged by defendant's cow in 1981 - Plaintiff purchasing new planter for P850 in 1982 - Plaintiff claiming P850 as damages - Proper damages to be awarded - Restitutio in integrum. KGOPO v. KETSITLILE [1988] B.L.R. 283 (HC), Livesey Luke CJ Award Appellate court When to interfere with award - Award being markedly disportionate to that likely to be made by appellate court. BOTSWANA INSURANCE CO (PTY) LTD v. GOULDING [1987] B.L.R. 529 (CA), Aguda JA, Van Winsen JA, Bizos JA Personal injuries General damages - Motor accident - Plaintiff sustaining fractures in motor vehicle accident - Plaintiff suffering considerable pain and significant diminution in quality of her life - Whether plaintiff entitled to amount claimed as general damages. MAECO v. I G I BOTSWANA (PTY) LTD [1989] B.L.R. 545 (HC), Martin Horwitz AJ Quantum of damages awarded reduced by five percent - Reduction on ground of failure to wear seat belt - No allegation in appellants' plea of respondent being negligent in not wearing seat belt - Whether proper to reduce damages awarded. BOTSWANA INSURANCE CO (PTY) LTD v. GOULDING [1987] B.L.R. 529 (CA), Aguda JA, Van Winsen JA, Bizos JA Award of Conditional award Award subject to plaintiff surrendering to defendant his own property, namely, the wrecked vehicle for which compensation was sought - Trial court not empowered to make such order - Condition deleted. CHICOLE v. THE ATTORNEY - GENERAL FOR BOTSWANA and Another [1994] B.L.R. 77 (CA), Amissah JP, Aguda JA, Schreiner JA Loss of profits Mitigation of loss - Necessity of proof of damages - Value of the wreck should have been deducted from award of damages. CHICOLE v. THE ATTORNEY - GENERAL FOR BOTSWANA and Another [1994] B.L.R. 77 (CA), Amissah JP, Aguda JA, Schreiner JA Claim Contumelia, discomfort and loss of freedom Defendant making report to police - Plaintiff arrested and detained - Shortfall while plaintiff in charge of businesses - Plaintiff sole suspect for missing money - Information given to police clearly justified - Justifiable suspicion all required - Police receiving information act in absolute discretion as agents of the State, not of informer. GOODFELLOW v. PAXINOS and Another [2001] 1 B.L.R. 179 (HC), Mosojane J Claim for Damages flowing from defendant's fraudulent conduct Plaintiff to prove on a preponderance of probabilities, fraudulent act that causing patrimonial loss to plaintiff and quantum of loss suffered - Plaintiff failing to discharge onus in this regard. CAR RENTAL BOTSWANA (PTY) LTD t/a AVIS RENT - A - CAR v. SIMON [2003] 2 B.L.R. 306 (HC), Kirby J Damages only awarded for patrimonial loss and not in respect of intangible loss. WATER UTILITIES CORPORATION v. RODERICK [1993] B.L.R. 164 (HC), Martin Horwitz AJ Contumelia Quantum of Single incident of adultery. NGWAMOTSOKO v. MOTHIBAMELE [2003] 2 B.L.R. 451 (HC), Gaongalelwe J Defamation Insult Impairment of plaintiff's dignity - Distinction from impairment of person's reputation - Whether publication complained of impairment of plaintiff's reputation or his dignity. MASIPA v. LESHOPE [1991] B.L.R. 133 (HC), Livesey - Luke CJ Earnings Assessment Loss of earning - Contingencies to be considered in assessment - Contingencies arising as result of vicissitudes of modern life, health risks and socio - economic changes - Fifteen discount on plaintiffs claim. MAECO v. I G I BOTSWANA (PTY) LTD [1989] B.L.R. 545 (HC), Martin Horwitz AJ Loss of earning - Income derived from unlicensed trade activity - Not every illegality disentitling plaintiff from damages derived from illegal trade - Contravention of regulations amounting to criminal offence for which custodial sentence able to be imposed - Act of trading without licence criminal offence and process of licensing not mere formality - Public authority demanding that person deriving income from such conduct should not be entitled to right to claim damages. SELETLO v. THE ATTORNEY - GENERAL [2005] 1 B.L.R. 96 (CA), Korsah, Lord Sutherland and Moore JJA For wrongful dismissal Mitigation of When period of mitigation should commence - Whether dismissed employee could be