AUTLWETSE v. THE STATE 2001 (2) BLR 464 (HC)

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Citation: 2001 (2) BLR 464 (HC)
Court: High Court, Francistown
Case No:
Judge: Mwaikasu J
Judgment Date: September 12, 2001
Counsel:
O. Moupo for the appellant. P. T. Mhandu for the respondent.
Flynote
Criminal law - Official corruption contrary to s. 99(a) of Penal Code (Cap. 08:01) - What constitutes - Whether party who has offered the inducement must also have intended inducement as a bribe.

Criminal law - Official corruption contrary to s. 99(a) of Penal Code (Cap. 08:01) - What constitutes - Acts constituting the alleged offence committed outside workplace and with materials which were not official materials.  F
Headnote
The applicant was charged in a magistrate's court with official corruption contrary to section 99(a) of the Penal Code (Cap. 08:01). It was alleged that he received P50 from a Zimbabwean citizen to unlawfully extend her stay in Botswana. The appellant was convicted and sentenced to a period of imprisonment. It appeared that what the  G  appellant had done in extending the visa was done outside the official place of work and by use of materials and instruments which were not official ones but ones which had been made to further his fraudulent intentions. It appeared further that the P50 paid by the prosecution witness to the appellant was not intended by the prosecution witness as an inducement to the appellant to give her an extension of her visa. 

Held: (1) It was not necessary in order to establish the offence of official corruption that the giver should also have the intention of giving the thing solicited as a bribe or inducement or consideration for what the officer had done or omitted to do or promised to do or omit to do. All that the law was concerned with and prohibited was the public officer's conduct of displaying a wrongful desire for a pecuniary gain or other advantage in the course of the discharge of his duties. Kok v. The State [1983] B.L.R. 3, distinguished. 

(2) For an offence to be established under section 99(a) of the Code, the act in question had to be done in the course of discharging one's official duties. What the appellant had done was purely a private matter and not in the course of discharging his duties. The requirement had not been met and the conviction and sentence accordingly had to be set aside. 
Case Information
Cases referred to:

    (1)    Sello v. The State [1984] B.L.R. 87
    (2)    Makgatlhe v. The State [1991] B.L.R. 53
    (3)    Monageng v. The State [1983] B.L.R. 254, C.A.
    (4)    Kok v. The State [1983] B.L.R. 3  C
    (5)    R. v. Durga 1952 (4) S.A. 619 (N)
    (6)    R v. Sesing 1940 O.P.D. 78
    (7)    R v. Ndobe 1952 (3) S.A. 562 (T)
    (8)    The State v. Nkadimeng 1962 (4) S.A. 564 (T)
    (9)    S. v. Ernest 1963 (3) S.A. 666 (T)
    (10)    S. v. Pillay 1964 (2) S.A. 385 (N)  D
    (11)    S v. Mbokatwane and Another 1970 (3) S.A. 64 (E)

APPEAL FROM a conviction and sentence in a magistrate's court. The facts are sufficiently stated in the judgment.

O. Moupo for the appellant. 
P. T. Mhandu for the respondent.
Judgment
Mwaikasu J.:

The appellant, one Motlhaleemang Autlwetse, was charged before the court a quo with the offence of official corruption contrary to section 99(a) of the Penal Code (Cap. 08:01), it being alleged that between, 26 and 30  F  December 1998, at Selebi Phikwe, in the Selebi Phikwe Administrative District of the Republic of Botswana, he corruptly received a valuable consideration, to wit, the sum of P50.00, from a Zimbabwean citizen female, one NyambeziNcube to unlawfully extend her length of stay in Botswana. He pleaded not guilty to the charge but upon  G  trial he was found guilty and convicted of such offence. He was then sentenced to nine months of imprisonment.

He is now appealing to this court against both such conviction and sentence. He is however now currently on bail pending the determination of his appeal.

The judgment of the court is impugned on the following grounds:

(a)    that the learned magistrate erred in finding that the appellant received P50.00 as a bribe while there was no sufficient evidence on record to support the finding;

(b)    that the learned magistrate erred in finding that the evidence of second prosecution witness was corroborated by that of the first prosecution witness in respect of the P50.00 allegedly paid to the appellant as bribe;

(c)    that the learned magistrate erred in relying too much on the procedural errors committed by the  A  appellant in extending Nyambezi Ncube's length of time of stay in Botswana in convicting him for official corruption.

