Criminal Appeal No. F229 of 2003 Appeal from Maun criminal case No. M 05 of 2003 J U D G M E N T

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1 IN THE HIGH COURT OF BOTSWANA HELD AT FRANCISTOWN In the matter between Criminal Appeal No. F229 of 2003 Appeal from Maun criminal case No. M 05 of 2003 SELEBOGO MOGODU APPELLANT VERSUS THE STATE RESPONDENT L. Lecha for the appellant C. Gaobatlwe for the respondent Francistown, 24 April and 11 May 2005 J U D G M E N T CHINHENGO J. This is an appeal against the judgment of the subordinate court of the First Class for the North West Magisterial District. The appellant was charged, together with two other persons, Kelebilemang Mark ( accused 2 ) and Gaolaolwe Obiditswe ( accused 3 ) with the crime of rape. It was alleged that on 3 October 1999 at Mababe settlement, Maun area, the appellant, accused 2 and accused 3 had carnal knowledge of L. M. (complainant) without her consent. The appellant was convicted and sentenced to 10 years imprisonment and 3 strokes of the cane. Accused 2 and accused 3 were also convicted of the offence charged but on passing sentence the magistrate had a change of heart about the

2 conviction and said the following Respecting the second and third accused persons this trial has been to them a denial of their rights to which they are entitled by law. They were not tried by a juvenile court as they should have been. They did not have the benefit of the Commissioner of Child Welfare s report. The court did not have the benefit of information into their background to be able to deal with them properly. And consequently it would be an act in futility to attempt to sentence the accused person (sic). In fact now with the benefit of hind sight I am convinced that these accused persons could not have even at this age properly conducted their defence. It has been indeed found by the prosecutor that they seem to say only that which the first accused said. I do not know whether that was by design but I believe it is one factor that shows that indeed they deserve to have been dealt with separately. Accordingly I find that theirs was a mistrial. It was null and void from the on set. I will discharge them inspite of the conviction which I have found followed from the flawed trial. This appeal by the first accused (now appellant) is on the merits of the judgment of the court in regard to the conviction. Accused 2 and accused 3 needless to say did not lodge an appeal. They had no cause to do so because they were acquitted. The appellant s counsel contended that the evidence did not show lack of consent but that, in fact, the act of sexual intercourse between the appellant and the complainant was consensual. He contended that the evidence did not show that the complainant had herself reported the alleged offence to the police, but rather that it was her mother who had done so. He also contended that in failing to take into account the complainant s failure to shout out for help from persons who could have come to her assistance as not being supportive of the allegation of rape, the court had erred. There are a number of issues which I will have to consider in addition to

3 determining the appeal on the basis of the grounds of appeal put forward by the appellant. These issues relate to: a) the framing of the charge in so far as the contravention of the correct provision of the Penal Code is concerned and the charge s correctness in respect of the appellant; b) the discharge of the two accused persons, its correctness and effect on the criminal liability of the appellant; and c) the procedure for dealing with a person who commits a crime whilst a juvenile and is only tried when he is no longer a juvenile. The charge The statement of the offence reads: Rape c/s 142 of the Penal Code Cap 8:01 as amended by section 3 of Act 5 of The particulars of the offence read: The three accused persons on the 3 rd of October 1999 at Mababe settlement, Maun area in the North West District had carnal knowledge with L. M. without her consent. When passing sentence, the magistrate stated that the 3 accused persons stand convicted of a single count of Rape contrary to section 142 of the Penal Code as amended by Act No 5 of 1998.

