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Botswana Law Reports (1964 to 2020(2))/CHRONOLOGICAL LISTING OF CASES 2020/2001 (1)/Cases Reported/SABONE v. THE STATE 2001 (1) BLR 538 (HC)

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SABONE v. THE STATE 2001 (1) BLR 538 (HC)

Citation 2001 (1) BLR 538 (HC)

Court High Court, Lobatse

Judge Nganunu J

Judgment April 29, 1992

Counsel O.M Modisanyane for the appellant.

J Moutswi, State Counsel, for the State.

Annotations

Flynote
Banking ­ Banks ­ Customer ­ Relationship between banker and customer ­ Deposit of money in bank by customer ­ F Money deposited in bank
becoming banker's money ­ Bank becoming debtor to depositor.
Criminal law ­ Theft ­ Theft by servant ­ Bank employee ­ Transfer of money from one account to another by bank employee ­ Effect of transfer
clearance of indebtedness of customer ­ Ownership of money remaining in the bank regardless of account to which money transferred or credited ­
Whether employee effecting transfer guilty of theft ­ G Penal Code (Cap. 08:01), ss. 271 and 277.
Headnote
The appellant was charged with the offence of stealing by servant contrary to section 271 as read with section 277 of the Penal Code (Cap.
08:01). He pleaded guilty to the charge and was convicted accordingly. The H prosecution alleged that the appellant, being an employee of a
bank, stole an amount of P1,5 00, the property of the bank which came into his possession by virtue of his employment with the bank. The
prosecution case was as follows. B,a customer of the bank, presented a cheque of P5,000 to the appellant at the bank to pay S (another
customer of the bank). B did not have sufficient funds in her account and the cheque was "Remitted in a Suspense Account" of the bank. B
subsequently paid two sums of P2,500 and P1,500 to reduce the debt

2001 (1) BLR p539

in the suspense account. A balance of P1,500.00 remained unpaid by B. The prosecution alleged that the A appellant stole an amount of
P1,500.00 from "Commission moneys of the Bank" and cleared the balance in the suspense account. On these facts, the appellant was charged
and convicted of the offence of stealing by servant. On appeal against conviction, counsel for the appellant contended that on the facts as
alleged by the B prosecution, the appellant could not be charged with offence of theft of the bank's money. He argued that when money was
deposited in a bank by a customer, that money became the money of the bank and the customer was regarded as a creditor of the bank with a
right to be paid the equivalent of the amount of money on demand. He further contended that when the appellant transferred the sum of
P1,500.00 from the Commission Remittance account into the suspense account, that could not be theft by the appellant of the money so
transferred as the money still remained the property of the bank. It was never alleged that B ever had the use of C that money.
Held: (1) where money was deposited in a bank by a customer, i.e. a depositor, the money so deposited would become the property of the
bank. The relationship between banker and customer would be that of debtor and creditor, and the contract between the banker and the
customer was that the banker received a loan of money D from the customer as against his promise to honour the customer's cheques on
demand. The fact that a banker kept individual accounts for each customer was merely for book keeping purposes and ascertainment of what
the banker as debtor was obliged to give to the depositor when he demanded his money or when the condition of the deposit was satisfied.
Consequently if a bank employee moved funds from one account to another within the bank, he could not commit a theft simpliciter of that
money whilst it remained, as it were, in the bank. R. v. E Stanbridge 1959 (3) S.A. 274 (C); Foley v. Hill (1848) 2 H.L. Cas. 28, H.L. (E); R. v.
Davenport (1954) 38 Cr. App. R. 37, C.C.A.; Baylis's Trustees v. Cape of Good Hope Bank (1885­6) 4 S.C. 439 and Ditlhabi v. The State [2001]
1 B.L.R. 424, applied.
(2) In the instant case, the money which had been transferred from one account to another by the bank employee had not been taken out of
the bank. It remained in the ownership of the bank regardless of the account F to which it had been transferred or credited by the appellant.
Even though the appellant had pleaded guilty to the charge of theft, the facts as alleged by the prosecution could not constitute the offence
of theft by a servant. R. v. Preller 1952 (4) S.A. 452 (A).
Case Information
Cases referred to: G

(1) R. v. Stanbridge 1959 (3) S.A. 274 (C).

