LEGWAILA v. THE STATE 1990 BLR 260 (HC)
1990 BLR 260 (HC)
High Court, Lobatse
June 6, 1990
T. Motswagole for the appellant.
S.A. Afful, Senior Assistant Attorney-General, for the respondent.
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).
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.
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
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.
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".
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  Q.B. 92 at p. 100f applied.
(1) Keatsutswe v. The State  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  2 Q.B. 239;  1 All E.R. 1175, C.A.
(4) Hardwick Game Farm v. Suffolk
Agricultural Poultry Producers Association  1 W.L.R. 287;  1 All
E.R. 309, C.A.
1990 BLR p262
(5) Brutus v. Cozens  A.C. 854;  3 W.L.R. 521;
 2 All E.R. 1297; A 56 Cr. App. R. 799, H.L.
(6) R. v. Dunn  2
(7) Falconer v.
Pedersen  V.R. 185.
(8) Parkin v. Norman  Q.B. 92;  3 W.L.R. 523;
 2 All E.R. 583, D.C.
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.
Motswagole for the appellant.
Afful, Senior Assistant Attorney-General, for the respondent.
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.
dissatisfied with his conviction and sentence the appellant has appealed to
upon which the appellant's conviction and sentence were based appear to be
simple and D may be summarised as follows:
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.
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
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.
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.
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:
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
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.
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
cross-examination, the appellant deposed as follows:
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
we merely said that the dissidents had accused, falsely, our
Jwaneng youth of using insulting words ... " A
(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:
Offensive Conduct contrary to
section 90(1) of the Penal Code (Cap. 08:01). E
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."
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
judgment, the learned trial magistrate proceeded inter alia, as follows:
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
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
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
E Section 90(1) under which the appellant was charged
"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
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
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.
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.
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
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:
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
A their ordinary sense, and we are
therefore sent for instruction to these books."
See also Kerr
v. Kennedy  1 K.B. 409 per Asquith J. at p. 413.
pointed out by Somerville L.J. in Lee v. The Showmen's Guild of Great
Britain  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.
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  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
 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  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  V.R. 185 at p.
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.
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.
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
namely it must not be threatening; it must not be insulting; and it must not be
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.
from the last paragraph of page 8 of the judgment, the senior magistrate said:
"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
[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.
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
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 
Q.B. 92 at p. 100f.
1990 BLR p269
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
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.)
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
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
H The untenable nature of this submission lies in the fact
(a) section 90(1) falls within sections of the
Act dealing inter alia, with offences against public tranquillity and not
(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
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.
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
magistrate had only one question to decide, and that is, were the words used by
the appellant insulting?
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
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.
arrived at this conclusion, I deem it unnecessary to consider the other points
raised by the appellant in this appeal. G