IN THE COURT OF APPEAL OF BOTSWANA

HELP AT LOBATSE

COURT OF APPEAL CRIMINAL APPEL NO. 37 OF 1999

HIGH COURT CRIMINAL TRIAL NO. 34 OF f 9 9 7

In the matter between

MARRIETTE SONJALEEN BOSCH APPELLANT

AND

THE STATE RESPONDENT

Mr. D. de Silva QC with him Mr. Fashole-Luke II for the appellant

Mr. L. Z. Ngcongco with him Mr. B. Nlanda for the respondent

JUDGMENT

CORAM: Aguda Ag. J.P.

Nganunu C.J.
Tebbutt J.A.

AGUDA Ag. 1.P

INTRODUCTION

On January 12, 1998, the appellant was arraigned before a Judge of the High

Court sitting at Lobatse upon the single charge of murder contrary to Section 202

of the Penal Code. The particulars of the charge alleged that the appellant on or

about the 26th June 1996 at Phakaiane in Gaborone Administrative District

murdered Maria Magdalene Wolmarans. She pleaded not guilty to the charge. The

l
State was represented by U. Mack with whom were Batsalelwang and NIanda whilst

the appellant was represented by Fashole - Luke II.

The prosecution called sixteen witnesses and closed its case. For her defence, the

appellant gave evidence and called eleven other witnesses. The record of appeal in

the case runs to 1168 pages. Judgment was delivered on December 13, 1999.

THE JUDGMENT AND SENTENCE

The learned trial judge, Aboagye, ] . having concluded that it was the appellant who

with the requisite intention shot and killed the deceased with a gun and that the

defence of self-defence, provocation and insanity were not applicable in her case,

found her guilty as charged. He accordingly convicted her of the offence. The

learned trial Judge then gave her the opportunity, as she was entitled to under our

law, to lead evidence in support of her allegation that there were circumstances in

her case which would bring her case within sub-section 2 of Section 203 of the

Penal Code. The sub-section says that -

"Where a court in convicting a person of murder is of the opinion

that there are extenuating circumstances, the court may impose any
sentence other than death."

The appellant thereafter once again gave evidence and called three witnesses with a

view to convincing the court that there were extenuating circumstances in her case.

After the conclusion of all the evidence led by the appellant and the address of

Counsel for the appellant and the address by Counsel for the respondent the court

2
adjourned for a ruling. In concluding his ruling dated February 1 1 , 1996, the

learned trial judge said:

"... I find the accused's murder of her close friend in order to take
over her husband an aggravating circumstance in the case. ...I find
that the crime committed by the accused was carefully planned and
committed with an evil motive without mercy for an innocent victim
who had done her no harm. It is difficult to think of a crime that is
more devoid of circumstances that could be held to reduce the moral
blameworthiness of the accused than that of which she has been
convicted."

She was accordingly sentenced to death.

THE APPEAL

On February 15, 2000, Counsel on behalf of the appellant filed a Notice and

Grounds of Appeal to this Court. Only two grounds of appeal against conviction

were filed and these were (1) that "the verdict was unreasonable cannot be

supported having regard to the evidence" and (2) that "the conviction on the

count charged is unsafe and unsatisfactory". In substance only one ground was filed

against the sentence, and that was that the learned trial judge "erred in finding that

there were no extenuating circumstances and imposing the sentence of death."

Later, on December 1, 2000, Counsel for the appellant Fashole-Luke filed another

document bearing no title and without reference to the Notice of Appeal

containing grounds of appeal, earlier filed. It does not even bear any heading nor

does it say that it contains substitute, or additional grounds of appeal. Be that as it

3
may, it is clear that the grounds of appeal set down in that document are in essence

these:

1. That the learned trial Judge erred in misunderstanding the

burden and standard of proof thus leading to the erroneous
conviction of the appellant for failing to prove her innocence.
Subsidiarily, that the learned Judge erred in placing the burden
of proof of alibi on the appellant.

2. That because the prosecution failed to disclose to the court

and to the prosecution that one of the witnesses had been
granted immunity from prosecution, the appellant did not
have a fair trial.

3. As regards the sentence that the learned trial Judge erred in

not finding that there are extenuating circumstances in this
case.

However, without leave, Counsel for the appellant in the afternoon of Monday

January 15, 2 0 0 1 , filed what he calls Additional Supplementary Grounds of

Appeal against Conviction. On the same day, another set of Heads of Argument in

relation to the latest grounds was filed at the same time. And the appeal had been

definitely fixed for hearing to January 18, less than 60 hours to the hearing of the

appeal. I do not see any provision of the law permitting the Registrar to accept the

new grounds of Appeal without the leave of the court, and including them in the

record of appeal, contrary to Rule 33 of the Court of Appeal Rules which read

with Civil Form 1, Third Schedule which obliges an appellant to include grounds of

appeal in his notice of appeal. In spite of all this, however this Court agreed to and

did hear appellant's Counsel on each and every one of the grounds filed on the

three occasions.
The latest grounds filed on January 15, 2001 which are numbered 6 and 7

complained that -

"6. The learned trial judge seriously erred in law in

misunderstanding the evidential significance of a former
inconsistent statement in that he failed to recognize that in law
a previous inconsistent statement by a witness goes to the
credit of that witness only and cannot be used or treated as
evidence of the truth of its contents...

7. That learned trial judge made serious errors misdirecting

himself both as to fact and law in considering the appellant's
case and the evidence called on the appellant's behalf during
the trial."

THE HEADS OF ARGUMENT

On December 18, 2000, the appellant filed her Heads of Argument. The

appellant in the Heads says that -

"The two real issues in this case raised by the defence were correctly
identified by the learned trial Judge;"

and these are, according to the appellant (1) the plea of alibi and (2) that she had

given the gun to another person, and therefore could not have been properly

convicted of the offence. As I shall show later this of course failed completely to

give a good account of the various other matters raised in the Heads. As I shall

later consider each and every point of substance raised in the Heads as well as the

points of substance raised in the respondent's Heads of Argument I do not think

that I should set them down here in detail.

5
The respondent did not file his Heads of Argument until January 8, 2 0 0 1 . The

appeal was called on January 10, 2 0 0 1 , when as agreed it was postponed to

January 18 and 19, 2001 for argument. Four days later, that is on January 12,

2001, Counsel for the appellant filed what he called "Appellant's Response to

Respondent's Heads of Argument." It is not indicated under which rule of Court

Counsel filed that response which consists of eight pages of closely typed fresh

arguments supported with what looks like copious authorities in respect of what I

categorised earlier as ground 2 of the Grounds of Appeal, and a repetition of what

the original Heads contained as to burden of proof and sentence.

Similarly as 1 have said earlier, it is not shown on the paper marked Applicant's

Heads of Argument in relation to the Additional Supplementary Grounds of Appeal

the Rule of Court under which it was filed nor that leave has been obtained to file

the additional grounds. It appears to me that the Court was simply taken for

granted because it is thought that as it was a conviction for murder, we must accept

and act on any paper filed by the appellant whether properly or improperly. Be

that as it may I shall give a consideration to those Heads in this case, but this must

not be taken as a precedent that in circumstances of this nature this court will in

future take such a lenient and highly accommodating line as in this.

The new so called additional supplementary Heads of Argument in summary

complains that the learned trial Judge erred in doubting the credibility of the

6
evidence of the appellant by making reference to the out-of-court statement made

by the girl Charmaine (DW2). The argument on the second ground is not so easy

to follow. It seems to mean no more than to complain of an erroneous evaluation

of the evidence of PW3, and that of DW10.

FACTS OF THIS CASE

The appellant lost her husband Justin Bosch in 1995 through a motor vehicle

accident. She and the deceased Mrs. Maria Magdalene Wolmarans were friends

even before her husband, Justin Bosch died. After Justin had died Mr. Wolmarans

who was staying in Maun used to pay visits to the appellant, but after Mrs.

Wolmarans had died, it is clear that his visits became more frequent and close

intimacy developed between both. According to the appellant herself she went to

Pretoria in South Africa with the deceased on June 17, 1996 to bring her mother

to Botswana. They came back to this country on June 22. On June 25, 1996,

the appellant went back to South Africa to collect her late husband's gun from one

Dennis Webber at Pietersburg. According to her, she went as a messenger for one

Mr. Hennie Coetzee who wanted to buy the gun, but according to the prosecution

she went on her own and was never sent by Coetzee. Be whatever it may be it is

common cause that she got her husband's gun, a pistol, and slept with the Webbers

that night. She then came back to Botswana the very next day, June 26, 1996,

not only with the pistol but also with a box of ammunition containing 25 rounds.

According to the prosecution she told Webber that she was going to practice

7
shooting with the pistol, but according to her, the purpose of collecting the pistol

was that she was going to sell it to Coetzee. In any event she collected the pistol

and brought it to Botswana without declaring it at the South African border post

nor at the Botswana Border post. She arrived Botswana at about 2.00 p.m on that

day June 26, 1996. And according to her she went direct to deliver the gun to

Coetzee, and finally got to her home by 7.30 p.m. It is common cause that at

about 8.05 or 8.10 p.m, Maryana Wolmarans, daughter of the deceased, by

arrangement collected Charmaine a young daughter of the appellant to go out to

have dinner with her and her boyfriend. The appellant's maidservant went to her

own quarters. At about 8.45p.m gunshots were heard in the house of the

deceased. A t about 11.00 p.m when Maryana let herself into their home, she met

the dead body of her mother. She made some telephone calls including one to the

appellant. The police came in later and found the corpse and two spent cartridges.

A post mortem examination was performed on the body on June 28, 1996. That

examination revealed that the woman had died of gun shot wounds fired from the

gun brought into the country on that same day by the appellant. The police then

commenced investigation into what was apparently murder.

On or about September 13, 1996, the appellant went to South Africa to order a

wedding dress. On September 14, 1996, whilst still in South Africa she gave the

pistol which she had collected from Dennis Webber to Michael Bosch, his wife

Judith Bosch being present in the house at the time. Michael Bosch later gave it to

8
Judith Bosch who then handed it over to the police in South Africa. A police

expert thereafter examined the pistol and found that it was the same pistol that had

been used to kill the deceased. These are the bare facts, mainly of common cause

save where indicated, shorn of all frills, irrelevancies and details seriously in dispute

at the trial. The fact which remains to be mentioned at this stage is that before the

appellant was arrested on October 7, 1996, the appellant had got married to the

husband of the deceased.

Now I think I should mention the important facts which were and are in dispute

between the prosecution and the appellant. The defence put forward by the

appellant after she had been charged to court for the offence was that even though

it was indeed the pistol in question that had been used to murder the deceased, it

was not her that carried out the murder. In fact she was ordered, forced, as at

were, to travel all the way to South Africa to collect the pistol by Hennie Coetzee

who wanted to pay for it. She obeyed the command, went to South Africa, and

brought back the pistol and delivered it to Coetzee in his office that very day. Two

weeks after the pistol had been used to murder the deceased, Coetzee returned it to

her. She also alleged that on the fateful night she watched television from a little

after 8.00 p.m until she went to bed at about 10.00 p.m and never stepped out of

her house until she was, as it were, summoned to the deceased's home after her

dead body had been discovered.

9
In order to prove conclusively that the story as told by the appellant could not be

true, the prosecution tendered evidence which was disputed by the appellant.

According to the prosecution, the appellant had told Mr. Webber in South Africa

when she asked for the pistol that she was going to use it to practice shooting.

According to the prosecution she had asked for only four cartridges, but Webber

believing her false story had told her that four cartridges would not be sufficient for

practice, and had therefore given her 25. Webber had warned her of the danger of

illegally importing arm and ammunition into this country. Feeling so concerned

about this point Weber had telephoned Judith Bosch seeking her assistance to

prevail upon the appellant not to take the pistol to Botswana. The appellant

promised that she would deposit the pistol and the cartridges at the South African

border post. The appellant of course denied that such a discussion ever took place.

According to the prosecution she never fulfilled her promise of depositing them at

the border post. In addition the prosecution gave evidence to show that the

appellant had the motive to murder the deceased, that motive being for her to

marry the deceased's husband. On the other hand, the evidence of the appellant

was that one day in June 1996, Coetzee invited her to dinner in his house. Whilst

at dinner he offered her P6 000.00 for the husband's pistol. First she refused the

offer because the pistol had been purchased by Dennis Webber, but later said that

Webber had not paid for it. Later on June 23, 1996, on another visit to Coetzee,

Coetzee, in her own words, "commanded me that I should go and pick that pistol."

When she asked him what he was going to use the gun for, Coetzee, again

10
according to her, told her that "did not concern me. He was quite aggressive with

me." She then later went to Webber in South Africa to collect the pistol.

According to her she had to tell a lie to Webber why she wanted the pistol

frantically, that is, that she was going to practice with it because she was afraid of

Coetzee and could not tell Webber that she had come to collect it at Coetzee's

command.

On arrival in Gaborone, at about 2.00 p.m., she went direct to Coetzee's office.

After she had been let into Coetzee's office by Coetzee himself, she left the pistol

and ammunition on his table. Soon after one Phillip Botha came into the room but

she was not sure if he saw the pistol and ammunition or not. Phillip Botha never

gave evidence. It was after that that she went to her house to unpack her luggage.

She went to bed at about 10.00 p.m. and never came out until she was summoned

to the deceased's home by the deceased's daughter after she had discovered the

dead body of her mother.

THE QUESTION OF MISDIRECTION

As I have analysed earlier one of the main arguments in support of the appeal in

this case is that the learned trial judge erred in reversing the burden and standard of

proof thus leading to the erroneous conviction of the appellant. The argument

seems to be that the appellant was convicted because the learned trial judge shifted

the onus of proof of her innocence on her, and that she was unable to discharge.

n
Mr. De Silva pointed out very meticulously, in his address every direction given by

the learned trial Judge which appeared to him to be erroneous. In his submissions

because of all these misdirections the appellant has not obtained a fair trial. In his

submission as soon as the learned trial Judge came to consider the defence case, he

derailed from the well-established principle that an accused has no onus to prove his

or her innocence or even any matter upon which his conviction could be based.

The first passage in the judgment which came under very serious criticism by

Counsel is this:

"From the accused person's evidence, her defence is simply that she
gave the pistol which she had collected from Dennis Webber and
brought with her to Gaborone on 26 June 1996 to Hennie Coetzee
at about 2.00p.m. on that day so she cannot be held to have killed
the deceased with that gun. She said she stayed at her home after
returning from Westwood School at about 7.35p.m. and never went
out until she received a call from Maryana at about 11.00p.m. If I
therefore find that she gave the gun to Hennie Coetzee as alleged by
her, or that it is reasonable probable that she gave it to him, she
would be entitled to an acquittal."

Learned Counsel pointed with all emphasis at his command that it is not only this

passage that constituted a serious misdirection on a fundamental point but there

were a number of others, the most serious of these being where later in the

judgment the learned trial Judge said:

"The rule of evidence is that he who asserts a fact must prove it. In
the instant case, therefore the onus was on the accused to prove on a
balance of probabilities that she gave the pistol to Hennie Coetzee. I
therefore have to examine the evidence to see if, on a balance of
probabilities, it can be said that the accused's story is true, or is

12
 reasonably probably true. Any finding in the accused's favour should
depend on her credibility as a witness and on the evidence of the
other witness in the case."

In my view it cannot be seriously argued that these passages do not contain certain

misdirections, which had they be given to a jury of laymen might, subject to what

appears later might have led to the Appeal Court ordering a retrial. In my opinion

where as in this case a judgment is given after a misdirection of a learned Judge by

himself what the Court of Appeal should have to decide is whether the decision

appealed is indeed correct, bearing in mind the totality of the body of evidence

available and whether, if objectively judged, that body of evidence shows beyond

any reasonable doubt that the appellant was guilty of the offence charged. Indeed

the Appellate Division of the South African Supreme Court had arrived at the same

conclusion even in a case where the erroneous direction had been given to a jury of

laymen. R. v. Moleko [ 1 9 5 5 ] ( 2 ) SA 4 0 1 , the Court held that there is no

failure of justice where, though there has been a misdirection, a reasonable jury if

properly directed would inevitably or without doubt have convicted. The court said

that they were not concerned with what the particular jury had found but with what

according to their own view a reasonable jury might find.

It seems clear that in this country the law is beyond doubt, namely, that where an

accused person sets up a defence of alibi the onus is not on him to prove it but it is

for the prosecution to negative it beyond reasonable doubt. The only onus which

13
on the accused is for him to raise such a defence as soon as possible so as to enable

the prosecution to investigate the defence with a view to avoiding an unnecessary

prosecution which might end in failure, or of negativing the claim if it appears to

the prosecution it was not honestly made. In this country there is no statutory rule

obliging the defence to notify the prosecution that the defence would be raised but

the danger to the accused is that if it is raised by the accused after it had been too

late for the prosecution to investigate it, the trial Judge might come to the

conclusion that it has been fabricated as an afterthought defence.

The rule of law that the onus of proof of the guilt of the accused beyond reasonable

doubt is an off shoot of the Constitutional provision of the country to the effect

that "every person who is charged with a criminal offence shall be presumed to be

innocent until he is proved or has pleaded guilty." Section 10(2) (a) of the

Constitution. This principle has been given constitutional recognition to the

common law principle, accepted all over the Commonwealth, as stated by Lord

Sankey, LC in the House of Lords in the case of Woolmington v. Director of

Public Prosecutions [ 1 9 3 5 ] AC 4 2 6 ; 25 Cr. App. R72; 30 Cox CC 234,

long before the Constitution of this country and the Constitution of the newly de-

colonised British colonies of Africa were drawn up in London.