(2) Foley v. Hill (1848) 2 H.L. Cas. 28; [1843­60] All E.R. Rep.16, H.L. (E).
(3) R. v. Davenport [1954] 1 W.L.R. 569; [1954] 1 All E.R. 602; 38 Cr. App. R. 37, C.C.A.
(4) Ditlhabi v. The State [2001] 1 B.L.R. 424.
(5) Baylis's Trustees v. Cape of Good Hope Bank (1885 ­6) 4 S.C. 439. H

(6) R. v. Preller 1952 (4) S.A. 452 (A).

(7) Kok v. The State [1983] B.L.R. 3.
(8) State v. Monthopitsa 1981 B.L.R. 207.

2001 (1) BLR p540

APPEAL against conviction of a bank employee, who transferred money from one account to another account of A the bank, of theft by a
servant. The facts are sufficiently stated in the judgment.
O.M Modisanyane for the appellant.
J Moutswi, State Counsel, for the State.
Judgment
Nganunu J. Ipopeng Sabone, the appellant was convicted by the senior magistrate at Lobatse for the offence of B stealing by servant contrary
to section 271 as read with section 277 of the Penal Code (Cap 08:01). The particulars of the charge disclosed that on or about 10 January
© 2018 Juta and Company (Pty) Ltd. Downloaded : Sun Feb 04 2024 21:54:14 GMT+0200 (South Africa Standard Time)
1992 at Lobatse the appellant being a servant of Barclays Bank stole an amount of P1,500.00 the property of the bank which came into his
possession by virtue C of his employment with the bank. At the commencement of the trial the appellant pleaded guilty to the charge as read
 subsequently paid two sums of P2,500 and P1,500 to reduce the debt

2001 (1) BLR p539

in the suspense account. A balance of P1,500.00 remained unpaid by B. The prosecution alleged that the A appellant stole an amount of
P1,500.00 from "Commission moneys of the Bank" and cleared the balance in the suspense account. On these facts, the appellant was charged
and convicted of the offence of stealing by servant. On appeal against conviction, counsel for the appellant contended that on the facts as
alleged by the B prosecution, the appellant could not be charged with offence of theft of the bank's money. He argued that when money was
deposited in a bank by a customer, that money became the money of the bank and the customer was regarded as a creditor of the bank with a
right to be paid the equivalent of the amount of money on demand. He further contended that when the appellant transferred the sum of
P1,500.00 from the Commission Remittance account into the suspense account, that could not be theft by the appellant of the money so
transferred as the money still remained the property of the bank. It was never alleged that B ever had the use of C that money.
Held: (1) where money was deposited in a bank by a customer, i.e. a depositor, the money so deposited would become the property of the
bank. The relationship between banker and customer would be that of debtor and creditor, and the contract between the banker and the
customer was that the banker received a loan of money D from the customer as against his promise to honour the customer's cheques on
demand. The fact that a banker kept individual accounts for each customer was merely for book keeping purposes and ascertainment of what
the banker as debtor was obliged to give to the depositor when he demanded his money or when the condition of the deposit was satisfied.
Consequently if a bank employee moved funds from one account to another within the bank, he could not commit a theft simpliciter of that
money whilst it remained, as it were, in the bank. R. v. E Stanbridge 1959 (3) S.A. 274 (C); Foley v. Hill (1848) 2 H.L. Cas. 28, H.L. (E); R. v.
Davenport (1954) 38 Cr. App. R. 37, C.C.A.; Baylis's Trustees v. Cape of Good Hope Bank (1885­6) 4 S.C. 439 and Ditlhabi v. The State [2001]
1 B.L.R. 424, applied.
(2) In the instant case, the money which had been transferred from one account to another by the bank employee had not been taken out of
the bank. It remained in the ownership of the bank regardless of the account F to which it had been transferred or credited by the appellant.
Even though the appellant had pleaded guilty to the charge of theft, the facts as alleged by the prosecution could not constitute the offence
of theft by a servant. R. v. Preller 1952 (4) S.A. 452 (A).
Case Information
Cases referred to: G

(1) R. v. Stanbridge 1959 (3) S.A. 274 (C).

(2) Foley v. Hill (1848) 2 H.L. Cas. 28; [1843­60] All E.R. Rep.16, H.L. (E).
(3) R. v. Davenport [1954] 1 W.L.R. 569; [1954] 1 All E.R. 602; 38 Cr. App. R. 37, C.C.A.
(4) Ditlhabi v. The State [2001] 1 B.L.R. 424.
(5) Baylis's Trustees v. Cape of Good Hope Bank (1885 ­6) 4 S.C. 439. H

(6) R. v. Preller 1952 (4) S.A. 452 (A).