4 The offence of rape is created by s 141 of the Penal Code and s 142 is a penalty provision only. It was therefore wrong for the charge to allege a contravention of s 142 of the Penal Code. What may have appeared to be an inadvertent reference to a wrong section of the Act on the part of the framer of the charge no longer appears to be so because the magistrate stated that the accused had been convicted of rape contrary to s 142 of the Act. The error notwithstanding, I do not think that the accused persons were prejudiced by the incorrect citation of the relevant section of the Act. They fully appreciated that they were facing a charge of rape. I will therefore only amend the charge to read that it is one of rape contrary to s 141 as read with s 142 of the Penal Code [Cap 08:01]. I must urge judicial officer to peruse the charges leveled against persons appearing before them in order to avoid proceeding on a wrongly framed charge as was the case here. The evidence led at the trial showed that the appellant did not have sexual intercourse with the complainant without her consent. What the evidence showed, however, is that after he had had consensual intercourse with her the appellant induced the complainant to submit to sexual intercourse with accused 2 and accused 3 by the use of threats of violence. The magistrate convicted the appellant as a socius criminis and not as a principal perpetrator. The appellant s criminal liability therefore arose from inciting and assisting accused 2 and accused 3 to commit the

5 crime. One would assume that from its investigation the State must have become aware of the fact that the appellant would either be found guilty of rape as principal offender if he had himself had intercourse with the complainant without her consent or as one who aided and abetted the other accused persons to commit the offence. If the State was aware of the alternative basis of the appellant s criminal liability should the charge simply have alleged rape without, in the alternative, alleging that the appellant abetted and aided the principal offender and was accordingly guilty of rape? A reading of the decision in Rex v M & Another 1950 (4) SA 101 (T) would lead one to the conclusion that the charge should have alleged, in the alternative, that the appellant was guilty of rape because he unlawfully and knowingly assisted accused 2 and accused 3 to commit the offence, see the judgment at 101 H-102 A where, in dealing with a charge against a woman who had assisted the first accused to have intercourse with the complainant, the judge commented that it was manifestly nonsensical to allege that the second accused (the woman) had sexual intercourse with the complainant. In South African Criminal Law and Procedure Vol. I 2ed at p 143 it is stated that certain crimes, such as rape, cannot be committed through the instrumentality of another. It is therein specifically stated: So if X procures Y to rape Z, X will not be a perpetrator in the rape unless he himself had sexual intercourse with Z and, in this connection, the authors cite other authority for their proposition. It seems to me that

6 this must be so where the offence is charged under the common law. Where a Code exists, such as is the case in this jurisdiction, the definition of the offence to be charged is all important in determining the way in which the charge must be framed. Whilst the reasoning in R v M (supra) can be extended to a case where a male accused person did not himself have unlawful intercourse with a complainant but merely assisted another or other persons to do so the situation is different where the offenders are charged under the Penal Code. They must all be included in one charge of rape and no mention should be made of aiders and abetters. This accords with what is stated by Barry Hill and Karen Fletcher-Rogers in Sexually Related Offences at p. 134 (para 4-17) where the authors relied for their proposition on DPP v Merrriman [1973] AC 584, a case which is not immediately available to me. That should be our approach. The definition of rape in s 141 of the Penal Code encompasses the abetter or aider because it specifies that a person who causes the penetration of a sexual organ or instrument of what ever nature into the person of another for purposes of sexual gratification without the consent of such other person, or with such person s consent if the consent is obtained by force or means of threats or intimidation of any kind is guilty of the offence termed rape. Where therefore it is alleged that a person has been raped by more than one person on one occasion with one or other of them merely assisting the other or others to commit the offence all those persons should be charged with rape

7 without the necessity to specify in the charge that any one or other of them, as the case may be, only aided and abetted the commission of the offence by the other or others. In the heads of argument filed of record by the respondent but later abandoned, it had been submitted that on the evidence the appellant should have been convicted of procuring the complainant to have unlawful carnal connection with his two friends in terms of section 149(a) of the Penal Code and not rape. I do not think that that would have been the correct charge at all. In my view the correct charge was rape and, subject to what I have said about the correct section of the Penal Code, I am satisfied that the appellant was correctly charged with the offence of rape even though it was not alleged that he only abetted or aided the actual perpetrators of the offence. It is at this point where I think it is appropriate to deal with the conviction of the appellant and accused 2 and accused 3 albeit that the latter were acquitted at the sentencing stage. The complainant s evidence was that she was in love with the appellant. On 3 October 1999, when all the people at her home, including her mother, had gone to sleep, she stole out of her room, and together with the appellant who had come to pick her up, proceeded to the appellant s house. On the way they were joined by accused 3. When they entered the appellant s house accused 2 arrived. The three males talked to each

