MOSALA v. THE STATE 1991 BLR 212 (HC)
1991 BLR 212 (HC)
High Court, Lobatse
May 31, 1991
Advocate Camp for the appellant.
G. G. Rabasha, State Counsel, for the respondent.
procedure - Evidence - Witness - 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 C 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.
Criminal procedure - Sentencing - Factors for consideration - Person,
character and circumstances of crime - Determination of quantum of punishment
to bear relationship to moral blameworthiness of accused.
was charged with the offence of theft by a person employed in the public
service contrary to section 281 as read with section 269 of the Penal Code
(Cap. 08:01). He was convicted of 13 out of the 18 counts, he was charged with
and sentenced to six years' imprisonment with two years conditionally
suspended. The accused was employed as an accounts clerk at the High Court in
Lobatse and his duties included, inter alia, E
the preparation of payment vouchers and payment of sums of money from
government coffers to entitled beneficiaries. He prepared various payment
vouchers which were effected to him at the Revenue Office, in his capacity as a
paying officer of the Department of Administration of Justice for and on behalf
of the beneficiaries. The accused then dishonestly misappropriated these sums
of money received by him which never reached the legitimate payees. He appealed
against his conviction and sentence on the grounds inter alia that: (a)
the F magistrate erred in relying on
the evidence of the prosecution's fifth witness when such evidence was
improperly before the court and prejudicial in nature to the appellant in his
defence; (b) the magistrate erred in not taking into account that the
evidence adduced by the State was in effect a single witness evidence, and in
not applying the cautionary rule in question; and (c) the magistrate
erred in finding that the State had proved its case beyond reasonable doubt. G
a trial court is entitled to call or recall a witness to give evidence at any
stage of the proceedings if such witness's evidence appears to it essential for
the purpose of arriving at a just decision in the case. However, evidence
available ab initio to the prosecutor, the relevance of which does not arise ex
improviso and which remedies a defect in the prosecution's case is
inadmissible. In the instant case, the prosecution's fifth witness was not
recalled to give evidence on matters which the prosecution had belatedly
introduced into the case H against the accused. His
evidence was not therefore, improperly before the court. R. v. Sullivan 
1 K.B. 47, C.C.A.; R. v. McKenna (1956) 40 Cr. App. R. 65, C.C.A.; R.
v. Wallwork (1958) 42 Cr. App. R. 153, C.C.A.; R. v. Cleghorn (1967)
51 Cr. App. R. 291, C.C.A. and R. v. Joseph (1971) 56 Cr. App. R. 60,
(2) A court
may convict an accused on the single evidence of any competent and credible
witness. Despite the massive evidence adduced against the accused
1991 BLR p213
the court in
the instant case, was cautious to advert its mind to the cautionary rule when
dealing with the A evidence of the revenue
officers who deposed to paying out various sums to the accused. R. v.
Mokoena 1932 O.P.D. 79; R. v. Abdoorham 1954 (3) S.A. 163; R. v.
Mokoena 1956 (3) S.A. 81 (A.D.) and R. v. T. 1958 (2) S.A. 676
(3) A court
sitting in its appellate capacity will not lightly interfere with the decision
of the lower court except where B it takes the view that there
is, in all the circumstances, a substantial doubt in regard to the correctness
of the conviction. The evidence against the accused in the instant case was
the gravity of a crime and the interests of society, the most important factors
in determining the sentence are the person, the character and the circumstances
of the crime. Determination of an equitable C
quantum of punishment must bear a relationship to the moral blameworthiness of
the accused. The sentence imposed on the accused in this case was excessive. S.
v. Dualvani 1978 (2) P.H.H. 176 (0) applied.
(1) R. v. Sullivan  1 K.B. 47;  All E.R. Rep. 31;
27 Cox C.C. 187; 16 Cr. App. R. 121, C.C.A. D
(2) R. v. McKenna (1956) 40 Cr. App. R. 65, C.C.A.
