BONTSI v THE STATE 2007 (1) BLR 557 (HC)

Citation: 2007 (1) BLR 557 (HC)

Court: High Court, Francistown
Case No: Crim App No F71 of 2006
Judge: Mosojane J
Judgement Date: February 14, 2007

Counsel: B Sechele for the appellant.A S Kula for the State.

Flynote

Criminal law - Accomplice -

Accomplice is associate or partner in commission of crime - Includes person who
aids, H abets, counsels or assists in commission of
crime - Accomplice as guilty, or liable to as much punishment, as if actual
perpetrator of deed - Accomplice must have necessary mens rea to commit crime -
Accomplice not someone who unwittingly assists perpetrator to achieve purpose
in honest belief that perpetrator doing something lawful.

Criminal law - Theft - Obtaining by

false pretence in contravention of s 308 of Penal Code - Such a species of
theft - Distinguishable from ordinary theft only by fact that fraudulosa
contrectatio constituting offence of theft preceded

2007 (1) BLR p558

by false
representation by means of which thief is, without consent of owner, put in
position to deal with property freely A and at will.

Headnote

The
appellant had used the assistance of several friends and acquaintances in order
to unlawfully cash money at the revenue office. He was convicted of obtaining
money by false pretences in contravention of s 308 of the Penal Code. The
appellant contended that the evidence of those who assisted him should be
treated as that of B accomplices, which required corroboration. It
was further contended that the cash had not been obtained by false pretences,
as those who had obtained the cash on the appellant's behalf had not been
acting under false pretences, as they believed he was entitled to the money.
Held
(1) That an accomplice was an associate or partner in a crime. That included a
person who aided, abetted, C counselled or assisted in the commission of a
crime. He or she was as guilty, or liable to as much punishment, as if he or
she had been the actual perpetrator of the deed. The accomplice must have the
necessary mens rea to commit the crime alleged.

(2) An
accomplice was not someone who unwittingly assisted the perpetrator to achieve
his or her purpose in the honest belief that the perpetrator was doing
something lawful. In the present matter, those who had assisted D the appellant and later given evidence against
him had believed that he had been entitled to the cash. Accordingly, they were
not accomplice witnesses.

(3)
Obtaining by false pretences was a species of theft. It was distinguishable
from ordinary theft only by the fact that the fraudulosa contrectatio which
constituted the offence of theft was preceded by a false representation by
means of which the thief was, without the consent of the owner, put in a
position to deal with the property freely E and at will.

(4) Those who had

assisted the appellant had acted as his agents, and the appellant falsely represented
to the revenue office, through his agents, that he had been entitled to the
money which was given to him by the agents. Accordingly, he had been correctly
convicted.

Case Information

Cases
referred to: F

Rv
Chenjere 1960 (1) SA 473 (FC)

Rv
Mapolisa 1965 (3) SA 578 (PC)

R v Mlooi
and Others 1925 AD 131

Appeal from
a conviction in a magistrate's court. The facts are sufficiently stated in the
judgment. G

B Sechele
for the appellant.

A S Kula for the State.

Judgement

MOSOJANE
J: H
The
appellant was employed at the magistrate's court in Serowe as a senior clerk
assistant. He was, on 7 July 2004 at Serowe Magistrates' Court, charged with 16
counts of obtaining money by false pretences and two of forgery. He was
subsequently convicted on all the counts of obtaining by false pretences but
was acquitted on the counts of forgery. He had pleaded not guilty to the
charges but now, being dissatisfied with the convictions,

2007 (1) BLR p559

MOSOJANE J

has lodged
an appeal to this court on the following grounds set out in his notice of
appeal: A

'1. That the

learned magistrate a quo erred when he held that the charges of obtaining by
false pretences c/s 308 of the Penal Code have been proved beyond all
reasonable doubt more particularly that:

1.1 The provisions

of s 308 prescribed that a false pretence is constituted by defrauding another
person who then B acts to his/her prejudice or that such other
person is induced to deliver to any person anything capable of being stolen
while in the instant case the revenue officials that the appellant is alleged
to have induced and/or defrauded were not so induced and/or defrauded.

1.2 The
handwriting expert analysed only the standard handwritings which were submitted
to him by PW7 and 8. C Such standard handwritings could not in the
circumstances conduce to prove the charges against the appellant as no one, let
alone PW7 and 8, saw the Appellant preparing such documents. The fact that
there was neither evidence that the standard handwritings were prepared by the
appellant nor specimen handwriting obtained D from the Appellant
made the findings of the expert unmeritorious.