In the Heads of Argument filed on behalf of the appellant, the arguments that a

discharge and acquittal be ordered in this case were anchored mainly on the

14
decision of the Court of Appeal in England in the case of Regina v. Johnson

[1961] 1 WLR 1478; [1961] 3 All ER 969; 46 Cr. App. R55, although in

argument before this court Mr. de Silva anchored his own submission on the

fundamental nature of the direction as to alibi. In considering this appeal I must

emphasise that this court is not bound by the decision of that foreign Court, or of

any other foreign country no matter how eminent are the judges of that Court.

However, even if this court is bound by the decision of that court, the facts over-

riding and circumstances of that case and of the numerous other cases similarly

decided are far different from those of the case before us here.

First and very importantly, all the cases were based upon directions given by a

Judge to a Jury. We do not use a Jury in this country, and here we are faced with

a judge, learned in the law, giving directions to himself. And also of great

importance is the fact as I shall show presently that in the case of Johnson one

important factor which operated in the minds of the Court of Appeal was that the

appellant was then on trial for the second time for the same offence, the first trial

have been aborted on some procedural error or the other, and the court felt that it

would cause great injustice if a third trial were ordered.

Now in the case of R v. Johnson (supra) Anthony Hugh Johnson the appellant

and another were first tried with a Jury. The jury disagreed on the verdict even

though there was nothing to indicate that there was any misdirection by the Judge.

15
A retrial was ordered by the Court of Appeal. The accused was discharged and

subsequently tried by Stevenson, ] . , sitting with a jury. A t the end he was

convicted. For the purpose of this judgment it is unnecessary for me to state the

facts. On appeal to the Court of Criminal Appeal in England, that Court ordered

his discharge and acquittal because the trial ]udge had committed a fundamental

error in his direction to the ]ury in respect of the plea of alibi put up by the accused

in that he had directed the ]ury in the following words, among others:

"In setting up his positive defence, the burden which is on the

defendant is no more than this; he has only to leave you satisfied that
his defence, the defence he has set up has, on the whole, been
established. That is to say, it has been established to this extent, that
on consideration of all the evidence and the probabilities, you feel
that the scale goes down in favour of the defence that he has set up.
Goes down on balance in favour of him. That is much less a burden
of proof than the burden of proof on the prosecution and, members
of the jury, when an alibi is set up, it is of course a defence which is,
if it is established, a cast-iron defence."

Before the English Court of Appeal, Counsel for the respondent conceded that this

was a misdirection but urged the Court to sustain the conviction by making use of

the proviso to section 4 (1) of the Criminal Appeal Act 1907 which is to the same

effect as Section 13 (3) of our Court of Appeal Act which I shall deal with later in

this judgment. On this issue the Court of Appeal cited with approval what Lord

Goddard, C] had said in R v. Lobell [ 1 9 5 7 ] 1 QB 5 4 7 , at 55 thus:

"Had the judge in the present case gone on to say that it was not for
the accused to establish his plea with the same degree of certainty as
is necessary to establish a case for the prosecution it might have been
that we should have had to consider whether this was a case for the
application of the proviso."

16
Further the Court of Appeal in the Johnson case applied what that court had said

in the case of R. v. Manning [ 1 9 6 1 ] Crim. LR 561 decided earlier the same

year. The court had said in that case -

"it would be unsafe in this case to allow the conviction to stand.

There can, as it seems to this court, be no question of applying the
proviso to section 4 because this was the second trial. A t the first
trial, when given proper directions and with no interjections of this
sort, the jury disagreed."

The appeal was therefore allowed and the conviction quashed. Concluding the

judgment in the Johnson case the Court of Appeal then said:

"The court has no reason in the world to suppose that the first trial
was not properly conducted or that the summing-up was not free
from criticism and yet the jury disagreed. It would be quite wrong to
apply the proviso in this case and, accordingly, the court has no other
course open to it than to quash the conviction and thereby allow the
appeal."

As can be seen from these cases one of the pillars upon which acquittals were based

was that the second trial following a re-trial of the appellant upon his appeal against

conviction at the first trial. Obviously it would be most unfair to order a third trial.

That was clearly why the courts were not willing to make resort to the proviso to

Section 4 (1) of the Criminal Appeal Act 1907. That proviso was replaced by a

proviso similar to Section 2 (1) of the Criminal Appeal Act, 1968. More recently

however the position has been changed by the Criminal Appeal Act, 1995. Under

Section 2 (1) of that Act, there is now only one single basis for allowing an appeal,

17
namely, that the court thinks that the conviction is unsafe. So as today in England,

the position as put by Archibold, Criminal Pleading and Practice (2000 Ed.)

para. 746, page 890 is that -

"If the court was satisfied despite any misdirection or any irregularity
in the conduct of the trial or any fresh evidence, that the conviction
was safe, the court would dismiss the appeal."

This means in effect that the whole concept has remained substantially the same all

these nearly 100 years, and that position is similar in principle to that laid down in

subsection 3 of Section 13 of our Court of Appeal Act which provides that -

"Where the Court of Appeal in an appeal against conviction,

considers that, notwithstanding the fact it is of opinion that the point
raised in the appeal might be decided in favour of the appellant, there
has been no substantial miscarriage of justice, it may dismiss the
appeal."

At this juncture it is also necessary to say that a very similar provision exists in our

High Court Act, Cap. 04:02 when exercising its appellate jurisdiction: proviso to

Section 1 0 ( 1 ) . In the case of Nini Makwapeng v. The State, (yet unreported)

Cr. App. N o . 29 of 1998, judgment dated January 29, 1999, in considering

the application of these provisions I said that -

"in deciding the issue whether or not to set aside the conviction
following such an irregularity in procedure, the appeal court must
look at all the facts established by the totality of the evidence led at
the trial and if it is satisfied that the guilt of the appellant has been
established beyond reasonable doubt, ... then the appeal must
exercise the power to do justice given to it by the Act establishing it,
and dismiss the appeal."

18
To show that the provision of subsection 3 of Section 13 of our Court of Appeal

Act is not confined to this country, I wish to say that a similar provision is to be

found in subsection (1) of Section 26 of the Nigeria Supreme Court Act, No. 12

of 1960 says that -

"the court may, notwithstanding that it is of opinion that the point

raised in the appeal might be decided in favour of the appellant,
dismiss the appeal if it considers that no substantial miscarriage of
justice has actually occurred."

Also a similar provision exists in the Criminal Procedure and Evidence Act of

Southern Rhodesia, now Zimbabwe, Section 236, and in the South African

Criminal Law. The point which I have to emphasise is that in all these jurisdictions,

the Legislatures understand that the very basic and fundamental function of the

courts of justice is to ensure that no substantial miscarriage of justice is allowed

through the operation of the judicial process. In a country like this the court

cannot be seen to undermine the very foundation for the existence of the judiciary,

namely, justice, unaffected by technicalities and sophistry of the legal profession.

And in this it must be borne in mind that throughout the trial up to conviction the

learned trial Judge had in mind the very important legal principle that it was the

prosecution that had the onus to prove beyond reasonable doubt every ingredient

of the offence charged, and of the guilt of the appellant. First at the very beginning

of the judgment he sets down the five elements which make up the offence and says

clearly that the onus of proof of each beyond reasonable doubt lies on the

prosecution. Again later in the judgment the learned trial judge says, "as I have

19
already stated, the burden lay on the prosecution to prove beyond all reasonable

doubt that she was the one who killed the deceased with two gunshots." In effect

therefore even though the learned trial Judge committed the error of misdirections

in the passages cited by learned Counsel, it cannot be said that he was oblivious of

the general legal principle as to the onus of proof in a case of this nature.

The conclusion I reach in this case is that this is not one of the type of cases in

which a misdirection of this nature should per se lead to a discharge and acquittal

of the appellant nor one in which a retrial should be ordered. I take the view

therefore that I must examine the case further in order to ensure that the

misdirection pointed out have not led to a substantial miscarriage of justice. For, if

I come to the conclusion that a substantial miscarriage of justice has occurred

through the obvious misdirection then I will be in duty bound to allow the appeal. I

believe I can properly carry out that duty only by examining in some detail the

evidence that was led at the trial court so that I can decide whether that evidence

leads us to the conclusion that in spite of the misdirection the case was proved

beyond reasonable doubt and that there has been no substantial miscarriage of

justice. I do not believe that it will be prudent of me to go into that at this point in

view of the other point vigorously pursued in this appeal, namely, the failure of the

prosecution to disclose to the defence at the trial that one witness, Hennie Coetzee,

had been granted immunity from prosecution. It is to that matter that I shall now

direct attention.

20
THE NON-DISCLOSURE TO THE DEFENCE AT THE TRIAL THAT THE

WITNESS HENNIE COETZEE HAD BEEN GRANTED IMMUNITY FROM

PROSECUTION

It has been argued by Counsel for the appellant in his Heads of Argument and by

Mr. de Silva in his very powerful submissions that since Hennie Coetzee was a

material witness the fact that he was granted immunity from prosecution in terms of

Section 51 (3) (a) of the Constitution before he gave evidence "amounted to such

a substantial miscarriage of justice that the appeal should be allowed with costs for

both the High Court and Court of Appeal proceedings on an attorney and own

client scale." The arguments proceeded thus: if the disclosure had been made to

the appellant before or at the trial,

"(i) that could have enabled Counsel for the appellant to prove the
witness's motive in him requiring immunity from prosecution;

(ii) it could have provided a basis for Counsel for the appellant
establishing that the witness had an interest to serve in the
evidence he gave;

(iii) it was material that was clearly and deliberately withheld from
the appellant and the court;

(iv) it was material that should not have been so withheld."

In his Heads of Argument, the respondent has argued that -

"in any event the alleged non-disclosure of the indemnity/immunity

granted to PW3 did not present or thwart the defence's wide ranging

21
 extensive and intensive cross-examination of the said witness, and it is
submitted that no prejudice was occasioned to the appellant by their
claimed subsequent knowledge of the said indemnity/immunity.
More importantly, no miscarriage or failure of justice has been
occasioned hereby (sic!); and to the extent that such alleged non-
disclosure of the indemnity/immunity may be said to be an error or
irregularity, this honourable court can lawfully invoke Section 1 3 ( 3 )
of the Court of Appeal Act (Cap. 04:01)."

The Acting Attorney-General proffered strong arguments in the court that indeed

the so called immunity was limited as it does not bar the witness being prosecuted

later or by a private prosecutor. If a full pardon had been in contemplation it

would have been given under Section 127 (1) of the Criminal Procedure and

Evidence Act which provides for the giving of immunity to persons who are

regarded as accomplices or principals in the commission of the offence charged.

Mr. de Silva submitted that a disclosure of the fact that PW3 had been given an

immunity whatever the nature of the immunity was never made to the defence until

several letters from the defence to the Attorney-General demanding a copy of the

Immunity document to which there was no reply for many months. The first

demand was made on April 13, 2000 long after the judgment had been given,

just before hearing in this appeal, Mr. Fashole- Luke II who defended the appellant

at the trial swore an affidavit saying the existence of the immunity was not disclosed

to the defence until October, 2000. On the other hand Mr. Mack who conducted

the prosecution deposed in a reply affidavit that he informed Mr. Fashole-Luke II

verbally of the immunity during the trial, before PW3 gave evidence.

22
Mr. de Silva submitted that the prosecution did not give the defence written notice

of the immunity, and written notice was essential in order -

(a) to avoid dispute, as in this case;

(b) so that the full terms of the immunity could be studied;

(c) so that it might be used to cross-examine the witness.

Mr. Ngcongco, the acting Attorney-General, agreed that it would be good practice

if the aforesaid were adopted, but that as at the present, that is not the law in this

country. I have no doubt that in this, Mr. Ngcongco is right. It would be

preferable if such a notice is given to the defence in writing ahead of the trial.

However an oral notice giving the provisions of the law under which it has been

given cannot seriously prejudice the case of the prosecution. In this case as Mr.

Ngcongco submitted, PW3 was not going to be a witness for the prosecution as the

prosecution had nothing in the files of the investigating officers that PW3 was in any

way connected with the offence. In the letter of Mr. Tafa, then Acting Attorney-

General written to Luke and Associates, on October 24, 2000 (and this same

point was made by Mr. Ngcongco in argument)

"Although we learned of it (that PW3 might be accused by the

appellant) from the press reports attributed to your client, in our
view, once it emerged that Hennie Coetzee was central to the defence
case, we considered it our duty to secure his attendance to attend
court to give evidence and to be cross-examined by yourselves as in
fact happened."

23
Mr. de Silva told us that he did not think that it is necessary to go into the dispute

as between Mr. Fashole-Luke II and Mr. Mack, because the issue can be determined

without going into that dispute. I agreed with that. However it is my view that if

the defence knew of the immunity before the witness gave evidence but failed to

ask for a copy before the commencement of the cross-examination of the witness,

the defence cannot later complain. Mr. de Silva cited a number of judicial decisions

in support of his submission that the non-disclosure to the defence by the

prosecution of any matter in the hands of the prosecution which is considered

material, would vitiate the proceedings.

In the final analysis what is of importance is the quality of the evidence given by the

witness, and to what extent that quality might have been affected had the disclosure

of the immunity been made to the defence. Mr. de Silva submitted that the non-

disclosure should be held to have materially affected that quality, and that had the

trial Judge put this into consideration he might not have placed any reliance of the

evidence of PW3 so much so that he used his evidence to destroy the alibi put

forward by the appellant. On the other hand it was Mr. Ngcongco's submission

that it did not have such an effect. In my view in this case the non-disclosure of the

immunity did not materially affect the case one way or the other. A serious

attempt to prove the witness's motive and that he had an interest to serve was

made by the defence through the evidence of the witness under cross-examination

24
and through the evidence of some defence witnesses including that of the appellant.

The cross-examination of the witness ran through 61 pages of the record.

Mr. de Silva then went on to submit that on the evidence the witness should have

been regarded at least as a person who has his own purpose to serve in giving

evidence which was diametrically opposed to that of the appellant. It was

submitted that therefore the learned trial Judge erred in not warning himself that it

was unsafe to convict on the evidence of Hennie Coetzee, PW3, without

corroboration. It is not very difficult for me to agree, in favour of the appellant

that Hennie Coetzee (PW3) was a witness with some purpose of his to serve. It was

Edmund Davis, ] . , who said in R. v. Prater [ 1 9 6 0 ] 2 QB 4 6 4 ; [ 1 9 6 0 ] 2

WLR 343; [ 1 9 6 0 ] 1 All ER 2 9 8 ; [ 1 9 6 0 ] 44 Cr. App. R83 -

"in cases where a person may be regarded as having some purpose of

his own to serve, the warning against uncorroborated evidence should
be given."

This principle was applied by the Supreme Court of Nigeria in William Idahosa v.

R. [ 1 9 6 5 ] Nig. Monthly LR 85 where that court held that two witnesses for

the Crown in a murder case who were charged on a separate charge with the

murder of the deceased were clearly interested persons who might have some

purpose of their own to serve, and therefore the trial court should have been wary

in reaching a verdict of guilty on the uncorroborated evidence of such witnesses.

The rule had been considered a year earlier by the Court of Appeal in England in

25
the case of R. v. Stannard St Others [ 1 9 6 5 ] 2 QB 1 ; [ 1 9 6 4 ] 2WLR 4 6 1 ;

[ 1 9 6 4 ] 1 All ER 34; 48 Cr. App. R 8 1 , where the court said (at page 91 of

Cr. App. R) -

"The rule if it be a rule is no more than a rule of practice ... [it]

seems to amount to no more than an expression of what is desirable
and what is to be hoped will more usually than, in cases where it
seems to be appropriate to the learned judge, be adopted."

On the other hand the Court of Appeal in England, after considering Prater,

Stannard and others, said in R. v. Beck [ 1 9 8 2 ] 1 WLR 4 6 1 ; [ 1 9 8 2 ] 1 All

ER 807; [ 1 9 8 2 ] 74 Cr. App. 2 2 1 ; [ 1 9 8 2 ] Crim. LR586 that they were

not willing to hold that in every case where a witness has a substantial interest of his

own for giving false evidence then the court was bound to give such a warning.

The case before this court is in a very substantial way different from all that I have

considered above. I have considered them only to show that from whatever angle

one considers what happened in this case, the non-disclosure complained of cannot

in any way affect the outcome of this appeal. In this case the defence of the

appellant is not that she and the witness conspired to murder the deceased. What

appears to me to be the allegation was that it was the witness that murdered the

deceased without the knowledge of the appellant because he had some purpose of

his own to serve. On the other hand, the case made against her and found proved

against her according to the learned trial judge is that she and she alone planned the

murder and executed it. It boiled down to this: it was either that it was the

26
appellant who murdered the deceased or it was the witness. The learned trial Judge

found on the evidence that it was the appellant, and not the witness who murdered

the deceased. Mr. de Silva said that this was possible for the reasons that the

learned trial Judge did not advert his mind to the fact that PW3 had a motive to

murder the deceased, and also that the extra-judicial statement made by

Charmaine, DW2 a daughter of the appellant to the police was said by the judge to

have had the effect of destroying the evidence of the appellant.

I shall come to the question of the motive of PW3 later but, here now I want to

consider what the learned trial Judge said about the statement which according to

Mr. de Silva is such a gross misdirection, and when taken along with others is

capable of vitiating the conviction. The learned trial Judge had said:

"Again, Charmaine's statement, Exhibit " T " , devalues the accused's

evidence that she and Charmaine answered the call from Maryana at
the same time and destroys the credibility of the accused and her two
daughters."

It seems to me that the way to deal with a witness who has come to say something

different from what he had said previously is this. The value of the statement is, as

has been argued, to discredit the witness but cannot be used as evidence: R. v.

Golder [1960] All ER 457; [1960] 1 WLR 1169 45 Cr. App R5. The

court may for that reason refuse to believe the witness or to put much weight on

the testimony which the witness has given in court. This is the view of the courts in

the Canadian case of R. v. Waterfield 61 Gilmore [ 1 9 4 7 ] 3 DLR 3 6 2 ; 88

27
Can. CC 2 2 1 ; R. v. Harris [ 1 9 2 7 ] 2 KB 5 8 1 ; 2 0 Cr. App. R144; R. v.

Golder (supra). In the Nigerian case of Agwu fit Ors. v. The State 1965

NMLR 18, at 2 0 , Onyeama, JSC said:

"If it appeared that a witness had formerly said or written the

contrary of what he later swore in evidence (unless the reason for his
having done so was satisfactorily accounted for), his evidence should
not have much weight with a jury."