(3) R. v. Wallwork (1958) 42 Cr. App. R. 153, C.C.A.
(4) R. v. Cleghorn  2 Q.B. 584; [ 1967] 2 W.L.R. 1421;
 1 All E.R. 996; 51 Cr. App. R. 291, C.A.
(5) R. v. Joseph (1971) 56 Cr. App. R. 60, C.A.
(6) R. v. Mokoena 1932 O.P.D. 79. E
(7) R. v. Abdoorham 1954 (3) S.A. 163.
(8) R. v. Mokoena 1956 (3) S.A. 81 (A.D.).
(9) R. v. T. 1958 (2) S.A. 676.
(10) R. v.Bellingham 1955 (2) S.A. 566 (A.D.).
(11) S. v. Dualvani 1978 (2) P.H.H. 176 (0). F
(12) S. v. Matoma 1981 (3)
S.A. 838 (A.D.).
(13) S. v. Clausen 1982
(1) P.H.H. 484 (A).
against conviction and sentence in a case in which accused had been convicted
of the offence of theft by a person employed in the public service contrary to
section 281 as read with section 269 of the Penal Code (Cap. 08:01). The facts
are sufficiently stated in the judgment. G
Camp for the appellant.
Rabasha, State Counsel, for the respondent.
Dako J. This is an appeal against conviction and sentence. H
appellant, who for purposes of this appeal shall hereinafter be referred to as
"the accused" was after a plea of not guilty, tried by the chief
magistrate, sitting at the Magistrate's Court, Lobatse, on a summons containing
18 counts. Each of these counts charged him with theft by a person employed in
the public service in contravention of section 281 as read with section 269 of
the Penal Code (Cap. 08:01); and it was stated in its particulars of offence
that he stole the sum stated therein by virtue of his
1991 BLR p214
as a Senior Administrative Assistant at the High Court, Lobatse. A
He was, at
the end of the trial on 9 June 1989, found guilty and convicted on 13 out of
the 18 counts, i.e. counts 1, 2, 5, 6, 8, 9, 10, 12, 13, 14, 15, 16 and 18, and
sentenced to six years' imprisonment on each of the counts on which he was
convicted. Two years of the six years' custodial sentence imposed in respect of
each of the 13 B counts on which the accused
was convicted were conditionally suspended. Furthermore, the custodial
sentences were ordered to run concurrently.
which was accepted by the learned chief magistrate and on which the accused's
convictions were based has been carefully and exhaustively spelt out in the
judgment of the court a quo and I need not set them out in extenso. C
stated, the accused was at the material time a public officer employed as an
accounts clerk at the High Court, Lobatse. His substantive rank as noted
earlier, was that of Senior Administrative Assistant. As an accounts clerk, his
duties included, inter alia, the preparation of payment vouchers and payments
of sums of money from government coffers to entitled beneficiaries. D
case was in the main, based on various payment vouchers allegedly prepared by
the accused and exhibited to prove that payments had actually been effected at
the revenue office in Lobatse to the accused in his capacity as a paying
officer of the Department of Administration of Justice for and on behalf of the
beneficiaries, and that the accused dishonestly misappropriated these sums of
money so received by him. These sums of E money therefore
never reached the legitimate payees.
in his defence said that he was not the only paying officer during the period
covered by the summons, that is, between 1985 and 1987, but that there were two
others. They all worked immediately under Miss Nthate, a Senior Administration
officer transferred to the Department of Administration of Justice and attached
to the High Court, Lobatse. The accused admitted preparing 11 out of 18 payment
vouchers exhibited F before the court and forming
the subject-matter of the respective counts laid in the summons.
pertinent to note that, in the course of the proceedings before the court a
quo, Mr. Masoba, learned counsel who appeared for the accused, in pursuance
of section 270 (1) (now section 273 (1)) of the Criminal Procedure G
and Evidence Act (Cap. 08:02) made the following admissions as reflected at p.