1.3 PW1, 3, 4 and

5 were accomplice witnesses whose evidence needed to be corroborated. The
evidence and/or findings of the handwriting expert could not be corroborative
of the accomplice evidence as that which he sought to analyse was not obtained
from the Appellant.' E

From a
cautious reading of these grounds of appeal the appeal is based on three
grounds, namely: (1) how to interpret s 308 of the Penal Code (Cap 08:01); (2)
that the evidence of the handwriting expert somehow influenced the convictions
when it ought not to have, and (3) that the need for corroboration when dealing
with accomplice witnesses was not met. F

The starting
point, however, seems to me to be whether the witnesses whose evidence was
relied upon by the magistrate to convict the appellant were accomplices in the
commission of the offences with which the appellant was charged and of which he
was in the end convicted. The appellant has specifically mentioned the first,
third, fourth and fifth prosecution witnesses in this regard, and says that
being accomplice witnesses their evidence G required corroboration which the court a quo
overlooked. The first and third prosecution witnesses were key witnesses in
counts 1 and 2 respectively, while the fourth prosecution witness was a key
witness in counts 3, 4 and 5. The fifth prosecution witness was the key witness
in the rest of the counts, namely counts 6-16. I must mention, however, that
with regard to count 1 the first prosecution witness's evidence was in some
very material H particular corroborated by the second
prosecution witness who was present when the money cashed from the revenue
office was handed to the appellant by the first prosecution witness with an
explanation from her.

The first
prosecution witness told the magistrate that on 12 January 2001 the appellant
came to her place and asked her to assist him cash his claim at the revenue
office. The appellant told her that he had forgotten his identity

2007 (1) BLR p560

MOSOJANE J

card (omang)
in Gaborone where he had been attending a course. It is a well-known fact,
judicial notice of A which I take, that the prerequisite for
cashing money at the revenue office or at any bank or similar institution in
this country is the production of one's omang. Without it one's identity might
be questioned and one might not be served. The appellant and the first
prosecution witness were well known to each other. They lived together at
Makolojwane ward in Serowe and had attended the same primary school in their
formative years. In order that B the witness would be able to cash the money
the appellant said he would prepare the necessary forms in the witness' names
as the payee or claimant. The appellant explained to her that she would he
given a cheque upon presentation of the forms and production of her omang at
the revenue office. She should then cash the cheque, again using her omang, at
the Standard Chartered Bank in Serowe. The appellant would return to her home
later C to collect the money from her. That was the
arrangement.

At the
revenue office the first prosecution witness was given a cheque for P4 500 in
her name which she duly cashed at the bank as directed by the appellant. That
was the amount which appeared on the claim forms handed to her by the
appellant. She brought the money to her home and showed it to her boyfriend,
one D Lentwetse Motlogelwa (the second prosecution
witness). The appellant came to her house later in the evening and she handed
all the money to him in the presence of the second prosecution witness. The
appellant took out a P50 note from the money handed to him, gave it to her and
thanked her for her assistance. She told the court that she had not scrutinised
the forms and did not know who E K Nkgowa who appeared in the form as the E
defendant was. She was
scantily cross-examined by the appellant. The second prosecution witness
confirmed that portion of her evidence which related to him, namely that the
sum of P4 500 was given to the appellant who received it and in his presence
thanked the first prosecution witness for assisting him. He was also scarcely
challenged.

The third
prosecution witness, for his part, said that he was a taxi owner operating in
Serowe. He also came F from Makolojwane ward. He had known the
appellant since 1992 when the latter was a scout master at Makolojwane Primary
School. On 28 May 2001 the duo met at the taxi rank in Serowe. The appellant
asked the witness to drop him at Sun City Bar at the special rate of P10 as
this was outside the witness's normal route. Before they parted, the appellant
asked him to meet him at his office the following day because he wanted him to G
assist him cash some
money. Indeed, on 29 May 2001 the witness reported at the appellant's office
around 7:30am. The appellant took out some papers and entered another office
saying that someone had to sign first. The witness agreed to assist him because
he said he had forgotten his identity card where he had been attending a course
of studies in Gaborone. The papers bore the witness' name as the payee. The
appellant had H explained the procedure he would find at the
revenue office as he had done with the first witness. He would have to produce
his identity card or omang. However, upon production of his omang it was found
to have expired. He was told that in order to be assisted he would have to
bring his passport. Later, having produced his passport, he was given a cheque
of P5 000 in his name. He cashed it at Standard Chartered Bank as directed by

2007 (1) BLR p561

MOSOJANE J

the
appellant. Thereafter he went back to the appellant's office and gave him the
cash of P5 000. The appellant A took out a P100 note from the money and gave
it to the witness. The witness said he did not know a John Motsamai who was
mentioned in the claim forms as a defendant. He also said he had no case
registered with the court at that time but he believed that the appellant was
entitled to his claim as he said he was. There was again no real challenge to
the evidence of this witness. B