Therefore not much weight, if any, could be put on the evidence of DW2.

And in this particular case the court was right not to have placed an unwarranted

weight on the evidence of the two daughters of the appellant, for, it has been said

that much weight may not be attached to the evidence of a witness who has an

incentive to conceal or mis-represent facts, for example, a witness who is shown to

be directly interested in the outcome of the proceedings. Such interest may arise

out of blood or family, some other relationship or may arise because of some other

common interest which the witness shares with one of the parties. See Hasker v.

Summers [ 1 8 8 4 ] 10 VLR 204 (Australia), and Lefeuteum v. Beaudoirs

[ 1 8 9 7 ] 28 SCR 89 (Canada). The evidence of such a witness ought not to

carry more weight than, or even as much weight as that of an independent witness

who is a dis-interested witness. In the present case the witness Aniki who had been

a house help to the appellant was never shown that she had any relationship

whatsoever with PW3. Therefore one cannot fault the learned trial judge for

placing more reliance upon the evidence of Aniki than under the contradictory

28
evidence, as I will show later of Charmaine and her sister, both daughters of the

appellant.

It seems to me that the point has now been reached where I should examine the

totality of the evidence given in this case. If I come to the conclusion that a

miscarriage of justice has occurred by reason of the misdirections, she would be

entitled to a discharge and acquittal. But if I come to the firm conclusion that

despite the misdirections no miscarriage of justice has occurred and that no doubt

exists as to the guilt of the appellant then I am permitted to call in aid the provision

of Section 13 (3) of the Court of Appeal Act and dismiss the appeal. I shall now

proceed on that examination.

IS THE EVIDENCE OF SUCH A QUALITY AS TO WARRANT MAKING

RESORT TO THE PROVISION OF SECTION 13 (3) OF THE COURT OF

APPEAL ACT

What is left for me to consider is whether the evidence on record is of such quality

as to warrant making a resort to the provision of Section 13 (3) of the Court of

Appeal Act. I believe that it is the duty and responsibility of this Court to ensure

that no substantial miscarriage of justice has occurred in the verdict that has been

delivered by the trial court in this case. For, I wish to repeat that if upon a sober

and full consideration of all the evidence I am left even with a reasonable doubt that

there has been a miscarriage of justice in this case - more so in view of the fact that

29
this is a murder case - then I am bound to allow the appeal and order a discharge

and acquittal of the appellant. But if after such a full and sober and full

consideration of all the evidence, including of course that led by the defence, I have

no doubt in my mind that there has not been a miscarriage of justice, then I am in

duty bound to make resort to Section 13 (3) of the Court of Appeal and uphold

the conviction of the appellant for the offence charged, notwithstanding the

irregularities and errors committed or made by the learned trial Judge.

In this case there is no eye-witness to the murder of the deceased, and therefore the

trial court had no alternative than to consider all such circumstantial evidence that

existed in the case to see if in its totality it left no doubt as to the guilt of the

accused. As it is well known it is not the requirement of the law that direct

evidence of the commission of an offence must exist before a conviction can be

sustained. Indeed in many cases, convictions in cases of the nature of the one

under consideration here only circumstantial evidence is available, and the courts

have not shied off from basing convictions on such circumstantial evidence provided

it is of such quality as satisfied the basic requirement of the onus of proof as

enshrined in our Constitution and our laws. See R. v. Sala Sati [ 1 9 3 8 ] 3

WACA 10. And also R. v. Chung t\ Miao [ 1 9 2 8 ] 21 Cr. App R 5 6 . In

many cases, such as in this case, it is invariably the only type of evidence that is

available, especially in a well planned murder case. See also R. v. Blom 1939

AD 188.

30
The case made against the appellant is as follows. The appellant fell in love with the

husband of the deceased, and they became lovers. Whether sex between them

began before the death in November 1995 of the appellant's husband, Mr. Bosch

or not is immaterial to decide. But they were clearly in love with each other before

then. The appellant was a close friend of the deceased, so much so that when the

dead body of the latter was discovered, she was one of the very first persons that

deceased's daughter contacted by telephone; they were in fact like sisters. On June

17, 1996, the appellant took the deceased along with her to South Africa to visit

her mother. They brought back the applicant's mother on ]une 22, 1996 so that

she could stay with her. Curiously only three days later on ]une 25, 1996, she

went back to South Africa to Dennis Webber with whom her late husband had

deposited his pistol. She wanted to collect the pistol. According to Dennis

Webber, the appellant "asked me if she could lend the browning pistol because she

wants to buy a pistol in Botswana and wants to take it to practice with the pistol...

She said she wanted to take it to practice in Botswana. I mentioned to her it is

illegal she cannot do so." In effect, he explained that she could not take it through

customs to Botswana, it is illegal. He continued his evidence thus:

"When we were discussing, I said it is not worth taking it to practice.

I tried to convince her that she cannot put such a thing and the more
I was convincing her the more she was wanting the pistol. I gave her
the pistol. She did not accept the fact that I did not want her to take
it there."

31
She did not tell him that she was going to sell it to another buyer who had sent her

to collect it. At her request, he showed her how to use it, and he made sure that it

was unloaded when he gave it to her to use it. According to the witness, the

appellant said that she wanted only four rounds of ammunition. He told her "that

it was ridiculous to practice with only four ... (but) she insisted that she wanted

only four." Later in the evening after the arrival home of his son who was keeping

the ammunition he instructed him to give her a box of 25 rounds of ammunition.

His son refused to give her the ammunition. The witness then continued his

evidence thus:

"She told my son to go and fetch the ammunition and the fire arm as
I have not paid for it and it belongs to Mr. Bosch. When we refused
to give it to him she said you think I am going to kill somebody."

After that they all went to bed. The following morning at 5.00a.m the witness

woke the appellant and once more pleaded with her not to take the pistol to

Botswana. Thereupon the witness phoned Michael Bosch in South Africa, brother

to appellant's late husband. He had gone to work so he spoke with Judith Bosch his

wife. Judith then asked to speak to the appellant. She told Judith that she was

definitely taking the pistol to Botswana. Judith repeated this to the witness after the

telephone had been handed over to him by the appellant. So at about 6.45 a.m

the appellant left the Webbers on her return to Botswana. That was June 26,

1996. Judith Bosch confirmed the telephone conversation. In her evidence she

said:

32
 "I told her it is illegal to take a weapon to Botswana that if somebody
caught her with the gun she would be locked up in Botswana ... She
told me I must not worry she will hand the gun over at Nietverdiend
Police Station for safe keeping before entering Botswana/7

The appellant got back to Botswana at about 2.00 p.m on the same day. She said

that she first went to see Hendrick Coetzee (PW3) (usually referred to as Hennie

Coetzee) in his office. There she left the gun and box of ammunition on Coetzee's

table. As she left them on the table, one Philip Botha came in to the office. She

was not sure if he Philip Botha saw them or not. The said Philip Botha was not

called as a witness. She then went to a school meeting. The meeting having

aborted she went home and got home at about 7.30 p.m. She remained at home

and never went out until she was called out after the murder of the deceased.

On the same day June 26, 1996, at about 8.45 p.m the same gun was used to

shoot and kill the deceased. The person living with the appellant Charmaine, DW4

who happened to be her young daughter had been taken to dinner with the

knowledge and consent of the appellant by the only person living with the deceased

who happened also to be the deceased's daughter, sometime before 8.00 p.m.

According to the appellant she then she watched television from about 8.10 p.m

till about 10.00 p.m when she went to bed. She never stepped out of the house

until she was summoned to the house of the deceased after the deceased had been

shot and her body discovered by the deceased's daughter, the same girl who had

taken her own daughter out to dinner. But there is the evidence of Aniki

33
Ntwayagae (PW1) who had been a housemaid to the appellant since 1995. She

told the Court that the deceased drove out of the house at about 8.00 p.m., whilst

she went to her own quarters at about 8.30p.m. According to the witness, she did

not see the appellant until about mid-night, after the appellant had been to the

deceased's house and had come back. She told the court that later the following

day the appellant's new husband Mr. Wolmarans came to warn her not to tell the

police that the appellant had gone out that night and whenever he came to the

house thereafter he would warn her against telling the police anything and that if

she did he would kill her. The appellant's daughter Charmaine and her sister Sonei,

13 years old gave evidence in support of her evidence that she never went out of

the house between 7.30 p.m and 12.00 midnight or thereabouts.

Then we have the evidence of Michael Bosch, PW4, brother to the appellant's

deceased husband. He lives in South Africa. On September 14, 1996 on coming

out of his room in his house he met the accused. She held him by the arm and

asked him to go to his bedroom. That was about 8.00 p.m, and she was carrying a

handbag under her arm. According to the witness the appellant appeared very

nervous; she was trembling slightly. When she opened the handbag he saw the

pistol in question in it. According to the witness "she asked me to quickly take it

and put it as quickly as possible so that no one should see it. ... I took the pistol

and put it in my drawers in the room. As soon as Marriette left the room I took it

from the drawer and put it in another place." He then confirmed in the presence

34
of his wife, Judith, the serial number on the pistol. After that he put it in a safe in

their house. Later he asked Judith to hand it over to the police which she later did.

I must say that it is rather curious that Counsel for the defence did under cross-

examination provide some corroboration to part of the evidence of this witness.

From a calender shown to the witness by Counsel, the witness under cross-

examination pointed out that on June 26, he had seen that his wife, PW2 had

marked the calender with "Dennis Webber telephoned about weapon which

Marriette took." This would appear to be some indication that the evidence

concerning the reluctance of Dennis Webber to deliver the pistol to the appellant

has not been a fabrication. At this point it may be useful to point out that defence

Counsel suggested to Judith Bosch and repeated the assertion on more than two

occasions that the appellant never took the pistol to Judith and Michael Bosch and

that was why her finger prints were not on it. But very significantly the appellant

herself later told the court that she took the pistol to them, a totally different story

from the case put forward by the defence when PW2 was giving evidence.

Now it seems clear that the defence of the appellant was that she went to South

Africa to collect the pistol at the command of PW3, and it was also at his command

that she went to return it not to Dennis Webber from where she had collected but

to Michael Bosch. However she said that Coetzee did not have any authority to

command her, but that she was afraid of him. She suggested that Coetzee might

35
have put a spell on her as a result of which she had a continuous head-ache and she

had to be cured of it by hypnosis.

However, during the cross-examination of prosecution witnesses Counsel for the

appellant at one time suggested that the deceased must have committed suicide

(which was demonstrably impossible); and at another time that Judith Bosch

conspired with Hendrick Coetzee to murder the deceased; and yet at another time

that it was Hendrick Coetzee that in fact murdered the deceased. It was even

suggested by Counsel to the appellant in his cross-examination of Judith Bosch on

two different occasions that she wanted the appellant hanged for this offence so that

she Judith could inherit the wealth of Justin Bosch, her late brother-in-law. There

was no evidence in support of any of these suggestions save the allegation that

Coetzee had a motive and an opportunity to commit the offence.

In her defence, as I have said more than once, the appellant alleged that it was

Hendrick Coetzee PW3 who indeed murdered the deceased and in making that

suggestion her case was that he had the chance and a motive to commit the

offence. Having brought that defence to the notice of the prosecution, the

prosecution then had to show, if they were to succeed, that that defence was totally

false. For that reason they called Hendrick Coetzee to give evidence and he did so

as PW3.

36
In his examination in chief, he told the court that he never sent the appellant to

collect any gun for him from South Africa as alleged by the appellant and at no

time did he ever discuss about any gun with her. He went to his office and left at

about 5.00 p.m or 5.30 p.m on the day in question to attend a braai in the house

of one of his co-workers, one Mark Nadauldt. He left there at between 11.00 p.m

and 11.30 p.m and went home direct without calling anywhere else. Under cross-

examination the witness denied going to the deceased on June 26, 1996 at

between 10.00 p.m and 10.30 p.m to plead with her not to expose his financial

improprieties with the company's funds; and that it was when the deceased refused

to yield to his entreaty that he shot her. He denied that suggestion. On further

probing by defence Counsel the witness said: "1 have never spoken to her (the

deceased). I have never been there." Later Counsel suggested to the witness that

on June 26, 1996, the appellant handed him a gun at Nietverdiend Police Station.

On the other hand when she came to give evidence she was led during examination

in chief that on arrival in Gaborone on June 26, 1996 at about 2.00 p.m she went

direct to Coetzee's office. Coetzee opened the door for her, she put the pistol

down on a table in his office, and that was where she left the gun and the

ammunition. And under cross-examination she denied the suggestion which her

Counsel had earlier made that she had delivered the gun to Coetzee outside the

Nietverdiend Police Station on June 26, 1996. The following emerged from her

testimony under cross-examination:

37
 "Mr. Mack: Yesterday you told the court that Hennies Coetzee brought the

pistol to you 2 days after Rita's death.

Accused: Yes.

Mr. Mack: You went on to say when he gave you the pistol back he told

you he did what he intended doing?

Accused: That is what he repeatedly said.

Mr. Mack: My question is you knew all this time that Hennie Coetzee told

you he had done whatever he intended doing?

Accused: Yes I can remember that.

Mr. Mack: You always remember that he told you if anybody found the

pistol on you, you will be jailed?

Court: What did Hennie Coetzee tell you?

Accused: Hennie said if they find the pistol with me I will go to jail.

Mr. Mack: You also remembered that he said this to you?

Accused: Repeatedly the same thing on that day."

Later under cross-examination, she admitted that she did not take the pistol to

Michael Bosch until September 13, 1996, a day before she went to a designer for

her wedding dress to be worn at her marriage to the husband of the deceased.

What is significant here and if she was to be believed, it meant that she had very

strong reasons to believe that the pistol had been used to murder the deceased on

38
June 26, 1996 and yet she kept it for about two weeks thereafter before she

delivered it to the Michael Bosch on September 13, 1996.

EVALUATION OF THE EVIDENCE

In this country, like all other countries in the Commonwealth in which a Judge is

both the judge of fact as well as of the law, and appeals are by way of re-hearing,

the duty of the Court of Appeal is to re-examine the whole evidence both oral and

documentary as appears on record. In other words, apart from the duty of the

Court of Appeal to consider whether there has been a misdirection or a mis-

reception or wrongful rejection of evidence, the court is to examine the whole

course of the proceedings at the High Court. The Court has the duty not only to

review the whole evidence but to examine the case as a whole. The story of the

appellant is obviously incredible and no reasonable person can believe it, save as a

confirmation of the allegation that it was she who indeed killed the deceased.

In my view, it is absolutely impossible to hold that the learned trial Judge was in

error by disbelieving the allegation that it was Hennie Coetzee and not the appellant

that shot and killed the deceased.

Mr. de Silva very meticulously took us through the evidence of defence witnesses

and concluded his submission by saying that at least that body of evidence was

sufficient to cast doubt on the prosecution case. First the evidence of Sonei Bosch

39
and Charmaine Bosch both children of the appellant. Even though they are

children of the appellant, yet they were witnesses who could tell the truth.

However, as I said earlier by reason of their relationship with the appellant and the

terrible contradiction in their evidence the weight to be attached to their evidence

could not have been as great as the weight to be attached to that of Aniki, a mere

servant of the appellant. In any event the learned trial Judge held that he could not

believe them, and no convincing reasons have been adduced to show that he was

wrong in so holding. Sone was certain that when that fateful telephone call was

made announcing the death of the deceased Charmaine, her sister did not pick up

the telephone in the living room at the same time as the appellant picked it up in

the bedroom. Her sister Charmaine told the court that her boyfriend Ruan who

went with her mother to the house of the deceased told her over the telephone

from that house that they thought that the deceased might have died of heart

attack. Later when she went to the deceased's house long after 11.00 p.m one of

the Med Rescue team told her that he thought the deceased had died of a heart

attack. This is totally at variance with the evidence of the police officer who got to

the scene at about 10.00 p.m and who told the court that he found a bullet stuck

in the floor and blood stains also on the floor. Although Charmaine was emphatic

in her assertion that her mother, the appellant had received the telephone call

before she arrived home from her dinner, the mother told the court that both she

and Charmaine received the information of the death of the deceased at exactly the

same time, she taking the telephone in the bedroom, and Charmaine taking it in the

40
sitting room. The third version was given by Sonel Bosch, the other daughter of the

deceased who told the court that when the phone rang she and Charmaine were in

the appellant's bedroom. Her cross-examination went like this:

"Mr. Mack: You say you saw Charmaine picking the phone?

DW1: Yes.

Mr. Mack: Where was she?

DW1: She was in my mother's room.

Mr. Mack: It is no longer the two of you, she was also there?

DW1: It was me, my mother and Charmaine.

Mr. Mack: Did Charmaine give that receiver to your mother?

DW1: Yes.

Mr. Mack: In your mother's room?

DW1: Yes.

Mr. Mack: Your mother says Charmaine answered the phone from the

living room and that she answered it from the bedroom, are

you not mistaken?

DW1: No."

The only conclusion that can be drawn from all these is that no reasonable person

could believe the evidence of the two children, and in my view the learned trial

Judge was right in totally rejecting their evidence.