72 of the record of proceedings:
"The defence is prepared to
and hereby makes the following admissions:
(1) A statement made by John David Williams of the firm Minchin
& Kelly and the affidavit made by same attorney to the effect H that the sum of P4,267 was
never received by the firm, and in addition moneys in respect of payment
voucher attached to and referred to in the said affidavit.
(2) In the same terms, the statement and affidavit of David Newman of
Kirby, Helfer and Newman.
1991 BLR p215
(3) In the same terms, the affidavit of Attorney Rahim Khan in
respect of id. 3 page 13. A
(4) In the same terms, the affidavit of attorney Lizo Ngcongco (id.
(5) In the same terms, a police statement of Neil Armstrong (exh.
legal effect of these admissions was to relieve the prosecution from the onus
of proving that the B alleged payees never received
the sums of money purported to have been paid to them and that the documents
evidencing those payments therefore told a lie about themselves.
On 14 June
1989, the accused, by his attorneys filed seven grounds of appeal against his
convictions and sentences. These original grounds were however superseded by 11
amended grounds couched in the following terms: C
"(a) The learned magistrate erred in allowing the
recall of PW5 when in law he was not empowered to do so;
(b) The learned magistrate erred in relying on
the evidence of PW5 witness upon recall when such evidence was improperly
before the court and prejudicial in nature to the appellant in his defence; D
(c) The learned magistrate erred in finding
that the revenue officers had paid money directly to the appellant when in
their evidence the aforesaid officers unequivocally accepted that they assumed
that payment would have ordinarily been made to the appellant as he was a
(d) The learned magistrate failed to reconcile
the evidence of revenue officers with the uncontroverted evidence of the
appellant that he was not the only paying officer at the High Court at the
material time with particular reference to the issues referred E to in paragraph (c)
(e) The learned magistrate erred in finding
that it was the appellant who falsified the payment vouchers without the
knowledge or acquiescence of the authorizing officers when the PW2 specifically
admitted under cross-examination that in all cases F where the appellant completed
the vouchers, he did so on instructions either verbal or written;
(f) There was no evidence in the prosecution
case that the completed vouchers were ever handed back to the appellant after
authorization, and to conclude thus will be mere conjecture; G
(g) The record as a whole is incoherent and unclear,
and there is insufficient recorded evidence on the part of the State to support
(h) The learned magistrate erred in not taking
into account that the evidence adduced by the State was in effect single
witness evidence, and in not applying the cautionary rule in question; H
(i) The learned magistrate erred in finding
that there were any improbabilities in the version of the accused, and in not
finding that the accused was a credible witness;
(j) The learned magistrate erred in finding
that the State had proved its case beyond reasonable doubt.
(k) The sentence imposed was so severe, regard
being had to all circumstances of the case, as to induce a sense of
1991 BLR p216
It could be
discerned that most of the grounds are either no grounds of appeal at all or
are repetitive and it is of A little wonder therefore that
learned counsel for the accused lumped and argued them together.
the arguments presented by Mr. Camp before this court, it appears to me that
three main issues are raised on this appeal.
whether the learned trial chief magistrate was in law entitled to allow the
recall of the prosecution's fifth witness to give evidence and the prejudice
caused to the accused in his defence through the reliance placed by B
the court a quo on this witness's evidence in convicting the accused.
that the magistrate erred in not applying the cautionary rule since the
accused's conviction was based on the evidence of a single witness.