expected to commence mitigating damages before judgment in such action given. GABAEME v. BARCLAYS BANK OF BOTSWANA [1996] B.L.R. 914 (HC), Nganunu J Loss of support Factors taken into consideration Damages calculated so as to place plaintiff in position she would have been in had deceased not died, taking necessities of life as well as material advantages, conveniences and other comforts to which she had become accustomed into account - Judge having large discretion to award what considered right in the circumstances - Calculation of award entailing assessment of period during which plaintiff deprived of support, determination of deceased's nett annual income over that period and estimate of how much of that income would have been devoted to her, adjusted to contingencies of case. Patel v. White Dove Garments and Others [2006] 1 B.L.R. 47 (HC), Chinhengo J Quantum Method of computation - Total loss of patrimony - Benefits due to deceased escalating after death of deceased - Court a quo rejecting figures arrived at by actuary - Actuarial method dismissed in favour of net multiplier method - Whether court a quo erred in dismissing actuarial method on basis it did - Whether conclusion reached as to total loss suffered fair in view of method of computation used. ARCHIBALD v. ATTORNEY - GENERAL [1991] B.L.R. 169 (CA), Amissah P, Aguda JA, and Puckrin JA Who entitled to Persons married at customary law having mutual legal obligation of support and surviving spouse who was dependent of deceased could mount claim for loss of support. Sekale v. The Minister of Health [2006] 1 B.L.R. 438 (HC), Chinhengo J Lying In expenses Nature of claim - Extent of father's liabilities. KUNOTO and Another v. MOTLALOSO [2003] 2 B.L.R. 447 (HC), Molokomme J Mitigation Duty of plaintiff to mitigate loss Burden of proving that plaintiff should have taken steps to mitigate loss on defendant. ESSACK v. BAMANGWATO CONCESSIONS LTD [1983] B.L.R. 307 (HC), Hannah J Duty of plaintiff to mitigate loss Plaintiff failing to repair vehicle soon after accident - Whether plaintiff acted reasonably under the circumstances. BAGWASI v. MOTSHEGWA [1989] B.L.R. 467 (HC), Aboagye J Motor accident Damages resulting from Quantum of - Claim for repair costs and reasonable loss of earnings - Calculation of damages. PUSUMANE v. BONANG [1996] B.L.R. 949 (HC), Levy AJ Quantum of Proof of damages - Cost of repair more than value of the motor vehicle. TSAYANG'S EXPRESS v. THE ATTORNEY - GENERAL and Others [2004] 1 B.L.R. 298 (HC), Lesetedi J Negligence Duty of care Plaintiff's bus colliding with cow which had strayed from abattoir operated by council - Council owing duty of care to public to avoid creating situation where cattle could escape from premises - Sufficient steps had not been taken to guard gate to kraal - Causal nexus between omission and damage caused. PHAGANE v. GABORONE CITY COUNCIL and Another [2004] 2 B.L.R. 306 (HC), Molokomme J Personal Injuries Assessment - Pain and suffering - Assessment of quantum of damages - Factors to be considered - Duration and intensity of pain and suffering undergone or to be undergone prime consideration - Plaintiff claiming P47,072.45 for injuries sustained in accident and alleging pain and suffering for considerable period - Plaintiff only in pain for one month following accident - Lack of evidence showing plaintiff's loss of amenities or disfigurement - Whether amount claimed as damages appropriate under circumstances. SILAS v. BOTSWANA MOTOR VEHICLE INSURANCE FUND [1989] B.L.R. 601 (HC), Aboagye J Personal injury Factors in assessing damages. MAUNGE v. LESSAU [1984] B.L.R. 245 (HC), O'Brien Quinn CJ Quantum Assessment of Inflated claims - Practice of inflating claims deprecated. MALOPE v. TSHEGOFATSO [2002] 2 B.L.R. 266 (HC), Kirby J Bodily injuries General damages - Arising from an assault in which plaintiff sustained fractured rib - Plaintiff having sustained a measure of humiliation and some subsequent pain and suffering - Damages of P3 000 awarded. MALOPE v. TSHEGOFATSO [2002] 2 B.L.R. 266 (HC), Kirby J General damages - Plaintiff knocked out in