The fourth
prosecution witness was one Renee Monnapula. He was the key witness in counts
3, 4 and 5. He also resided at Makolojwane ward and worked as a mechanic with the
Central District Council at Serowe. He knew the appellant very well and had
known him for some 20 years at the time of his evidence. Sometime in 2000
appellant told him he had lost his omang card and requested him to help him
cash his claims. He C requested if he could use the fourth
prosecution witness's omang card names to make his claims. On 10 March 2000 the
appellant followed him to work at the Central District Council offices and gave
him an envelope containing carbonised forms. He said the witness should take
the forms to the revenue office where a cheque in the witness's name would be
made out upon production of the witness's omang card. The fourth prosecution D
witness was given a cheque
at the revenue office for P3 870 which he cashed at Standard Chartered Bank as
directed by the appellant. They met later at a shebeen per arrangement and the
witness gave him the money. The witness said he did not know one K K Masole
whose name appeared on the form nor was he owed any money by the government. On
27 March 2000 the appellant again brought similar forms, but for P3 200, to the
E fourth prosecution witness on the basis of
which the witness again secured the money upon similar conditions as before.
The same thing happened again on 27 June 2000, this time for P4 550. Under
cross-examination the witness said he used to stay with the appellant and the
appellant used to go on trips for which he would claim from Government. It was
against this background, according to him, that he agreed to assist the appellant.
It did F not occur to him that the claims were
fraudulent. They had a working relationship particularly on issues of sports
over which they communicated regularly and he was unsuspecting.

The fifth
prosecution witness, one Pelonyane Kaisara, also came from Makalojwane ward and
was unemployed. He described the appellant as his friend of old going back to
their primary school days. He said he had assisted G the appellant several times in cashing his
claims at the revenue office because the appellant had explained to him that he
had lost his omang. Because of that, the claims would be in the witness's name,
as he would have to use his own omang.
He did not know the other persons shown in the claim forms but it did not occur
to him that the appellant was making false claims. He had seen the appellant go
on trips and had concluded that he H was making genuine claims related to his
trips. He gave all the money to the appellant once cashed. The appellant would
give him some money, sometimes P100, sometimes P200, sometimes nothing, and on
one occasion he bought him some shoes as a friend might do for a friend who was
unemployed. The witness identified the claim forms on which cheques had been
issued by the revenue office. These forms related to counts 6 to 16 and were
for P4 500, P4 500.95, P3 400, P4 625, P3 500, P4 500, P4 500, P3 500,

2007 (1) BLR p562

MOSOJANE J

P4 500, P4
525 and P3 500 respectively. Cross-examination of this witness was also scanty
and on the fringe. A

The evidence
I have outlined above covers all the counts from 1 to 16. The appellant was in
each count charged with obtaining by false pretences, it being alleged in each
count that on a specified date at Serowe in the Central Administrative District
of Botswana, being a person employed in the Public Service as a senior clerk
assistant at B the Serowe Magistrates' Court, he obtained by
false pretences a specified sum of money from the Government Revenue Office by
preparing a false payment voucher purporting the said specified amount to be in
favour of a specified person when in fact and in truth he knew that to be
false. The appellant pleaded not guilty to the charges and having been
convicted now contends that the above evidence on the basis of which he was C
convicted was accomplice
evidence to which the cautionary rule applied and concerning which
corroboration ought to have been sought before his conviction. This raises the
question: What is an accomplice? Whether or not a person is an accomplice is a
question of fact. It is trite that he is an associate or participator, or if
you like, a partner in a crime. In a nutshell he is a socius criminis and that
includes a person who aids, abets, counsels or assists in the commission of a
crime. He is in law as guilty, or as liable to as much punishment, as if he had
D been the actual perpetrator of the deed, for
he is regarded as committing the same offence as the principal perpetrator
where that offence is a crime under the law. The test is whether he foresaw
(not merely ought to have foreseen) the possibility that his socius might be
committing the act in question in the prosecution of that common purpose. See R
v Mapolisa 1965 (3) SA 578 (PC). As to who is a socius criminis and the
basis of his E liability, see R v Chenjere 1960 (1) SA
473 (FC). In R v Mlooi and Others 1925 AD 131 at p 134, Innes CJ held:
'whoever instigates, procures, or assists the commission of the deed is a
socius criminis, and may be indicted, convicted and punished as if he were the
principal offender'. The sum total of all this is that to be an accomplice a
person must have had the necessary mens rea to commit the crime alleged. An
accomplice witness is as a F matter of fact a person who has been turned
into a state witness for the purpose of prosecuting and securing a conviction
against his partner(s) in crime. He is not merely someone who has unwittingly
assisted the perpetrator to achieve his purposes, in the honest belief that the
perpetrator was doing something lawful. That being so, I find myself unable to
agree with counsel for the appellant that any of the four witnesses named by G
him, and whose evidence I
have outlined above, was an accomplice in the crimes for which the appellant
was convicted.