When the appeal came up for hearing Mr Moupo, learned counsel, appeared for the appellant, while Mr Mhandu, learned Principal State Counsel, appeared for the State. 

Arguing the appeal, it has been contended by Mr Moupo, learned counsel for the appellant, inter alia, that the essence of the offence is that the appellant received some money for the purpose of inducing him to do or not to do his official duty (Kok v. The State [1983] B.L.R. 3).

It is further the learned counsel's argument that of the three prosecution witnesses the second prosecution  C  witness was the most important one, as she is the one who was present at the time of the transaction. He added that according to her evidence, the appellant told them, (second prosecution witness and her sister Nyambezi Ncube) that they should send the passport to the first prosecution witness, one Samunyetiso Maanku a lady also a resident of Selebi Phikwe, with P50.00. It is then his further argument that the P50.00 would invariably be given  D  to an immigration officer and therefore the payment of the same to the appellant as advised by the appellant had nothing to do as to whether it was to induce him to do or not to do his duty. Adding that in her evidence the second prosecution witness could not say whether the P50.00 was later returned to her sister or not.

It is further the argument of the learned counsel for the appellant that while the trial court made a finding that the  E  second prosecution witness could not be believed as she was an accomplice, it nevertheless believed her evidence as regard the giving of the P50.00 to the appellant and that in that she had been corroborated by the evidence of the first prosecution witness. It is then the submission of the learned counsel that the learned trial magistrate misdirected himself in believing part of the evidence of the second prosecution witness while not  F  believing some of her evidence for the reason that she was an accomplice witness, and that though the learned trial magistrate considered the second prosecution witness as an accomplice witness, yet he did not apply the cautionary rule. Counsel cited Monageng v. The State [1983] B.L.R. 254 at 266-67; Sello v. The State [1984] B.L.R. 87; and Makgatlhe v. The State [1991] B.L.R. 53 in support hereof. 

It is then the submission of the learned counsel for the appellant that in the absence of any evidence as to the purpose of the P50.00 said to have been given to the appellant there could be no finding that such money was so given to induce the appellant to forbear doing or doing his official duty.

It is therefore the final submission of the learned counsel for the appellant that in the circumstances the  H  conviction of the appellant cannot stand and has therefore prayed to have it quashed and the appellant set at liberty.

In response to such arguments, Mr Mhandu, learned Principal State Counsel, has opposed this appeal, maintaining that the appellant had properly been convicted of the offence charged, on the basis that in the court a quo it was important to reach a finding that the P50.00 had passed from Nyambezi (who did not, by the way, testify) to the appellant, which, he has maintained, was not disputed that, in  A  fact such money did so pass.

It is further the argument of the learned Principal State Counsel that the offence in question must be distinguished from the common law offence of bribery in that under the provisions of the Penal Code creating the offence, it is the public officer who has to corruptly solicit, receive, or obtain or agree or attempt to receive any  B  property or benefit for the purpose of himself or another so that he does or omits to do any function he is employed to do.
It has further been argued that the purpose for which the money was given can be inferred from the facts that were proved in this case, which are that Nyambezine eded to have a permit extended that the passport was collected by the appellant from the third party; that the appellant himself did not see Nyambezi, when the  C  extension was given on a day when the appellant was not on duty; that there was no record of the extension in the office, which then poses the issue as to whether, in the circumstances, it was a procedural error on the part of the appellant in the manner the extension was granted, which, in the learned counsel's view, it was not but rather that extension was so granted illegally.

It is further the argument of the learned Principal State Counsel that the appellant's evidence that he granted the  D  extension on 28 December 1998, shows that he was not telling the truth, as the visa was to expire on 26 December 1998, which lie then shows that the appellant made the extension illegally. It is then the submission of the learned counsel that the fact that the appellant demanded production of P50.00 for the extension coupled with the wrongly making of the extension on a day he was not on duty leads to an inference that he so demanded  E  such money corruptly. Counsel added that, in fact, the appellant himself denied to have asked for the P50.00, which shows that he had an ill motive to corruptly receive such money.

Addressing himself on the submission for the appellant that though the learned trial magistrate took the second  F  prosecution witness as an accomplice witness, he did not apply the cautionary rule, it is the contention of the learned counsel that assuming that to be correct, was there no other evidence upon which the appellant could be convicted? It is then his submission that the position of the law in this country as provided for under section 10 of the High Court Act (Cap. 04:02), is that despite any irregularity noted, the appellate court has to uphold the  G  conviction if there was no miscarriage of justice.