whether upon the evidence before the court, it was erroneous for the trial
magistrate to hold that the State had proved its case to the standard required
in criminal trials, that is, beyond reasonable doubt. C
the issues raised seriatim, I find the learned counsel for the accused's
submissions on the first issue unconvincing. In the first place, it is too
broad a proposition to state that a trial court is not legally entitled, suo
motu, to call or recall a witness to give evidence at any stage of the
proceedings if such witness's evidence appears to it essential for the purpose
of arriving at a just decision in the case. Under our laws, the power of a D
trial court to call or recall a witness is borne out by the provisions of
section 201 of the Criminal Procedure and Evidence Act (Cap. 08:02) which state
"The court may at any stage
subpoena any person as a witness or examine any person in attendance though not
subpoenaed as a witness, or may recall and re-examine any person already
examined; and the court shall subpoena and examine or recall and E re-examine any person if his
evidence appears to it essential for the purpose of arriving at a just decision
of the case."
doubts that the discretionary power so vested in the court should be exercised
with circumspection and F that an appellate court will
not interfere with the exercise of the discretion unless it appears to it that
an injustice has thereby resulted to the accused: see R. v. Sullivan
 1 K.B. 47, C.C.A.; R. v. McKenna (1956) 40 Cr. App. R. 65 ,
C.C.A.; R. v. Wallwork (1958) 42 Cr. App. R. 153, C.C.A.
rule as I understand it is that, matters probative of the accused's guilt
should be adduced as part of G the prosecution's case; and
that evidence available ab initio to the prosecution, the relevance of
which does not arise ex improviso, and which remedies a defect in the
prosecution's case is, prima facie, inadmissible. This is even more so, when
the evidence sought to be adduced is not to rebut issues raised on the
accused's defence, as for example an alibi, but relates to a branch of the case
on which the prosecution ought to have realised that H
positive evidence ought to be given and that without that piece of evidence, a
trier of fact would have acquitted: see R. v. Cleghorn (1967) 51 Cr.
App. R. 291; R. v. Joseph (1971) 56 Cr. App. R. 60, C.A. Even
though in all cases where an application is made to adduce fresh evidence, the
judge or magistrate is not limited in the exercise of his discretion, yet such
discretion must be exercised judicially and obviously not to the prejudice of
the accused person.
1991 BLR p217
Now, on the
facts of this case, can it be seriously contended that the prosecution's fifth
witness - Superintendent A Kennel Kekgonegile was stricto
sensu, recalled to give evidence on matters which the prosecution belatedly
introduced into the case against the accused? I think not. The facts disclosed
that all the documents put in for purposes of identification were stolen from
the custody of Kennel Kekgonegile who was the police investigating officer in
the case before they could be exhibited through him. It should be noted that
Kennel Kekgonegile was a B witness in the main case.
Since the State's case principally rested on the missing documents, they
rightly sought to rely on photocopies of the missing documents. Surely, such
secondary evidence could only be adduced from the photocopies after the absence
of the original had been satisfactorily explained to the court. It is
abundantly clear from the record that it was for the sole purpose of testing
the admissibility of these photocopies C that Kennel Kekgonegile
testified at the first instance. It was after the documents had been admitted
and evidence relating to them received from other witnesses that Kennel
Kekgonegile took his turn to depose on the merits of the case. The important
thing to note is that Kennel Kekgonegile as a material witness to the State's
case gave his evidence before the prosecution closed its case. I see nothing
wrong with the procedure adopted D in this case. In fact, it was
the right procedure to follow.