The modus
operandi employed by the appellant was to engage people who were close to him
or his friends and who were unsuspecting to assist him in his scheme of
defrauding the government of Botswana. He would first talk to the witness and
persuade him to assist him cash his claim, giving as the reason for his
inability to do so H himself the false excuse that he had lost his
identity card or misplaced it. In at least one instance he said a replacement
thereof was taking too long to come. He would then prepare the claim forms
single-handedly based on the information kept by him at his office and known
only to himself. The witnesses would then be advised to go to the revenue
office and thence to the bank to secure payment using their

2007 (1) BLR p563

MOSOJANE J

own identity
cards. The money so cashed by the witnesses in each case was handed to him in
its entirety and A he alone dealt with it as he deemed fit. There
was no suggestion that the witnesses had a stake in the money or that they knew
the claims were fraudulent. All they knew was that he was working for the
government and was entitled to claim recompense for travelling outside his
station which is what he had made them believe.

He had told
each of them separately that such claims related to such travelling and there
was no reason for the B witnesses to doubt his apparent honesty. The
fact that at times he gave some of the witnesses small amounts of money out of
the money he received merely as a thank you cannot, in my view, make them socii
criminis. They honestly, though naively, in my view, believed what he told
them, hence they saw no need to scrutinize the forms. The appellant did not
challenge their evidence in this regard and he seemed to accept it. Clearly
they C lacked the requisite mens rea to commit the
crimes and I do find that they were not accomplice witnesses. It was only their
credibility which the trial court had to contend with, the appellant having
elected to remain silent at the close of the prosecution case.

This appeal
also concerns the admissibility or otherwise of the expert evidence on the
appellant's handwriting D and the alleged reliance thereon by the
magistrate. With due respect to counsel and as a matter of fact, the learned
magistrate rejected the expert evidence and therefore placed no reliance upon
it whatsoever. It was however never in dispute at the trial that the claim
forms were prepared by the appellant in his own handwriting. That appeared to
be the consensus throughout the trial as no question was raised by the
appellant in that regard. E In any event the forms were in each case
handed to the witness by the appellant duly completed and the appellant was the
sole beneficiary of the proceeds issuing from those forms. This was never
denied or challenged at the trial. Whether or not the forms were in fact and in
truth prepared by him in his handwriting should have been the issue at the
trial if he so desired. In the absence of any challenge the court was, in my F
opinion, entitled to
conclude that the forms were prepared by the appellant in his own handwriting.

The other
and last ground of appeal involves the meaning, or the essential ingredients,
of the offence of obtaining by false pretences. The charges were framed under s
308 of the Penal Code which provides:

'308. Any person who

by any false pretence, and with intent to defraud, obtains from any other
person anything capable of G being stolen, or induces any other person to
deliver to any person anything capable of being stolen, is guilty of an offence
and is liable to imprisonment for a term not exceeding seven years.'

Theft by
false pretences is therefore, as the name implies, a species of theft. It is
distinguishable from ordinary H theft only by the fact that the fraudulosa
contrectatio which constitutes the offence of theft is preceded by a false
representation by means of which the thief is, without the consent of the owner
properly obtained, put in a position to deal with the property freely and at
will.

That the
appellant stole the money is not the question, as there is no

2007 (1) BLR p564

MOSOJANE J

doubt on the
evidence that he stole it. The money was collected from the revenue office in
each case by an A agent of his, by means of a scheme hatched and
designed by him. It was handed to him in the form of cash and he used it freely
for his own benefit. He had no title or claim of right to it. There was never
any suggestion, and that suggestion was impossible on the evidence, that the
revenue officer concerned or the agent was aware of his fraudulent
machinations. Both the revenue officer and the agent honestly believed that the
money was being B claimed by the person who was entitled to it.
The question being raised here on behalf of the appellant as I understand it,
is whether these acts of theft were perpetrated by false pretences. The answer
should be in the affirmative, in my view, given what I have just said. The
appellant falsely represented to the revenue officer through an agent that the
agent was entitled to be paid the money stipulated by him on the form. The
money was C received by the agent and given to the
appellant, in the honest belief on the part of the agent, that the appellant
was entitled to it. The appellant then dealt with it as the owner would.

The court a
quo correctly in my opinion found him guilty and convicted him as charged. The
appeal accordingly fails in all the 16 counts. The appellant was sentenced to
three years' imprisonment with six months suspended D conditionally in each count. The sentences
were ordered to run concurrently. There is no appeal against sentence and
rightly so, I think. The appellant was rightly ordered to compensate government
to the tune of P62 765 which was the total amount not recovered from him at the
time of the trial.

I confirm
both the convictions and sentences passed. I also confirm the order for
compensation. The appeal is E dismissed.

Appeal dismissed.
F