It is further the learned counsel's submission that irregularities notwithstanding, there was no miscarriage of justice in convicting the appellant, and therefore he has prayed that the appeal against conviction be dismissed.

In reply it has been contended for the appellant that the irregularities observed in what the appellant did when  H  extending Nyambezi's period of stay in the country were administrative errors, which, however, did not by themselves constitute sufficient evidence to establish corruption.

It is further the contention for the appellant that both the giver and the receiver must have a guilty mind and that section 10 of the High Court Act can only apply where the misdirection does not go to the root of the conviction.

I have carefully considered the arguments of the learned counsel for both sides.

Now going by the facts of the case, it is common cause that the appellant is an immigration officer with full knowledge of the procedures for granting an extension of a visitor's visa in this country. It is common cause that among such procedures is that visas and extensions of the same are granted at the official place of work and during working days. It is also common cause that when granting one's visa it is the usual practice to require the  B  applicant visitor to fill in the prescribed form wherein he is also required to declare the amount of money he/she may have for his/her upkeep and such money may be required to be produced and shown to the officer dealing with the application, but such money is supposed to be handed back to the applicant on the spot. 

It is also common cause that, in December 1998, the late Nyambezi Ncube, a Zimbabwean national, sister of the second prosecution witness, one Thandi Tshupo, was a visitor in Botswana and her visa was to expire on 26 December 1998. It is also common cause that in an effort to have such expiry date of her visa extended, on 24 December 1998, the said Nyambezi Ncube, while in the company of the second prosecution witness called at  D  Selebi-Phikwe Immigration office to seek an extension of her visa but on such day her visa was not extended, and therefore, the immigration officer who attended to her application, the sixth prosecution witness, one Josphine Tlhase, simply entered in Nyambezi Ncube's passport the expiry date which was 26 December 1998, and advised them to visit the office on another day as she was then closing her office. However, as the second prosecution witness and Nyambesi Ncube were getting out of the office the appellant  appeared and asked what  E  was their problem, and on being told that they were after an extension of Nyambezi Ncube's visa, he, too, told them that he could not help them then because he was then closing his office, but advised them to send the passport to the first prosecution witness, one Samonyetiso Maaku with P50.00. The second prosecution witness complied, by sending the passport to the first prosecution witness, through her (second prosecution witness's)  F  daughter, the fifth prosecution witness, one Siphiwe Tshupo. The passport was so sent to the first prosecution witness by the fifth prosecution witness with P50.00 was confirmed by the evidence of the first prosecution witness. That was in the morning of 27 December 1998. It is also common cause that in the afternoon of such day the appellant appeared at the home of the first prosecution witness and collected such Nyambesi Ncube's  G  passport No. ZA384274.

However, while it was the evidence of the first prosecution witness that she handed both such passport and P50.00 to the appellant and that when three to four days later the appellant returned such passport it had no P50.00, the appellant disputed, in his defence, to have ever received P50.00 with the passport or at any other  H  time. Such passport was then later collected by the fifth prosecution witness from the first prosecution witness, but the fifth prosecution witness was not sure whether such passport had the P50.00 with it then.

It had by then been extended for 30 days, from 26 December 1998 to 30 January 1999. According to the appellant he made such extension while on duty at the immigration office on 28 December 1998. However, according to the evidence of the fourth prosecution witness, one Wetsho Robert Outlule Chiepe, then the officer-in-charge of Selebi Phikwe District  A  Immigration Office, and supported by the sixth prosecution witness, the appellant made such extension of Nyambezi Ncube's visa on 26 December 1998, which was a public holiday. For all members of staff were released on 24 December 1998 by him (fourth prosecution witness), at 12.30 p.m. for the Christmas vacation and were to resume duty on 28 December 1998. It was further the evidence of the fourth prosecution witness  B  that on 26 December 1998 he was the only one on duty at the district office to attend to urgent matters. The appellant could not therefore have possibly been on duty on such day. It then transpired that on 30 January 1999, while on duty at the departure counter, at Ramokgwebana border post, the third prosecution witness, one Dintle  C  Teemane, a Zimbabwean female presented to her a Zimbabwean passport in the name of one Nymabezi Ncube. Upon examining it she noticed an official stamp on such passport the features of which were not clear to her in that there was no station on the stamp; the date was not clear especially the year whether it was 1998 or 1999, as it was written by hand: "26.11". It was then when the bearer of such passport was interviewed that  D  there was something revealed that led her (third prosecution witness) to report the matter to the police for investigation.

