LEGWAILA v. THE STATE 1990 BLR 260 (HC)

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Citation: 1990 BLR 260 (HC)
Court: High Court, Lobatse
Case No:
Judge: Gyeke-Dako J
Judgment Date: June 6, 1990
Counsel:
T. Motswagole for the appellant. S.A. Afful, Senior Assistant Attorney-General, for the respondent.
Flynote

Criminal procedure - Charge - 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.

Statute - Construction - Meaning of "abusive" or "insulting" words - Charge of using abusive and insulting  H  words, to wit: "nnywana" and "dithala" at public gathering - Whether words used abusive or insulting - Penal Code (Cap. 08:01), s. 90(1).
Headnote

The appellant, an attorney and a politician, was convicted by a magistrate of offensive conduct contrary to section 90(1) of the Penal Code. He was sentenced

1990 BLR p261

  A to a fine of P100 without a default clause. The appellant appealed to he High Court against the conviction and sentence.

It was alleged that the accused had used the Setswana words "nnywana, nnywana, nnywana" (vagina) and "dithala" (testicles) at a political rally. The particulars of the offence stated, inter alia, "used abusive and insulting word, to wit, 'nnywana' and 'dithala' whilst addressing a public political gathering".

  B The appellant admitted using those two words but contended that he did not use them in an insulting manner but that he was quoting from a source in order to put within its proper context, certain allegations made against his party by dissidents within it. The court a quo raised the question as to what constituted the mens rea of an offence under section 90(1) and held that the offence under the subsection is one of basic intent. The mere saying of the words is enough to constitute the offence without an intention to insult someone, if the words are, in the context used, insulting. Furthermore, the court a quo, relied on the full expressions used on the occasion alleged although the particulars of the offence did not include such expressions. The court a quo concluded that the   C expression in which "dithala" appeared was not insulting but the one in which "nnywana" appeared was.

The High Court raised the following questions from a perusal of the record of the trial: (a) whether section 90(1) created an offence of "offensive conduct" of which appellant was convicted; (b) in the   D context of section 90(1) what is the meaning of "insulting, abusive words or behaviour".

Held, allowing the appeal: (1) the charge was defective in that it used two words "nnywana" (vagina) and "dithala" (testicles) and not the full expression in which they respectively appear which formed the basis of the charge against the appellant. Moreover, the two words alleged to be abusive and   E insulting were contained in one count. And as up to the time of judgment, the charge sheet was not amended, the magistrate could not therefore substitute, as he purported to do, his own words or expression importing the essential ingredients which should be stated in the charge sheet or summons in order to constitute the offence charged. Furthermore, since the magistrate indicated that "there would not be a conviction" in respect of the words in which "dithala" appeared, then the charge would be bad for duplicity in that the two words, i.e. "nnywana" and "dithala" as charged in one count of the summons were not severable.

  F (2) Neither the word "nnywana" or "dithala" standing alone as they appeared in the charge sheet revealed any offence. For the use of the word "nnywana" to be an offence under section 90(1) of the Penal Code, it must be insulting or abusive and must be used in such sense. It would be a misdirection and completely out of the legislative intention to say that mere intention to say or use the word "nnywana" supplied the requisite mens rea. The mens rea is the intention to use the word   G in an insulting or abusive manner. In other words, intention to insult or abuse someone. In the instant case the appellant's use of the word "nnywana" did not evince any intention to insult anyone. In the circumstances the appellant was wrongly convicted. Parkin v. Norman [1983] Q.B. 92 at p. 100f applied.

Cases referred to:

     (1)     Keatsutswe v. The State [1990] B.L.R. 176 .

     (2)     R. v. Peters (1886) 16 Q.B.D. 636; 54 L.T. 545; 16 Cox C.C. 36, C.C.R.   H

     (3)     Lee v. The Showmen's Guild of Great Britain [1952] 2 Q.B. 239; [1952] 1 All E.R. 1175, C.A.

     (4)     Hardwick Game Farm v. Suffolk Agricultural Poultry Producers Association [1966] 1 W.L.R. 287; [1966] 1 All E.R. 309, C.A.