8 other in Sesarwa, a language which the complainant did not understand. After that accused 2 and accused 3 went outside. They were now conversing in Setswana and indicating that they were going to the bush to relieve themselves. The complainant remained in the house with the appellant. They had sexual intercourse consensually as they had done before. After the intercourse the appellant opened the door for accused 2 and accused 3. This was before she had put on her clothes. She was surprised as to why the appellant would open the door for the other accused persons when she was in that state. She was surprised further, I would say, when the appellant told the other accused persons that there is a woman, you can sleep with her as you please clearly suggesting that they could have sexual intercourse with her. The complainant said that when she indicated that she would resist and shout for help, the appellant produced a knife and threatened to stab her if she did not submit to sexual intercourse with accused 2 and accused 3. Because of this threat she submitted to sexual intercourse first, and only once, with accused 3 and then twice with accused 2. The evidence seems to clearly indicate that the appellant only had intercourse with the complainant once with her consent. This is so because when she was asked by the prosecutor as to why she alleged that the appellant had raped her she stated correctly and, surprisingly so for a lay woman, that He raped me because during that day he caused other 2 accused persons to sleep with me which he does not usually

9 do. The defence of the appellant was that he only had sexual intercourse with the complainant with her consent. He denied that he had caused accused 2 and accused 3 to have intercourse with the complainant against her will or that they had had any intercourse with her. Accused 2 and accused 3 also flatly denied that they had any sexual intercourse with the complainant. Thus they all denied the charge. The appellant, accused 2 and accused 3 gave unsworn evidence. The gist of their evidence was that they all lived in the house where the offence is alleged to have been committed. The appellant had, on his own, picked up the complainant from her home and taken her to the house. When they entered the house accused 2 and accused 3 were already asleep. The appellant and the complainant had consensual intercourse and the complainant spent the night at the house. On the following morning the complainant s mother learnt that the appellant, accused 2 and accused 3 shared the house and she then alleged that the three of them had raped her daughter. The evidence for the prosecution was also given by the complainant s mother, Maikaelelo Serefo and police sub-inspector Mpatane, the investigating officer. The complainant s mother admitted that she knew of the relationship between the appellant and the complainant and that

10 they habitually had sexual intercourse. She said that the complainant had gone to the appellant s house on 3 October and returned home at 1.00am. When she asked her about where she had been the complainant had told her that she had been to the appellant s house and that she had been forced by the appellant to have intercourse with accused 2 and accused 3. Sub-inspector Mpatane told the court that when he confronted the appellant, accused 2 and accused 3 with the allegation of rape they had all denied it though the appellant had admitted that he had sexual intercourse with the complainant with her consent. He had later taken the complainant for a medical examination. A report was compiled by the doctor who examined her. That report was submitted to court as an exhibit. He also said that although the complainant had told him that she had been threatened with a knife he did not recover any knife. In their cross-examination of the State witnesses the appellant, accused 2 and accused 3 sought to show, by the questions which they put to the witnesses, that the complainant could not be believed. In her evidence in-chief the complainant had said that a knife was recovered by the police and in cross-examination she repeated that the police had taken the knife from the appellant and his co-accused. With the denial by subinspector Mpatane that the police took any knife, the complainant s evidence on that score cannot be accepted as true.