Following such report to the police by the third prosecution witness, on 1 February 1999, the fourth prosecution witness was contacted by the sixth prosecution witness, one No. 6445 Detective Inspector S. E. Merapo, who took to him such Zimbabwean passport in the name of Nyambezi Ncube, showing that the said Nyambezi Ncube  E  had applied for an extension dated 26 December 1998, and was given such extension on 26 December 1998. As on that day there was no other Immigration officer in the office except himself (fourth prosecution witness) and had all the keys to the office, that struck the fourth prosecution witness with suspicion. He therefore checked records for the declaration form 1 in respect of the extension but he could not find one, and upon checking the  F  register which had also information on the declaration forms, which are numbered, he (fourth prosecution witness) could not find the name of the said Nyambezi Ncube. Upon examining the passport of the said Nyambezi Ncube and on noting that the date stamp had the date written in pen that surprised him (fourth prosecution witness) as well. He then left the matter with the investigating police officer. 

According to the seventh prosecution witness, in the course of his investigation he was told by the fourth prosecution witness, the district immigration officer-in-charge, that after releasing all members of staff in his office on 24 December 1998 for the Christmas holiday they were to report on duty on 28 December 1998 but the  H  appellant did not report on duty until 30 December 1998. Then the seventh prosecution witness required all the officers in such district immigration office and had their specimen handwriting for expert comparison, which they did. He also seized the passport in question together with the declaration form 1 for the extension of the visa of the holder of such passport from 24 December 1998 to 26 December 1998 and the immigration register all of which were tendered as exhibits before the court a quo. Subsequently the appellant was charged with the offence in question.

In his defence, while denying to have taken P50.00 from one Ncube Nyambezi as a bribe for extending her visa to stay in Botswana from 26 December 1998 to 30 January 1999, he admitted to have met the second prosecution witness, one Thandi Tshupo at Selebi Phikwe on 27 December 1998, who then told him that one Samu (first prosecution witness) wanted to see him. As he knew her name he proceeded to meet her (first prosecution witness) the same day. It is the first prosecution witness who gave him Ncube Nyambezi's passport referred to  B  above for extension of the visa. According to him, the passport was given to him on 26 December 1998, when he made the extension but dated it on 28 December 1998. The request to have such extension was made to him by the first prosecution witness, on behalf of one Ncube Nyambezi. It was further his evidence that as the first  C  prosecution witness was unable to turn up at the office the following morning, he decided to use his discretion to extend the days as requested without requiring her to fill a new application form 1, as the applicant had not left the country, but instead made use of the previous application form for the extension that had already been made for the period of 24 to 26 December 1998. Adding that while he made the extension on 28 December 1998, he  D  put the date "26 December 1998" by error. He then handed such passport to the first prosecution witness at lunchtime on 28 December 1998. He denied to have ever seen P50.00 enclosed in the passport.

In his judgment the learned trial magistrate rejected the evidence of the second prosecution witness to the effect that as far as she was concerned she took the money in the sum of P50.00 which was said to have been  E  demanded by the appellant and placed in Ncube Nyambezi's passport when it was taken to the appellant for the extension of the visa as having been for the purpose of showing Nyambezi's financial standing, for the reason that second prosecution witness's evidence that she used to see immigration officers always asking visa applicants to declare P50.00, had been contradicted by the fact that on 24 December 1998, out of the 20 visa  F  applicants only five of them declared P50.00. Therefore the learned trial magistrate took her (second prosecution witness's) evidence to that effect as an attempt to mask her knowledge of what the money was for. Then, surprisingly, he treated her (second prosecution witness) as an accomplice insofar as the purpose for which the money was going to the accused. He however, found her evidence regarding the transfer of P50.00 to the  G  appellant to have been corroborated by that of the first prosecution witness. The learned magistrate came to the view that the appellant obtained such money from Nyambezi corruptly because Nyambezi's application to extend her visa had been turned down, and then accused approached them and asked them to take the passport together with P50.00 to a third party at a private home, which then, to him, amounted to a coded message asking  H  for greasing the palm.