collision and subsequently suffered recurring loss of memory - He also continued to suffer headaches, neck pains, tinnitus and lack of concentration - Award of P300 000. KNEUTTEL v. BOTSWANA MOTOR VEHICLE INSURANCE FUND [2002] 2 B.L.R. 478 (HC), Nganunu CJ Employment contract for unspecified period wrongfully and unlawfully terminated What constituted damages. LEMPADI v. BOTSWANA HOUSING CORPORATION [1996] B.L.R. 1016 (HC), Gyeke - Dako J Loss of vehicle Vehicle damaged beyond repair - Owner entitled to full value of vehicle. TOKO v. KWAPE [1983] B.L.R. 48 (HC), Hannah J Unlawful and wrongful dismissal What principle ought to be applied in determining quantum. GABAEME v. BARCLAYS BANK OF BOTSWANA [1996] B.L.R. 914 (HC), Nganunu J Whether limitation of P12 000 in respect of claims restricted to gross amount in respect of each collision or whether multiple claimants could each claim up to amount of P12 000 Motor Vehicle Insurance Fund Act (Cap 69:02), s 11(1)(b). SETUMO v. MOTOR VEHICLE INSURANCE FUND [2002] 1 B.L.R. 405 (HC), Kirby J Wrongful arrest and detention Assault and contumelia Quantum - Plaintiff tortured for several hours in terrifying circumstances - Prevented from seeing a doctor - Detained under an unlawful warrant - Plaintiff kept incommunicado for 10 days - General damages of P40,000.00 awarded and ordered that copy of the judgment to be forwarded to the Commissioner of Police. MATERE v. THE ATTORNEY - GENERAL [1994] B.L.R. 482 (HC), Martin Horwitz J Wrongful arrest and false imprisonment Onus to justify the arrest and detention Section 28(b) of the Criminal Procedure and Evidence Act (Cap. 08:02) does not clothe the police with powers to arrest arbitrarily without warrant - Reasonable grounds required to suspect the commission of any of the offences specified in section 28(b)(i), (ii) and (iii) of the Act. MOSANINDA v. THE ATTORNEY - GENERAL [1994] B.L.R. 411 (HC), Aboagye J DEBTOR AND CREDITOR Credit bureaux Blacklisting by Infringement of personality rights - Right to privacy not inviolable and may be waived by consent - Effect of agreement to this effect in a credit agreement. SETLHAKE v. RELYANT RETAIL BOTSWANA (PTY) LTD and Another [2005] 1 B.L.R. 446 (HC), Marumo J Debt Surety and co - principal debtor Summary judgment - Claim of benefit of division - Whether surety and co - principal debtor entitled to benefit of division. CONSTRUCTION SUPPLIES AND SERVICE (PTY) LTD v. GREENWOOD [1987] B.L.R. 479 (HC), Lawrence AJ Debtor and creditor Payment by debtor to his creditor's creditor When payment discharging debt owing by debtor to creditor - Creditor's affair advantageously managed by debtor - Payment operating to benefit of creditor - Appellant paying one of respondent's creditors without consent or knowledge of respondent - Respondent having number of creditors - Payment made by appellant disabling respondent from paying other creditors - Whether payment beneficial to respondent - Whether respondent's affair advantageously managed by appellant. MASIKE v. RAMOKWENA [1998] B.L.R. 433 (CA), Schreiner J, Tebbutt JA and Beck AJA Imprisonment for debt Application for Proof of amount claimed - Plaintiff unable to prove entitlement to amount claimed - Whether entitled to order for imprisonment of defendant. BARCLAYS BANK OF BOTSWANA LTD v. MPUISANG [2000] 1 B.L.R. 481 (HC), Nganunu CJ Judgment debt Collection commission Not granted in judgment - Whether claimable. BARCLAYS BANK OF BOTSWANA LTD v. MPUISANG [2000] 1 B.L.R. 481 (HC), Nganunu CJ PRINCIPAL AND SURETY Surety Action on suretyship - Defences open to surety - That payment of loan secured by suretyship made not to principal debtor but to someone else to detriment of principal debtor - Effect of disassociation by principal debtor of facts which would establish defence. BARCLAYS BANK OF BOTSWANA LTD v. CHINGAPANE [2002] 1 B.L.R. 511 (HC), Lesetedi J DEEDS AND DOCUMENTS Authentication Extradition proceedings Documents to be authenticated in terms of Authentication of Documents Act (Cap. 14:02). CHALIRA v. THE REPUBLIC OF MALAWI [1998] B.L.R. 256 (HC), Nganunu CJ DEFAMATION