11 The cross-examination of the complainant s mother revealed that all her evidence was what she had been told by the complainant. Asked by accused 2 as to what evidence there was to show that the complainant had been raped she merely retorted that the complainant had told her so. And in response to a similar question by the appellant she said The evidence is that you used to have sex with her but she did not tell me but on that particular day she told me. The magistrate dealt with the evidence of the prosecution witnesses and reached the conclusion that the complainant was a credible witness and that her evidence had been sufficiently corroborated. On the credibility of the complainant the magistrate had this to say On the evidence PW1 stands unchallenged on the essential elements. The accused persons did not cross-examine her on the material aspects. Their cross-examination was half-hearted and hesitant as if they feared the answers to the questions they put to the complainant. PW1 has readily admitted to having an affair with accused 1, and that she was taken from her place by the said accused persons. She has not sought to distance herself from the accused persons. Not only that accused 1 has also admitted to having sex with her on the date in question. On the whole PW1 was forthright in her testimony. She has not sought to avoid any questions that were put. My impression of her is that she was a witness of truth and I accept her as a credible witness. I shall proceed to see if there is any corroboration of her testimony from the other witnesses. I cannot disagree with the magistrate s finding on the credibility of the complainant or with the reasoning accompanying that finding. The candid admission by the complainant that she was surreptiously picked up from her mother s house by the appellant and that she consented to intercourse with him is a factor favourable to her credibility. She could easily have alleged that all the three accused persons ravished her yet

12 she did not. She did not, as correctly observed by the magistrate, distance herself from the appellant and his co-accused. The magistrate found that the complainant s evidence was sufficiently corroborated. He found corroboration in the absence of any motive on the part of the complainant to implicate accused 2 and accused 3 after she had admitted consensual sexual intercourse with the appellant. He correctly observed that the circumstances (of the offence) are unable to supply a motive as to why PW1 should do as she is said to have done ie, laying a false charge of rape. He found corroboration in the mother s conduct. He said that the complainant s mother was aware of the relationship between the appellant and the complainant and tolerated their having sexual relations. He reasoned that it did not make sense that the complainant s mother alleged rape only because she had heard that the appellant resided in the same house with accused 2 and accused 3. This piece of the complainant s mother s evidence is not in my view corroboration material as such but that does not detract from the magistrate s general findings. The magistrate accepted the mother s evidence that the complainant arrived home at about 1.00 am. He then went on to reason that the mere fact that the complainant walked to her home at night and in an area teeming with dangerous wild animals suggested that something was amiss. As I said earlier the accused persons did not challenge the complainant s mother s evidence as to the

13 complainant s time of arrival. It was therefore not unreasonable for the magistrate to accept that the complainant arrived at her mother s house at about 1.00 am. I cannot really fault the magistrate s reasoning on this finding. This was a case in which corroboration was bound to be difficult to come by. The complainant alleged that the rape was committed in a house where struggle marks could obviously not be found. She submitted to the accused persons designs because of intimidation and threats of death or physical harm. She could not therefore have sustained any injuries. Penetration was a given in that she had consented to sexual intercourse with the appellant before submitting to the same by the others. What was surprising though was the absence of spermatozoa in the seminal fluid taken from her. The complainant stated that the appellant and the other accused persons had not used condoms when they had sexual intercourse with her. One would have expected that having been ravished by three people, one after the other, spermatozoa would have been present but the medical report states that none was seen. The magistrate remarked that he had no explanation for that. I too cannot explain that scenario. I can attribute the absence of spermatozoa to the fact that accused 2 and accused 3 were only fifteen years old and may not have had any emissions. This however remains conjectural as no scientific evidence was given as to how this may have