It is evident from the above facts that what the appellant did in effecting the extension of Ncube Nyambezi's visa from 26 December 1998 to 30 January 1999, was clearly done outside the official place of work and by use of materials and instruments which were not official ones, but ones which had been fabricated to further his fraudulent intentions. For it is clear from evidence of the fourth prosecution witness, the officer-in-charge Selebi Phikwe District Immigration  A  office, that on 28 December 1998, which is the day the appellant claims to have dated the extension of the visa while in office, the appellant did not report on duty. The stamp used for such extension was not the usual official stamp. Neither was the appellant on duty on 26 December 1998, which is the date of extension of the visa appearing in Nyambezi's passport though it was claimed by the appellant that he had wrongly entered such date  B  instead of 28 December 1998. From the evidence of the first prosecution witness I entertain no doubt, as the court a quo so found, that the appellant's corrupt conduct was founded upon an inference from the evidence of the second prosecution witness, which, in part, was discredited by the learned trial magistrate to the extent that the second prosecution witness denied that such money of P50.00 given to the appellant was a bribe, but was  C understood by her to have been a normal practice of requiring a visa applicant to show or declare his/her financial standing. It is such denial by the second prosecution witness that led the learned trial magistrate to treat the second prosecution witness as an accomplice on that aspect only of her evidence. The other aspect that  D  went to cement such finding by the learned trial magistrate was that the extension was so made in a manner that was contrary to all official working procedures.

For my part I am inclined to agree with the argument of the learned counsel for the appellant that the way the learned trial magistrate treated and handled the evidence of the second prosecution witness as that of an  E  accomplice, did clearly amount to a misdirection on his part. In the first place, it was wrong for the court a quo to regard the second prosecution witness as accomplice in respect of one aspect only of her evidences simply because the court doubted it. Yet for one to be labeled an accomplice it must be shown that he/she did in one way or another either as principal, aider or abettor, participate in the commission of the offence in question. Once that is established, such status then goes to tarnish the credibility of the whole evidence of such accomplice as a  F  witness. That then would call for the observance of the usual cautionary rules in dealing with the evidence of such type of suspect witnesses. The first step was for the court a quo to consider and determine whether the evidence of the second prosecution witness as such accomplice witness was credible. Upon being satisfied that  G  it was credible, the court was then to consider the need for corroboration of such evidence by evidence from another independent witness. But should such accomplice evidence be discredited in any way, there would be no need to look for corroborative evidence but instead such accomplice evidence had to be discarded. On the other hand, once the court was satisfied, after warning itself of the dangers of relying on uncorroborated evidence of an accomplice, that it was safe in the circumstances of the case to rely upon such uncorroborated  H  accomplice evidence, the court would have been entitled to act upon such evidence. See Monageng v. The State (supra).

It is evident that the above considerations which ought to be borne in mind when dealing with accomplice evidence were not so borne in mind by the court a quo when dealing with the evidence of the second prosecution witness who was taken to be an accomplice. For despite apparently discrediting her evidence in one aspect, as it did, the court a quo still sought corroboration for another aspect of her  A  evidence, which touched on the receipt of money by the appellant. That was certainly wrong.
Nevertheless, a closer examination of the evidence of the second prosecution witness leads me to hold the view that the reason(s) advanced for discrediting the evidence of the second prosecution witness, that as far as she was concerned the purpose of the money that was placed in the Nyambezi's passport and handed over to the appellant was to show the financial standing of Nyambezi and not to bribe the appellant, was not justified. For it  B  was an established fact that it was the practice of immigration officers to require visa applicants to make declarations as to their financial standing before granting the visa and on a number of occasions some of the visa applicants declared P50.00. Thus the evidence of the second prosecution witness that in her experience  C  immigration officers used to ask visa applicants to declare P50.00, could not justifiably be said to have been untrue and a fabrication on her part. That was shown to have actually happened as per forms that were examined by the court a quo. It follows, therefore, that the discredited evidence of the second prosecution witness bore some truth, even though not the whole truth. It was not a fabrication but was probably somehow  D  exaggerated. However, even if the evidence of the second prosecution witness were to be discarded for what the court a quo found to be not creditworthy, still the fact that the appellant received P50.00 from the visa applicant for the purpose of extending Nyambezi's visa, is well made out by the evidence of the first prosecution witness. The question remains, was it a bribe? In dealing with such issue our starting point must, of necessity, be the  E  provisions of section 99(a) of the Penal Code (Cap. 08:01) of the Laws of Botswana. It is there provided thus:

    "99. Any person who -

    (a)    being employed in the public service and being charged with the performance of any duty by virtue of such  F  employment, corruptly solicits, receives, or obtains, or agrees or attempts to receive or obtain any property or benefit of any kind for himself or any other person on account of anything already done or omitted to be done, or to be afterwards done or omitted to be done, by him in the discharge of the duties of his office . . .

    is guilty of an offence and is liable to imprisonment for a term not exceeding three years.' 