Liability for Plaintiff alleging in particulars that defendant told third party about defendant that he `went to sleep with her, and she cried, but she was still too young' Statement uttered in Setswana - Plaintiff's and third party's evidence however that defendant had said he had `sexual intercourse' with plaintiff - Plaintiff having failed to lead evidence upon which court entitled to find for her - Absolution from instance granted. NKWE v. MOSIME [1995] B.L.R. 384 (HC), Aboagye J Corporation Trading corporation Action for defamation - Pleading - Plaintiff in paragraph 13 of its declaration claiming damages for injury to its good name and reputation - Plaintiff in paragraph 14 of declaration claiming additional damages for injury to its dignity - Whether claim in respect of dignity sustainable. ATTORNEY - GENERAL v. GHANZI HOTEL (PTY) LTD, CA [1985] B.L.R. 607 (CA), Maisels P, O'Brien Quinn CJ, Baron JA, Aguda JA, and Kentridge JA Action for defamation - Pleading - Averment of injury to business or reputation - Matter of good pleading - Failure to plead injury to business or trading reputation - Whether fatal. ATTORNEY - GENERAL v. GHANZI HOTEL (PTY) LTD, CA [1985] B.L.R. 607 (CA), Maisels P, O'Brien Quinn CJ, Baron JA, Aguda JA, and Kentridge JA Court proceedings Affidavit Allegation in affidavit of misappropriation of funds by plaintiff - Plaintiff claiming allegation defamatory - Ex facie defamatory, having to be justified - Based on reasonable and probable cause and made in context of judicial proceedings - Statements published in course of judicial proceedings privileged - Onus resting on plaintiff of proving on a balance of probabilities of defendant being actuated by malice or improper motive. GOODFELLOW v. PAXINOS and Another [2001] 1 B.L.R. 179 (HC), Mosojane J Plaintiff alleging affidavit having innuendo of dishonesty - Plaintiff admitting dishonesty in certain respects - No injury to reputation and none to protect. GOODFELLOW v. PAXINOS and Another [2001] 1 B.L.R. 179 (HC), Mosojane J Damages Assessment Award of unnecessarily large amounts not to be encouraged. KGAFELA v. MAOTO [1992] B.L.R. 256 (CA), Amissah P, Bizos JA, and Schreiner JA Award Factors for consideration. MULWA v. MOSIENYANE [1984] B.L.R. 138 (HC), Hannah J Mitigation Newspaper article published by appellant alleging respondents practising racial discrimination - Respondents alleging article malicious and defamatory of them - Defence of justification and fair comment - Oral evidence to prove acts of discrimination as evidence in mitigation - Trial judge ruling evidence inadmissible - Nature of evidence admissible in mitigation. ATTORNEY - GENERAL v. GHANZI HOTEL [1986] B.L.R. 178 (CA), Maisels P, Amissah JA and Van Winsen JA Quantum of Petition circulated to press for removal of business from market. CHICOLE v. CHATSAMA and Another [1995] B.L.R. 485 (CA), Aguda JA, Schreiner JA and Lord Cowie JA Plaintiff a senior High Court judge of whom it was alleged that he had misappropriated money from his previous practice as an attorney - Fact of plaintiff's status an important factor - Apology made but only some time later - Award of P250,000. DIBOTELO v. SECHELE and Others [2001] 2 B.L.R. 588 (HC), Chatikobo J Declaration Words complained of Words per se defamatory - Defendant not denying defamatory nature of words used - Plaintiff a medical doctor - Defendant alleging plaintiff to be womaniser and abortionist - Serious imputation. MULWA v. MOSIENYANE [1984] B.L.R. 138 (HC), Hannah J Defamatory matter Newspaper article Strict liability for publication of defamatory matter - Defendant not liable if defamatory matter published being true and for public benefit or lawful as being fair comment. GHANZI HOTEL (PTY) LTD and Others v. ATTORNEY - GENERAL (No 2) [1985] B.L.R. 452 (HC), Hannah J Test for determining defamatory imputation - Imputation tending to lower plaintiff in estimation of ordinary, right - thinking persons or injury to reputation in his trade - Meaning of `right - thinking person' - Reasonable newspaper reader of normal intelligence and development - Newspaper