WRIGHT v. THE ATTORNEY-GENERAL 1996 BLR 405 (HC)

Citation: 1996 BLR 405 (HC)

Court: High Court, Lobatse

Case No:

Judge: Gittings J.

Judgement Date: April 18, 1996

Counsel: Mr. Moesi for the applicant Mr. Tiroyakgosi for the responden

Flynote

Company law - Directors and officers - Directors - Criminal liability - Charge against company - Director liable for punishment but must be charged - Criminal Procedure and Evidence Act (Cap. 08:02), s. 332 (1); Penal Code (Cap. 08:01), s. 24.

Company law - Offences by - Charge against - Director not charged in personal capacity - Conviction and sentence of such  E  director not competent - Criminal Procedure and Evidence Act (Cap. 08:02), s. 332(1); Penal Code (Cap. 08:01) s. 24.

Criminal procedure - Indictment and charge - Charge against company - Director, not charged in his personal capacity convicted and sentenced - Penal Code (Cap. 08:01) s. 24 - Criminal Procedure and Evidence Act (Cap. 08:02) s.  F  332(1).

Headnote

The applicant had represented a company, of which he was the director, at its trial on a charge of receiving stolen property contrary to s. 317 (1) of the Penal Code (Cap. 08:01.) The magistrate found the company guilty and issued a committal warrant for the applicant to be imprisoned for four years. The applicant applied for a rule  G  nisi calling upon the Attorney-General to show cause why the committal warrant should not be declared null and void and the applicant released. The respondent argued that in terms of s. 24 of the Penal Code (Cap 08:01) where a company is found guilty of an offence every person acting in the control of that company shall be guilty of that offence and liable to be punished accordingly.

Held: that section 24 of the Penal Code had to be read in conjunction with s. 332(1) of the Criminal Procedure  H  and Evidence Act (Cap. 08:02.) which provided that that in any criminal proceedings under any enactment against a company, its director could be charged with the offence and would be liable to be punished therefor. As the applicant had not been charged in his personal capacity, section 332(1) had not been complied with and the conviction could not stand.

Case Information

APPLICATION for an order for the rescission of a committal warrant. The facts are sufficiently stated in the  A  judgment.
Mr. Moesi for the applicant
Mr. Tiroyakgosi for the respondent

Judgement

Gittings J.:
On 10 March 1996 Mr. Attorney Moesi appeared before me seeking an order of rule nisi calling upon the  B  Attorney-General to show cause why:
    "1.    A committal warrant issued by the learned principal magistrate Mr. Johnson Seema sitting at Gaborone and dated 8 March 1996 should not be declared null and void and set aside and  C
    2.    An order that the applicant Mr. Matthew Wright be liberated should not be made; and
    3.    That clause 2 of the order should operate as an interim interdict with immediate effect and/or that the applicant should be admitted to bail pending appeal against sentence."  D
The short history of this application is that Mr. Matthew Wright was a director of a company called Fast Move Builders (Pty.) Ltd., who together with a lady named Julia Kookie Wright (the wife of the applicant in this case) were prosecuted for a number of offences. In the case of Mrs Julia Kookie Wright, for stealing by a servant contrary to section 271 as read with section 277 of the Penal Code (Cap. 08:01) and she was charged with 23 offences.  E
Fast Move Builders (Pty.) Ltd. were charged with receiving stolen property contrary to section 317(1) of the Penal Code and in the case of Fast Move Builders (Pty.) Ltd. they were charged with 18 offences of receiving stolen property.
On 10 March 1996 I was shown the founding affidavit sworn by Matthew Wright on 10 March 1996 and in the founding affidavit Mr. Wright, the applicant, deposed to the background and circumstances of the criminal  F  proceedings against Julia Kookie Wright and Fast Move Builders (Pty.) Ltd. which were cited as C.R.B. 366/94. Both the first accused Julia Kookie Wright and Fast Move Builders (Pty.) Ltd., the second accused, appeared at the magistrate's court in Gaborone presided over by Mr. Johnson Seema on a number of occasions with the trial commencing on 12 September 1995.  G
After various adjournments the magistrate ultimately ordered separate trials on 15 January 1996 as Mrs Julia Kookie Wright did not appear in court due to ill health.
The trial then continued against Fast Move Builders (Pty.) Ltd. and on 5 March 1996 judgment was delivered and Fast Move Builders (Pty.) Ltd. was found guilty and convicted of all the offences as charged.  H
The learned magistrate deferred sentence until Friday 8 March 1996 when he ordered the applicant in this case, who had not been charged, to be imprisoned for four years and also ordered the second accused Fast Move Builders (Pty.) Ltd. to compensate the loser.
On finding Fast Move Builders (Pty.) Ltd. guilty on 5 March 1996 the