41
Now I come to the evidence from which we were told that the learned trial judge

could have held, at least that it was probable that it was PW3 who killed the

deceased, in which case the appellant would have been entitled to an acquittal. Mr.

de Silva did not lay some emphasis on the evidence of DW4 Karenza Van Wyk, a

secretary with the Grand Palm Hotel who was the divorced wife of PW3. He had

been the petitioner in the divorce proceeding. Her evidence was to show the

propensity of PW3 to owe money and to fiddle with the accounts of the company

for which he was working. She laid the foundation for the allegation that PW3 had

the motive to kill the deceased to cover up his mis-handling of the company money

as Financial Secretary to the company. She told the court that on July 27, 1996,

PW3 asked her why her outside lights were not on at about 10.00 p.m the previous

day, that he noticed this whilst driving around, and that the deceased had been

murdered the same night. To show to the court that PW3 was a violent man who

could kill, the witness told the court that PW3 had visited her one night and

demanded a document from her. She had to give him the document for fear of

him killing her with a knife. In other words if he could threaten DW4 with murder,

he could just as well have murdered the deceased.

Mr. de Silva laid much emphasise on the evidence of the possible motive of PW3 to

murder the deceased. That allegation was based on the allegation that PW3

committed some impropriety with the funds of his company which was to be

discussed on June 27, 1996, and the deceased threatened to expose that

42
impropriety to the auditors at the meeting. It was suggested that it was for that

reason that he went to the house of the deceased to attempt to persuade her not to

reveal that secret, and that it was after she refused to keep her mouth shut that he

shot and killed her. If indeed he left the braai at about 8.30 p.m or a little after -

a point which I shall consider presently - and he had to drive 10-15 minutes before

reaching the home of the deceased there could not have any time, if indeed there

was any at all, for attempting to persuade the deceased between the time of her

arrival there and the shooting at 8.45 p.m. And the deceased was shot in the back

with a cup of tea in hand. I do not consider it necessary to set down the facts of

the allegation in detail for it is clear that the mere existence of a motive to kill is not

evidence of killing. Although in the words of Lord Atkins in R. v. Ball [ 1 9 1 1 ]

AC 47 HL, "it is more probable that men are killed by those that have some

motive for killing them than by those who have not", but then when two or more

persons have different motives to kill then the significance of motive becomes of less

importance in considering the evidence of who murdered the deceased.

Now as to the evidence of when PW3 left the braai we have the evidence of Mr.

Gerald Cleveland and Mrs. Karen Cleveland; his wife, DW9 and DW10 as to what

happened on the night of the murder. It was common cause that PW3 was at the

home of DW9 and DW10 in the evening. According to him he left for his home at

between 11.00 p.m and 11.30 p.m, but according to the defence different times

were given or suggested as to when he left the braai. A t least on two different

43
occasions, Mr. Fashole-Luke II for the defence, put it to PW3 that he left the braai

at 8.15 p.m. That he hoped would make it possible for the court to hold that

PW3 could have murdered the deceased. But PW3 denied the suggestion. Later he

went on to suggest to the witness that he had murdered the deceased at between

10 and 10.30 p.m. This of course runs counter to all the massive body of

evidence to the effect that the deceased was murdered at about 8.45 p.m. Chantel

Nadauldt PW6 wife of Mark Nadauldt PW8 told the court that about 8.30 p.m.

PW3 left the braai. She told the court that dinner was served at 10 minutes to 8

and PW3 left straight after having dinner. Her husband DW8 told the court that at

8 o'clock, "Hennie Coetzee left right after we finished eating," and that "at least by

8.15 he had left/' On the other hand he said under cross-examination that they

started eating at 8 o'clock. Later he said that he was certain PW3 was gone by

8.30 p.m. According to him all the food was ready for eating at 8.00 p.m, and

they finished by 8.15 p.m and PW3 left. "We started eating at about 8.15 and

finished at 8.20" then PW3 got up quickly and left." According to the witness it

was before 8.30 p.m. He stuck tenaciously to 8.30. The defence wanted the

court to believe them that PW3 left the braai at 8.30, in order, so they thought

that would prove conclusively that PW3 could have been able to murder the

deceased. The real question is: can any reasonable jury believe these two couples

even on their evidence, but also importantly in view of the body of evidence built

around the allegation that it was the appellant that murdered the deceased.

44
There was so much internal contradiction in the evidence of Mr. and Mrs. Nadauldt

and that of Mr. and Mrs. Cleveland that even on their showing, no reasonable jury

could have believed them. One said that they finished eating at 8.00 p.m and then

PW3 left. On the other hand one said that they started eating at 8.00 p.m.

Another said they started eating at about 8.15 p.m and finished at 8.20 p.m. All

of them however agree that PW3 left at 8.30 p.m, evidence which is highly

suspect, and therefore unbelievable as evidence which had come from a previous

agreement by the witnesses. They remembered the single point that PW3 left about

8.30 p.m in order to make it sound true that PW3 could have committed the

offence. Clearly by and large their testimony flies in the face of human experience

and therefore the learned trial Judge cannot be held to have been in error for not

believing the whole lot of them. Even if the orchestrated evidence as to PW3

leaving the braai at 8.30 p.m remained unchallenged, it cannot be treated

differently from the evidence of an expert witness which remains unchallenged if

such evidence runs counter to human experience. As the Supreme Court in Nigeria

has decided in Elijah Oko v. The State [ 1 9 7 1 ] 1 NMLR 140, the court is not

bound to accept the opinion of an expert witness and act on it, especially where

such opinion conflicts with common sense. Similarly we are not bound to accept

that evidence as it is in conflict with human experience. There was nothing to make

PW3 leave the braai before say 10.00 p.m if his only mission was to murder the

deceased but the evidence must be tailored in such a way as to fit the allegation of

the appellant. How a braai can start at 8.00 p.m and end at 8.15 p.m or even

45
8.30 p.m it runs counter to human experience. And it is incredible that a man in

the position of PW3 could go to a braai and eat all that he wanted to eat between 8

and 8.15 or between 8.15 and 8.20 p.m.

But that is not the end of the matter. We have a massive body of evidence against

the appellant which can lead to no other conclusion than that it was she and no else

who murdered the deceased and if that is so all the evidence about PW3 leaving the

braai at 8.30 is nothing but mere fabrication. She traveled all the way from

Botswana to South Africa to procure the gun by telling many lies. If indeed PW3

had sent her - in any case it would make no sense for PW3 who had his own gun in

Botswana to ask her to make the hazardous and risky journey to procure another

gun for him - she ought not to have been so adamant despite all the entreaties. She

knew it was a serious offence to bring a gun and ammunition to this country without

a licence. She was willing to take the risk on behalf of someone who had no direct

authority over her, and certainly had no right to force her to undergo such a

dangerous venture. PW3 already had three guns, one in Botswana and two in

South Africa. If he had wanted to murder the deceased he could have done so

with his own gun and disposed of it. The gun was allegedly returned to her two

weeks after the murder with an explanation by PW3 that he had done what he

wanted the gun for, and it was known to the appellant that her best friend had been

shot to death the very day she brought the gun to Botswana. And we have another

yarn from her that PW3 asked her to return the gun to Michael Bosch even after

46
she had taken it from Dennis Webber. She kept the gun with her from about the

middle of August to September 14, 1996, and gave it back to Michael Bosch only

when she went for measurement for dresses for her wedding to the husband of the

deceased. Mr. de Silva wanted this court to hold that the appellant was heavily

under the influence of Wolmarans who subsequently became her husband, yet she

did not tell him that PW3 had sent her on an illegal errand to South Africa nor

indeed that she ever had the gun. To me all that is clearly incredible.

It is absolutely impossible for any jury to believe the story of the appellant as

opposed to the solid body of evidence which incriminated her. The learned trial

Judge meticulously evaluated and came to the only conclusion possible on that

evidence. The only point I wish to make is that the quality of the evidence led

against the appellant was such that in my view, no miscarriage of justice has been

occasioned in this case, and that it is a proper case for this court to exercise the

power which this court has under Section 13 (3) of the Court of Appeal Act.

CONCLUSION

From the evidence analysed above, the appellant appeared to be a very callous and

wicked woman who was prepared to sacrifice the life of other innocent persons in

order to save hers. The loopholes in her evidence is so numerous that the whole

evidence has the appearance of a basket or a fishing net which cannot hold water.

There is nothing of substance in the whole defence. She very carefully planned the

47
murder but I think that the execution of the plan went badly wrong. Her motive

was wicked and despicable. In her attempt to see to it that Hendrick Coetzee

hanged for the murder which she knew that he had not committed, she got people

who for reasons only known to themselves to come to court to give palpably

unbelievable evidence in order to save her and get PW3 hanged. One of course

can understand the reasons for her children's evidence. It seems to me that this

court has no alternative than to exercise the power given to it under the Court of

Appeal Act, Section 13 (3) to dismiss the appeal despite that the points raised on

behalf of the appellant might be decided in her favour. Appeal against conviction

must be, and it is hereby dismissed.

APPEAL AGAINST SENTENCE

In order to drastically reduce the number of death sentences pronounced by the

courts on convictions for murder under section 203 (1) of the Penal Code the

Legislature in its wisdom enacted in sub-section (2) of the section that -

"Where a court in convicting a person of murder is of the opinion

that there are extenuating circumstances, the court may impose any
sentence other than death."

Things are clear from this provision, namely, that the decision on the issue is pre-

eminently that of the trial court, and secondly that even if the trial court finds that

there are extenuating circumstances, it is not nevertheless imperative on it to

impose any sentence other than death. But it would appear that, even in their

48
anxiety to pronounce the sentence of death only when no extenuating

circumstances are found the courts have applied the provision as if that course of

action is imperative. And further more the Court of Appeal has more easily over-

ruled the opinions of trial courts in this regard than in others.

The practice which has developed in this country is that after an accused has been

found guilty of murder as in this case, he or she is then given an opportunity to lead

whatever evidence he or she has in proof of the existence of extenuating

circumstances in his or her case. The prosecution is of course free to lead any

evidence in opposition, but the prosecution hardly ever exercises this right.

Thereafter both defence and prosecuting Counsel are each afforded an opportunity

to address the court on the issue. Both are not obliged to confine their addresses

on the evidence specifically led in that regard. They are free to rely on the whole

evidence let at the trial in addition to that which has been led purposely for the

decision on extenuating circumstances. And similarly the court is free, and indeed

bound to consider all the evidence led in the case. The trial court has carried out

his duty in this regard and no criticism has been levelled on that ground.

The proper manner of dealing with the question of extenuating circumstances has

been laid down in several pronouncements of this court. I shall here refer to what

this court said in Lekolwane v. The State 1985 BLR 245 at page 248 to

249. There Baron, ].A. said:

49
 "It is hardly necessary to deal at any length with the proper approach
to the question of extenuating circumstances; the matter has been
considered in numerous cases. One of the best known is S. v.
Letsolo 1 9 7 0 ( 3 ) S.A. 476 ( A . D . ) , where Holmes J.A. said that
a trial court has to consider:

'(a) whether there are any facts which might be relevant to the
extenuation, such as immaturity, intoxication or provocation
(the list is not exhaustive);

(b) whether such facts, in their cumulative effect, probably had a

bearing on the accused's state of mind in doing what he did;

(c) whether such bearing was sufficiently appreciable to abate the

moral blameworthiness of the accused in doing what he did.
In deciding these, the trial court exercises a moral judgment.'

It is not explicitly stated, but it is I think implicit in this dictum (and

particularly (c), that the court considers not only the extenuating
features but also any aggravating features in the case itself and
considers them cumulatively in arriving at its value judgment. In
other words, in making the "moral judgment" whether extenuating
circumstances exist the court considers and weighs all the features of
the case, both extenuating and aggravating."

This court has always insisted on weighing both the facts which may abate moral

blameworthiness of the accused with those which may be held to have aggravated

the blameworthiness of the accused. See also the judgment of this court in David

Kelaletswe and Others v. The State, yet unreported, Cr. App. 25/94.

And I am prepared to hold that the attitude of this court to the question of

"extenuating circumstances" cannot be different from that of the Appellate Division

of South Africa as stated by Schreiner, J .A. in R. v. Fundakubi at Others 1948

AD 810 at 818 thus:

50
 "Reverting now to the point of substance raised in these cases, it is
unnecessary to go so far as to hold that in considering whether
extenuating circumstances are present the jury (or court) should have
regard solely to what was referred to in the argument as the subjective
aspect of the matter, i.e. the individual blameworthiness of the
accused in the light of the circumstances. It may be, I need say no
more than this, that the jury (or court) would not be misusing its
functions if it considered also the effect on conduct of holding that a
particular circumstance was extenuating. But it is at least clear that
the subjective side is of very great importance, and that no factor, not
too remove or too faintly or indirectly related to the commission of
the crime, which bears upon the accused moral blameworthiness in
committing it, can be ruled from consideration."

In this case the appellant called four witnesses including herself in order to establish

that there were extenuating circumstances in this case. Two of the witnesses were

her own children. The fourth witness was one Louise Oliver who described herself

as "a clinical and counseling psychiatrist with a BA honours in psychology from

Potchefstroom in South Africa." She had given evidence as DW11 at the trial and

her evidence had covered 84 pages of the record.

The evidence of the appellant's two children is not in my opinion of any significance

to the problem in hand; I therefore cannot hold that the learned trial judge was

wrong in coming to that same conclusion. Her own evidence of having persistent

headache, and that it is as a result of that headache that she committed the murder

was, in my view, rightly rejected. We then come to the evidence of Dr. Oliver.

The evidence of the witness was more directed to challenging the conviction of the

appellant which had been recorded against the appellant. In her view the appellant

51
could not have conceived the required mens rea. That clearly was not the issue in

question. It is not the function of a doctor or of any other specialist no matte how

eminent to decide for the court the very issue which the court has been asked to

decide. Her evidence runs to a little over seven pages without cross-examination.

She told the court among other things:

"On my cognisance of the fact that the court found the accused
guilty, it is my opinion that if she did commit the crime it was not
premeditated..."

By this of course the witness is saying the court was wrong to have convicted the

appellant of murder an offence which could not be committed except by pre-

meditation. She then told the court:

" I would want to state first my opinion is based on the fact that her
personality profile as I found in my evaluation does not fit that of
violent offenders as the research shows that violent offenders don't
have psychiatric disorders."

Obviously the learned trial Judge was rightly alarmed by this statement which

offends all human experiences and he naturally asked the witness: "Are you saying

mad people are never violent?" The witness then explained:

"Most of the violent offenders that don't have serious psychiatric

disorders have either anti-social personality disorder or a borderline
personality disorder, and Mrs. Wolmarans does not fit this disorder.
The second factor that I determine my opinion (sic) and is that I
determine Mrs. Wolmarans personality profile first with psychometric
tests which included lies ties. She could not have told me lies. The
third factor is the accused does not have a past history of violent
behaviour. The only predicator of future violent behaviours is past
violent behaviour."

52
Almost everything said by this witness runs counter to our daily experience and is

an affront to the intelligence of the common man. In this case, it is absolutely clear

that the appellant told a large number of lies beyond the capability of the ordinary

common man. And every day we come across persons who have a first experience

of committing crimes of violence. Does our daily experience not show us that

without a previous violent act, a person can commit a violent act? For any person

to tell me with a view to convincing me of the truth of it that the "only predicator

of future violent behaviours is past violent behaviour" is an affront to my

intelligence. Rightly of course the learned trial Judge discarded the evidence and he

was thus left with no evidence of any substance from which even in the slightest

degree a finding of extenuating circumstances could be found.

However in his address before this court Mr. de Silva submitted that the learned

trial Judge in this direction was wrong in the direction he gave himself which I shall

quote below. In his submission, since there was some evidence that the appellant

was someone who was slightly below average intelligence and who by nature was a

dependent personality; and that since the learned trial Judge had found that she was

under the influence of her new husband; that the murder was a crime of passion;

and that she acted out of jealousy and infatuation, the learned trial Judge was in

error not to have found that cumulatively all these must be held to reduce her

moral blameworthiness. There was no evidence from her or her new husband that

she was influenced by him to kill his wife, save the evidence that he asked her not to

53
make a statement to the police without her lawyer after she had committed the act.

And to kill because she was infatuated with her best friend's husband, or because

she was jealous of her best friend appears to me, if anything, to be aggravating

circumstances. I can therefore see no force in the argument of appellant's Counsel,

bearing in mind that the murder was planned over a period, which included

travelling all the way to another country to collect the murder weapon; telling lies

to the person with whom it had been kept; and taking it across two borders illegally

despite passionate plea from friends and members of the family not to do so.

The learned trial judge concluded his ruling on this aspect of this case thus:

"... 1 have taken the trouble to look through the whole proceedings
before me - the evidence adduced at the main trial and after
conviction - for any factor, however minute or remove, which could
have had a bearing on the state of mind of the accused in killing the
deceased and thereby reduce her moral blameworthiness for the
offence she committed. I have not been able to find one. She was
not young by any standard, not intoxicated, and not provoked by the
deceased. Further, her mental faculties were unimpaired and she did
not act on the spur of the moment. From the evidence what Mr.
Luke wanted me to accept as an extenuating factor is that the killing
of the deceased was not premeditated but that has been rejected by
me. The accused no doubt killed the deceased as a result of jealousy
and infatuation but, as was held by the Court of Appeal in
Lekolwane v. The State (supra), emotional state arising out of
jealousy cannot, per se, be an extenuating circumstance in a case of
premeditated murder.

On the contrary I find the accused's murder of her close friend in

• order to take over her husband an aggravating circumstance in the
case. To borrow the words of Stein, J.A. in the David Kelaletswe
case (supra), I find that the crime committed by the accused was
carefully planned and committed with an evil motive without mercy
for an innocent victim who had done her no harm. It is difficult to

54
V
think of a crime that is more devoid of circumstances that could be
held to reduce the moral blameworthiness of the accused than that of
which she has been convicted."

I have no basis to hold that the learned trial Judge in arriving at this conclusion was

in any way in error. Therefore I can come to no other conclusion than to dismiss

the appeal as against sentence.

CONCLUSION

For the reasons herein given the appeal against both conviction and sentence is

dismissed, and the conviction and sentence imposed by the trial court is confirmed.