to me that the procedure followed in this case is in no way different from that
to be adopted in a voir dire or a trial-within-a-trial to determine the
admissibility or otherwise of an accused's confession statement, whereby, a
witness called to testify in a voir dire is not precluded from giving further
evidence touching on the E merits of the case at an
appropriate time. There can be no quarrel with the procedure adopted by the
trial magistrate. In my judgment, the evidence of Kennel Kekgonegile touching
on the merits of the case was properly received and this ground must
to the next issue, Mr. Camp has submitted that the trial magistrate had been in
error in relying on F the evidence of a single
witness to hold that payments of the various amounts were made to the accused,
and that the evidence of the other revenue officers was based on assumptions
and mere suspicions stemming from the fact that the accused was a paying
officer; and that the magistrate failed to observe that cautionary rule
attendant to circumstances where a trial court bases its findings on a single
239 of the Criminal Procedure and Evidence Act (Cap. 08:02) which deals with
sufficiency of G evidence of one witness in
criminal trials stipulates that:
"It shall be lawful for the
court by which any person prosecuted for any offence is tried, to convict such
person of any offence alleged against him in the indictment or summons on the
single evidence of any competent and credible witness: H
Provided that it shall not be
competent for any court -
(i) to convict any person of perjury on the evidence of any one
witness unless, in addition to and independent of the testimony of such
witness, some other competent and credible evidence as to the guilt of such
person is given to such court, or
(ii) to convict any person of treason except upon the evidence of
1991 BLR p218
two witnesses where one overt
act is charged in the indictment, or, where two or more such overt acts are so
charged, A upon the evidence of one witness to each overt act."
Mr. Camp did not expressly refer the court to the South African case of R.
v. Mokoena 1932 O.P.D. 79, it was obvious from his submissions that he had
in mind the statement of De Villiers J.P. in that case when B
the learned judge said at p. 80 that:
evidence of a single competent and credible witness is no doubt declared to be
sufficient for a conviction by sec. 284 of Act 31 of 1917, but in my opinion
that section should only be relied on where the evidence of the single witness
is clear and satisfactory in every material respect." C
It is to be
noted that section 284 of Act 31 of 1917 is in pari materia with our
section 239 supra. It is equally worthy of note that the passage from R. v.
Mokoena referred to supra, has been the subject of much comment and
criticism by the South African courts themselves. D
I think , a
few examples of such judicial criticism may illustrate the point I am about to
make in respect of the cautionary remarks made in the Mokoena case
In the case
of R. v. Abdoorham 1954 (3) S.A. 163 at p. 165, Broome J.P. stated: E
"Mr. Mall, for the
appellant, relied upon the case of Rex v. Mokoena, 1932 O.P.D. 79, which
held that where the Crown relied upon the evidence of a single witness who was
contradicted by the defence, the Court could only convict where the evidence of
the Crown witness was clear and satisfactory in every material respect. This
proposition has been followed in many subsequent cases but none of them in this
Court. I am very doubtful whether, as a proposition of law, it is correct. And,
in any case, I regard it F as entirely unhelpful. The Court is entitled to convict on
the evidence of a single witness if it is satisfied beyond reasonable doubt
that such evidence is true. The Court may be satisfied that a witness is
speaking the truth notwithstanding that he is in some respects an
unsatisfactory witness." G
in a case which, by coincidence, has the same name as the case in which De
Villiers J.P. had given judgment, Fagan J.A. in R. v. Mokoena 1956 (3)
S.A. 81 at p. 86 explained that the criticism of Broome J.P.:
"would be justified if the
sentence in the 1932 judgment had to be read as laying down a requirement of
law that must be strictly complied with. It is improbable, however, that De
Villiers, J.P., intended it to be read that way." H
In R. v.
T. 1958 (2) S.A. 676 (A.D.), Ogilvie Thompson A.J.A. said at p. 678 that
the cautionary remarks made in the 1932 case were equally applicable to section
256 of the 1955 Criminal Procedure Act, but that these remarks must
1991 BLR p219
be elevated to an absolute rule of law ...." It is to be noted that in South Africa,
section 256 has now been A replaced by section 208 of the
Criminal Procedure Act 51 of 1977 which omits reference to "the single
evidence of any competent and credible witness" and provides merely that
"an accused may be convicted on the single evidence of any competent
judgment, the absence of the word "credible" is of no
significance, since a conviction can only be grounded B
on the evidence of a witness or witnesses if that witness is, or those
witnesses are credible. And as pointed out by Wigmore on Evidence, vol.
III, para. 2034 at p. 262, there are "indefinite degrees in this
character we call credibility."
