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Boapotswe v S (MCHFT-000186-12) [2013] BWHC 3 (8 March 2013)

MMB Advocates > Uncategorized  > Boapotswe v S (MCHFT-000186-12) [2013] BWHC 3 (8 March 2013)

Boapotswe v S (MCHFT-000186-12) [2013] BWHC 3 (8 March 2013)




the matter of:




14 December 2012 and 8 March 2013

in person

Jeremiah for the respondent

T. Olatotse appeared amicus curiae


1. On
6 March 2012, the applicant, Bashangani Boapotswe was, together with
two others convicted by this Court, per Chinhengo J.
of the offence
of murder contrary to s. 202 of the Penal Code Cap 08:01.  They
were all sentenced to 10 years imprisonment
with 1 year and 10 months
to be deducted from their prison term, being the time they had spent
in prison custody pending finalization
of their criminal trial.

The applicant has since noted an appeal against both conviction
and sentence.

3. On
5 June 2012, the applicant filed the present application with this
Court seeking to be admitted to bail pending appeal.

The matter came before me on 3 October 2012 and I was initially of
the view that the application was improperly before this Court. 

When enquiring from the learned State counsel Ms Jeremiah
whether the matter was properly before this Court, as the trial
court, she submitted that the proper court to deal with the matter

was the Court of Appeal.

When I enquired from her the authority for that proposition she could
not immediately refer me to any and I postponed the hearing. 

She later filed written heads of argument in terms of which she
submitted that this Court had no jurisdiction to deal with the

matter.  Learned State counsel then cited s. 10(1) of the High
Court Act Cap 04:02 and referred to the following cases as

v Jaba
[1988] BWCA 9; [1988] BLR 225 (CA);

State v Mauwe and Another
[2006] 2 BLR 530 (CA)

6. I
was still not satisfied with my preliminary view that this matter was
not properly before this Court, even with learned State
submissions and I directed the Registrar of this Court to appoint Mr.
Olatotse, who happened to be in court on that day on other
matters, to appear amicus by his consent.  I further
directed both counsel to file written heads of argument in this
matter, with learned State counsel
having to supplement hers. 
It paid off.

7. On
29 November 2012, Mr. Olatotse filed his written heads of
argument and referred this Court to s. 14 of the Court of Appeal Act
Cap 04:01.  Learned State
counsel Ms Jeremiah filed hers
on 12 December 2012 and also referred to s. 14 of the Court of Appeal
Act supra, as well as to the case of Peloewetse v. The State
[1988] BLR 439 (CA).

Before dealing with the authorities cited by counsel, maybe I should
state why I had a preliminary view that I may not be in
a position to
deal with this matter.  I had some discomfort on the basis that
this application involved a matter whose trial
was presided over by
another judge with whom I enjoy coordinate or concurrent
jurisdiction, and that by its very nature, an application
for bail
pending appeal has, as one of its key considerations, a reasonably
arguable case or prospects of success on appeal. 
Such a
consideration involves, inter alia, a decision on the merits
of the case including but not limited to the soundness of the
conviction.  It is, of necessity,
a reconsideration the whole
evidence on the record, as against the findings of fact and
conclusions of law as made and reached
by the trial court or judge. 
It may include finding fault in another judge’s findings of
fact and legal conclusions. 
It was for this reason that I
thought there was a provision of the law which may disbar such a

although it looked unlikely, on the face of it that there could be
any such law.  But it was worth checking.

Section 14(1) (a) of the Court of Appeal Act, supra, is in the
following terms:

A single judge of the High Court or the Court of
Appeal may, on the application of the appellant, and pending the
of the appeal –

admit the appellant to bail …”

10. In the Peloewetse case supra, the Court of
Appeal at page 441 F-G held as follows:

[I]f after conviction an accused files an appeal
and the appeal is pending before this Court (Court of Appeal) then he
may be admitted
to bail by a single judge of the High Court or of
this Court, by virtue of the Court of Appeal Act (Cap 04:01) (1973
Rev.), section

11. I
think the law is very clear that this Court has jurisdiction to deal
with, and decide an application for bail pending appeal
from its own
decisions.  For present purposes, I will not deal with the
propriety of one judge of this Court having to deal
with a similar
application relating to a matter dealt with by another judge of this
Court at a substantive level.  This is
because this question has
not arisen and was never argued in this case.

The record of proceedings in the applicant’s trial is not yet
ready.  I have been informed by the Registrar of this
through her minute dated 7 March 2013, that the appellant’s
case involved two other accused persons and three defence
and that the taking of evidence took no less than 10 full court days
to record.  It is, in short, a voluminous record
which will take
a little bit of some time to prepare.

The other challenge I have been informed, which is not helping the
situation is that the same court reporter who should type
transcribe that record is continuing to sit in other ongoing matters
before this Court.

This Court has therefore no benefit of the record to assess whether
or not the applicant has prospects of success on appeal.

15. I
have also had to take into account that the applicant was sentenced
only last year March to 10 years imprisonment.  In
my view, I do
not think that, if reasonable steps are taken to expedite the
production of his record of proceedings, he would be
prejudiced to an
extent where there will be a miscarriage of justice in that by the
time he can be in a position to effectively
prosecute his appeal he
would have finished serving his sentence.

In the circumstances of this case, I will however, not dismiss this

17. I
would add, in fairness to the applicant in this matter, as well as in
fairness to the office of the Registrar of this Court
that this
application may not have arisen if there was a sufficient number of
court reporters for each judge to expedite, not only
the production
of records of matters going on appeal, but also generally, the
processing of current court orders and judgments.

Besides, the time spent on working on this application would have
been productively spent on real matters of substance. 
scenario such as has presented itself in this case has the potential
to clog the system and create an unnecessary but preventable
if we are to reap the full benefits of judicial case management.

19. In the result the order I make is as follows:

The application is struck off the roll.

This judgment should be forwarded to the Registrar and Master of the
High Court.





in person

of Public Prosecutions – Legal practitioner for the respondent

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