T. A. AGUDA
ACTING JUDGE PRESIDENT

NGANUNU C.I.

I have had the benefit and privilege of reading the separate judgments of Aguda Ag.

J.P. and that of Tebbutt J.A. and I agree with the conclusions they have come to. I

would however wish to highlight certain matters and in doing so I adopt the

summary of the facts in the case as contained in the judgment of Tebbutt J.A. It

55
was common cause during this appeal that the deceased Maria Magdeline

Wolmarans was killed at her home In Phakalane on the night of 26 th June 1996 at

about 8.45 p.m. It was also common cause that the appellant and the deceased

lived not too far from each other in the same suburb of Phakalane at the relevant

time; and that both of them had developed a strong relationship with each other to

the extent that the appellant described themselves as "like sisters". Both these

women were married with children. The two families had known each other, soon

after the appellant and her family arrived in Gaborone in 1993. Their children had

become friends and it looks as if their husbands had at least developed some

acquaintance with each other. The appellant's husband one Justin Bosch had died

in a road accident in 1995 from South Africa. The deceased worked as a financial

accountant for a company known as Kwena Rocla and her boss at that time was one

Hennie Coetzee who gave evidence as PW3 in the case. It was also common cause

that the appellant had been shot twice with a pistol and that had caused her death.

The pistol used was identified as a 9 mm pistol with Serial Number 77C49314. It

was agreed that this pistol belonged to the appellant's deceased husband and had up

to 26* June 1996 been in the custody of Dennis Webber, a resident of South

Africa living in Pietersburg. That pistol had been brought to Botswana illegally on

the 26 th June 1996 by the appellant, and she took it back to South Africa once

more illegally, on or about 14th September 1996. That according to me would

have been two weeks after the burial of the deceased on 2nd July. The appellant

56
returned the pistol to her late husband's brother one Michael Bosch in Kempton

Park, Johannesburg.

The prosecution case was that the appellant had shot her friend, the deceased, with

that pistol at about 8.45 p.m. on the 26 th June 1996 at the deceased's house.

The prosecution alleged a motive for the killing; namely that the appellant who had

then developed a love relationship with the deceased's husband wanted to get rid of

her in order to marry her husband. Indeed within less than 3 months or so, after

the funeral of the deceased the appellant had in fact married the deceased's

husband. The love affair between the appellant and Wolmarans was said to have

commenced even before the death of the deceased but the appellant denied that

and Wolmarans only admitted that it started on August of 1996. The appellant

had denied that she had killed her friend and in her defence had set out a two

barreled defence, namely that during the afternoon of 2 6 * June 1996 she had

handed the pistol in question and a box of ammunition to Hennie Coetzee, at his

office and she did not therefore possess the pistol at the time the deceased was

killed. She maintained that she thereafter received the pistol from Coetzee only

two weeks after the funeral of the deceased. The other limb of her defence was her

telling the court a quo that after she had returned from a school meeting on that

day at about 7.35 p.m. she remained in her house until the time she was called by

phone and informed that the deceased was lying in her house apparently dead. In

this respect she therefore set up an alibi. It was the appellant's further case that the

57
deceased had been murdered with that pistol by Hennie Coetzee who had a motive

of his own to kill the deceased. It was maintained on behalf of the appellant that

the deceased had found out some improprieties concerning the use of company

money by Coetzee and she had intended to expose him during an audit of the

company finances on 27 th June 1996. That Hennie Coetzee had shot her during

the evening of the 2 6 * when he tried vainly to persuade her not to expose him

during the audit. Hennie Coetzee was called as a prosecution witness, and the

argument of appellant's counsel about the immunity granted in the case concerns

him. He denied the appellant" allegation and the trial judge believed him. No

cogent reasons have been advanced against that determination. The trial court had

rejected the appellant's story and alibi and had convicted her for the murder of the

deceased and sentenced her to death as it held that there were no extenuating

circumstances that could reduce the sentence.

The appeal was very carefully argued by counsel on both sides. Mr. De Silva Q.C.

appearing for the appellant made powerful submissions to the effect that (1) the

trial judge had misdirected himself on several occasions in his judgment in relation

to the burden of proof and when dealing with the evidence of and for the appellant.

He had placed, it was argued, the onus on the appellant to prove her innocence.

Furthermore Mr. De Silva criticized the judgment of the trial court in its treatment

of the evidence of both the appellant and her witnesses, especially the treatment of

the evidence of and extra curial statement Charmaine - the daughter of the

58
appellant - in relation to the evidence of the appellant. In the final analysis the

submission of the defence counsel was that taking into account all the misdirections,

which he submitted the learned trial judge had committed, the appellant had not

had a fair trial and there was a miscarriage of justice. Over and above the criticisms

concerning the judgment, counsel for the appellant brought out yet another matter

which he submitted made it clear that the appellant did not have a fair trial. This

was that the prosecution had failed to disclose both to the defence and to the trial

judge that Hennie Coetzee had been granted an immunity from prosecution so that

he could give evidence in the case. Coetzee was then working for his company in

Ghana and he attended the trial armed with the immunity and flanked by a lawyer

to keep a watching brief. The circumstances of the grant of such immunity appear

clearly from the judgment of the Acting Judge President and I shall not burden this

judgment in repeating them here.

Before dealing with the submissions on the main case I think I ought to deal with the

issue of the non-disclosure of the immunity. Both the judgments of my brothers

which I had referred to dealt with this issue and I shall state my further views on it

shortly. This court was left in doubt as to whether the immunity had been

communicated by the State to the defence counsel before the trial, or at any rate

before Hennie Coetzee gave evidence; or whether that had not been done. The

appellant's legal team took the view that it was unnecessary to determine who

between attorney Mack, who led the prosecution case at the trial, and attorney

59
Fashole Luke who was appellant's only counsel then, was telling the truth in relation

to the disclosure or non-disclosure of the immunity. Mr. De Silva's point was that

in law there would be no proper and acceptable disclosure of such immunity if it

was not communicated to the appellant in writing. He quoted, as discussed in the

judgments of my brothers English authorities to the effect that disclosure of

information which may be regarded as material to the defendant's case was an

important part of a fair trial. He submitted that the rule applying in England that

such a disclosure is only valid if made in writing also applied to this country; and

that this court should affirm that rule as it is equally a right of an accused person in

this country to have a fair trial. In terms of Section 10 of our Constitution a person

accused of a criminal offence must receive a fair trial before an impartial court

within a reasonable time. It seems to me that within certain circumstances a non-

disclosure of information held or known by the prosecution to the accused person

which information may have a material impact on the case of the accused may

amount to a violation of the requirements of a fair trial. There is, however, no

existing rule of law in this country that disclosure of such information need always

to be in writing; and that verbal disclosure of such information is inadequate. It

would be surprising in a country at this stage of development that there would be

such a hard and fast rule as to require that any disclosure to the accused not in

writing is of no effect. Such a rule would at present work hardship at this

developmental stage of this country. Indeed as can be seen from the cases quoted

by counsel for the appellant the English rule for disclosure is itself new and it has

60
only recently been confirmed as a rule of law in the form advocated by counsel for

the appellant. Whilst therefore disclosure of material information to the defence is

necessary this court cannot say that failure to do so in writing is a breach of any rule

of our law.

As to whether the failure in this particular case did prejudice the accused that issue

must be determined on the facts of the case. The appellant argues that had the

immunity been communicated to her she would have had the opportunity to make

a point to the court that Hennie Coetzee was a witness with his own motives in

giving the evidence that he did. Furthermore Coetzee's credibility would have been

assailed because he would have had something to protect by giving the evidence he

did. But in reality the essence of the defence mounted by the appellant was that

Coetzee was the murderer rather than the appellant. That defence necessarily

carried with it the implication that Coetzee had a motive of his own in giving the

evidence he did. That he was, in giving his evidence, shifting the blame from

himself; and in the circumstances of this case, to the appellant, who was the only

other person who could be charged with the murder. It must have been clear to

the defence team that this was their version of the role of Coetzee. From the

approach it adopted the defence had therefore every reason to regard Coetzee as a

suspect witness who had his own interest to protect in the case; and with the best

possible motives to exculpate himself and perhaps also to incriminate the person

accused. Indeed the cross-examination of Coetzee was on that basis and it was

61
extensive and exhaustive. I cannot envisage that had the immunity been

communicated to the defence their suspicion of Coetzee and their submission that

he had a motive of his own in giving evidence would have been any better

highlighted and made, than as was presented in the case. For the reasons also

mentioned by my brothers in their judgments, I am therefore of the view that the

non-disclosure of the immunity, if that be the case, did not affect the ability of the

appellant to question both the motives and credibility of Coetzee than they would

otherwise have done. To me the appellant's defence always regarded Coetzee as a

witness with a motive of his own in giving evidence in this case, and he was dealt

with by the defence as such. Even if I was wrong in that approach I also take the

view that any prejudice that may have been occasioned could not have tipped the

balance in this case, when all the facts and circumstances of it are examined.

I now want to say a few words about the main case of the appellant. The passages

in the judgment of the trial court which were subjected to severe criticism are very

neatly captured in the judgment of Tebbut }.A. and no good would be served by

repeating them here. Suffice to say that I do agree that in stating that the appellant

had an obligation to prove on a balance of probabilities the alibi and the other limb

of her defence she had set out, the trial court was in error. Furthermore other

passages, though perhaps each of them on their own were ambiguous as to their

meaning, nevertheless taken together, they reinforced the perception that it was

the appellant who had to establish the truth of her alibi or at least she had to show

62
that it could not be discounted as a lie. Strictly speaking the rule of our law is that

once an accused person has mentioned what amounts to an alibi in her evidence, it

is for the prosecution to establish as usual, beyond a reasonable doubt, that the alibi

is false; and if it cannot show that this is so, and the court is in doubt as to whether

the alibi is true or false, then the case against an accused person has not been

proved beyond a reasonable doubt. It is also clearly correct that the out of court

statement of one witness does not devalue or destroy the evidence of another

witness. When dealing with the evidence of a witness, especially the evidence of an

accused person a trial court ought to assess its truth or otherwise on its own, but

also at the same time having regard to other evidence, that may be confirming or

contradicting what the accused says, if such evidence is itself truthful. Clearly

before any contradictory evidence is evaluated against that of the accused it must

first be believed. In the present case the learned trial judge stated that a statement

given by the daughter of the appellant to the police which was not itself evidence in

the case devalued the evidence of the appellant. That is wrong and amounts to a

misdirection.

The main issue in the case is what must be the effect of these admitted misdirections

on the conviction. Before dealing with the test to be applied where such

misdirections exist, I desire to state that it is by no means clear to me that the

learned trial judge altogether forgot that the prosecution bears the burden of

proving its case, and for that matter, each and every element of the offence

63
V
charged, beyond a reasonable doubt. The trial judge initially set out correctly, in

my view, that when an accused person denies the case alleged against her, it is for

the prosecution to prove that case against the accused beyond all reasonable doubt.

In amplification of and applying that principle in the present case, the trial judge

isolated the ingredients of the offence charged against the appellant and stated that

there were five of these ingredients and each such ingredient had to be proved by

the prosecution beyond all reasonable doubt. Having dealt with the four other

ingredients which were not contentious, the trial court dealt with the fifth

ingredient, namely whether it was the accused (the appellant) who killed the

deceased or not; and again the learned trial judge correctly emphasised that the

prosecution would have to prove that element beyond ail reasonable doubt. 1 refer

to these features of the direction which the judge gave himself so as to put in

perspective the criticism very strenuously mounted by Mr. De Silva against what he

called the shift of the onus from the prosecution to the appellant. It seems to me

that whilst the learned trial judge misdirected himself as aforementioned; and

especially in stating that the appellant bore the onus to show that she had given the

gun to Hennie Coetzee, the learned judge nevertheless still had in mind at the end

of the case, that it was the prosecution that had to prove the whole of its case

beyond a reasonable doubt. The misdirections therefore have to be seen in their

perspective.

64
Having dealt with this point the question now arises what the effect of these

misdirections must be in the context of the facts of this case. Our law is that on an

appeal the Court of Appeal must do real and substantial justice in the case.

Technicalities should not be allowed to obscure real and substantial justice. This is

an important principle in any legal system. And the point to be made is that at the

end of the whole case a Court of Appeal must decide whether actual justice has

been done with respect to any particular case or whether a miscarriage of justice has

ensued. That principle is enshrined in the provisions of Section 13(3) of the Court

of Appeal Act Cap 04:01 which requires that:

"13(3) where the Court of Appeal, in an appeal against conviction,

considers that, notwithstanding the fact that it is of the opinion that
the point raised in the appeal might be decided in favour of the
appellant, there has been no substantial miscarriage of justice, it may
dismiss the appeal."

As can be seen from these provisions the court is entitled to dismiss any appeal

even though some points taken on appeal are held in favour of the appellant

provided that there is no "substantial miscarriage of justice" in the conviction.

Broadly especially this means that the Court of Appeal must see that

notwithstanding even any legal misdirections - if the same are technical only in their

effect, but justice has been done, that court may, and not must, confirm the

conviction by dismissing the appeal. The court has a discretion of what to do in

order that it may do justice in the light of the facts and circumstances of each case.

65
That must be the test which we must apply in this case. As shown by my brothers,

other civilised countries also have similar provisions. The question is: was this

conviction marred by the misdirections contained in the judgment of the court a

quo; or notwithstanding such misdirections has substantial justice been done in the

case. The court will in my view take the view that substantial justice has been done

in the case if on an examination of the totality of the evidence and the

circumstances of the case it takes the view that conviction of the appellant was

proved beyond reasonable doubt notwithstanding the misdirection. In other words

if the misdirections are taken out; and had the trial court correctly appreciated the

principles applicable, would there undoubtedly have been a conviction in the case.

If the appeal court can come to the view that even though there are misdirections

there is other evidence that establishes the guilt of the accused beyond all

reasonable doubt; and the court is convinced that real justice has not been

compromised by such errors, then I think it ought to apply the provisions of Section

13(3) of the Act. In the present case the issue in dispute, put in its simplest form

was, who between the appellant and Coetzee murdered the deceased. Against the

appellant was a proven motive that is she was in love with the deceased's husband.

She wanted to marry him and the deceased was in her way to be married by Tienie

Wolmarans. Once the deceased was removed from the scene, the evidence

showed,her love relationship with Tienie Wolmarans came into the open and they

quickly married. Secondly, it was proved that she had gone to tremendous lengths,

66
as I shall shortly show, to acquire the murder weapon. Thirdly, she lived close to

the deceased, knew her home quite well and could be admitted to the house of the

deceased without any noise or an alarm being sounded. So she had an opportunity.

The only question then was whether she had the weapon at the relevant time and

whether she went to the home of the deceased at the time and there shot and

killed her. In considering the double barreled defence of the appellant this court

must bear in mind the fact accepted by all that the killer was either the appellant or

Coetzee and not any other third person. The appellant's defence is that of an alibi

and in its simplest form she stated that she did not shoot and kill the deceased at

her home that day because she was not at the house of the deceased at the relevant

time. She stated that at that time on that day she was at her house certainly from

7.35 p.m. until when she was told at about 11 p.m. that the deceased was lying on

the floor of her house - dead. Secondly, at any rate, she said she did not at that

time have the murder weapon in her possession. It was with Coetzee. Whether or

not the trial court could have thought that the defence, including the alibi, had

been totally destroyed and proven to be untrue depends on the evidence. In my

view the question as to who had the murder weapon that evening of the murder is

crucial in the case. If at the relevant time it could be proved that the appellant had

the murder weapon, it follows that she did go to the home of the deceased and shot

and killed her at the relevant time, since that weapon was used that evening for the

killing and it was not stolen from her temporarily. There is no way she could have

had the murder weapon at the time agreed for the murder and someone else to

67
have shot the deceased with the murder weapon. If however it cannot be clear that

she had not handed the murder weapon to Coetzee, then she has to be acquitted.

Her story was in my view fantastic to say the least. Ordinarily a person does not go

to such lengths as the appellant did in this case for the sort of reason that the

appellant gave in her evidence; that is that she was pressured by Coetzee to agree to

sell the pistol to him; and commanded by him to go and fetch it from South Africa

ensuring that she left at that particular time. Her evidence can be looked at this

way -she had two days before the 25 th , come back from a week long stay in South

Africa. And on that trip she had brought from South Africa her mother to stay

with her at Phakalane. She suddenly decided to leave her for South Africa

ostensibly to check on her late husband's insurance policy in Pietersburg. That is

when she met Dennis Webber and told him, to her admission, some lies in order to

obtain the pistol from him. As was common cause, that pistol and another firearm

left in the custody of Webber when others were collected because Webber wanted

to buy them. The appellant had subsequently confirmed the sale and agreed the

purchase price of the pistol with Webber; but as they were long standing friends she

had not required any time frame within which Webber should pay for the pistol.

On both 25 th and 26 th June 1996 she demanded and insisted that she must have

the pistol and take it to Botswana against the advice of both Webber and on the

other side that of Judith Bosch, a family member. To both she told lies and she

insisted on having the pistol even though they told her that it would be illegal for

68
her to take the pistol to Botswana. She had falsely promised Webber that she

would leave the pistol at Nietverdiend police station near the Botswana border. To

Webber she told him that she would return the pistol within two weeks through her

sister in law, Valerie. She told him that she needed the pistol in order to do some

target shooting but she only required four rounds of ammunition for that purpose

and still insisted that such quantity of ammunition would be sufficient for her

purpose even when Webber said that the quantity of four bullets would not be

enough for that purpose. She was eventually persuaded to take a whole box of 25.