In my view,
there is no rule or thumb test or formula to apply when it comes to a
consideration of the credibility of C a single witness. The
credibility of a witness is a matter for a trier of fact. The trial judge or
magistrate who sits in a composite capacity of judge and jury and sees and
hears the witness must weigh his evidence, must consider its merits and
demerits, and having done so, will decide whether it is trustworthy and
whether, despite the fact that there are shortcomings or defects or
contradictions in the testimony, he is satisfied that the truth has been told.
the application of the cautionary rule does not mean that an appeal must
succeed if any criticism, D however slender, or the
witness's evidence were well founded. (See R. v. Bellingham 1955 (2)
S.A. 566 (A.D.) at p. 569). And if I may be permitted to reiterate what has
often been said: the exercise of caution must not be allowed to displace the
exercise of common sense.
reading of the record of proceedings in this case reveals positive evidence
from which the learned trial E chief magistrate rightly drew
the necessary inferences to arrive at the conclusions he did. For instance, the
prosecution's sixth witness - Miss Mpusetsang, one of the revenue officers,
deposed inter alia:
"I recognise my handwriting
on the treasury voucher No. 494/2/87. I signed this payment voucher ... Payee
are Minchin and Kelly. F Amount is P4,081.64. I know the amount was received by the
accused because he signed the payment voucher in my presence upon collection of
the money in cash."
similar positive pieces of evidence stranding the evidence of the other
treasury officers which I need G not spell out, and which if
viewed in the light of other facts deposed to by the various court officials
and other witnesses such as (the prosecution's fourteenth witness) - Bokete, justified
the conclusions arrived at by the chief magistrate.
absolutely no doubt that the learned chief magistrate was throughout alive to
the fact that the charges H before him were one of theft
and not forgery or falsification of accounts and that any reference to forgery
or falsification or any epithet in his judgment was only meant to show the
modus operandi employed by the accused in getting at the sums involved. I
therefore consider counsel's argument on this issue nothing more than an attempt
to make a mountain out of a mole. I am unimpressed by the argument on this
issue and reject it.
1991 BLR p220
massive evidence adduced against the accused, the chief magistrate was cautious
to advert his A mind to the cautionary rule
when dealing with the evidence of the revenue officers who deposed to paying
out the various sums to the accused. In not less than six pages of his judgment
he analysed and carefully evaluated the pros and cons of the evidence placed
before him, drew the necessary inferences from the primary facts proved and
expressed his satisfaction at the prosecution evidence in the following words: B
"My undoubted conclusion is
that it is the accused who presented the exhibited vouchers to the Revenue
Office Lobatse and it is the same accused who received the sums of money in
respect of such vouchers, except, for those payment vouchers bearing a doubt
and in respect of which I have found it risky to convict the accused." C
In my view,
the evidence against the accused was overwhelming, and naturally, this court
sitting in its appellate capacity, will not lightly interfere with the decision
of the lower court on facts because of the obvious advantage enjoyed by that
court in seeing and hearing the witnesses. This court can only intervene where
it takes the view D that there is, in all the
circumstances, a substantial doubt in regard to the correctness of the
conviction. I find no such doubt in this case.