(7) Kok v. The State [1983] B.L.R. 3.
(8) State v. Monthopitsa 1981 B.L.R. 207.

2001 (1) BLR p540

APPEAL against conviction of a bank employee, who transferred money from one account to another account of A the bank, of theft by a
servant. The facts are sufficiently stated in the judgment.
O.M Modisanyane for the appellant.
J Moutswi, State Counsel, for the State.
Judgment
Nganunu J. Ipopeng Sabone, the appellant was convicted by the senior magistrate at Lobatse for the offence of B stealing by servant contrary
to section 271 as read with section 277 of the Penal Code (Cap 08:01). The particulars of the charge disclosed that on or about 10 January
1992 at Lobatse the appellant being a servant of Barclays Bank stole an amount of P1,500.00 the property of the bank which came into his
possession by virtue C of his employment with the bank. At the commencement of the trial the appellant pleaded guilty to the charge as read
to him in court. The State then produced a statement of facts which was read out in court and the appellant continued to confirm that the
facts were correct and he still pleaded guilty to the charge. It is now contended on behalf of the appellant that on the facts as produced by
the prosecutor upon the plea of guilty made by the D appellant there was no offence disclosed by such facts, therefore the conviction of the
appellant cannot stand.
Mr Modisanyane who appeared for the appellant confined himself to this single ground of appeal and he informed me that he will not make any
submissions as regards sentence. In order to appreciate the force of the argument presented by Mr Modisanyane it is better to record in
summary what the statement of facts read by the E prosecutor alleges. The statement alleges that the appellant is an employee of Barclays
Bank Lobatse Branch; that a Miss Bafalotse presented a cheque of P5,0000 to the appellant at the bank which cheque was to pay S.M.
Associates (Pty) Ltd. Miss Bafalotse did not have sufficient funds in her account and the cheque was "Remitted in a Suspense Account". F
That on 10 December 1991 Miss Bafalotse provided the sum of P2,500.00 and another amount of P1,000 to reduce the debt created in the
suspense account. A balance of P1,500.00 remained uncleared and it was never paid.
That on 10 January 1992 the appellant stole an amount of P1,500.00 from Commission money of the bank and cleared the balance of the
suspense account in the sum of P1,500.00. The statement continues to allege that the G money came into the possession of the appellant by
virtue of his employment.
On an inspection, the bank noted a defalcation in the Commission Remittance Accountant which led to the arrest of the appellant. The
remittance documents were produced in court as an exhibit.
It is upon the above facts and on the Commission Remittance documents that the appellant pleaded guilty on a charge of theft by a servant. H

Mr Modisanyane has contended that when money is deposited in a bank by a depositor it immediately becomes the money of the bank and the
depositor is regarded as a creditor of the bank with a right to be paid that money on demand.

2001 (1) BLR p541

NGANUNU J
He submitted that the various amounts shown as money of bank clients in the bank are in fact bank money and A not money of the clients.
Although counsel and the old authorities spoke in terms of "bank clients" it is probably better in modern parlance to refer to them as
"depositors".
He therefore contended that when the appellant transferred the sum of P1,500.00 from the Commission Remittance account to the suspense
account, whether to assist Miss Bafalotse or not, or whether by a B misposting or not, that can be no theft by the appellant of the money so
transferred because whichever bank account the money is transferred to it still remains the property of the bank. It is not stated that Bafalotse
ever had the use of that money.
He has quoted the authority of R. v. Stanbridge 1959 (3) S.A. 274 (C). That case adopted the principle laid out in C the old English case of
Foley v. Hill (1848) 2 H.L. Cas. 28, H.L. (E.) as set out at page 36. The principle of Foley v. Hill (supra) has been followed in many cases
including in England in the case of R. v. Davenport (1954) 38 Cr. App. R. 37, C.C.A. This has also been followed by other cases in South Africa
and in Botswana as in the case of State v. Ditlhabi [2001] 1 B.L.R. 424. In the case of Foley v. Hill, the following appear in the judgment of the
Lord Chancellor: D
"Money, when paid into a bank ceases altogether to be the money of the principal; it is then the money of the banker who is bound to return an equivalent by
paying a similar sum to that deposited with him when he is asked for it. The money paid into the banker's, is money known by the principal to be placed there for
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profit he E retains to himself, paying back only the principal according to the custom of bankers in some places, or the principal and a small rate of interest,
 (8) State v. Monthopitsa 1981 B.L.R. 207.