article alleging plaintiffs' retrenching black staff on pretext of redundancy and replacing staff with others on basis of colour - Whether article imputing racial discrimination by plaintiffs. GHANZI HOTEL (PTY) LTD and Others v. ATTORNEY - GENERAL (No 2) [1985] B.L.R. 452 (HC), Hannah J Proof Nature of proof - Proof on balance of probability - Alleged words spoken defamatory per se - Denial by defendant of uttering alleged words - Onus on plaintiff of proving uttering of alleged words by defendant. NGOPE v. O'BRIEN QUINN (No 2) [1987] B.L.R. 398 (HC), Trengove AJ Publication of defamatory matter Defendant publishing minute imputing mismanagement of Council's resources by plaintiff acting unlawfully and committing acts of indecency, immorality and adultery in Council offices - Whether statements made in minute defamatory of plaintiff - Whether statements constituting an insult to plaintiff. MASIPA v. LESHOPE [1991] B.L.R. 133 (HC), Livesey - Luke CJ Defence Plea of justification and publication in the public interest Failure of defendant to substantiate allegations - Disclosure of past misdeeds of plaintiff by defendant - Whether disclosure any benefit to the public. MULWA v. MOSIENYANE [1984] B.L.R. 138 (HC), Hannah J Privilege Animus injuriandi - Communication of defamatory matter by Chief Justice to Acting Chief Magistrate - Nature and purpose of statement - Whether statement made for purpose of unburdening one's mind - Whether statement privileged. NGOPE v. O' BRIEN QUINN [1988] B.L.R. 121 (CA), Maisels P, Amissah JA, and Van Winsen JA Animus injuriandi - Nature of onus to establish plea - Proof on balance of probability - Communication of defamatory matter by Chief Justice to Acting Chief Magistrate - Whether alleged defamatory matter made on privileged occasion. NGOPE v. O'BRIEN QUINN (No 2) [1987] B.L.R. 398 (HC), Trengove AJ Defendant allegedly communicating defamatory matter about plaintiff - Plaintiff contending words prima facie defamatory - Defendant raising defence of privilege - Plaintiff contending defendant acting maliciously therefore waiving privilege - Whether plaintiff discharged onus of proving defendant acting with malice - Whether defence of privilege sustainable. KGAFELA v. MAOTO [1991] B.L.R. 222 (HC), Martin Horwitz AJ Defence of rixa Damages awarded Costs of action. MOSIEMAN v. MASWABI 1977 B.L.R. 92 (HC), Edwards J Defences Fair comment By newspaper - Newspaper having no greater right to make a comment upon a public officer than an ordinary citizen would have. KHIMBELE v. SEBONEGO and Others; CAPHERS v. SEBENEGO and Others [2001] 2 B.L.R. 105 (HC), Lisimba J To be justified as fair comment, a comment had to appear as a comment and not be mixed up with the facts so that the reader could not distinguish between them. KHIMBELE v. SEBONEGO and Others; CAPHERS v. SEBENEGO and Others [2001] 2 B.L.R. 105 (HC), Lisimba J Free speech protected by Constitution Right to freedom of speech in section 12 of Constitution subject to other laws designed to protect the reputation of other people. KHIMBELE v. SEBONEGO and Others; CAPHERS v. SEBENEGO and Others [2001] 2 B.L.R. 105 (HC), Lisimba J Qualified privilege Substantial inaccuracy not privileged at common law - A positive misdescription was a question not of opinion but of fact and fell beyond the limits of fair criticism. KHIMBELE v. SEBONEGO and Others; CAPHERS v. SEBENEGO and Others [2001] 2 B.L.R. 105 (HC), Lisimba J Evidence Injury Failure of plaintiff to call evidence of actual injury sustained - Effect - Whether plaintiff bound to prove actual loss or damage sustained. MULWA v. MOSIENYANE [1984] B.L.R. 138 (HC), Hannah J Parties Right to sue Corporation - Trading corporation - Action for defamation - Whether trading corporation right to sue for general damages for defamation. ATTORNEY - GENERAL v. GHANZI HOTEL (PTY) LTD, CA [1985] B.L.R. 607 (CA), Maisels P, O'Brien Quinn CJ, Baron JA, Aguda JA, and Kentridge JA Pleading Alleged defamatory statement not in English Plaintiff to provide literal English translation of alleged defamatory statement in particulars of