1990 BLR p262

     (5)     Brutus v. Cozens [1973] A.C. 854; [1972] 3 W.L.R. 521; [1972] 2 All E.R. 1297;  A  56 Cr. App. R. 799, H.L.

     (6)     R. v. Dunn [1973] 2 N.Z.L.R. 481.

     (7)     Falconer v. Pedersen [1974] V.R. 185.

     (8)     Parkin v. Norman [1983] Q.B. 92; [1982] 3 W.L.R. 523; [1982] 2 All E.R. 583, D.C.

Case Information

Appeal against conviction and sentence of an offence under section 90(1) of the Penal Code. The  B  facts are fully set out in the judgment.

T. Motswagole for the appellant.

S.A. Afful, Senior Assistant Attorney-General, for the respondent.

Judgment

Gyeke-Dako J. On 10 October 1989, the appellant was convicted by Stanley Hooper, Esquire, an Assistant Registrar, sitting as a senior magistrate in Lobatse of the offence of offensive conduct  C  contrary to section 90(1) of the Penal Code (Cap. 08:01). He was sentenced to a fine of P100 without a default clause.

Being dissatisfied with his conviction and sentence the appellant has appealed to this court.

The facts upon which the appellant's conviction and sentence were based appear to be simple and  D  may be summarised as follows:

The appellant, Obonye Legwaila is an attorney, duly registered to practise in Botswana. He is also a politician. He was, at the material time, an important member of a political party known as Botswana National Front (hereinafter referred to as BNF). He was also at the material time, the Secretary for  E  Legal Affairs; and by virtue of that position, a member of the Central Committee of the BNF.

On 23 November 1988, Police Superintendent Gaaitome Lesedi, the then Station Commander at Jwaneng and virtute officio, the Regulating Officer for Jwaneng Township, received an application from the BNF per one Shawn Ntlhaile for a permit to hold a BNF rally at the Jwaneng main Freedom Square on Sunday, 17 November 1988.  F

Superintendent Lesedi (hereinafter referred to as the first prosecution witness) duly processed the application and on 25 November 1988, issued the requisite permit in terms of the Public Order Act. The rally was held as scheduled on 27 November 1988.

In keeping with the usual police routine, the first prosecution witness, dressed in police uniform and  G  accompanied by a handful of police officers attended the rally. The audience was about 300.

The appellant was one of the speakers at the rally. In the course of his lengthy address, the appellant was alleged to have said, and I quote from the first prosecution witness's testimony before the court a quo:

     "I heard him (Mr. Legwaila) saying he met some people at Kanye who at that very moment ... he called  H  dissidents of the Botswana National Front ... were expressing concern to him that some BNF youth were referring the words 'nnywana, nnywana, nnywana.' They were referring to a Mrs. Bathobakae. In English 'nnywana, nnywana, nnywana' means 'vagina, vagina, vagina.' ... I heard Mr. Legwaila saying again that while he was in Jwaneng, he heard some groups of youngsters still saying

1990 BLR p263

GYEKE-DAKO J.

  A 'dinnywana, dinnywana, dinnywana, tseo tsa ga Mma-Bathobakae' which means 'those vaginas, vaginas, vaginas belonging to Mrs Bathobakae' ... Mr. Legwaila said that the people he called dissidents complained about a certain sentence in Pamphlet No. 1 of the BNF saying that it contains some insulting words. He mentioned those words saying 'Maburu ba tla metsa dithala,' which means 'The Boers shall swallow   B testicles.' I approached the chairman to control Mr. Legwaila so as not to use insulting words."

It is to be noted that the chairman to whom the first prosecution witness appealed was one Mr. Moses Kgomotso Gare, a Town Councillor and a BNF member. He gave evidence as prosecution witness number 3 and who for short will be referred to as the third prosecution witness. I shall later   C on refer to this prosecution witness's testimony.

