PART X
Indictments and Summonses (ss 123-132)

A. INDICTMENTS IN THE HIGH COURT (ss 123-124)

[Ch0802s123]123.   Charge in the High Court to be laid in an indictment

            (1) When a person charged with an offence has been committed for trial or sentence before the High Court, the charge shall be in writing in a document called an indictment.

            (2) When the prosecution is-

     (a)     at the public instance, the indictment shall be in the name of, and shall be signed by, the Director of Public Prosecutions;

     (b)     a private one, the indictment shall be in the name of the party at whose instance it is preferred (who must be described therein with certainty and precision) and must be signed by such private party or by counsel on his behalf.

            (3) It shall not be competent for two or more persons to prosecute in the same indictment, except in a case where two or more persons have been injured by the same offence.

            (4) The service upon an accused person of any indictment, together with any notice of trial thereof, shall be made by the person and in the manner provided by rules of court.

[Ch0802s124]124.   When the case is pending

            As soon as the indictment in any criminal case brought in the High Court has been duly lodged with the Registrar of that Court, such case shall be deemed to be pending in that Court.

B. SUMMONSES AND CHARGES IN MAGISTRATE'S COURTS (ss 125-127)

[Ch0802s125]125.   Lodging of charges in a magistrate's court

            Where a public prosecutor has, by virtue of his office, determined to prosecute any person in a magistrate's court for any offence within the jurisdiction of that court, he shall forthwith lodge with the clerk of the court a statement in writing of the charge against that person, describing him by his name, place of abode and occupation or degree, and setting forth shortly and distinctly the nature of the offence and the time and place at which it was committed.

[Ch0802s126]126.   Summons in magistrate's court

            (1) The clerk of a magistrate's court shall, upon or after lodging of any charge, at the request of the prosecutor issue and deliver to the messenger of the court a summons to the person charged to appear to answer the charge, together with so many copies of the said summons as there are persons to be summoned.

            (2) Except where otherwise specially provided by any law, the service upon accused persons of any summons or other process in a criminal case in a magistrate's court shall be made by the prescribed officer, by delivering it to the accused personally.

            (3) If, upon the day appointed for the appearance of any person to answer any charge, he fails to appear, and the court is satisfied upon the return of the person required to serve the summons that he was duly summoned, the court may, at the request of the prosecutor, issue a warrant for the apprehension of the said person, and may also impose on him for his default a fine not exceeding P50, or in default of payment of such fine may sentence him to imprisonment for a term not exceeding three months or may sentence him to imprisonment without the option of a fine for a term not exceeding one month. The court may, upon cause shown, remit any fine or imprisonment imposed under this subsection.

            (4) In any case in which the accused is a person ordinarily resident in Botswana it shall be regarded as a sufficient summons to attend the court if such accused is duly warned through his Chief, Sub-Chief or Headman to appear; and proof of such warning shall render the accused liable to the penalties prescribed in this section in the event of his failure to appear at the appointed time.

[Ch0802s127]127.   Charges in remitted cases

            (1) Whenever any case has been remitted by the Director of Public Prosecutions to be dealt with by a magistrate's court, the court shall, with all convenient dispatch, cause the accused to be brought before it.

            (2) If the accused has been released on bail, the court shall cause a notice to be served on him stating that the case has been remitted to it to be dealt with and requiring him to appear on the day appointed for the trial. Such notice shall be served in the same manner as a criminal summons; and if the accused does not so appear, his bail shall be estreated and he may be apprehended and brought before the court as in the case of a person who has not appeared upon a criminal summons.

C. INDICTMENTS AND SUMMONSES (ss 128-132)

[Ch0802s128]128.   Offence to be specified in indictment or summons with necessary particulars

            Every indictment or summons shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.

[Ch0802s129]129.   Joinder of counts in an indictment or summons

            (1) Different offences may be charged together in the same indictment or summons if they are founded on the same facts, or form or are part of a series of offences of the same or a similar character.

            (2) Where more than one offence is charged in an indictment or summons, a description of each offence so charged shall be set out in a separate paragraph of the indictment or summons called a count.

            (3) Where, before trial, or at any stage of a trial, the court is of opinion that a person accused may be embarrassed in his defence by reason of being charged with more than one offence in the same indictment or summons, or that for any other reason it is desirable to direct that the person be tried separately for any one or more offences charged in an indictment or summons, the court may order a separate trial of any count or counts of such indictment or summons.

[Ch0802s130]130.   Joinder of two or more accused in one indictment or summons

            The following persons may be joined in one indictment or summons and may be tried together, namely-

     (a)     persons accused of the same offence committed in the course of the same transactions;

     (b)     persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence;

     (c)     persons accused of more offences than one of the same kind (that is to say, offences punishable with the same amount of punishment under the same section of the Cap. 08:01 Penal Code or of any other law) committed by them jointly within a period of 12 months;

     (d)     persons accused of different offences committed in the course of the same transaction;

     (e)     persons accused of any offence under Division V of Part II of the Penal Code, and persons accused of receiving or retaining property, possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment of or attempting to commit either of such last named offences;

     (f)      persons accused of any offence relating to counterfeit coin under Division VII of Part II of the Penal Code, and persons accused of any other offence under the said Division VII of Part II relating to the same coin, or of abetment of or attempting to commit any such offence.