Side by side with such provision I deem it desirable to also reproduce here a similar provision from the Prevention of Corruption Act No. 6 of 1958 of the Republic of South Africa, as decided cases from such country appear to throw a good light on the issue at hand. Section 2(a) of such Act provides:  H
    "2. Any person who -

    (a)    being an agent corruptly accepts or obtains or agrees to accept or attempts to obtain from any person either for himself or for any other person any gift or consideration as an inducement or reward for doing or omitting to do or for having done or omitted to do any act in relation to his principal's affairs or business or for showing or refraining from showing favour or disfavour to any  A  person in relation to his principal's affairs or business, . . . shall be guilty of an offence."

Now going by the evidence of the second prosecution witness, which was partly accepted by the court a quo and partly treated as that of an accomplice on a wrong premise, she had this to say, among other things:

    "I know the accused at Immigration. 1 saw him in 1998, 24th December 1998. On that day I went with my sister to the Immigration to extend the days. My sister is Nyambezi Ncube. When we got there they did not extend the days. It was my sister who wanted to extend her days. They just put the same date as the day in the passport. The days were ending on  C  26th. And they put 26th in the passport. It was a man who put the date in the passport. . . . The man did not extend the days. He just put the stamp and signed it. We tried to explain to him that our days had not been extended. He told, us to come the next day for he was closing. When we were going out of the office another officer asked us what our problem was. It was the accused who asked us that question. We explained the problem to him he told us to come next time for he  D  was closing. I told him would be on duty at the time. Then he said we should take the passport with P50.00 to Samu (first prosecution witness). I was surprised but he said Samu knew what was happening. . . . I sent the passport with P50.00 to first prosecution witness. It was my sister who gave the P50.00 and I gave it to my daughter to give it to first  E  prosecution witness. . . . At the time my sister had P50.00 and the passport. The accused told her to take the P50.00 and the passport to Samu for when anyone asks for extension he had to carry P50.00. To my knowledge the procedure is that when one wanted to extend his days he had to carry P50.00 to show them he had sufficient money . . . my experience is that when anyone wants to extend his days he has to carry P50.00 to the officer. The passport of my sister had P50.00  F  and the purpose was to comply with the procedure. When one shows the officer P50.00 the money stays with the applicant. When we went to the mmigration we were told that if you are Zimbabwean you have to have P50.00 when you want extension of days."

(My emphasis) 

What comes out from such evidence is that the second prosecution witness and her late sister gave to the appellant P50.00 together with the passport through the first prosecution witness, as directed by the appellant as a normal observed practice that the P50.00 had to be produced as evidence that the visa applicant had sufficient financial resources. It was not in their mind that it was for any other purpose other than that. Thus it was not in  H  their mind that such P50.00 was intended as an inducement to the appellant to give them the extension of their visa. That there was such practice comes out clearly from the visa application forms that were perused by the learned trial magistrate.

That being the position, can it be said that the offence of corruption as defined under section 99(a) of our Penal Code was thereby committed by the appellant, even assuming for a moment that he so received the P50.00 corruptly or as an inducement for him  A  to extend Nyambezi's visa. On this I must confess that I have not been able to come across any case decided by this court on facts similar to this case. The only reported case from this jurisdiction and which has been cited by the learned counsel for the appellant is the case of Kok v. State (supra). But that was on a different footing. So it is not helpful. 

On the other hand, there are very persuasive authorities from the Republic of South Africa. I find such authorities very persuasive because the provisions of the law they dealt with which have been reproduced above are almost in pari materia with the relevant provision in our case.

Now in the case of R. v. Durga 1952 (4) S.A. 619 (N), the appellant was convicted of the offence of corruption  C  then laid under section 2(a) of Act No. 4 of 1918, which is the same as section 2(a) of Act No. 6 of 1958 of the Republic of South Africa, which has been reproduced above.