In his testimony, the appellant did not deny using the words "nnywana" (vagina) and "dithala" (testicles) in his address to the gathering. His contention was that he did not use those words in an insulting manner. It was further contended on behalf of the defence that on those occasions when the appellant used or mentioned those words, he was quoting from a source. I deem it necessary to   D quote extracts from the appellant's testimony before the court a quo:

     " ... The other allegation was levelled against the youth at Jwaneng, and was that they were disrespectful of a certain Mma-Bathobakae. This particular allegation was made by Mr. Dennis Mosielele ... Mr. Mosielele   E said that the Jwaneng youth had insulted Mrs Bathobakae, by saying 'nnywana, nnywana.' The third allegation by a group known as dissidents was that Pamphlet No. 1, in particular, the Setswana version, used insulting words. I quoted the words as they appear in the Pamphlet and I now read them from page 43 and interpret them thus: 'If they do not mobilize their forces, the nation will stand up in combat against the enemy, because the nation does not have an avenue to express their views ... I further said that the   F allegation about insulting words in Pamphlet No. 1 was unfounded ... the allegation that Pamphlet No. 1 uses insulting words was unfounded by virtue of the fact that the words referred to 'metsa dithala' are only idiomatic expression meaning 'mobilising your resources against the enemy.' I said that the said words   G were used in explaining the political situation in South Africa."

Under cross-examination, the appellant deposed as follows:

     "At that point in time, the BDP (Botswana Democratic Party) and the dissidents had actually accused our youth at Jwaneng of using insulting words, and we found it pertinent to explain, in clear cut, unequivocal   H manner, the words that were actually used, so that the audience could understand the context of the unfounded allegations that were made against the BNF ... We found it necessary that the actual words used be quoted and say that our youth was being unfairly accused, using the actual words and that the audience will not appreciate the extent of the insult had

1990 BLR p264

GYEKE-DAKO J.

     we merely said that the dissidents had accused, falsely, our Jwaneng youth of using insulting words ... "  A

Mr. Gare (the third prosecution witness) confirmed in all material particular, the appellant's testimony. He understood the word "nnywana" to refer to the private parts of a little girl. The appellant, he said, used the word "nnywana" when quoting the abusive words reported to him to have been used by the dissidents in reference to Mrs. Bathobakae. He himself had once attended a  B  meeting of the dissidents within the BNF Party where the dissidents had expressed the view that the expression "Maburu ba tla metsa dithala" contained in BNF Pamphlet No. 1 was insulting. According to him, the expression complained of by the dissidents was used idiomatically and means "a man would have to work hard". That the appellant quoted the words as they appear in the  C  pamphlet. He bolstered his averments by giving examples of Setswana idiomatic expressions such as "Lerete la tsebe" which literally translated means "balls of the ear", viz. "the scrotum of the ear" but idiomatically used, means ear lobe; "nnywana ya leitlho" which literally means "vagina of the eye" but in actual fact means the "inner corner of the eye".

In view of the learned trial magistrate's pronouncements and findings and in the light of the  D  arguments advanced before this court by both counsel, I deem it necessary to set out the charge presented before the court and upon which the court proceeded:

"Statement of Offence

     Offensive Conduct contrary to section 90(1) of the Penal Code (Cap. 08:01).  E

Particulars of Offence

     The accused person, Obonye Legwaila on or about the 27th day of November 1988 at or near Central Freedom Square in Jwaneng in the Southern Administrative District used abusive and insulting words, to wit; 'nnywana' and 'dithala' whilst addressing a public political gathering."  F

The first thing to note about the charge is that it is the use of the two words "nnywana" (vagina) and "dithala" (testicles) and not the full expressions in which they respectively appear that form the basis of the charge against the appellant. The prosecution was therefore bound by the charge as framed. It is also worthy of note that these two words which the prosecution alleged to be insulting are contained in a single count.  G

In his judgment, the learned trial magistrate proceeded inter alia, as follows:

     "The State relied on two groups of words allegedly used by Mr. Legwaila, being 'dinnywana, dinnywana, dinnywana tseo tsa ga Mma-Bathobakae' and 'Maburu ba tla metsa dithala.' As to 'dithala', it was submitted  H  that the word was used idiomatically, and that was accepted, at least as a possibility, by PW2 and PW4 both of whom are Inspectors in the Botswana Police. The expression means something like 'the Boers will have to use all of their strength', rather than having a literal meaning. That being so, I indicated that there would not be a conviction in respect of any of those words. That avoids me having to consider whether the two groups of words

1990 BLR p265

GYEKE-DAKO J.

