FRANCISTOWN: Two men convicted of robbery succeeded on Wednesday in their bid to be heard at the Court Appeal (CoA) albeit only on one of the two grounds they proffered.
The Francistown Magistrate’s Courts had sentenced the duo of Oteng Chapson and Ronny Siziba, to 10 years each in jail in 2016. Chapson and Siziba then approached the Francistown High Court seeking leave to appeal both their convictions and sentences at the CoA. In one of their grounds to appeal their convictions and sentences, the applicants say that the trial court did not afford them a fair trial because it did not fully explain to them their rights to cross-examine state witnesses and a Case Management Conference (CMC) was not held which is contrary to Section 51 of the Magistrate’s Court Act.
It must be noted, Justice Gaolapelwe Ketlogetswe said, the applicants were not represented at the trial court, but were represented in the current application when they initially made their application.
“In the present application, the applicants, however, appear for themselves. It must be noted that their grounds to appeal at the CoA were never raised in the High Court. This court is now functus officio (of no further official authority or legal effect) to deal with the appeal on the grounds they raised,” Ketlogetswe said.
He added: “Having perused both the record of proceedings and notes that were taken then by the trial magistrate to see if there is any substance in this new grounds of appeal, I came to the conclusion that their appeal succeeds on the ground that no CMC was held, but is unsuccessful in relation to their assertion that their rights to cross-examine witnesses were not fully explained to them”. In relation to the applicants’ ground that no CMC was held, Ketlogetswe said it was indeed correct that no CMC was held.
He, however, said that in the proceedings of January in 2016, it transpired that the applicants were served with all witnesses’ statements.
“On May 8, 2016 when their trial started, the applicants said that they were ready to proceed and they never complained that they were having any difficulties or that CMC was not held. Therefore, in my view, the applicants did not raise this objection timeously and I find that they were not prejudiced and failed to raise any reasonable grounds to that effect,” Ketlogetswe said.
He added: “The applicants were given all statements including other supporting documents before their trial started. I don’t think the CoA will find that you were prejudiced by the failure to hold CMC. You have not raised any reasonable grounds to support your claim and I therefore dismiss it”.
In relation to the ground that the applicants aver that their rights to fully cross-examine witnesses were not explained to them, the judge said that after he perused both the record of proceedings and notes of the trial magistrate, he found that only the words, “the state will lead evidence and at the end you will have to challenge the evidence of state witnesses”, were written.
Ketlogetswe continued saying that if indeed those were the only words that the trial court told the applicants, the CoA will decide about that issue because the matter was now beyond his court.
“The applicants, however, did not complain that they were not given an opportunity to cross-examine state witnesses when they made an appeal before this court. It is now not for this court to determine this issue.