14 been so. I do however accept the general proposition that the absence of spermatozoa on its own is not sufficient to disprove penetration. The fact that the complainant alleged that the police had recovered the knife when the police said that they had not recover any knife cannot by itself show that the complainant lied. She was giving evidence some four years later and could have been mistaken as to whether the police had recovered the knife or not. If they had not and she knew that, there would have been no point in her saying so only to have the police witness contradict her. The appellant and his co-accused gave unsworn evidence. The weight to attach to such evidence is lower than that attached to sworn evidence. In my view the magistrate correctly observed that the appellant and the accused did not sufficiently cross-examine the complainant in order for her to reveal exactly how she was ravished by the two accused persons. A detailed cross-examination could conceivably have exposed her if she was not telling the truth. I find that the complainant s evidence establishes that she had consensual intercourse with the appellant and forced intercourse with the other accused persons. Why else would she have alleged rape if that offence had not been committed upon her. She gave details as to how the three had conspired in a language which she did not understand, how the second and third accused had left the

15 house to afford the appellant the opportunity to have consensual intercourse with her and how, after that, accused 2 and accused 3 had been invited to have intercourse with her against her will. I think that on all the evidence the picture emerges quite clearly that she was sexually abused by the appellant and his co-accused. There are cases when corroboration has been found to be thin but the accused were convicted all the same because the court was satisfied on all the evidence that the prosecution case had been proved beyond a reasonable doubt. This is a case in which though corroboration was thin, the guilt of the accused persons was proved beyond a reasonable doubt. The complainant was 15 years old when she was subjected to the ordeal of being raped by two other persons after consensual intercourse with the appellant. The appellant was lucky to have been charged only with the offence of rape. Because of the complainant s age at the time he should also have been charged with defilement of a girl under the age of 16 in contravention of s 147 of the Penal Code. Discharge of Accused 2 and accused 3 Accused 2 and accused 3 were 15 years old when, on 3 October 1999, they were alleged to have committed the offence. They were about 19 years old at the time of trial and conviction and sentence. In reaching the decision to discharge them at the sentencing stage the magistrate reasoned that they should not have been tried in the ordinary court but in a juvenile court. The magistrate referred to ss 22, 27 and 28 of the Children s Act. Section 22 creates juvenile courts and provides that juveniles i.e., persons between the ages of seven years and 18 years, must be tried in such court and that where a juvenile is jointly charged with a person who is 18 years or older that juvenile shall be given a

16 separate trial from that other accused person. Section 27 provides as follows 1. Any person having a reasonable cause to believe that an offence has been committed by a child or a juvenile may make a complaint thereof to the Commissioner in the district in which the offence was alleged to have been committed. 2. If on receipt of a complaint, the commissioner is satisfied that prima facie an offence has been committed, he shall cause a probation officer to inquire into and report to him on the general conduct, home environment, school records and medical history (if any) of the child or juvenile. 3. After consideration of the report submitted under sub-section (2) the commissioner may (a) (b) deal with the child or juvenile in accordance with the provisions of section 17; or commit the child or juvenile to a juvenile court for trial. Section 28 provides for the various ways in which a juvenile court may deal with a child or juvenile charged with an offence. It provides that Where a child or juvenile is charged with an offence and is tried by a juvenile court and the court is satisfied of his guilt the court may, after taking into consideration the general conduct, home and environment, school records and medical history (if any) of the child or juvenile, dispose of the case by (a) dismissing the charge; (b) (c) discharging the offender on his entering into a recognizance; placing the offender on probation for a period of not less than six months or

17 more than three years; or (d) sending the offender to a school of industries for a period not exceeding three years or until he attains the age of 21 years; or (e) ordering the parent or guardian of the offender to pay a fine, damages or costs. The magistrate discharged accused 2 and accused 3 on the basis, as he endeavoured to explain, that they were juveniles at the time of the offence and they should not have been tried even at age nineteen as at the time of trial in the magistrate s court because of the earlier violation of their rights under s 27 of the Children s Act. The magistrate declared the proceedings before the him in relation to accused 2 and accused 3 to have been a mistrial and, as such, null and void ab initio. The magistrate effectively acquitted the two accused persons at the sentencing stage. Was the magistrate right to convict the two accused persons and then acquit them at the sentencing stage? Was the magistrate correct to conclude that a person who was a juvenile at the time an offence was committed but was older than eighteen years at the time of his trial could not be tried in the magistrates court? Was the magistrate correct to cancel his/her own verdict of guilty? These are all questions which must be answered. I will deal with the second question first. Section 28 of the Children s Act specifically deals with a situation where

