University of Botswana Law Journal - PULP

UNREPRESENTED ACCUSED IN BOTSWANA 103
the judicial officer to inform the accused of her right to mitigate, the Court
cited extensively from the South African case of R v Chinyani, 90 where it was
noted that the most desirable practice was to ask the defence after conviction,
whether it desires to say anything in relation to conviction. It has been
contended that section 274 of the South African Criminal Procedure Act 91
obliges the judicial officer to allow the accused an opportunity to lead
evidence and address the court in mitigation. 92
It must be noted that in Gaotlhobogwe, the accused was represented
by counsel. One must speculate that had the facts been different, the Court
would have stated the duty to call upon the accused to mitigate as it has so
often done with other procedural rights. The facts are that after conviction,
counsel instructed the accused to go into the witness box as he intended to
lead evidence in mitigation. The judge retorted that he may not go into the
box. This reaction was apparently provoked by the fact that counsel did not
seek leave of the court and further that previous convictions were not yet put
to the accused. Though counsel did not further indicate that he intended to put
the accused in the box, he proceeded to address the court in mitigation from
the bar. Also, when asked by the Court during the appeal proceedings, what
his client would have said in mitigation, counsel’s reply did not reveal
anything substantial that would have persuaded the trial court to pass a
different sentence. In fact, it was on this basis that the Court came to the
conclusion that the accused was not prejudiced.
The duty of the judicial officer in relation to the unrepresented
accused has been highlighted. The Court in Kelebile v The State, 93 noted that
the issue of mitigation is not a ritual that lacks real content. In passing
sentence, justice can only be done if the judicial officer is aware of the
personal background and personal circumstances of the accused. These issues
are important factors in weighing aggravating and mitigating factors. The
Court was of the view therefore that a judicial officer has a duty to probe the
accused so as to elicit all the factors relevant to passing sentence. The Court
stated that there are differences in the psychology and customs of people.
Difference in circumstances and conditions cover a broad spectrum of
subjective and objective considerations. Sentencing should therefore be made
within the social context of the accused’s situation. Therefore, even where the
accused states that she has nothing to say in mitigation, the court has a duty to
probe the accused.
90 1956 (1) P.H. H65.
91 Act 51 of 1977.
92 Bekker, Geldenhuys, Joubert, Swanepoel, Terblanche and Van der Merwe, op.cit. at p. 292. Section 274
reads:
“(1) A court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as
to the proper sentence to be passed.
(2) The accused may address the court on any evidence received under subsection (1), as well as on the
matter of the sentence, and thereafter the prosecution may likewise address the court.”
93 [1983] B.L.R. 92.