  A relied on by the State may properly be pleaded in one count, although I incline to the view they may. I observe that I have been in Botswana for almost six years, and no one thought it necessary to explain to me who are maburu, the Boers. Neither, I remark, did I hear any submission as to word is insulting."

  B It is obvious from the above observations that the learned trial magistrate completely failed to advert his mind to the charge before him. Up to the time of judgment, neither the prosecution nor the court suo motu, had caused the charge to be amended to include those words or expressions relied upon by the learned magistrate in coming to the conclusion as he did. In my view, without amending the charge the court cannot substitute its own words or expression importing the essential ingredients which should be stated in the charge sheet or summons in order to constitute the   C offence charged. Again, since the magistrate indicated that "there would not be a conviction" in respect of the words in which the word "dithala" appears, two questions seem to rear their heads. The first is whether the two words, i.e. "nnywana" and "dithala" as charged in one count of the summons are severable so as to enable a court to note convictions in respect of each? If the answer is in the affirmative, then it goes without saying that the charge as laid before the court a   D quo, was bad for duplicity. On the other hand, if as thought by the magistrate, the two words should, because of the word "and," be read conjuctively and therefore could be charged in one count, the second question is whether having found one not to disclose any offence, the magistrate was right in proceeding to convict on the remaining half? I think not, for reasons which I now proceed to give.

  E Section 90(1) under which the appellant was charged reads:

     "Any person who in a public place or at a public gathering uses threatening, abusive or insulting words or behaviour is guilty of an offence and is liable to imprisonment for six months."

  F I am not oblivious of that canon of interpretation which states that unless a contrary intention appears in a statute, words importing the singular includes the plural and vice versa, but it appears to me the word "words" as used in section 90(1) supra, is deliberate, and that neither the word "nnywana" or "dithala" standing alone as they appear in the charge sheet under consideration, reveals any offence.

  G I must not be understood to be laying a general principle that a word "nnywana" or "dithala" used to another person in a public place or public gathering can never be insulting. For one can conceive of circumstances where the use of such word alone, might be insulting. For instance, if Y, a stranger walked to a woman, Z, in a public place or public gathering and shouted the word "nnywana" to her, the word might be insulting. All that I am trying to point out is that, the full expression: "dinnywana, dinnywana, dinnywana tseo tsa ga Mma-Bathobakae" and "Maburu ba tla metsa dithala" in which the   H two words "nnywana" and "dithala" appear ought to have been spelt out by the prosecution in the particulars of offence of the summons before the magistrate could, stricto sensu, base his findings on them.

Still on the propriety of the summons before the court a quo, the question arises whether section 90(1) of the Penal Code creates a known offence of "Offensive Conduct" of which the appellant was convicted.

1990 BLR p266

GYEKE-DAKO J.

As rightly adverted to by the magistrate, the Penal Code (Amendment) Act (No. 16 of 1975)  A  amended section 90(1) of the Code in its original form. The amending Act removed from the section the words "with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned."

It is also to be noted that the amending Act, that is the Penal Code (Amendment) Act (No. 16 of  B  1975) made no alteration to the marginal or side-note to the section to reflect the new meaning of the section or the mischief sought to be cured by the Legislature.

Even though, by section 9 of the Interpretation Act (Cap. 01:04), marginal notes are intended for convenience of reference only and do not form part of the interpretation of a written law, I think this omission might have misled, both the learned prosecuting counsel and the presiding magistrate in proceeding as they did. They appear to have overlooked the fact that the offence allegedly  C  committed by the appellant could only be gathered from the provisions of the offence creating section which in this case, is section 90(1) of the Penal Code.

I shall reiterate what I said in this court's judgment in Keatsutswe and Others v. The State reported at p.191d, ante:

     "In my judgment, since the amendment in 1975, there is no offence of 'offensive conduct conducive to the  D  breach of the peace' known to our law. Certainly not under section 90(1) of the Penal Code in its present form. In my view, the offence created under section 90(1) is either 'use of threatening, abusive or insulting words, or 'behaving in a threatening, abusive or insulting manner in a public place or at a public gathering' as determined by the facts and circumstances of the case."  E

Section 90(1) requires in the circumstances of this case "use of insulting words" as the appropriate statement of offence.