In her evidence she said she was to sell the pistol to Coetzee for P6000.00. When

according to her, she delivered the pistol to Coetzee at 2 p.m. at his office on the

26th June, she did not bother to ask him about the purchase price and she simply

left the pistol and the ammunition on an open table once Phillip Botha came into

the office. Although she said that the weapons were on the table she could not

confirm whether Phillip Botha who came into the office before she left did see the

weapon. He did not give evidence at the trial. The explanation of the appellant for

this strange behavior on her part is that she had been given some wine and some

chocolates by Coetzee on the 17th June and also on the 23 rd she drank wine with

him, which consumption gave her a headache and she became subject to the

command of Coetzee. She implies in her evidence that the consumption of the

wine and chocolates gave her headaches; and made her subject to Coetzee's powers

and she became extremely afraid of him; and when he looked at her she had again

the extreme headaches. But none of the members of her household confirmed that

69
she was sickly or had headaches on the two days that Coetzee drank with her the

wine and gave her the chocolates. When she arrived in Pietersburg on the 25 th June

she stayed the night with Webber and his family and Webber states that the

appellant behaved normally and did not appear to be ill or having any headache.

The suggestion that she was obeying Coetzee willy nilly because of some hypnosis

on his part and or the effect of the chocolate, is in my view, far-fetched. It could

not have been accepted by any reasonable court. It is a fact that two weeks after

the burial of the deceased, if not earlier, the appellant had the murder weapon in

her possession. She said that the same had been returned to her by Coetzee who

ordered her to take it back to South Africa, this time to Michael Bosch. She said

Coetzee told her to take the pistol back, no matter how she did it. And if she did

not do so, she would be in trouble. In her evidence she said he commanded her to

do so and he was in a hurry and rough with her. That when she tried to ask him

why he was now returning the pistol and what had happened to the purchase price

he told her he had already done with the pistol what he wanted to do with it; and

when she asked what he had done, he had brusquely told her that it was no concern

of hers; and he quickly left. In cross-examination however she stated categorically

that Coetzee had repeatedly told her to take the gun to South Africa and that if she

did not do so there would be trouble. She emphasised that there was some

repetition of what she had to do and the trouble that would befall her if she failed

to do so. This is contrary to the impression given in evidence in chief that Coetzee

was in a hurry and not talking much. Furthermore she admitted that she was not

70
under the control of Coetzee. The acceptance of this story, in my view, would be

tantamount to holding that Coetzee was himself reckless to the point of madness. I

cannot see that Coetzee having done what he needed to do with the pistol, if her

story was to be believed - which in this context meant that he had killed the

deceased with it - he would have been prepared to entrust this knowledge to the

appellant at all, much less in the manner which she alleged he did. Furthermore, I

cannot see that he would give her the murder weapon and simply command her in

the manner she alleged, to deliver it to Michael Bosch. That would imply taking

incalculable risks on the part of Coetzee. The appellant took the murder weapon

back to Michael Bosch in Kempton Park on the 14* of September 1996. She

travelled from this country around 12th September in the company of Tienie

Wolmarans and their children. At that time these two must have become engaged

because they intended to buy a wedding dress in Johannesburg for the appellant

and they went to measure on the 13th September. If she had received the weapon

as she said, because she was afraid of Hennie Coetzee, it is most surprising to say

the least, that she travelled with that weapon from Botswana and stayed with it for

such a long time before delivering it to Michael Bosch without at all mentioning its

presence to her fiancee, and explaining to him the circumstances of her possession

of it. If she had been compelled by Coetzee both to take the weapon from South

Africa and also to return it there, stating in respect of its return that he had done

what he needed the weapon for, it seems to me that she would have been

frightened by his intimation to her that he had used it. She had her mother present

71
in her house when Coetzee visited her on 23 rd September, and on the 2 5 * June

when she went to return the weapon to South Africa. A t Kempton Park she was

able to tell Michael Bosch to hide the weapon so that nobody could see it; and

despite the fact that this man was her brother in law she did not tell him about her

fear of Coetzee and the suspicion which she must necessarily have entertained by

that time, about the possible use of the weapon to murder her friend. She kept

quiet about that possibility and her thoughts on that subject even though, as shown

in cross-examination by Mr. Mack, she had in mind that she had given a weapon to

Coetzee and that her friend had been shot with a pistol. She had herself given

evidence that the deceased during her lifetime had told her of her bad relations with

her boss Coetzee. Although an accused person is not compelled to make a

statement to the police, nevertheless the police did ask the appellant about this gun

after discovering that it had been used to murder her friend. She was then being

accused of the murder. In the circumstances she could reasonably be expected to

have revealed her predicament to someone she could trust. And also explain to the

police on their inquiry that she did not have the weapon at the time of the murder

of her friend as she had given it to Coetzee. That is the natural thing to do. In

respect of the police inquiring it would have been natural self defence to have told

the police about Coetzee and the pistol. But the appellant did not do so. I am of

the view that the accused's story could not be accepted as reasonably possibly true

by any court and would have been held by any reasonable trial tribunal to have

been a complete falsity. These sorts of lies could only have been told by a very

72
desperate person and there must have been a strong reason producing such

desperation and good reason prompting such falsity. In my view that reason must

be some feeling of guilt and fear for herself on the part of the appellant. In my

view these lies therefore reinforce the conclusion that must necessarily be arrived at

from the facts, that is, it was the appellant who all the time had the murder weapon

in her possession from the time she took it from Dennis Webber in South Africa to

the day she returned it to Michael Bosch. As I have said earlier, once it is held that

she was in possession of the murder weapon at the relevant time it follows that she

went to the home of the deceased and killed her. The evidence of Aniki that the

appellant left her home soon after 8 p.m. on that day, in my view, was correctly

accepted. It appears to me that the deceased was shot from the back. If that is so,

that would have been by a person who the deceased had welcomed into her home

and she was leading that person through the passage. That is not how Coetzee

would have shot her, according to the case of the appellant, as firstly he tried to

convince her to refrain from disclosing his frauds. In such an event they would have

been talking face to face, or seated, and the shooting would not have been from the

back. The appellant was one of those persons that was obviously welcome at the

home of the deceased.

The case was entirely circumstantial but in my view it leads to one conclusion only

and as discussed in R. v. Blom 1939 AD 188 there was no other reasonable

conclusion that could have been arrived at. Many cases are decided on

73
circumstantial evidence provided the circumstantial facts lead to the conclusion

sought to be drawn and leave no other reasonable conclusion that may be drawn.

As regards the submission that there could have been some reasonable doubt in the

case, I do not agree at all. I adopt in particular the passage in Lord Denning's

judgment in Miller v. Minister of Pensions 1947(2) AER 372 at 373 quoted by

Tebbutt J.A. in his judgment, to the effect that:

"If the evidence is so strong against a man ss to leave only a remote

possibility in his favor, which can be dismissed with the sentence 'of
course its' possible but not in the least possible', the case is proved
beyond reasonable doubt."

Fanciful possibilities should not prevent the courts from doing justice. Here it

becomes clear in my mind, that the learned trial judge was right in holding that

beyond all reasonable doubt the State had proved that the appellant had the pistol

at the relevant time and that she shot, perhaps her best friend, for reasons of the

heart. Notwithstanding any misdirections cumulatively or however viewed, the

guilt of the appellant could never have been in doubt. I can see no real miscarriage

of justice in her conviction and therefore the provisions of Section 13(3) of the

Court of Appeal Act must be employed. The appeal against conviction must be

dismissed and her conviction for murder confirmed.

1 will not say anything in regard to the sentence imposed on the appellant; suffice to

make it clear that I agree with the conclusions contained in the judgment of my

brothers and for the reasons therein stated that there were no extenuating

74
circumstances in the commission of this crime and the sentence imposed must

stand.

^..hutr.
JVM. NGAMUNU
[CHIEF JUSTICE]

TEBBUTT 1A

I have had the benefit of reading the judgment of Aguda Ag. }.P. and agree that

the appeal must be dismissed. I would, however, wish to voice my reasons for

doing so.

On the night of 26 June 1996 at about 8.45 p.m Maria (or Ria) Magdalena

Wolmarans, (hereinafter referred to as "the deceased') was shot dead in the home

that she shared with her husband, Marthinus (Tienie) Johannes Wolmarans in the

suburb of Phakalane in Gaborone. The State alleged that it was the appellant who

shot her. The appellant was accordingly charged in the High Court before Aboagye

J. with the offence of murder contrary to Section 202 of the Penal Code (Cap

08.01). The learned judge found her guilty as charged and finding further that no

extenuating circumstances existed, sentenced her to death. The appellant now

appeals to this Court against both her conviction and sentence.

It was the case of the prosecution at the trial that the deceased was shot with a

9mm pistol which the appellant had obtained from one Dennis Webber in the town

75
of Pietersburg in South Africa and brought illegally into Botswana on 26 ]une 1996

and that she had shot the deceased, who was her neighbour in Phakalane in order to

marry the latter's husband, Tienie Wolmarans, with whom she was having a love

affair. These allegations were denied by the appellant. She admitted, however, that

she had illegally brought the pistol into Botswana from South Africa but said that

she had done so at the behest of one Hennie Coetzee to whom she had given it on

the afternoon of 26 June 1996. She had not had the pistol in her possession on

the night the deceased was shot. The trial judge, however, found that the evidence

established that it was the appellant who had shot the deceased using the pistol she

had obtained from Webber. It is those findings which are now challenged on appeal

by the appellant for whom Mr D. de Silva Q.C., with him Mr E. Fashole-Luke II,

appeared. Mr L.Z. Ngcongco with him Mr. B. Nlanda appeared for the State.

It is not disputed that the deceased died as a result of two gun shot wounds, one in

the back of the abdomen and the other on the left outer side of the abdomen. It is

also not disputed that the shots were fired from a pistol with serial number

77C49314. It is further not disputed that this pistol was the one obtained by the

appellant from Webber in Pietersburg and that she brought it illegally into Botswana

on 26 June 1996. What is in dispute is whether she still had it in her possession on

the night on 26 June 1996 when the deceased was shot. The appellant said she

did not; she had given it to Hennie Coetzee earlier that day. She also testified that

she had been at her home on the night in question and had not left it until she was

called to the deceased's home by the latter's daughter, Maryna Wolmarans, who

76
had found her mother lying dead in a passage of the house; in other words, she

pleaded an alibi.

The two factual issues at the trial were therefore (i) whether the appellant had given

Hennie Coetzee the gun on the afternoon of 26 June 1996 (ii) her alibi. The

learned trial judge found against the appellant on both of these issues.

Before this Court Mr. de Silva, in a forceful and penetrating argument, contended

that the appellant had not had a fair trial in the Court a quo and that there had, in

consequence, been a miscarriage of justice because of a number of what he

submitted were misdirections on the part of the trial judge. In support of his

submissions he presented a detailed analysis of the judgment of the trial judge to

this Court. I shall advert to these in the course of this judgment.

One of the major criticisms raised on behalf of the appellant was that the learned

trial judge had seriously misdirected himself by incorrectly placing the burden of

proof in regard to both the issues mentioned on the appellant. Such misdirection, it

was contended, vitiated the conviction of the appellant. The passages in the learned

judge's judgment on which appellant's counsel relied for these submissions are the

following. At p972 of the Record, the learned judge said:

"From the accused person's evidence, her defence is simply that she
gave the pistol which she had collected from Dennis Weber and
brought with her to Gaborone on 26 June 1996 to Hennie Coetzee

77
 at about 2 p.m. on that day so she cannot be held to have killed the
deceased with that gun. She said she stayed at her home after
returning from Westwood School at about 7.35 p.m. and never went
out until she received a call from Maryna at about 11 p.m. If I
therefore find that she gave the gun to Hennie Coetzee as alleged by
her, or that it is reasonably probable that she gave it to him, she
would be entitled to an acquittal".(emphasis added)

At p990 of the record, the learned judge said:

"In the end it is my duty to find if it is true or reasonably possibly

true, that as a result of a threat or any other cause the accused
travelled to Pietersburg for the pistol and gave it to Hennie Coetzee
and that she was in her house when the deceased was killed with the
gun.

The accused has in effect pleaded an alibi and has given evidence and
called her two daughters in support of it."

At p993 of the record, the learned judge said:

"The rule of evidence is that he who asserts a fact must prove it. In
the instant case, therefore, the onus was on the accused to prove on a
balance of probabilities that she gave the pistol to Hennie Coetzee. I
therefore have to examine the evidence to see if, on a balance of
probabilities, it can be said that the accused's story is true, or is
reasonably probably true. Any finding in the accused's favour should
depend on her credibility as a witness and on the evidence of the
other witnesses in the case." (emphasis again added)

It is undoubted that the passages cited suggest that the learned trial judge shifted the

burden of proof of the alibi and possibly of her innocence on to the appellant. His

statements that "he who asserts a fact must prove it" and that

"the onus was on the accused to prove on a balance of probabilities

that she gave the pistol to Hennie Coetzee"

78
are indicative of that. Moreover, the test of proof on a balance of probabilities is

that applicable in civil cases. It is not part of the criminal law. Furthermore his

statement that in relation to the appellant's alibi he had to find if it was

"true or reasonably possibly true.... that she was in her house when
the deceased was killed"

suggests that he misdirected himself by not considering whether the prosecution had

satisfied him beyond reasonable doubt, as it was bound to do, that this alibi was

false.

It is trite that, as pointed out by Aguda Ag.JP in his judgment, the burden of

proving guilt beyond reasonable doubt remains throughout on the prosecution and

no onus falls upon the accused person to prove his or her innocence. In respect of

an alibi it was held per Ashworth 1. in R v lohnson ( 1 9 6 1 ) 1 WL.R 1478 at

p i 4 8 0 , a case in which a trial judge had directed a jury that as regards a defence

of alibi there was a burden on the accused to prove it on the balance of

probabilities, that

"it was a misdirection which was absolutely fundamental"

It is also the law in Botswana as it is in South Africa that no onus rests on an

accused person to prove an alibi. The onus rests throughout on the State to

establish beyond reasonable doubt that it was false. See S v. Biya (1952) (4) SA

514 (AD). That is also the law in Botswana.

79
While these statements by the learned trial judge as to the burden of proof are

clearly incorrect there are nevertheless other passages in the judgment which tend

to show that the learned judge appreciated that the onus lay throughout on the

prosecution. His judgment commences with these words:

"The accused has pleaded not guilty to the charge and has thus
placed on the prosecution the burden of proving the charge against
her beyond all reasonable doubt"

He then proceeded to set out the elements of the charge which he said "the

prosecution have to prove beyond reasonable doubt." These were (i) that the

deceased was dead; (ii) that she died of harm; (iii) that the harm was unlawful; (iv)

that the harm was caused by the accused; (v) that it was caused with malice

aforethought.

As to the first, second and third elements there was no dispute and the fifth element was

not challenged by the defence. The learned judge then said:-

"what is left to be decided is the 4th element, namely, that it was the
accused person who caused the harm. By her plea, by her learned
attorney's cross examination of prosecution witnesses, and by her
evidence, the accused denies that she went to the house of the
deceased on the night of the 26 th June 1996 and killed her with a
pistol. Therefore, as I have already stated, the burden lay on the
prosecution to prove beyond all reasonable doubt that she was the
one who killed the deceased with the two gunshots."

He concluded his judgment by finding the charge proved against the appellant

"beyond all reasonable doubt."

80
The criticism of appellant's counsel is that the trial judge made the misdirections

quoted while dealing with the defence case and nowhere in his analysis of the

defence case did the judge advert to the duty of the prosecution to prove its case

against the appellant beyond reasonable doubt. Instead, he had sought to place the

onus on the appellant to prove her case on a balance of probabilities. He had, so

Mr. de Silva said, "become derailed and never got back on the rails again."

That the passages cited represented a departure from what the learned judge at the

start of his judgment appreciated the onus to be cannot be gainsaid. But I am in

doubt as to whether they influenced his reasoning when, after a consideration of

the evidence in its totality, he came to the conclusion he did.

Other passages in the learned judge's judgment which Mr. de Silva contended were

misdirected are the following.

In the passage cited in regard to the onus at page 993 of the judgment the learned

judge said "anything in the accused's favour should depend upon her credibility"

One of the appellant's daughter's Charmaine testified in her defence. A statement

made by Charmaine to the police differing in a material respect from her testimony

in court was put to her in cross-examination and produced in evidence. A t page

975 of the judgment the learned judge said

81
 "Again Charmaine's statement, Exhibit T, devalues the accused's
evidence that she and Charmaine answered the call from Maryna at
the same time and destroys the credibility of the accused and her two
daughters."

This was a misdirection. A previous inconsistent statement can only go to the

credit of the maker of the statement i.e. Charmaine. It cannot also not be treated

as evidence of the truth of its content so as to "devalue" the appellant's evidence or

discredit her.

The next alleged misdirection related to Hennie Coetzee's movements on the

night of 26 June 1996. The evidence was that he attended a "braai" at the home

of one of his colleagues at work, one Mark Nadault Coetzee testified that he had

arrived at the braai at about 5:30 or 6 p.m. and had left the braai between 11

and 11:30 p.m. " probably closer to 11:30 p.m." There was undisputed

evidence from a neighbour of the deceased , Mrs Janet Squire, that she heard two

gunshots and a woman cry out in pain from the Wolmarans's house next door at

8:45 p.m. that evening. If Coetzee's evidence was correct he could not have shot

the deceased. Evidence for the defence was however, led from Nadault, his wife

and another couple at the braai, Karen and Craig Cleveland that Coetzee had left

the braai at approximately 8:30 p.m. Their evidence as to their ability to state that

Coetzee had left at 8:30 was critised by the learned judge in the light of the

admissions of each one of them that they had not paid specific attention to the time

he did so. In his evidence Nadault testified that Coetzee had asked him to vouch

82
for the fact that he had left at between 11 and 11:30p.m. Nadault said he had

told Coetzee that he could not do so, as Coetzee had left at 8:30p.m. Nadault said

that a day or two later Coetzee had cancelled his, Nadault's, work contract.

Finding that Nadault had testified to the time Coetzee left the braai"to destroy him

(Coetzee) in revenge" the judge went on to say -

"Like Mr. and Mrs. Nadault I find that Mr. and Mrs. Cleveland stuck
to 8:30 p.m. as, the time when Hennie Coetzee left the braai only to
support their hosts revenge against him."

