Bashi Letsididi
8 April 2008
Gaborone — The Customary Court of Appeal has had no reputation of producing complex and controversial judgments but lately the situation seems to be changing.
Last Wednesday, the court freed a Metlojane man who was serving a five-year custodial sentence for stock theft. In the court's determination, stealing animal skins is not the same as stealing stock.
Gert Titus broke into a Metlojane fresh produce shop owned by Jan Eimen, and stole eight animal skins. He was caught and charged under Section 3 (1) of the Stock Theft Act. The section forbids the stealing of any stock or produce or receiving any stock or produce knowing or having reason to believe it to be stolen stock or produce. The minimum sentence for a first offender is five years and that is what Titus got.
The charge sheet prepared by the police says that Titus stole parts of a carcass. President of the Customary Court of Appeal, Kgosi Kgosikwena Sebele said that while stealing the skins was a criminal offence, it is not chargeable under either the Stock Theft Act or Section 285 of the Penal Code. The latter criminalises the killing of animals "capable of being stolen with intent to steal the skin or carcass or any part of the skin or carcass".
Sebele ruled that no evidence was led in the case that the intention of the accused was to kill in order to steal the eight skins. "All stated in evidence by the aggrieved state witness (Eimen) is that the accused broke into his fresh produce and stole eight skins and some salt in a bag. The charge sheet is therefore defective in totality. My findings are that, deducing from state-led evidence, the accused has committed a theft-related crime punishable under Section 271 (of the Penal Code)."
The section says that any person who steals anything capable of being stolen is guilty of an offence termed 'theft' and is liable, unless owing to the circumstances of the theft or the nature of the thing being stolen some other punishment is provided, to imprisonment for a term not exceeding three years.
On the basis of his interpretation of the law, Sebele set aside the five-year prison sentence and introduced the Section 271 theft charge on which he found Titus guilty and sentenced him to four months and two days in jail - effective November 27, 2007 to April 2, 2008. The judgment came out last Wednesday. Days before the judgment, Sebele had overturned another lower court ruling on an adultery case. Among others, the court's verdict was based on a call list that had been presented as evidence. But Sebele ruled that the exhibit did not meet the evidentiary standards of customary law for such a case. Another piece of evidence that he disallowed was the copy of a statement in which the wife confessed her adultery. The standard procedure for a man who finds his wife in flagrante delicto, the former Bakwena regent said, is to confiscate the culprits' clothes. The husband then lends the culprit his own clothes (effectively swapping clothes) before he can seek judicial recourse.
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