It is also worthy of note that the section contains no definition of insulting or abusive words or behaviour; and indeed no words of definition are needed. The words are clear and they convey of themselves a meaning which the ordinary citizen can well understand. Every one knows an insult when he hears it. In my judgment, the determination of the meaning of an ordinary word of the  F  English language is not a question of law. The proper construction of a statute is a question of law. If the context shows that a word is used in an unusual sense, the court would determine in other words, what that unusual sense is. But here, in my opinion, there is no question of the word "insulting" or "abusive" being used in an unusual sense. It is therefore for the tribunal which decides the case to consider not as law, but as a fact, whether in the circumstances of the case, the words of the statute do or do not as a matter of ordinary usage of the English language, cover or apply to  G  the facts which have been proved.

I have been referred to a number of dictionary meanings of the word "insult" such as treating with insolence or contempt or dignity, or modesty or self-respect, dishonour or offensive disrespect or  H  derision, etc. In my judgment, the danger inherent in frequent resort to dictionaries for the meaning of words used in Acts of Parliament is apparent.

In R. v. Peters (1886) 16 Q.B.D. 636 at p. 641, Lord Coleridge C.J. said:

     "I am quite aware that dictionaries are not to be taken as authoritative exponents of the meaning of words used in Acts of Parliament, but it is a well-known rule of courts of law that words should be taken to be used in

1990 BLR p267

GYEKE-DAKO J.

  A their ordinary sense, and we are therefore sent for instruction to these books."

See also Kerr v. Kennedy [1942] 1 K.B. 409 per Asquith J. at p. 413.

But as pointed out by Somerville L.J. in Lee v. The Showmen's Guild of Great Britain [1952] 2 Q.B. 329 at p. 338, care must be taken when considering a compound expression not to look up the meaning of each word and from that construct the meaning of a phrase which may, in fact, have   B acquired a special meaning.

Of course, there is no "authoritative" dictionary and the court is free to consult whichever it pleases, provided they are English dictionaries. Thus Davies L.J. in Hardwick Game Farm v. Suffolk Agricultural Poultry Producers Association [1966] 1 W.L.R. 287 at p. 310, rejected the meaning of   C the word "poultry" as it appears in Websters Third New International Dictionary (1961) on the basis that it provided the American usage of the term "poultry" and not the English. The use of a dictionary to assist in the understanding of words used in an Act must not, however, result in the words of the Act being abandoned in favour of synonymous expressions. The legislature will have chosen a particular word and it follows that other like words must have been considered and rejected. A   D dictionary will enable the common use, the ordinary meaning, of a word to be identified. It will do this by describing the meaning through other words. It is, in my opinion, a misuse of the dictionary then to explore the meaning of other words and interpret the Act in the light of the meaning so discovered. So in Brutus v. Cozens [1973] A.C. 854 the House of Lords refused to substitute the words used in the dictionaries to define "insult" when determining whether certain conduct constituted "insulting   E behaviour". This approach was expressly followed by the New Zealand Court of Appeal in R. v. Dunn [1973] 2 N.Z.L.R. 481. I am persuaded by this approach. Nor should it be overlooked that words take their meaning from the context in which they appear. One must therefore interpret the phrase as used in its context, assisted as it may be, but not necessarily bound, by one of a variety of dictionary definitions: see Falconer v. Pedersen [1974] V.R. 185 at p. 187.

  F As noted earlier, Parliament has given no indication that the word "insulting" or "abusive" is to be given an unusual or technical meaning. It therefore appears to me that insulting is insulting and nothing else; and I find it unnecessary and indeed undesirable to attempt a definition of a word which is in general use and which presents no difficulty of application or understanding. Furthermore, it would be unwise, in my opinion, to attempt to lay down any positive rules for the recognition of insulting words, since the circumstances in which the application of the rules would be called for are   G almost infinitely variable.

The most that can be done is to lay down limits in order to ensure that the section is not interpreted more than its terms will bear; always bearing in mind that the Constitution of the land in its section 12 guarantees freedom of expression.