This stricture on the defence witnesses by the Judge may have been somewhat far-

reaching and could to that extent be said to represent a misdirection, but it was not

in my opinion so vital, viewed in the context of the trial as a whole as to constitute

a ground for the vitiation of the proceedings.

Mr. de Silva, however, submitted that the misdirections mentioned were all made

during the learned Judge's assessment of the defence case and that cumulatively

viewed, they demonstrated an approach by the trial court which was prejudicial to

the appellant and denied her a fair trial.

It has been held in Botswana, as it has in England, South Africa that despite

misdirections by the trial judge, if a court on appeal is satisfied that all the facts

established by the totality of the evidence led prove the guilt of the appellant

beyond reasonable doubt then the appeal court must exercise its power to do

83
justice and dismiss the appeal. The test is whether there has been a miscarriage of

justice. In England the position is governed by Section 2 of the Criminal Appeal

Act of 1968 as amended by the Criminal Appeal Act of 1995 which provides that

the Court of Appeal

"(a) shall allow an appeal against conviction if they think that the
conviction is unsafe and

(b) shall dismiss such an appeal in any other case"

Prior to the 1995 amendment the section provided that the Court should allow an

appeal if there had been a material irregularity in the course of the trial provided

that the Court could dismiss the appeal notwithstanding that they were of the

opinion that the point raised might be decided in favour of the appellant, if they

were satisfied that no miscarriage of justice had occurred. If, applying the

amendment, the Court thinks that the conviction is unsafe, there can be no question

of holding that there had been no miscarriage of justice (see per Viscount Dilhorne

in Stafford and Luvaglio v DPP (1974) AC 878 HL at p893 and See generally

Arch bo Id: Criminal Pleading Evidence and Practice 2000(edition at pp 889-890).

A miscarriage of justice therefore remains a factor. In South Africa it has been held

that once there is an irregularity or defect in the trial, the court of appeal is

enjoined by a provision in the criminal law of that country to enquire whether it

appears that there was a resultant failure of justice warranting interference with the

conviction. (See S v Tuge 1966 ( 4 ) SA 565(A.D) at S68 A - B ) . What the

84
Court of Appeal has to do is to decide for itself whether, on the evidence and

findings of credibility unaffected by the irregularity or defect, there is proof of guilt

beyond reasonable doubt (see S v Bernadus 1965 ( 3 ) SA 2 8 7 ( A D ) at 299

F-C; S v Mthembu and Others 1988 ( 1 ) SA 145 (AD) at 151J-152A; S v

De Vries 1989 ( 1 ) SA 228 (Ad) AT 2 3 5 B ) .

In Botswana the Court of Appeal Act (Cap 04.01) provides in Section 13(3) that:

"where the Court of Appeal, in an appeal against conviction,

considers that notwithstanding the fact that it is of opinion that the
point raised in an appeal might be decided in favour of the appellant,
there has been no substantial miscarriage of justice, it may dismiss the
appeal"

There is a similar provision in respect of appeals to the High Court.

In Nini Makwapeng v The State Cr. A D D N O . 29 of 1998 (unreported)

Aguda JA, who gave the majority judgment of the Full Court of Appeal said at p9

of the typed judgment:

"The approach which I believe that any appeal court in this country -
be it the High Court or the Court of Appeal - must take and which I
believe is in accord with what the Legislature of this country thought
should meet the demands of justice should be this....

In deciding the issue whether or not to set aside the conviction

following an irregularity in procedure, the appeal court must look at
all the facts established by the totality of the evidence led at the trial
and if it is satisfied that the guilt of the appellant has been established
beyond reasonable doubt,... then the appeal court must exercise the
power to do justice given to it by the Act establishing it, and dismiss
the appeal. This in my view, must be the proper approach for appeal
courts to follow in cases of this nature.

85
The same approach has been taken in other African countries with similar statutory

provisions viz Nigeria and Zimbabwe, referred to by my brother Aguda in his

judgment.

As emphasized by my brother Aguda it is the basic and fundamental function of the

courts to ensure that there should be no miscarriage of justice. If this was the result

of the trial court's misdirection, the acquittal of the appellant must ensue. If,

however, on a consideration of all the facts and the totality of the evidence led in

the trial court this court comes to the conclusion that the guilt of the appellant was

established beyond reasonable doubt and that there has been no miscarriage of

justice, even having regard to the trial court's misdirections, it will dismiss the

appeal.

Before turning to a consideration of all the facts led at the trial there is a further

aspect which was raised on behalf of the appellant which, it was contended, denied

her a fair trial and was such 3s to vitiate the proceedings in their entirety in that it

resulted in a miscarriage of justice and thus should result in her acquittal. It is this.

As one of its witnesses the prosecution called the aforementioned Hennie Coetzee.

At the time of the trial he was not longer living in Botswana but in Ghana from

where he was brought to testify. Before coming to do so, he was given by the

86
prosecution an immunity from prosecution. Some dispute has arisen as to whether

the defence was informed of this fact. Mr. Luke who appeared at the trial for the

defence says it was not. Mr. Mack who conducted the prosecution there says it

was. What is clear however is that it was not communicated to the defence in

writing as Mr. de Silva says it was proper to have done. This non-disclosure, so the

contention went, violated the appellant's right to a fair trial in that it was material

which could have enabled appellant's counsel to probe the witness's motives in

requiring an immunity; could have provided a basis for counsel to assail the

credibility of Coetzee who, it was submitted, was a crucial witness in the case; and

could have enabled defence counsel to establish that Coetzee had an interest to

serve in the evidence he gave. In elaboration of these contentions , Mr de Silva

referred the Court to what was said by Lord Justice Steyn in R v Winston Brown

(1995) 1 Criminal Appeal Rv B at 198 F-G.

"In our adversarial system in which the police and prosecution control
the investigatory process, an accused's right to fair disclosure is an
inseparable part of his right to a fair trial. This is the framework in
which the development of the common law rules about disclosure by
the Crown must be seen"

Counsel referred further to the test as to when disclosure should be made, set out

by Jowitt J in Melvin and Dingle (unreported), adopted by the Lord Chief justice

in R v Keane (1994) 99 Cr. App R.l and cited with approval by Lord Steyn in

the Winston Brown case supra at pp 198 G-199B viz:

"1 would judge to be material in the realm of disclosure that which

can be seen on a sensible appraisal by the prosecution: (1) to be
relevant or possibly relevant to an issue in the case; (2) to raise or

87
 possibly raise a new issue whose existence is not apparent from the
evidence the prosecution proposes to use; (3) to hold out a real (as
opposed to fanciful) prospect of providing a lead on evidence which
goes to (1) or (2)."

It was submitted that as the prosecution was relying on the evidence of Coetzee to

defeat the claim of the appellant that she had given him the pistol, his credibility

was a highly relevant issue and defence counsel at the trial would have had the

necessary ammunition to assail his credibility had he been aware of the immunity

granted to Coetzee. Moreover, a disclosure of the immunity would have portrayed

Coetzee as a witness who had some purpose of his own to serve in giving evidence

against the appellant and the trial judge would then have warned himself against

accepting his evidence without some corroboration of it (see R v Prater (1960)2

OB 464 CCA: Kgakgamatso v The State (1991) BLR95at99D).

The failure to disclose the immunity granted to Coetzee did not, in my view,

prejudice the defence at the trial. Coetzee was extensively and searchingly cross-

examined by defence counsel and his credibility was vigorously attacked. That he

had received an immunity from prosecution could have added nothing to that

attack. It was the defence case that Coetzee had a propensity to violence, a

propensity which may have played a part if he had been the deceased's killer. That

propensity was thoroughly high-lighted by the cross-examiner. It was also suggested

that he had a possible motive for killing the deceased. There was evidence that the

deceased and Coetzee worked for the same company and that he had committed
certain irregularities which the deceased intended bringing to their employer's

attention at an audit which was to have taken place on the day after she was

murdered. This possible motive was probed in detail in Coetzee's cross-

examination. It was placed fully and pertinently before the trial court. It could not

have been advanced any further by a disclosure of Coetzee's immunity from

prosecution.

Again, that he had a purpose of his own to serve was pertinently highlighted and

made known to the trial court. The defence was aware that Coetzee had instructed

an attorney to hold a watching brief for him. Mr. Luke indeed objected to his

presence in court when other state witnesses were giving evidence. A disclosure of

the immunity from prosecution could have added nothing to what was already

sufficiently apparent. Coetzee was not an accomplice. The purpose of his evidence

was to deny that he was the killer of the deceased; his evidence was not aimed at

establishing that it was the appellant who was.

I am in all the circumstances unable to find that the prosecution's failure to disclose

Coetzee's immunity constituted an irregularity in the trial proceedings. Certainly

it was not one to vitiate the entire proceedings. Finally, it is clear that as in regard

to any other irregularity, this court must consider whether, even if it could be held

that an irregularity had occurred, this had resulted in a miscarriage of justice. For

the reasons which are set out further in this judgment, I do not so find.

89
 I turn then to the facts.

It is incontrovertible that the deceased was shot with a 9mm pistol that the

appellant brought illegally into Botswana on the day the deceased was killed. It is

also not disputed and was her own evidence that she had the pistol in her possession

up to 2p.m. on that day. It is further not disputed, and again is her own evidence,

that she had the pistol in her possession two weeks after the shooting and that she

kept it in her possession until 14 September 1996 when she handed the pistol to

Michael Bosch and asked him to hide it for her.

There is no evidence, apart from that of the appellant, that Coetzee at any time had

the pistol in his possession. She says he had it on the fateful day. On the above

facts there can be no suggestion that anyone else could have used it to kill the

deceased and Mr. de Silva conceded that the killer could only have been one of

two persons: Coetzee or the appellant. It was for the State to prove beyond

reasonable doubt that it was the appellant.

No witness could testify directly that it was the appellant and therefore the State

placed a body of circumstantial evidence before the trial court in order to

establish its case beyond reasonable doubt.

As part of that circumstantial case the state set out to establish a motive for the

killing viz that the appellant was in love with the deceased's husband and wanted her

90
out of the way so as to marry him. Two witnesses testified to a love relationship

between the appellant and the deceased's husband, Tienie Wolmarans while the

deceased was still alive.

The appellant had been married to one Justin Bosch, who died in a motor accident

in November 1995. His brother was one Michael Bosch whose wife is Judith

Bosch. She testified that as far back as 1993 she noticed a close and loving

relationship between the appellant and Wolmarans. In April 1996, the appellant

told her that she and Wolmarans were having an affair with an active sex

relationship. She warned the appellant that she was playing with fire. The appellant

told her that she and Wolmarans loved one another and that he and the deceased

"were going to sort out their problems and as soon as Ria (the deceased) is out of

the way he is going to marry her." The appellant had a domestic servant, Aniki

Ntwayagae, who had worked for her for several years. Aniki too, was called as a

prosecution witness and also testified that at a time when the deceased was still

alive, the appellant told her that she was in love with Wolmarans. As in the case of

Judith Bosch, the appellant denied this. The learned trial judge found that Judith

Bosch had impressed him as a witness and he accepted her evidence. Nothing in

the record suggests that he was wrong in this assessment of her. Moreover it is

common cause that the appellant and Wolmarans moved into a house together

within weeks, and married one another less than four months, of the deceased's

death. That the appellant therefore had a motive was in my view established.

91
 The State sought to prove that the appellant had the opportunity to have killed the

deceased through the evidence of Aniki. She said that on 26 ]une 1996, the

appellant arrived home at about 3p.m. She left the house at about 8p.m. driving a

Hilux motor vehicle. Aniki said she next saw her at midnight when the appellant

brought the deceased's maid Sinah to Aniki and asked Aniki to let Sinah sleep with

her. The appellant said the deceased had been shot. The appellant denied that she

had left the house at the time that Aniki said she did. She said that she went in the

^ late afternoon to a parents meeting at the school of her youngest daughter, Sonei.

There was no such meeting on that day and she got home at about 7:35 p.m. She

did not leave the house again until she went to the deceased's house after she

received a telephone call at about 11:10 or 11:15 p.m. from the deceased's

daughter Maryna to say that her mother was dead. The defence called both the

deceased's daughter's, Charmaine and Sonei. Charmaine said she went to a

restaurant that evening with Maryna and another friend, leaving the house at about

8:05 or 8:10 p.m. She locked all the doors and took the key with her. Her

mother was then at home. On her return from the restaurant she found the doors

still locked and her mother still inside the house. Shortly afterwards, the telephone

call from Maryna came through. Sonei said her mother was at home all evening.

Sonei said she went to bed at 8p.m. but went to her mother's room at 9p.m. Her

mother was then in bed. The learned judge did not accept the evidence of either

these witnesses. As stated earlier Charmaine's testimony on certain material points

differed from what she had said in a statement to the police and her evidence that

92
she had locked her mother in the house and that the latter would have been unable

to get out, was in my view, rightly rejected by the trial judge for the reasons set out

by him. Sonei's evidence as to her mother being in bed at 9p.m. was also at direct

variance with the deceased's evidence. She said that she watched television until

10p.m. and went to bed after that. I further agree with the reasons of my Brother

Aguda as to why the trial court was correct in rejecting their evidence.

As pointed out by my brother Aguda, they had a direct interest in the outcome of

the proceedings and could by no means be described as independent witnesses. Per

contra, Aniki was an independent and disinterested witness. She had worked for

the appellant for a number of years and her relationship with her was apparently a

good one. She would have had no reason to tell a falsehood against her.

It can also not be suggested that she was doing so to protect Coetzee. It was never

put to her that she knew or had even heard of Coetzee. Her evidence was not

shaken in cross-examination. As stated by my brother Aguda, one cannot fault the

learned trial judge in placing more reliance on her evidence than on the unreliable

evidence of the deceased's daughters.

The defence sought to establish that Coetzee had a motive for wanting to kill the

deceased and had the opportunity to do so. The motive, as I have stated above,

was that he had been misappropriating funds from the company for which both he

93
and the deceased worked and that she was going to report this to the company. A

file in which cheques were kept which would have reflected this went missing after

her death. The evidence as to this came from Maryna Wolamarans and from

Coetzee's former wife Mrs Karenza Van Wyk. Tienie Wolmarans also stated that on

the morning of 26 June 1996, he telephoned the deceased in Gaborone from

Maun where he was working. The deceased said she had discovered something at

the company's bank to do with its account there that had upset her. Coetzee

denied that he had misappropriated company funds and that he had approached the

deceased on 26 June 1996 not to expose him to the auditors. No evidence was

put before the trial court other than that of Mrs. Van Wyk that Coetzee had in fact

misappropriated any money and while Maryna testified that the deceased told her

that she was going to expose Coetzee's misappropriations, she did not say that the

deceased had told Coetzee that she was going to do so. It would also seem unlikely

that Coetzee was concerned about the visit of the auditors because Tienie

Wolmarans testified that on Sunday 23 June 1996, Coetzee came to their house to

insist on the deceased working all that day to get the books ready for the

forthcoming audit and told them that they would have to cancel their plans for the

day so that she could do so. It is unlikely that he would have done so if he thought

that she was going to expose any irregularities on his part to the auditors. The

suggested motive would therefore appear to have little substance to it.

94
The defence case was also that Coetzee had the opportunity for going to the

deceased's house on the fateful evening. As I have stated earlier it is undisputed

that the deceased was shot at 8:45 p.m. The evidence of Mrs. Janet Squire was

clear and not really challenged that she went into kitchen to make her husband,

who had come home at about 8:30 p.m., something to eat. As she went into the

kitchen she looked at the clock. It was 8:45. She then heard a gunshot and a

woman cry out in pain from the Wolmarans house next door. This was followed

one or two seconds later by another gunshot. She ran upstairs and looked out of

the windows at the Wolmarans house but saw nothing but a faint red light. The

defence as set out earlier, called four witnesses to testify that Coetzee had left the

braai he was attending at 8:30p.m. The deceased's house was not far from there -

a matter of a few minutes drive. All four witnesses admitted that they could not

be certain that it was exactly 8:30 or give the exact time he left as none had

looked at his or her watch. This is not surprising. People enjoying themselves

eating and drinking at a braai would not be paying particular attention to the time

even if, as they all testified, Coetzee was the first to leave.

The host at the braai Mark Nadault attempted to put Coetzee's leaving even earlier

than the others. He said it was 8:15. He conceded that he could not give the

exact time, which once again, is not surprising, but he was adamant that it was not

later that 8:30 p.m. His slavish adherence to 8:30p.m. as was that of the others

casts grave doubts on their veracity .

95
Mark Nadault's testimony was critically analysed by the trial judge who found a

number of discrepancies, contradictions and mistakes In his evidence which caused

the trial judge to give no weight to that evidence.

No fault can be found on the record with that finding. If Coetzee's departure had

been ten or fifteen minutes later than 8:30 p.m., then he could not have fired the

shots that killed the deceased at 8:45 p.m. My brother Aguda has in his judgment

advanced further cogent reasons as to why it could not have been possible, if he

was still at the braai at 8:30 p.m. to have shot the deceased at 8:45 p.m. I agree

with them.

As 1 mentioned the defence also called Mrs Karenza Van Wyk, who said that on 27

June 1996 Coetzee came to her office to talk to her. In the course of the

conversation he said to her that he had been driving around Phakalane, where she

also lived, at about 10p.m. the previous night and had seen that her outside lights

were not working and that she should be careful as "Ria had been murdered the

previous night." Mrs. Van Wyk said Coetzee did not tell her how he knew of this.

It was also the first time she knew of the death of the deceased. Mrs. Van Wyk

admitted that she did not like Coetzee any longer. I find her evidence on this

aspect most improbable. If Coetzee had shot the deceased at 8:45 p.m. it is

highly unlikely that he would still have been driving around in the vicinity more

than an hour later and if it was he that had murdered the deceased, that he would

have been bruiting the news about the next morning.