is apposite to express the opinion that, there is no obligation on the State to
close every avenue of escape which may be said to be open to an accused in
criminal trials. In my view, it is sufficient for the State to produce
evidence, by means of which such a high degree of probability is raised that
the ordinary reasonable E man, after mature
consideration, comes to the conclusion that there exists no reasonable doubt
that the accused committed the offence charged. An accused's claim to the
benefit of a doubt, when it may be said to exist, must not be derived from
speculation, but must rest upon reasonable and solid foundation created either
by positive evidence or gathered from reasonable inferences which are not in
conflict with, or outweighed by the proved facts of the case. F
conclusion, the accused has failed to satisfy this appellate court that his
appeal ought to be allowed and as such, I am not prepared to interfere with the
chief magistrate's well-reasoned finding. The appeal against conviction is
the sentence of six years' imprisonment imposed on the accused in respect of
each count, I tend to G agree with Mr. Camp that it is
excessive. This is despite the fact that the sentences were made to run
concurrently. In so holding, I am aware of the principle that sentencing is
within the discretion of the presiding judge or magistrate and can only be
interfered with on illegality of the sentence or failure on the part of the
sentencing judge or magistrate to take into account vital mitigatory factors
put before him. H
prison term prescribed by the legislature for the offence of stealing by a
person employed in the public service is seven years' imprisonment. In imposing
the six-year custodial sentence on the accused, it is obvious that the learned
chief magistrate was over-influenced by the modus operandi employed by the
accused and the persistency with which he "meticulously worked out the
pattern of fraud" for the commission of offence.
1991 BLR p221
In my view,
the magistrate failed to advert his mind to the fact that each of the 13 counts
on which the accused A was found guilty and
convicted, formed a separate and independent offence by itself and therefore
punishment must not be based on the global view of the counts proved against
judgment, a convicted person must not be visited with punishment to the point
of being broken down. And as pointed out in S. v. Dualvani 1978 (2) PH
H176 (O), whatever the gravity of the crime and the interests of B
society, the most important factors in determining the sentence are the person,
the character and circumstances of the crime.
determination of an equitable quantum of punishment as has often been said,
must chiefly bear a relationship to the moral blameworthiness of the accused.
Once a court allows itself to be over-influenced by the C
seriousness of the callous way of committing the offence or sets its face to
impose a sentence to combat the increased incidence of a particular crime by
means of deterrence, retribution and removal of the offender from society in
the interests of the community, that court might inevitably be tempted to
ignore the personal circumstances of the accused that could possibly lead to mitigation
of sentence. It is for this reason that each case must be considered in the
light of the accused and his personal circumstances (see S. v. Matoma 1981
D (3) S.A. 838; S. v. Clausen
1982 (1) P.H.H. 484 (A)).
record of proceedings in the case, the accused was about 23 years of age when
he started the commission of the offences which spread over two years.
Therefore, regard ought to have been had to the weaknesses of youths of such
age and their propensity for succumbing to temptation. E
judgment, the following reasons given by the learned chief magistrate in
imposing such stiff and near-maximum punishment on the accused run counter to
all established principles of sentencing:
"Regarding the accused's
youth, competency and intelligent condition as testified by his seniors at
work, one feels tempted to allow such a young man in his prime of youth an
opportunity to utilize his sharp faculties for good of the society as Mr.
Masoba has F suggested. My serious constraint in that aspect is that the
amount stolen is substantive and the theft committed persistently over a long
period on what appears to be a meticulous worked out pattern of fraudulent
It is on account of that factor,
and his overall abuse of the trust deposed [sic.] in him by his seniors
and the Treasury cashiers at G Lobatse, that I find that a substantive term of
imprisonment is inescapable.
Accordingly the accused is
sentenced to six years' imprisonment on each of the counts ... "
In my view,
this constitutes a misdirection in considering the personal circumstances of
the accused to be H relevant only to the question
of the duration of the sentence of imprisonment.
allow the appeal against sentence in part by setting aside the four years
unsuspended prison sentence imposed by the court a quo and replace it by
two-and-half years' imprisonment.
1991 BLR p222
(1) The appeal against conviction is dismissed. A
(2) The sentence of six years' imprisonment imposed on the accused in
respect of each of the 13 counts is set aside and in lieu thereof a entence of
four-and-a-half years' imprisonment is imposed, out of which two years are
suspended for three years on condition that he commits no offence of which
theft is an element within the period of suspension. B
(3) The sentences of four-and-a-half years' imprisonment on each of
the 13 counts are to run concurrently and to be reckoned from the date of his
convictions and sentences by the court a quo, i.e. 9 June 1989.