1996 BLR p407
GITTINGS J
learned magistrate, as I have said, issued a committal warrant for the applicant in this case, Mr. Wright, to  A  personally serve four years' imprisonment.
Mr. Matthew Wright, the applicant, had never stood trial in his personal capacity but had been in court representing the company at the trial proceedings.
Having read the founding affidavit I ordered the issue of a rule nisi on 10 March 1996 which had the effect of  B  declaring null and void the committal warrant issued by the principal magistrate Mr. Johnson Seema and the immediate liberation of the applicant, Mr. Matthew Wright. I ordered that the decision of the magistrate be rendered null and void and that my order should operate as an interim interdict with immediate effect. The matter was then heard before me on 29 March 1996 when the learned attorney representing the Attorney-General  C  sought to argue that in fact the decision of the magistrate was correct.
The learned attorney for the Attorney-General sought to argue that because of the provisions of section 24 of the Penal Code that meant that as Mr. Matthew Wright was a director of a company charged with an offence he could be found guilty of that offence or offences and was liable to be punished accordingly.  D
There is no doubt that under section 24 of the Penal Code the point made by the learned attorney for the Attorney-General is absolutely correct as Mr. Matthew Wright the applicant was a person "charged with or concerned or acting in the control or management of the affairs or activities of such company etc".  E
However, in my judgment, section 24 of the Penal Code has to be read in conjunction with section 332 (1) of the Criminal Procedure and Evidence Act (Cap. 08:02) which says:
    "In any criminal proceedings under any enactment against a company, the secretary and every director or manager or chairman thereof in Botswana may, unless it is otherwise directed or provided, be charged with the offence and shall be  F  liable to be punished therefor, unless it is proved that he did not take part in the commission of the offence, and that he could not have prevented it."
Unfortunately for the Attorney-General in this case, Mr. Matthew Wright appears never to have been charged in  G  his own capacity and the only persons and entities charged with the criminal offences of stealing and receiving were Julia Kookie Wright and Fast Move Builders (Pty.) Ltd.
The learned Attorney Tiroyakgosi for the Attorney-General produced an answering affidavit filed on behalf of the Attorney-General deposed to by Sub-Inspector Ogomoditse Montsheng seeking to justify the conviction and  H  imprisonment of Matthew Wright.
In paragraphs 9 and 10 of the affidavit the sub-inspector deposes to "the learned principal magistrate having passed judgment and making such forementioned findings amongst others, into a conviction in respect of the second accused and passed a sentence of imprisonment on the applicant". In the final paragraph of the sub-inspector's affidavit he says "I verily believe

1996 BLR p408
the sentence to have been appropriate in terms of section 24 of the Penal Code and that accordingly the  A  committal warrant issued in respect of the applicant was valid".
The sentence might very well have been appropriate in the view of the inspector as read with section 24 of the Penal Code as quite clearly an offence was held to have been committed by the company by the learned magistrate and it is correct that under section 24 of the Penal Code that every person charged with or concerned  B  etc. or acting in the control of the company shall be guilty of that offence and liable to be punished accordingly.
However before that can happen the provisions of section 332 (1) of the Criminal Procedure and Evidence Act have to be invoked and that, it appears, the State failed to do. Therefore the conviction cannot stand as Mr.  C  Matthew Wright the applicant was never charged with any offence of receiving and was never properly before the court in his personal capacity.
Mr. Tiroyakgosi for the State referred me to a reference from a South African textbook on criminal law dealing with principles of criminal responsibility under the heading "concurrent liability of director or servant".
In fact in producing a photocopy of the principles of criminal responsibility he was indeed helping the attorney for  D  the applicant as the South African law on this point is clearly the same as the law in Botswana which says: When an offence has been committed by a corporation any person who was at the time of its commission a director or servant of the corporation must be deemed guilty of that offence unless it is proved that he did not take part in the commission of the offence and that he could not have prevented it. He may be prosecuted either  E  jointly with the corporation of apart from it if he is personally liable to punishment.
In this case there was no prosecution of the applicant, only a prosecution of the company and I therefore confirm the rule nisi and order that the applicant's costs should be paid by the respondent.

Rule nisi confirmed.