18 a juvenile charged with an offence is tried by a juvenile court. This means that at the time of the trial the person concerned is a juvenile. In my view the section does not apply to a person who was a juvenile at the time the offence was committed but is no longer such as at the time that he is tried. There is nothing in the Penal Code or in the Criminal Procedure and Evidence Act which directly deals with this problem. No relevant section was referred for my attention. Section 304 of the Criminal Procedure and Evidence Act provides that a court convicting a person under the age of 18 years may, instead of imposing any punishment upon him for that offence, order that he be placed in the custody of any suitable person and such order may be in addition to the imposition of corporal punishment. This section does not deal with a person who is over 18 years at the time of conviction but it, in terms, provides that a person over 18 years old can be tried in the magistrates court. Section 295 of the same Act provides for referral for sentence by a magistrate s court to the High Court upon conviction of a person who is not less than the apparent age of 17 years for punishment by that court if the magistrate is of the opinion that a greater punishment should be inflicted than he has the jurisdiction to impose. That section also does not address the problem at hand. It seems to me that the proper procedure was for the magistrate to have sentenced accused 2 and accused 3 without being constrained by the provisions of the Children s Act because at the time of trial, conviction and sentence, accused 2 and

19 accused 3 were no longer juveniles. I made a passing comment in regard to this issue in The State v Lekgetho Kedijele Crim Comm No. F8/2004. See also Fredrick Mokone and Moses Dikago v The State Crim App No. L22/2003 at pp in which MOLOKOMME J sentenced such persons to custodial sentences and convincingly justified a sentence other than the mandatory sentence. The fact which cannot be ignored altogether is that s 27 of the Children s Act requires that any person who has reasonable cause to believe that an offence has been committed by a juvenile should make a complaint to the Commissioner who will conduct an inquiry into the matter and may, if appropriate, commit the juvenile to a juvenile court for trial. I do not wish to express any firm opinion as to whether a failure to do so and thus a failure to deal timeously with a juvenile offender as such may result in his acquittal at a trial conducted when he is no longer a juvenile on the basis that his rights in terms of s 27 of the Children s Act were violated at the time that he is alleged to have committed the offence. What I can say with a degree of confidence is that it is not desirable, and it was not foreseen, by the law maker that such trials would be delayed to a point when the juvenile is over 18 years old. Juveniles must therefore be dealt with expeditiously in order to afford them their rights under the Children s Act. With the mandatory sentence for rape, it was not possible before 20 December 2004, generally speaking, to deal with a juvenile in the

20 position of accused 2 and accused 3 in any other way than to sentence him in the ordinary way. However with the passing of the Penal Code Amendment Act, 2004 (No. 39 of 2004) it is now possible to impose a lesser sentence pursuant to s 27(4) of the Penal Code as amended on the basis of there being exceptional extenuating circumstances which render the imposition of the minimum period of imprisonment totally inappropriate. The case of a person who, as a juvenile, commits an offence which attracts a mandatory sentence but is only tried and convicted when he is no longer a juvenile can now be handled in terms of s 27(4) of the Penal Code. The fact of the offender s age (i.e., being a juvenile) at the time of the commission of the offence, in my view, constitutes exceptional extenuating circumstances warranting the imposition of a sentence which is less than the mandatory sentence. MOLOKOMME J in Mokone (supra) also expressed the view that age may constitute exceptional extenuating circumstances. I am therefore satisfied that when the magistrate in the present case acquitted accused 2 and accused 3 for the reason that the relevant provisions of the Children s Act were not complied with, he was wrong and he should, on the contrary, have sentenced the accused persons to the appropriate penalty prescribed by law. I will not, for present purposes, deal with the vexed question whether or