On appeal it was argued, among other things, that the complainants made the payments in the belief that the law of the town board required them to do so, and therefore it could not be said that the payments were corruptly given and in consequence it could not be said that the appellant corruptly accepted them as an inducement  D  within the meaning of section 2(a) (which is similar to our section 99(a) of the Penal Code). In the light of such argument Holmes, J. had this to say at p. 620A:

    "In my view the ground of appeal is sound. On a plain reading of sec. 2(a) it seems to me clear that if the giver is innocent  E  of any motive to induce or reward the agent, it cannot be said that the latter has accepted or obtained a gift or consideration as an inducement or reward."

The learned judge accepted the reasoning of Van den Heever, J. as he then was, in the case of Rex v. Sesing 1940 O.P.D. 78 at p. 88, who had this to say of section 2(a) above:

    "A recipient cannot induce himself to do or refrain from doing. It seems to me therefore, that the Legislature could have  F  meant nothing more than this: If you accept, knowing that the giver meant to seduce."

The learned judge also took note of and accepted the reasoning in R v. Ndobe 1952 (3) S.A. 562 (T) where  G  Ramsbottom, J, as he then was, had this to say (at p. 563H-564A).

    "If a fee or reward is received it must be received 'as an inducement' to the recipient to do or refrain from doing something, or in consideration of his doing or refraining from doing. That imports the idea of a mental state in the giver. A man can only receive something as an inducement to act or to refrain from acting if it was in the mind of the giver to induce him to act or  H  to refrain from acting, and he can only receive something as 'in consideration of' his acting or forbearing to act if the giver intended the fee or reward to be in consideration of an act or forbearance."

Such statement of the law was also followed in the case of The State v. Nkadimeng

1962 (4) S.A. 564 (T), at p. 566. See also S. v. Ernest 1963 (3) S.A. 666 (T), at 667-68; S. v. Pillay  A  1964 (2) S.A. 385 (N); State v. Mbokatwane and Another 1970 (3) S.A. 64 (E) at 66.

Now upon closer examination of the wording of section 99(a) of our Penal Code as compared with section 2(a), unlike the South African provision, our section makes no use of words such as: "as an inducement to or consideration of his doing anything." 

Yet the governing words that determined the stand adopted by the courts in the above decided cases are the words "corruptly", and "as an inducement to or consideration of". Such provision appearing in the South African legislation is, in fact, exactly what is provided for under section 384(a) of our Penal Code which provides:
    "384.If - 

    (a)    any agent corruptly accepts or obtains, or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gift or consideration as an inducement or reward for doing or forbearing to do or for having done or forborne to do, any act in relation to his principal's affairs or business or for showing or forbearing to show  D  favour or disfavour to any person in relation to his principal's affairs or business;"

On the other hand, what the provision under section 99(a) of our Penal Code uses are such words as: "corruptly" and "on account of anything already done or omitted to be done or to be afterwards done or omitted to  E  be done by him in discharge of his duties".

It seems to me, therefore, that in our case, for the prosecution to prove the charge against an accused person under section 99(a) of the Penal Code, the following must be stablished:

(a)    that the accused is employed in public service,

(b)    that he has been charged with the performance of a specific duty; 

(c)    that on account of what he had done, or had omitted to do, or what he was afterwards to do or to omit to do;

(d)    in the discharge of his duties;

(e)    he corruptly solicited, received or obtained or agreed or attempted to receive or obtain any property or benefit;

(f)    for himself or any other person.

In this case, it is common cause that the appellant was, at the material time of the incident, employed in the public service charged with the duty to control immigration into this country. It is also common cause that at the time he received the money he had promised to extend days of Nyambezi Ncube's visa in his capacity as such  H  immigration officer. The money so received was for himself. With that, ingredients (a), (b), (c) and (f) mentioned above, had been satisfied. It therefore remains for this court to consider and determine, as to whether in the circumstances of this case ingredients (d) and (e) were as well satisfied or not.

Addressing myself first on the word: "corruptly" which is the dominant word in respect of ingredient (e) above, the question that is to be asked is, what does the word "corruptly" mean? What, in my view, appears to be an apt definition of the word "corruptly" is  A  that which is found in Black's Law Dictionary (7th ed). There the learned author has this to say:

    " . . . 'corruptly' . . . as used in criminal law statues, usually indicates a wrongful desire for pecuniary gain or other advantage". (My emphasis.)

