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IN THE COURT OF APPEAL OF THE REPUBLIC OF

BOTSWANA
HELD AT GABORONE
COURT OF APPEAL CRIMINAL APPEAL NO. CLCGB-010-15
HIGH COURT CRIMINAL APPEAL NO. CLHGB-000005-13
In the Matter Between:
Directorate of Public Prosecution
Appellant
Vs
Keamorata Nthebolang
Respondent
Issues
1. The sole issue to be determined in this Appeal is what are
the legal consequences of failure to put an accused person
through the entire process of arraignment and failure to
record his plea.
2. On September 2012, the Respondent was convicted by the
Magistrate sitting at Lobatse of one Count of Burglary, two
counts of stealing from a dwelling house and one count of
House Breaking.
He was sentenced to various terms of imprisonment.
3. He appealed to the High Court where the learned Judge
finding that ex facie the record before him no plea had
been taken quashed conviction and sentence in respect of
all counts on the basis that failure to record his plea
rendered the trial a nullity. It was ordered that he be
retried on the same charges before a different magistrate.
4. The sole ground of appeal is that the learned judge
"erred in law when he ruled that the trial
conducted before His Worship Bhekimpilo Sibanda
was a nullity on the basis that no plea had been

entered by the court despite the fact that a fullyfledged trial


was conducted and prosecution
witnesses duly cross examined.
5. It is common cause that ex parte the record that was
before the learned Judge reflected that no plea has been
entered nor the charge explained to Respondent and that
the Respondent had submitted before the learned Judge
that no plea had been taken. Although it turned out ex
post facto that was not true position nothing turns out in
fact that was true position and nothing turns out on the
point since the point of law raised attacks the High Court
decision arrived at on the record as it was before the
judge.
6. The appellant contests that despite such the trial was not
a nullity since no prejudice was occasioned to Respondent
as he duly cross examined prosecution witness thus
manifesting and intention of a not guilty plea.
7. The issue of failure to enter a plea and the legal
consequences thereof has been dealt with by our court in
a number of cases.
a. In RANKALO v. THE STATE 2000(2) BLR 164 CA,
the full Bench held that failure to enter a plea and
that the charge has not been explained to the
accused the resultant proceedings would be a nullity.
See MMATLI & ANOTHER v. THE STATE 1999(1)
BLR 4 CA and the latest decision of CLEMENT
DUBE v. THE STATE CLCGB-053-14 which the
decision and facts are similar to the present case.
8. The relevant portion of section 141 of the Criminal
Procedure and Evidence Act states that the accused shall
upon the appointed day for his trial or sentence upon any
indictment or summon to appear in court,.. and shall be
informed in open Court of the offence which he is charged
as set forth in the summons, and shall be required to
plead instantly thereto, except where, there being

indictment or summons and the accused having objected


to plead.
9. In both MMATLs case and RANKOLOs case it was held that
the use of the word shall in the section made it
mandatory that no matter what the, a charge ought to
have been read to the accused in the language he
understands for there to be valid proceedings. In MMATLIs
case the court held that it was mandatory because of the
word shall.
10.
In Clement Dubes case the case, the interpretation
to be given to section 141 of the Criminal Procedure and
Evidence Act and Section 45 of the interpretation Act
which states that shall is to be construed as imperative
against section 2 of the same Act and shall apply to every
enactment
except in so far as the contrary intention appears.
11.
It was held that as the trial was concluded in a
manner showing that the Appellants intention was to
plead not guilty the resultant could not be vitiated despite
failure to conduct an arraignment.
12.
Moreover there is the proviso to section 325 of the
Criminal Procedure and Evidence Act which is pertinent
and apposite.
It reads;
Provided that notwithstanding that the
appellate court is of the opinion that any point
raised might be decided in favour of the
accused, no conviction or sentence shall be set
aside or altered by reason of any irregularity or
defect in the record or proceedings, unless it
appears to the appellate court that a failure of
justice has in fact resulted therefrom.
13.
It is noteworthy that despite the absence of a
plea, the record reflected that there was a fully-fledged

trial because the respondent in trying to distance


himself from the crime approximately cross-examined
the prosecution witnesses.
14.
This was an accused who some prosecutors knew
very well and had 18 previous convictions dating back
to a period between 1979-2007, with that being said
he is considered a novice to this court though
unrepresented.
15.
At paragraph 20 of its judgement in CLEMENT
DUBEs case the Court stated inter alia;
Where an unrepresented accused person is all at sea,
and is prejudiced in his defence by not knowing the
nature of the charge he faces and by for example,
cross-examining on relevant issues, then he may well
succeed in his appeal, although the Court retains a
discretion as to whether to declare his trial and
conviction a nullity where on the other hand the
accused has a lawyer to explain charge to him, and to
advise him on his plea and possible defences, and to
cross examine on his behalf the inadvertent failure by
the presiding officer to attend to these matter in open
court will seldom, if ever, result in a failure of justice
such a s to cause his conviction to be set aside. This
may equally apply in the case of an unrepresented
accused who show himself by his conduct of the trial
fully to have understood the charge and its
implications.
16.
In casu there can be no suggestion that even if in
fact no plea had been recorded and the charge not
been explained to Respondent there could have been a
failure of justice resulting therefrom.
17.
In the premises the appeal of Public Prosecutions
succeeds. The conviction entered by the Magistrate on
four counts together with the sentences imposed are
restored save that with regards to the sentence
already served shall be deducted.