[Ch0802s131]131.   Rules for the framing of indictments or summonses

            The following provisions shall apply to all indictments and summonses, and, notwithstanding any rule of law or practice, an indictment or summons shall, subject to the provisions of this Act, not be open to objection in respect of its form or contents if it is framed in accordance with the provisions of this Act-

     (a)  (i)       a count of an indictment or summons shall commence with a statement of the offence charged, called the statement of offence, and a reference to the section of the law creating the offence;

          (ii)       the statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence;

          (iii)       after the statement of the offence, particulars of such offence shall be set out in ordinary language, in which the use of technical terms shall not be necessary:

                               Provided that where any rule of law or any law limits the particulars of an offence which are required to be given in an indictment or summons, nothing in this paragraph shall require any more particulars to be given than those so required;

         (iv)       the forms set out in the Third Schedule to this Act or forms conforming thereto as nearly as may be shall be used in cases to which they are applicable; and in other cases forms to the like effect or conforming thereto as nearly as may be shall be used, the statement of offence and the particulars of offence being varied according to the circumstances of each case;

          (v)       where an indictment or summons contains more than one count, the counts shall be numbered consecutively;

     (b)  (i)       where a law constituting an offence states the offence to be the doing of or the omission to do any one of any different acts in the alternative, or the doing of or the omission to do any act in any one of any different capacities, or with any one of different intentions, or states any part of the offence in the alternative, the acts, omissions, capacities or intentions, or other matters stated in the alternative in the law, may be stated in the alternative in the count charging the offence;

          (ii)       it shall not be necessary, in any count charging an offence constituted by a law, to deny any exception or exemption from, or qualifications to, the operation of the law creating the offence;

     (c)  (i)       the description of property in an indictment or summons shall be in ordinary language, and such as to indicate with reasonable clearness the property referred to, and, if the property is so described, it shall not be necessary (except when required for the purpose of describing an offence depending on any special ownership of property or special value of property) to name the person to whom the property belongs or the value of the property;

          (ii)       where the property is vested in more than one person, and the owners of the property are referred to in an indictment or summons, it shall be sufficient to describe the property as owned by one of those persons by name with the others, and, if the persons owning the property are a body of persons with a collective name, such as a company or "Inhabitants", "Trustees", "Commissioners" or "Club" or other such name, it shall be sufficient to use the collective name without naming any individual;

          (iii)       property belonging to, or provided for, the use of any public establishment, service or department may be described as the property of the State;

         (iv)       coin, bank notes and currency notes may be described as money; and any allegation as to money, so far as regards the description of the property, shall be sustained by proof of any amount of coin or of any bank or currency note (although the particular species of coin of which such amount was composed, or the particular nature of the bank or currency note, is not proved); and in cases of stealing and defrauding by false pretences, by proof that the accused person dishonestly appropriated or obtained any coin or any bank or currency note, or any portion of the value thereof, although such coin or bank or currency note may have been delivered to him in order that some part of the value thereof should be returned to the party delivering the same or to any other person and such part has been returned accordingly;

     (d)     the description or designation in an indictment or summons of the accused person, or of any other person to whom reference is made therein, shall be such as is reasonably sufficient to identify him, without necessarily stating his correct name, or his abode, style, degree or occupation, and if, owing to the name of the person not being known, or for any other reason, it is impracticable to give such a description, or designation, such description or designation shall be given as is reasonably practicable in the circumstances or such person may be described as "a person unknown";

     (e)     where it is necessary to refer to any document or instrument in an indictment or summons, it shall be sufficient to describe it by any name or designation by which it is usually known, or by the purport thereof, without setting out any copy thereof;

     (f)      subject to any other provisions of this section, it shall be sufficient to describe any place, time, thing, matter, act or omission whatsoever to which it is necessary to refer in any indictment or summons in ordinary language in such a manner as to indicate with reasonable clearness the place, time, thing, matter, act or omission referred to;

     (g)     it shall not be necessary, in stating any intent to defraud, deceive or injure, to state an intent to defraud, deceive or injure any particular person, where the law creating the offence does not make an intent to defraud, deceive or injure a particular person an essential ingredient of the offence;

     (h)     figures and abbreviations may be used for expressing anything which is commonly expressed thereby;

     (i)      in any indictment or summons relating to an offence under Division V of Part II of the Penal Code it shall be sufficient-

           (i)       to allege that the thing stated to have been stolen was taken at diverse times between any two certain days named in the indictment or summons, and, upon such indictment or summons, proof may be given of the theft of such thing upon any day or days between the two certain days aforesaid,

          (ii)       to charge and proceed against the accused for the amount of a general deficiency, notwithstanding that such general deficiency is made up of any number of specific sums of money or of any number of specific articles, the taking of which extended over any space of time.

[Ch0802s132]132.   Amendment of Third Schedule

            The Minister may, by order, add to, revoke or vary any of the forms set out in the Third Schedule.