21 not the magistrate was in law entitled to change the verdict of guilty and acquit the accused persons at sentencing stage. I need not do so because the conclusion I come to renders it unnecessary to decide the issue. But having regard to decisions in other jurisdictions it would seem that a magistrate cannot cancel a verdict, see for example R v Factors & Engineers (Pvt) & Others 1966 (3) SA 649 (RAD) and S v Aronstam 1966 (3) SA 780 (T) unless he has made a mistake and that mistake is genuine in the sense that he said something he had not intended to say or the sentence he came to was incompetent. It is not the kind of mistake envisaged by s 183(2) of the Criminal Procedure and Evidence Act if after verdict or sentence the judicial officer has second thoughts about the matter. Accused 2 and accused 3 were effectively acquitted by the magistrate. I have said that the magistrate was wrong in acquitting them for the reason which he gave. But nonetheless they stand acquitted. The question is whether this court can now reverse that decision and restore the original finding of the magistrate that the two were guilty. If that can be done there is a good reason why I cannot do so in this case. Accused 2 and accused 3 were not before me nor did they lodge any appeal. If I were to order that the magistrate s original verdict stands then it would mean that a discharged person, duly acquitted is convicted two years later in respect of the very same proceedings a clearly untenable

22 proposition (S v Aronsom supra at 781 E). The acquittal of accused 2 and accused 3, though wrongly founded, must stand. I do not think that even s 10 of the High Court Act (Cap 4:02) which deals with the appellate jurisdiction of the High Court is applicable. While that section provides that the High Court may amend, confirm or set aside any judgment of any magistrate s court or order a new trial, or receive further evidence or impose a punishment whether more or less severe than, or of a different nature from, that imposed by the magistrate court, it does not extend to empowering the High Court to alter an acquittal to a conviction for any reason whatsoever. I also do not think that s 325(c) of the Criminal Procedure and Evidence Act applies because there was no appeal by accused 2 and accused 3. Implication of Accused 2 and Accused 3 s Acquittal on Appellant s conviction The appellant was convicted of rape because he assisted accused 2 and accused 3 to rape the complainant. I have already said that the definition of rape encompasses a person who causes the penetration of a sexual organ or instrument of whatever nature into the person of another without such other person s consent or through threats and intimidation and that such person commits rape. Support for this is to be found in the judgment of WALIA J in Samson Chanda v The State Crim App No. F17 of If accused 2 and accused 3, who are the persons who actually penetrated the complainant, have been acquitted does there remain a basis on which the appellant as instigator, aider and abetter can remain guilty of the offence. This is a rather difficult problem to resolve? Fortunately the facts of this case do not require me to resolve it. The acquittal of accused 2 and accused 3 was not on the merits. It was technical in nature in that the magistrate erroneously interpreted the provisions of the Children s Act. To the magistrate their conviction was otherwise valid but for his erroneous appreciation of the provisions of the

23 Children s Act. The conviction of the appellant could not be set aside on the same basis as that of accused 2 and accused 3. It cannot, in my view, be interfered with on the basis of the technicality cited by the magistrate in wrongly acquitting the other accused persons. The respondent withdrew the heads of argument which had been earlier filed on its behalf. In those heads, the respondent had supported the appellant s conviction. In her oral submissions at the hearing Mrs. Gaobatlwe said that the respondent no longer supported the conviction. I was initially inclined to agree with her and the appellant s counsel who also argued for the setting aside of the conviction but, after carefully considering the evidence and the magistrate s reasoning and conclusion, I was convinced that an acquittal of the appellant cannot be justified. I accordingly dismiss the appeal. DELIVERED IN OPEN COURT ON 11 MAY M. H. CHINHENGO JUDGE