  H However, it is trite to say that the concept of that freedom is not absolute; and it appears to me that it is for this reason that Parliament had to solve the difficult question of how far freedom of speech or behaviour must be limited in the general public interest.

As regards section 90(1) of the Penal Code, it could be said that vigorous, and it may be distasteful, unmannerly, vulgar or offensive speech or behaviour, is permitted so long as it does not go beyond the three limits set down in the

1990 BLR p268

GYEKE-DAKO J.

section, namely it must not be threatening; it must not be insulting; and it must not be abusive.  A

In my opinion, therefore, it would, for instance be going too far to prohibit all speech or conduct which are vulgar or offensive; and where the offence is brought under section 90(1) of the Penal Code as in the instant case, notwithstanding that such vulgar or offensive words would occasion or would be likely to cause a breach of the peace through the reaction of determined opponents to silence a  B  speaker whose views they detest. This is not to say that a breach of the peace or the likelihood of a breach of the peace is a necessary ingredient under section 90(1) to be proved by the prosecution.

Thus said, I now turn to certain portions of the learned trial magistrate's judgment which appear to me to be fraught with serious errors and misdirections.

Commencing from the last paragraph of page 8 of the judgment, the senior magistrate said:  C

     "It is accepted on all sides that 'nnywana' is an insulting word in Setswana. Mr. Legwaila complained that by using it Mr. Mosielele had made a serious charge against the BNF youth in Jwaneng; a charge so serious that he Mr. Legwaila, had had to quote the word so that his audience would realise its gravity. I have to make a finding as to whether the word has to be directed to a person for the offence in section 90(1) to be  D  made out, or whether it is insulting when used generally. On 26th September I raised the question of what is the mens rea in section 90(1) offence? I concluded, having regard to its words and the cases, English and Botswana [sic.], that I have read, that that in section 90(1) of the Penal Code is a crime of basic intent. That is to say, I conclude that saying a word requires only the intention to say it, and not the intention to insult someone, to make out the offence, if the word is, in context, (contra 'dithala' when used idiomatically)  E  insulting. Furthermore, I observed that one may insult a nation, religion or a philosophy, or at least the memory thereof, that is long since dead." (The emphasis is mine.)

I shall stop here for a moment to analyse this passage from the judgment in the light of the  F  provisions of section 90(1) of the Penal Code.

To begin with, a judge or magistrate should not abdicate his responsibility of interpreting a statute just because there is an agreement on both sides. The duty of parties is to put their respective cases across. But the actual determination of the case is for the court.  G

As said earlier, the legislature, in its wisdom neither defined nor listed words inclusive of the word "nnywana" which once used qualifies as insulting or abusive. For the use of the word "nnywana" to be an offence under section 90(1); it must be insulting or abusive and must be used in such sense.

In my view, it is a misdirection and completely out of step with the legislative intention to say that mere intention to say or use the word "nnywana" supplies the requisite mens rea. In my judgment,  H  the mens rea is the intention to use the word in an insulting or abusive manner. In other words, intention to insult or abuse someone. Ordinary sense suggests that one cannot insult nothing. The word presupposes a subject and object. As was said in Parkin v. Norman [1983] Q.B. 92 at p. 100f.

1990 BLR p269

GYEKE-DAKO J.

  A   "An insult is perceived by someone who feels insulted. It is given by someone who is directing his words or his behaviour to another person or persons. When A is insulting B, and is clearly directing his words and behaviour to B alone, if C hears and sees is he insulted? He may be disgusted, offended, annoyed, angered and no doubt a number of other things as well; and he may be provoked by what he sees and hears into breaking the peace. But will he be insulted?"

  B Upon the facts of the instant case, Superintendent Lesedi (the first prosecution witness) may have been very angry and justifiably so, at the vulgar and deplorable conduct of the appellant's use of profane and offensive words, but I do not see how he or the audience can be said to have been insulted.

  C In his concluding paragraph at p. 9 of the judgment the magistrate had this to say:

     "I conclude that Mr. Legwaila used a word 'nnywana', which  is insulting, in the sense of being offensive, to many people in Botswana, that his for so doing was not such as to avoid what would otherwise be the legal consequences of such use, and that therefore the case is made out (in respect of the word nnywana only) and I convict Mr. Legwaila of the offence with which he stands charged. I add that it is my view that Mr.   D Legwaila is here because he used language in bad taste in public on 27th November, 1998 and so is guilty of an error of judgement." (The emphasis is mine.)