It is thus my considered opinion that in the light of such definition of the word: "corruptly" and in the absence of  B  the words: "as an inducement or consideration of" which appear in section 2(a) of the Prevention of Corruption Act No. 6 of 1958 of the Republic of South Africa cited above, under the provisions of section 99(a) of our Penal Code, for the prosecution to establish the offence of corruption, it is enough to prove that the accused, as a  C  public officer, did "corruptly" solicit, receive property or benefit for himself or any other person on account of or for the reason of what he had already done, omitted to do, or was afterwards to do, or to omit to do, for someone, in discharge of his official duties. It is not, in my view, necessary, as learned counsel for the appellant has argued, that the giver should also have the intention of giving the thing solicited as a bribe or inducement or consideration for what the officer had done or omitted to do or promised to do or omit to do. All that the law is  D  concerned with and prohibits is the public officer's conduct of displaying a wrongful desire for a pecuniary gain or other advantage in the course of the discharge of his duties.

In our case, appellant's denial to have received the money in question in the face of overwhelming evidence establishing the same clearly shows that he so solicited and received such money with an ill-motive, which,  E  without more, could, in my view, properly be taken to have been "corruptly" received. What then is that more?

That then leads me to the consideration and determination of ingredient (d) above which is "in the discharge of his duties". The question here is, did the appellant receive the money on account of what he had promised to do  F  in discharge of his duties? Was what the appellant later did, done in the discharge of his duties? That is where my reservation rests and, with respect, my answer is, "No". For, as observed above, what the appellant did was to extend the day of Nyambezi Ncube's visa at his home and not at his work place and in doing so he made use of procedures and materials that were not the official ones applied in his office in the normal discharge of his official duties. What is clear, therefore, is that what the appellant did was to execute his own fraudulent scheme  G  that he had hatched out or devised to defraud desperate visa applicants. For, as it turned out, the extension made was easily discovered to have not been in accordance with the usual official practice. Hence the beneficiary did not stand to benefit by what the appellant had done. Such then was appellant's own hatched out scheme to defraud the visa applicants and obtain money by false pretenses, by promising them that he would  H  issue the extension of the visa days which was believed by the applicant concerned only to turn out that it was a forged visa, and, therefore, false, as the stamp used was not the official one. In the circumstances I would not therefore hesitate to hold, as was held in Kok v. The State supra at p. 7, that for the offence of corruption as charged under section 99(a) to succeed the money solicited and received must be shown to have been so solicited, received on  A  account of what the public officer had done, or omitted to do, or had promised to do or to omit to do in the course of the discharge of his official duties. Yet in the instant case what the appellant did was purely a private affair in carrying out his devised fraudulent scheme intended to deceive the visa applicants and obtain money from them upon promise to issue them with visa extensions which he did privately with his own private  B  instrument, the stamp, which visas turned out to be false and therefore invalid. It is with that in mind that 1 hold that in this case the corruption charge against the appellant as brought under section 99(a) of the Penal Code was not proved by the prosecution and therefore the conviction of the appellant by the court a quo cannot be sustained. It is accordingly set aside. 

I was inclined to substitute the conviction with one of obtaining money by false pretenses, but for such section to apply the substituted conviction must be for an offence that is minor to the one of which the accused has been acquitted. Yet in this case, a look at the maximum penalty prescribed for the offence of which the appellant has been acquitted and that prescribed for the offence, shows that the penalty prescribed for the offence of obtaining  D  money by false pretenses is higher, and therefore such offence is not minor to the offence of corruption contrary to section 99 of the Penal Code, and therefore there can be no substitution.

In passing, though not material to the outcome of this appeal, I also wish to observe that in admitting the evidence of the fifth prosecution witness, one Siphiwe Tsupo, a 13-year old girl, the court a quo did not comply  E  with the requirements of section 221 of the Criminal Procedure and Evidence Act (Cap. 08:02) of the Laws of Botswana. The young girl is on record to have given her evidence without oath. Yet the record does not show that the witness was ever admonished in terms of para. (i) of the proviso to section 221 of the Criminal Procedure and Evidence Act. However, as her evidence does not appear to have had much weight in the mind of  F  the learned trial magistrate, it was not material to the appellant's conviction and therefore not material in this appeal.

In the final analysis, I allow this appeal, setting aside both the lower  court's conviction and sentence of the appellant with an order that he be set at liberty forthwith unless lawfully held for another cause. 

Appeal allowed and conviction and
sentence set aside.

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