University of Botswana Law Journal - PULP

UNREPRESENTED ACCUSED IN BOTSWANA 107
In the case of Mosanana v The State, 107 the appellant had been
charged under the Stock Theft Act 108 on two counts of receiving stolen stock
which she either knew or had reason to believe had been stolen. The appellant
was acquitted on the substantive counts but convicted on lesser charges of
receiving stock without having reasonable cause for believing at the time of
acquisition that such stock was the property of the person from whom it was
received. The evidence showed that the appellant was given the cattle by a
debtor, in satisfaction of a debt owed by the latter to the former. At the time,
the appellant was sick and in bed, but asked one Opelo to check the cattle. As
a result of the appellant’s conversation with Opelo, she was satisfied that the
cattle belonged to the debtor. While the cattle were unbranded, Opelo testified
that other cattle of that age in Botswana are not usually branded. In reaching a
decision, the magistrate relied on section 4 of the Stock Theft Act which
provided that:
“A person who in any manner, otherwise than at a public sale,
acquires or receives into his possession from any other person stolen
stock or stolen produce without having reasonable cause, proof of
which shall be on such first-mentioned person, for believing at the
time of such acquisition or receipt that such stock or produce was
the property of the person from whom he received it or that such
person was duly authorised by the owner thereof to deal with it or
dispose of it, shall be deemed to be guilty of an offence.”
The magistrate found that the appellant did not prove that she had
reasonable cause for believing that the cattle belonged to the debtor. The
Court, on appeal, disagreed with this finding. The Court stated that the
appellant did show that she had reasonable cause for believing that the cattle
belonged to the debtor. The Court stated that the appellant did ask Opelo to
check the cattle and that the latter found nothing amiss. It was also the
evidence of Opelo that he found nothing unusual with unbranded cattle. Over
and above this, the Court stated the duty of judicial officers where an
106 For some articles on reverse onus clauses, see R.J.V. Cole, “Determining the Constitutionality of Reverse
Onus Clauses in Botswana,” 16(2) African Journal of International and Comparative Law (2008), p. 236;
A. Ashworth, “Article 6 and the Fairness of Trials,” Criminal Law Review (1999), p. 261; A. Ashworth,
“Four Threats to the Presumption of Innocence,” 123(1) South African Law Journal (2006), p. 63; A.A.S.
Zuckerman, “No Third Exception to the Woolmington Rule,” 103 Law Quarterly Review (1987), p. 170;
C.R.M. Dlamini, “Presumptions in the South African Law of Evidence III,” 65(1) Tydskrif vir
Hedendaagse Romeins-Hollandse Reg (2002), p. 147; F. Egonda-Ntende, “Presumption of Innocence and
the Reverse Onus Clause: Does the 1995 Uganda Constitution Establish A New Standard?,” 9(2) East
African Journal of Peace and Human Rights (2003), p. 194; P. Roberts, “Taking the Burden of Proof
Seriously,” Criminal Law Review (1995), p. 783; K. Govender, “Determining the Constitutionality of
Presumptions,” 8 South African Journal of Criminal Justice (1995), p. 205; C.R. Nesson, “Reasonable
Doubt and Permissive Inferences: The Value of Complexity,” 92(6) Harvard Law Review (1979), p.
1187.
107 [1985] B.L.R. 29.
108 Cap 09:01, 1973. Now replaced by the Stock Theft Act Cap 09:01, Act 21 of 1996.