In my judgment, it is a gross misdirection for the magistrate to find that the word "offensive" is synonymous with the word "insulting", just as it is erroneous for him to impliedly say that the   E conviction of the appellant was based on the use of "language in bad taste in public".

I need not belabour the point that in the present day and age, there are words when used in public may be offensive without necessarily being insulting or abusive. Furthermore, there may be many manifestations of behaviour which will cause resentment or protest without being insulting or abusive.

  F It is obvious that the magistrate might have been influenced by the unamended side-note to section 90(1) of the Penal Code which reads: "Offensive conduct conducive to the breach of the peace" into thinking that the use of offensive words or behaviour constitutes an offence under the section. It certainly does not. In my view, except where the language used in bad taste in public constitutes an insult or abuse or threats, the Act does not make it criminal to "use a language which is in bad taste to the extent of being offensive" or disgusting behaviour.

  G This is why I deem it unsafe to go along with learned counsel for the State-Respondent's contention that, "the mischief which the amendment made to the section seeks to cure is to remedy the situation whereby the people of Botswana become ill-mannered, depraved and uncivilised;" and to achieve this purport, mere use of the word "nnywana" in a public place or gathering becomes an offence under the section.

  H The untenable nature of this submission lies in the fact that:

     (a)     section 90(1) falls within sections of the Act dealing inter alia, with offences against public tranquillity and not morals;

     (b)     even though, the word "dithala" (testicles) was used by the appellant in a public gathering, the magistrate found it not to be insulting because it was used idiomatically.

1990 BLR p270

GYEKE-DAKO J.

If indeed, as submitted by counsel, mere mention or use of such word in a public gathering makes it  A  an abusive or insulting and thereby an offence under section 90(1), then one would expect a cross-appeal before this court in respect of the magistrate's finding as regards the use of the word "dithala" by the appellant. But there is none.

As an illustration, it would be inconceivable, in this day and age, when there is a drive against population explosion and unabated efforts towards progressive scientific research into the human body for a family planning officer, or a lecturer in anatomy or biology or a medical doctor to incur  B  criminal liability under section 90(1) of the Penal Code, simply because he uses the word "nnywana" (vagina) or "dithala" (testicles) in the course of a public lecture. Counsel for the State-Respondent's contention that such an officer's freedom from prosecution stems from a duty to teach appears to be tenuous. In my judgment, such speaker commits no offence for the simple reason that he does not use the word in an insulting manner. His so-called "duty to teach" will undoubtedly be no answer  C  to prosecution under section 90(1) if in the course of the lecture, he becomes vituperative and uses the word "nnywana" in an insulting manner.

In my judgment, the magistrate, having found as a fact without hesitation, that when Mr. Legwaila (appellant) used the words, "nnywana, nnywana, nnywana" on 27 November last, he was quoting or purporting to quote (and whether justifiably and accurately or not is immaterial) Mosielele," the  D  learned magistrate had only one question to decide, and that is, were the words used by the appellant insulting?

In considering this question, it was necessary for him to consider whether the word or words were such as to indicate an intention to insult anyone, and if so whom? If the magistrate had done so, he might, in the light of his findings of fact that the appellant was only quoting Mr. Mosielele, well have  E  considered that the appellant's use of the word "nnywana" did not evince any intention to insult either the gathering or Mma-Bathobakae or anyone and could not properly be regarded as insulting.

For all the reasons above, I hold that the appellant was wrongly convicted. Having regard to the evidence before the court a quo, it is undoubtedly unsafe to uphold the conviction.  F

The appeal is therefore allowed. The conviction is set aside and the sentence imposed upon the appellant quashed. He is acquitted and discharged.

The fine of P100 if already paid, should be refunded to the appellant.

Having arrived at this conclusion, I deem it unnecessary to consider the other points raised by the appellant in this appeal.  G

Appeal allowed.

Appellant acquitted

and discharged.

E.K.Q.
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