claim - Defendant and his legal representative however having understood meaning of original words complained of - Defendant not entitled to hide behind plaintiff's failure to effect literal translation of statement - Defect curable by amendment to particulars - Plaintiff's failure to provide literal translation condoned. NKWE v. MOSIME [1995] B.L.R. 384 (HC), Aboagye J Pleadings Defence Justification - Fair comment - Defendant need to prove truth of defamatory statement of facts - Facts commented on to be substantially true - Failure to justify serious imputations. GHANZI HOTEL (PTY) LTD and Others v. ATTORNEY - GENERAL (No 2) [1985] B.L.R. 452 (HC), Hannah J Justification - Fair comment - Necessity of distinguishing between two defences - Test of ascertaining Parts of article being assertions of fact and parts being made of comment - Determination depending on understanding of ordinary newspaper reader. GHANZI HOTEL (PTY) LTD and Others v. ATTORNEY - GENERAL (No 2) [1985] B.L.R. 452 (HC), Hannah J Justification - Qualified privilege - Defendant to prove truth of defamatory statement - Statement to be for public benefit - Statement to be substantially true - Defence not to be by improper motive. MASIPA v. LESHOPE [1991] B.L.R. 133 (HC), Livesey - Luke CJ Exceptions Plaintiff alleging having been defamed by defendant of commission of criminal offence - Request by defendant for further particulars of exact words allegedly uttered by him - Failure of plaintiff to set out exact words as requested - Rules relating to pleadings - Party to plead all material facts relied on for claim or defence - Effect of absence of actual words used - No cause of action - Rules of the High Court (Cap. 04:02) (Sub. Leg.) (1973 Rev.), Ord. 14, r. 3. MHIEMANG v. PILANE [1989] B.L.R. 364 (HC), Livesey Luke CJ Material facts Pleading to state accurately date of publication of words complained of and names of persons to whom words published - Pleadings defective in every material particular - Whether appellant entitled to judgment. CHICOLE and Others v. FRANCISTOWN TOWN COUNCIL [2000] 2 B.L.R. 171 (CA), Aguda J, Korsah J and Kumleben JA Privilege Qualified privilege Privileged occasion - Excess of privilege - Publication in pursuance of duty - Extent of privilege. KGAFELA v. MAOTO [1992] B.L.R. 256 (CA), Amissah P, Bizos JA, and Schreiner JA Publication Requirements for Not necessary in every case to prove that words complained of brought to actual knowledge of third person - Sufficient if it can be reasonably inferred that words brought to third person's knowledge. GOBUDILWE and Another v. SHAOBUYE and Another [1993] B.L.R. 56 (HC), Mokama CJ Slander Privilege Qualified privilege - Remarks made by appellant at meeting - Statement alleging corruption on part of respondent - Meeting convened by appellant - No prior intimation of meeting being convened to discuss alleged corruption on part of respondent - Whether remark of appellant made on privileged occasion. MONYAMANE v. ANDERSON [1987] B.L.R. 270 (HC), Murray J Statement Defamatory statement Meaning - Statement injuring person by lowering him in estimation of reasonable and right - thinking members of public generally. KGAFELA v. MAOTO [1992] B.L.R. 256 (CA), Amissah P, Bizos JA, and Schreiner JA What constitutes Plaintiffs referred to as witches, as opposed to witchdoctors Such constituting defamation. GOBUDILWE and Another v. SHAOBUYE and Another [1993] B.L.R. 56 (HC), Mokama CJ DELICT. See also NEGLIGENCE Actio injuriarum Dignitas Principles governing action - Duty to plead injury to dignity - Effect of failure to plead. MUIR v. JANUARY [1990] B.L.R. 388 (HC), Livesey Luke CJ Action for damages Breach of contractual relationship Such not per se giving rise to claim in delict. BCL LTD v. TRENGOVE NO and Another [2002] 1 B.L.R. 221 (HC), Collins AJ Unlawful act Patrimonial loss - Causation - Proof - Necessity of establishing causal connection between unlawful act committed by appellant and damages suffered by respondent - Revocation of respondent's security permit by appellant - Termination of respondent's