96
There is a further, if minor, factor. Coetzee was cross -examined at some length

about the fact that he had given a dog to Wolmarans family which dog disliked him

intensely and would bark at him whenever it saw him. It hated him. So defence

counsel stated Mrs Squire, whose evidence was accepted unequivocally, said she

heard no dog bark at around the time she heard the gunshots.

One comes next to the appellant's possession of the pistol. Dennis Webber testified

that on June 1996 he had in his safe two firearms that had belonged to the

appellant's deceased husband, the late Justin Bosch: a 12 bore shotgun and the

9mm pistol, which is the murder weapon in this case; He had been keen to buy

them from Justin and after the latter's death told the appellant that he had not paid

Justin for them. He and she then discussed a price for the firearms of P3000.00

On 25 June 1996 the appellant found him in the town in Pietersburg and they

arranged to meet on his farm that afternoon. The appellant asked him if she could

borrow the pistol because she wanted to buy a pistol in Botswana and wanted to

take the pistol he had in order to practise with it. He told her she could not take it

to Botswana as it was illegal to take it through customs. He said he tried to

convince her not to do so but, "the more I was convincing her the more she was

wanting the pistol." She was determined to take the pistol. He then gave it to her.

She asked him to show her how to use the pistol which he did, explaining and

demonstrating to her how to load the magazine and the pistol, how to cock it and

97
how to fire it. The appellant asked him for four rounds of ammunition. He told

her she could not practice with only four rounds. She needed at least 24.

She insisted that she wanted only 4. The ammunition was in his son's safe and

when he later came home he was asked for the ammunition but refused to give it to

her when she said she intended to take it to Botswana as it was illegal to do so.

When he refused to give it to her she said "you think I am going to kill anybody?"

His son replied "No, I do not mean that.'7 Webber said he told his son the

appellant wanted the firearm. As he had not paid for it, it was legally hers. He

told his son to give her the ammunition. He gave her a box with 25 rounds in it.

Bosch asked if she could spend the night with them as it was too late for her to go

back to Botswana, which she did, She was in a pleasant mood and did not

complain of any ailment. Webber said he discussed the day's events with his wife

that night. He got up at 5am on 26 June 1996 and woke the appellant and asked

her not to take the firearm to Botswana. She said she was going to do so. He said

he then telephoned her brother-in-law Michael Bosch to tell him what she intended

doing. Michael Bosch had gone to work and he spoke to his wife, Judith Bosch.

Webber said he asked her if he could give the firearm to appellant whereupon the

appellant asked to speak to Judith. After speaking to her, Judith came back on the

phone and said he should give the firearm to appellant as she was taking it. He

then agreed to do so. The appellant left to go back to Botswana at about 6:45am

taking the pistol and ammunition with her.

98
Judith Bosch confirmed Webber's evidence as to the telephone conversation but

said that when she and the appellant were talking she told the appellant that to take

a weapon into Botswana was illegal. The appellant then said she would leave the

firearm at the Nietverdiend police station at the South African border. Webber

said that the appellant said she would return the pistol within two weeks. She did

not do so and he never saw or heard from her again.

Cross-examined, Webber said that he did not report what was an illegal action by

the appellant to the police. Counsel then said:-

"I put it to you that the reason why you did not report was that my
client said she was going to hand the gun to Mr. Coetzee outside the
Nietverdiend police station.

Court: Did she tell you that?

Webber: It is the first time I hear that name in my life."

Counsel then said that the appellant had never said to Webber that she was going to

bring the gun to Botswana. It was also put to Webber that the appellant never

asked him to show her how to use the fire arm nor did he show her. Webber was

adamant that she did.

He was also asked:

"Did the accused not tell you that she had financial problems and
wanted to sell the gun to Hennie Coetzee?'
Webber replied:-

"She never mentioned anything of the sort."

99
Michael Bosch testified that on 14 September 1996 the appellant who was with

Tinie Wolmarans, her three children and Maryna Wolmarans, came to his house in

Kempton Park in Johannesburg at about 8p.m. She met him in a passage and asked

him to go to his bedroom. The two of them were alone. She had a hand bag

under her arm and appeared nervous. She was trembling. She opened the handbag

to reveal the 9mm pistol which she asked him to take quickly and put it away as

quickly as possible so no one should see it. he did so and put it in a drawer of a

cupboard in his room. As soon as she left the room he put it in another place.

When the appellant and the rest had left he and his wife checked the serial number

on the pistol. It was 77C49314. His wife later handed the pistol to the police at

Norkem Police station in Kempton Park.

Judith Bosch said that the next time she spoke to the appellant after the morning of

20 June 1996 was on the telephone on 15 July 1996. She asked the appellant

about the pistol who said that it was at Nietverdiend for safekeeping. Judith said

she did not know at that stage that the deceased was dead. She learnt it two days

later from her sister. She spoke on the telephone again to the appellant on 18 July

1996 and asked her why she had not told her that the deceased was dead. The

appellant replied that she thought she had done so. Asked how the deceased had

died, the appellant told her she had been shot with a 9mm pistol. She said the

deceased had had an argument with someone and had got shot and then changed

the conversation. On 12 September 1996, the appellant told her that she, Tienie

100
Wolmarans, her children and Maryna were coming to South Africa. The appellant

said she would pick up the gun at Nietverdiend on the way and said that Judith

must not tell Tienie about the gun. On 14 September 1996 they came to

Kempton Park. Appellant, who was nervous and trembling, asked where Judith's

husband was. She and Michael Bosch went into the bedroom. Michael Bosch later

handed her the gun which they identified as that of her late husband that had been

left with Dennis Webber. She handed the gun to the police on 17 September

1996 and told them she suspected it had been used in a murder case in Botswana.

The appellant's version as to how she came to be in possession of the gun is, to say

the least of it, a remarkable one. She said that at the beginning of June 1996, she

and Coetzee had a meal at the latter's house. Coetzee asked where her late

husband's pistol was. She said it was with Dennis Webber in Pietersburg. He said

he wanted to buy a pistol and offered her P6000.00 but she said that her husband

had sold it to Webber who had, however, not paid for it. Coetzee repeatedly said

that as Webber had not paid for it, it was hers to sell. He then gave her a

chocolate. After eating it she said she developed a terrible headache. She still had

these headaches on Sunday 23 June 1996 when Coetzee visited her with a bottle

of wine. He gave her a glass of it and once again she got severe headaches.

Coetzee looked her straight in the eyes and said he would want to buy her pistol.

She said "He commanded me to go to Pietersburg" Coetzee said it did not matter

how she got the pistol to him in Botswana. The appellant repeated "He

101
commanded me to go and pick that pistor(sic). She asked him what he wanted to

do with it. She said he told her it did not concern her and added "He was quite

aggressive with me. He was demanding." She was very afraid. The appellant said

her headaches were so severe that she could not think. Coetzee once again

"commanded me to go to Pietersburg to bring the pistol and ammunition. He

repeated that over and over again."

The appellant said that she went to Pietersburg on 25 ]une 1996, ostensibly to sort

out an insurance policy with the Sanlam Insurance Company there. She saw Dennis

Webber at a stop street in the town and arranged to meet him on his farm. She

told Webber she wanted to take her late husband's pistol from him to Botswana to

practise in Botswana with it. She said she told Webber that because Coetzee had

said that if she did not bring the pistol there would be a problem. A t that time that

was all she could think of. She was terribly afraid and kept telling Webber that "If I

do not bring the pistol there is going to be trouble." I interpose to say that this

was never put to Webber. Webber said she could not take the pistol into Botswana.

She told him not to worry, she would take it to Botswana. Webber was not happy

about it but later gave her the pistol and his son gave her the ammunition. She

said Webber showed her the safety catch on the pistol but save for that did not

show her how to use it or shoot with it. Early on the morning of 26 June 1996,

Webber spoke to Judith Bosch and she, the appellant, also did so. She told Judith

she was taking the pistol and the ammunition to Botswana. She then went to

102
Botswana. Arrived there, she went straight to Coetzee's office at about 2p.m.

Coetzee immediately asked where the pistol and ammunition were. She took them

out of her handbag and put them on a table in the office.

While she was there one of Coetzee's employees, one Phillip Botha came into the

office but she could not say if he saw the pistol and ammunition. It is to be noted

that Botha was not called as a witness.

The appellant said that about two weeks after the funeral of the deceased, Coetzee

brought the pistol back to her. She asked him where the money for it was and why

he was bringing it back. He said he had "already done what he intended doing."

She asked him what he had done and he said "in a strong aggressive voice that it

had nothing to do with me." Coetzee said she should take the pistol immediately

to Michael Bosch wherever he resided and added that if anybody found the pistol

with her she would be jailed. The appellant said she still had recurring headaches

and every time he looked at her he activated them. The appellant confirmed the

evidence of Judith and Michael Bosch that she went to their home on 14

September 1996 and gave him the pistol. She denied that she was nervous or

trembling when she did so but was quite calm.

By this time she and Tienie Wolmarans had moved into the same house together.

According to him from August 1996 they had been having a sexual relationship.

103
When they went to South Africa in September 1996, it was also for her to be

measured for a wedding dress. This was on 13 September 1996.

In cross-examination the appellant said she knew on the night of 26 ]une 1996

that the deceased had been shot. She also remembered that on that day she had

given the pistol to Coetzee but did not connect the two. She knew before Coetzee

wanted to buy the pistol that he had firearms of his own including a pistol. He had

told her and her late husband that.

Referring to her headaches she said she was visited in prison after her arrest in

October 1996 by a hypnotist who had hypnotised her after which her headaches

disappeared.

The appellant also conceded in cross - examination that Coetzee had no control

over her. I quote the following passage from the record of her evidence:

"Mr. Mack: You said you went to fetch the pistol in Pietersburg
because Hennie had commanded you do it.

Did Hennie Coetzee have the power to command you?

Accused: After eating the chocolates (interrupted)

Mr. Mack: Did Hennie have the power to command you, yes or no.

Accused: Not before that.

104
 Mr. Mack: Did he have any control over you.

Accused: No."

The appellant said that she never met Coetzee outside the police station at

Nietverdiend. She had given him the pistol at his office in Gaborone.

The thrust of the appellant's evidence is obviously that Coetzee gave her a

chocolate with some substance in it to cause her to get headaches and that he later

gave her a glass of wine with a similar substance in it. It is quite remarkable that

she never told any member of her family or anyone else of these bizarre events.

Her version would further appear to be designed to suggest that Coetzee had by

using the chocolate and the glass of wine cast some sort of hypnotic spell on her.

None of this most implausible story was ever put to Coetzee. And, again, it is

remarkable that she never told anyone of this. She said she was afraid of him. She

could have reported this behaviour of his to her family or for that matter, as he was

on her version obviously attempting to poison her, to the police.

It is also noteworthy that no one noticed that there was anything wrong with her.

Webber said she appeared normal and did not complain of anything and no one

else testified to her complaining of being ill. According to her the hypnotist got rid

of her headaches. This was in October 1996. She had been living since August

with Tienie Wolmarans yet he never testified to her having complained of any

105
headaches. He had engaged the hypnotist to try and find out from her under

hypnosis what the truth of affairs was and not because she had ever complained of

headaches.

Her story of events Is also permeated with untruths. She clearly lied to Webber as

to the reason why she wanted the pistol. She either lied to him when she said she

was going to return the pistol to him two weeks after he gave it to her - which she

would have been unable to do if she was going to sell it to Coetzee - or she in fact

did intend to return it as there was never any intention on her part to give it to

Coetzee, her evidence as to this being a fabrication. Indeed it would appear from

other factors that it was in fact a fabrication. They are these. She told Judith

Bosch that she was going to leave the pistol at Nietverdiend police station. This

was a lie. But she had no need to tell such a lie if she was going to take the pistol

to Coetzee for him to buy it. She later told Judith Bosch prior to her taking it to

Michael Bosch in September 1996 that the pistol was at Nietverdiend police

station. This, too, was a lie. Why tell such a lie when according to her she had

got the pistol back from Coetzee after he no longer wanted to purchase it? Judith

was quite clear that the appellant did not tell her that she was going to give the gun

to Coetzee who wanted to purchase it.

It is also highly significant that in cross-examination of two of the State witnesses Mr

Luke put it to them that the appellant would say that she had handed the pistol to

106
Coetzee outside the Nietverdiend post office. This as set out above was put

pertinently to Webber and to Coetzee. Mr Luke could only have received that

instruction from one person viz the appellant. It was also put to both Michael and

Judith Bosch that the appellant never handed the former the pistol on 14

September 1996. This was not only at variance with the appellant's own testimony

that she had done so but again would appear to have emanated from an instruction

to Mr Luke.

Additionally, her story as to what Coetzee is alleged to have done or said to her was

not put to Coetzee. My brother Aguda has quoted a passage from her evidence

about what Coetzee allegedly said to her when he is alleged to have handed the

pistol back to her and in which Counsel for the prosecution pointedly put it to her

that these were all afterthoughts as none of it was suggested to Coetzee when he

gave evidence. I need not repeat the passage but Counsel's statement that it was an

afterthought is completely justified.

In every reference to the pistol by her to people before and after the shooting and

in her instructions to her counsel the appellant lied and these factors coupled with

the bizarre and completely implausible evidence as the casting of an hypnotic spell

on her by Coetzee makes her story that she gave the pistol to Coetzee impossible

of belief.

107
Coetzee also had his own firearm. Why would he go to the lengths of doing ail

the appellant said he did to get a pistol from her if he wanted to shoot the deceased

and take the risk of being exposed by the appellant? Her evidence that he later told

her that he had done what he wanted to do with the gun, knowing full well that it

was the murder weapon, would also have exposed him to the risk of detection and

have been so unlikely for anyone in his sane senses to have done.

It is also to my mind inconceivable, even recognising her constitutional right to

remain silent that when it became known to the appellant that the murder weapon

was the pistol she had brought into Botswana and that she was being accused of

shooting the deceased with it on the night of 26 June 1996, she did not tell either

her husband, Wolmarans, or the police, if that was true, that Coetzee had had

possession of the weapon at the time and not her. Not to have done so is contrary

to human experience and flies in the face of every person's instinct of self-

preservation. The inference is inescapable that that was not the truth.

It is trite that no onus rests on an accused to convince the court of the truth of any

explanation which he or she gives; the court is not entitled to convict unless it is

satisfied not only that the story is improbable but that beyond reasonable doubt it

is false. If there is any reasonable possibility of an accused's story being true, he or

she is entitled to an acquittal (see R v Difford 1937 ad 370 at 373). However, in

considering whether an accused's story is reasonably possibly true, the court can

108
have regard to the probabilities of the case. "Reasonable doubt" does not mean

"proof beyond any shadow of a doubt."

In Miller v. Minister of Pensions (1947) 2 ALL ER 372 at 373, Lord Denning

said in relation to the standard of proof in a criminal case the following:-

"It need not reach certainty, but it must carry a high degree of
probability. Proof beyond a reasonable doubt does not mean proof
beyond a shadow of doubt. The law would fail to protect the
community if it admitted fanciful possibilities to deflect the course of
justice. If the evidence is so strong against a man as to leave only a
remote possibility in his favour, which can be dismissed with the
sentence 'of course it's possible but not in the least probable', the
case is proved beyond reasonable doubt, but
nothing short of that will suffice."

As stated, the probabilities in a case can be considered (see S v Singh 1975(1) S A

227 (N); S v Munyai 1986(4) S A 712 (V)at 716 B; S v laffer 1988(2) SA 84

at 88 F). The accused's story may be so improbable that it cannot reasonably be

true.

That, in my view, is the position in the present case. The appellant's story that she

gave the gun to Coetzee is so improbable that it cannot reasonably be true.

Looking at the evidence in its entirety, it has in my opinion been established beyond

reasonable doubt that the appellant had a motive for killing the deceased; that she

was away from her house at the time that the deceased was shot; and that she had

the murder weapon in her possession on the day of the shooting and after it and

that no one else had possession of it at that time.

109
The Court in Southern Rhodesia (as it was then) in R v Sibanda 1963(4) SA 182

(SR) at 188 approved this passage from Best on Evidence in regard to

circumstantial evidence:

"Not to speak of greater numbers; even two articles of circumstantial

evidence - though each taken by itself weigh but as a feather - join
them together, you will find them pressing on the delinquent with the
weight of a millstone".

The cumulative effect of the evidence in the present case points in my view

incontrovertibly to the guilt of the appellant beyond reasonable doubt and despite

the irregularities in the trial court, there has, in my opinion, been no miscarriage of

justice. I would therefore dismiss the appeal against the conviction.

As to the sentence I also agree with my brother Aguda that there are no

extenuating circumstances. The appellant carried out a planned and premeditated

murder of an innocent woman whom she wished to have out of the way in order to

marry her husband. It was a brutal, callous and merciless shooting of the deceased.

Mr de Silva urged this court that her crime was a crime of passion founded upon

her infatuation with Tienie Wolmarans, and her jealousy of the deceased. These

factors cannot, in my view, reduce the moral guilt of a person who although

possibly harbouring feelings of jealousy of her victim and infatuation for her victim's

husband, sets out to equip herself illegally with a pistol and then deliberately and

cold bloodedly kills that victim. Mr de Silva also submitted that the court should

place in the scale of matters it should weigh up in considering extenuating

circumstances the effect of the dominant influence that Tienne Wolmarans probably

no
 r

had on the appellant. There Is no evidence as to this: any finding that such existed

would be speculation. For these reasons and those set out by the trial Judge and by

my brother Aguda, I can find no basis to interfere with the trial court's finding on

sentence. I would dismiss the appeal against sentence as well.

DELIVERED IN OPEN COURT AT LOBATSE ON THE 30th DAY OF JANUARY

2001.

P.H. TEBBUTT
JUSTICE OF APPEAL

111