R v Keketsi and Another (CRI/A/7/2003)

Case No: 
Media Neutral Citation: 
[2003] LSHC 58
Judgment Date: 
23 May, 2003





(CR 331/97 Mafeteng)

In the matter between:


LANGA SKOZANA 2nd Appellant


REX Respondent

For the FirstAppellant : Mr. Phafane For the Crown : Miss Ntene


Delivered by the Honourable Mr. Justice T. Monapathi on the 23rd day of May 2003

The two Appellants were convicted together - as co-Accused on the 17th September 1997. They are respectively of Headman Mamotlejoa Keketsi under chief Theko Mojela at Keketsi in the district of Mafeteng and of Headman Zacharia Mofokeng at Ha Mokhisa under chief Theko Mojela at Ha Mokhisa in the district of Mafeteng.

The Second appeal was noted by KT Khauoe and Co. On the 23rd October 1997. And then the Appellant was released on bail pending appeal on the same day. Although there was no appearance before me for the Second Appellant through Counsel or at all I will treat the matter in the same manner as the first appeal for the purpose of my order.

These appeals are typical and illustrate the now endemic problem of a convicted accused who, after conviction, applies for bail pending appeal and become untraceable afterwards. The administration of justice is frustrated as a result when appeals are enrolled in vain

The first appeal was filed as long ago as the 27th September 1997. What is important is that it has to be postponed for the third time. It was for the first time called for hearing on the 2nd May 2003. Then there was no appearance for either the Crown nor Mr. Phafane who appeared to be the Counsel appearing for. the Appellant on the roll. This was a matter of some confusion because on the 14* March 2003 when the Registrar was instructed to set down the matter it had appeared as if it was attorney Mr. Ntlhoki who had undertaken to appear for the Appellant. In any event the matter was postponed to the 9th May 2003 when then Mr. Phafane appeared for the Appellant and Ms. Ntene appeared for the Crown.

Mr. Phafane who appeared before Court initially indicated that he was not fully instructed by the Appellant. In addition he pointed at the difficulty of his having attempted to trace the Appellant by a letter sent to the Appellant.on the 3rd of April 2003 and another, which followed thereafter and that it was in vain. What is important is that Mr. Phafane requested tor a postponement of the appeal on the ground that the Appellant could not have received a Notice of Hearing". This application is opposed by Ms Ntene for the Crown. I will come later to this aspect because there are a few things that I must first note which have influenced my mind or which I have to comment about whether I make


my decision this way or the other.

Having been convicted of this serious charge of rape together with two co accused who were convicted of rape and indecent assault, this Appellant applied for bail pending appeal on the 23rd September 1997. Then the learned magistrate noted that Mr. Phafane was before Court and applied for bail pending appeal on behalf of the Appellant. The Court then admitted the Appellant for bail on the following conditions: Firstly, to pay bail deposit in the sum of M400 00. Secondly, that he should "prosecute" the appeal within 30 days.

It is clear that the last condition has not been complied with. When confronted with the situation Mr. Phafane gave the following response. That it was difficult to do so for the following reasons: Firstly, that the appeal.could not be registered nor a file opened when the record had not been typed, prepared and sent to the Registrar by the Clerk of Court. Consequently and in the circumstances a date of hearing would not be appointed within the 30 days stipulated in the second bail condition. Significantly the word prosecute gives problems. It suggests that it is the Appellant who had to do the things mentioned or who has to take the necessary steps whereas it is the Clerk of Court and lastly the Registrar. See my remarks about Botswana High Court Rules chapter 04:02 (infra).

Conceptually, if not practically, the following are the problems: Firstly, when the appeal is noted an appellant does not know when he will appear before the High Court. .Secondly, there is normally no time span for the preparation of record, the filing and registering of the appeal and delivery of a notice of hearing. Thirdly, when a notice of hearing issues, ideally it has to be served on the Appellant himself. Service on his legal representative, severely


comes short of this requirement. Indeed there are always or there are invariably complications in that, the legal representative will undertake to find the appellant and he often will fail. In addition an appellant's Counsel will point at the usual problem that he may not have been fully instructed for the purpose of appeal. This is exactly the situation as we find in the present appeal.

The above situation prevails despite or because it has not been addressed in either section 72 part XIII (Criminal Appeals) of Subordinate Courts Order No.... 1988 or Part XVII (Appeals) and in section 328 (Notice of time, place and hearing) of the Criminal Procedure and Evidence Act 1981. That is why it was recommended in 1998 that the Chief Justice be pleased acting under section 81 of the said Subordinate Courts Order to promulgate rules to regulate bail pending appeal conditions along the following lines:

Firstly, where a convicted person is granted bail pending appeal the presiding officer shall impose, as one of the bail conditions, a date of hearing of appeal in the High Court. Such a date may turn out to be only provisional where for example the date appointed is during Court vacation. Secondly, such appointed date of hearing should not be less that 30 days and must not be more than 90 days from the date of the noting of the appeal.

Thirdly, the date of hearing be communicated by the presiding officer to the appellant in Court when the order allowing bail is pronounced.

Fourthly, where the appellant fails to appear before the High Court as required in the bail conditions the appeal be struck off, bail deposit, if any, be estreated and bail be cancelled unless good cause to the contrary is shown.


Finally to be catered for is the eventuality that it may even be felt by the Appellant or his Counsel that the day fixed by the magistrate is too far off. And that the Registrar is able to enrol the appeal much earlier. In that case the appellant may request the Registrar to have the date of hearing brought forward.

It is in the context of the weakness in the scheme of the two above-mentioned statutory provisions that the present problem arises. In Botswana the above problems are partially cured by the fact that a criminal appeal from a magistrate's decision is noted with the Registrar of the High Court who directs the Clerk of Court and the convicting magistrate to file a judgment and put the record in readiness for final preparation. See Botswana High Court Rules-Order 60. In addition it is the Appellant who has "ultimate responsibility" to ensure that all copies of the record of appeal are before the Court.

Coming back to the events of the day when the appeal was to be heard was the attitude of Miss Ntene for the Crown. She had been ready for argument and had filed heads of argument. Significantly she opposed the request for postponement by Mr. Phafane.

Miss Ntene emphasized the amount of delay already incurred and more especially the second condition imposed by the learned magistrate on the 23rd September 1997 which was flouted. I agreed that the delay bordered on the outrageous. I however felt that this appeal was typical of those in which there was not only the delay preparing the record, which was received on the 13th March 2003. That there was no indication that the Appellants had been served with a notice of hearing as he should have been served. This was not of their own making. In no way would the appeal be argued or dismissed without serving Appellants with the necessary notices of hearing.


In the result the Registrar is ordered to issue a notice of hearing for the 8th day of August 2003. Appellants should be served with notices of hearing. Their Counsel are advised accordingly namely Mr. S. Phafane and Mr. KT Khauoe.

T. Monapathi


23rd May 2003