employment consequent upon revocation of permit - Failure to apply audi principle before revoking permit - Act of revoking permit unlawful - Whether if audi principle had been applied respondent's permit would probably not have been revoked and employment not probably terminated - Onus of proof on respondent - Whether onus discharged by respondent. DEBSWANA DIAMOND CO. (PTY) LTD v. MOMPATI [2001] 1 B.L.R. 222 (CA), Korsah, Kumleben and Zietsman JJA Adultery Claim for damages for loss of comfort, society and services Defendant conducting adulterous relationship with plaintiff's husband since 1986 - Plaintiff and her husband nevertheless continuing to cohabit together - Plaintiff thereby condoning husband's adultery - Plaintiff having previously been awarded P4 000 by customary court for defendant's adultery - Present claim for damages for continuing adultery after customary court's award - Plaintiff and husband still cohabiting - No damages for loss of consortium - As to damages for contumelia greater part of plaintiff's hurt suffered in initial stage of affair - Damages for continuation of adulterous affair minimal - Plaintiff awarded P500. MASALILA v. MAKAKA [2003] 1 B.L.R. 544 (HC), Kirby J Assault Defence Justification - Section 17 of Penal Code (Cap. 08:01) - Principles to be applied set out - Penal Code (Cap. 08:01), s. 17. SEKGEE v. ATTORNEY - GENERAL and Others [1993] B.L.R. 315 (HC), Gyeke - Dako J Self - defence - Onus on defendant. SEKGEE v. ATTORNEY - GENERAL and Others [1993] B.L.R. 315 (HC), Gyeke - Dako J Damages Actio de pastu Basis of liability - Plaintiff's crops damaged by defendant's cattle - Whether defendant liable for damages - Extent of liability. KGOPO v. KETSITLILE [1988] B.L.R. 283 (HC), Livesey Luke CJ Action for Against police - Incorrect recordal of name of third party insurer at accident scene - Information required to enable injured party to claim from third party insurers - Incorrect information provided to injured party resulting in prescription of claim - Plaintiff contributorily negligent in not contacting owner of vehicle - Damages awarded against police. MOITSHEPI v. THE ATTORNEY - GENERAL [1996] B.L.R. 997 (HC), Levy AJ Adultery Loss of consortium and injuria - Husband deserted wife and lived with another woman - Whether wife entitled to bring action for loss of consortium and injuria against woman who violated her marriage rights - Effect of traditional customs in assessing whether plaintiff dilatory in bringing action. MEDUPE v. BAAKANYANG [1996] B.L.R. 612 (HC), Mokama CJ Loss of consortium and injuria - Quantum of - Husband having deserted wife and going to live with defendant for 20 years - Plaintiff probably saddled with having to look after husband for rest of life. MEDUPE v. BAAKANYANG [1996] B.L.R. 612 (HC), Mokama CJ Assessment Actuarial evidence - Whether expert actuarial evidence essential in claim for damages. ARCHIBALD v. ATTORNEY - GENERAL [1989] B.L.R. 421 (HC), Livesey Luke CJ Quantum of damages - Claim for medical expenses - Future medical expenses - Medical doctor estimating life expectancy - Whether doctor competent to make actuarial estimate. MAZHINYE v. MOYO [2001] 1 B.L.R. 241 (CA), Tebbutt, Kumleben and Sir John Blofeld JJA Quantum of damages - Claim for medical expenses - Past medical expenses - Whether past medical expenses to be proved - Effect of merely stating the expenses and not proving them. MAZHINYE v. MOYO [2001] 1 B.L.R. 241 (CA), Tebbutt, Kumleben and Sir John Blofeld JJA Quantum of damages - Loss of support - Method of assessment - Factors to be taken into consideration - Vicissitudes and uncertainties of life. ARCHIBALD v. ATTORNEY - GENERAL [1989] B.L.R. 421 (HC), Livesey Luke CJ Defamation Quantum - Letter containing defamatory matter seen by small number of people who would not easily be influenced by unsubstantiated allegations - Injury to reputation minimal - P5 000 damages awarded. MONYENA v. GAMBULE [2004] 1 B.L.R. 102 (HC), Marumo J For medical maltreatment Medical practitioner's duty to give emotional support - When such duty arising - In cases of treatment for