2001 (1) BLR p540

APPEAL against conviction of a bank employee, who transferred money from one account to another account of A the bank, of theft by a
servant. The facts are sufficiently stated in the judgment.
O.M Modisanyane for the appellant.
J Moutswi, State Counsel, for the State.
Judgment
Nganunu J. Ipopeng Sabone, the appellant was convicted by the senior magistrate at Lobatse for the offence of B stealing by servant contrary
to section 271 as read with section 277 of the Penal Code (Cap 08:01). The particulars of the charge disclosed that on or about 10 January
1992 at Lobatse the appellant being a servant of Barclays Bank stole an amount of P1,500.00 the property of the bank which came into his
possession by virtue C of his employment with the bank. At the commencement of the trial the appellant pleaded guilty to the charge as read
to him in court. The State then produced a statement of facts which was read out in court and the appellant continued to confirm that the
facts were correct and he still pleaded guilty to the charge. It is now contended on behalf of the appellant that on the facts as produced by
the prosecutor upon the plea of guilty made by the D appellant there was no offence disclosed by such facts, therefore the conviction of the
appellant cannot stand.
Mr Modisanyane who appeared for the appellant confined himself to this single ground of appeal and he informed me that he will not make any
submissions as regards sentence. In order to appreciate the force of the argument presented by Mr Modisanyane it is better to record in
summary what the statement of facts read by the E prosecutor alleges. The statement alleges that the appellant is an employee of Barclays
Bank Lobatse Branch; that a Miss Bafalotse presented a cheque of P5,0000 to the appellant at the bank which cheque was to pay S.M.
Associates (Pty) Ltd. Miss Bafalotse did not have sufficient funds in her account and the cheque was "Remitted in a Suspense Account". F
That on 10 December 1991 Miss Bafalotse provided the sum of P2,500.00 and another amount of P1,000 to reduce the debt created in the
suspense account. A balance of P1,500.00 remained uncleared and it was never paid.
That on 10 January 1992 the appellant stole an amount of P1,500.00 from Commission money of the bank and cleared the balance of the
suspense account in the sum of P1,500.00. The statement continues to allege that the G money came into the possession of the appellant by
virtue of his employment.
On an inspection, the bank noted a defalcation in the Commission Remittance Accountant which led to the arrest of the appellant. The
remittance documents were produced in court as an exhibit.
It is upon the above facts and on the Commission Remittance documents that the appellant pleaded guilty on a charge of theft by a servant. H

Mr Modisanyane has contended that when money is deposited in a bank by a depositor it immediately becomes the money of the bank and the
depositor is regarded as a creditor of the bank with a right to be paid that money on demand.

2001 (1) BLR p541

NGANUNU J
He submitted that the various amounts shown as money of bank clients in the bank are in fact bank money and A not money of the clients.
Although counsel and the old authorities spoke in terms of "bank clients" it is probably better in modern parlance to refer to them as
"depositors".
He therefore contended that when the appellant transferred the sum of P1,500.00 from the Commission Remittance account to the suspense
account, whether to assist Miss Bafalotse or not, or whether by a B misposting or not, that can be no theft by the appellant of the money so
transferred because whichever bank account the money is transferred to it still remains the property of the bank. It is not stated that Bafalotse
ever had the use of that money.
He has quoted the authority of R. v. Stanbridge 1959 (3) S.A. 274 (C). That case adopted the principle laid out in C the old English case of
Foley v. Hill (1848) 2 H.L. Cas. 28, H.L. (E.) as set out at page 36. The principle of Foley v. Hill (supra) has been followed in many cases
including in England in the case of R. v. Davenport (1954) 38 Cr. App. R. 37, C.C.A. This has also been followed by other cases in South Africa
and in Botswana as in the case of State v. Ditlhabi [2001] 1 B.L.R. 424. In the case of Foley v. Hill, the following appear in the judgment of the
Lord Chancellor: D
"Money, when paid into a bank ceases altogether to be the money of the principal; it is then the money of the banker who is bound to return an equivalent by
paying a similar sum to that deposited with him when he is asked for it. The money paid into the banker's, is money known by the principal to be placed there for
the purpose of being under the control of the banker; it is then the banker's money; he is known to deal with it as his own; he makes what profit he can, which
profit he E retains to himself, paying back only the principal according to the custom of bankers in some places, or the principal and a small rate of interest,
according to the custom of bankers in other places. The money placed in the custody of a banker is, to all intents and purposes, the money of the banker, to do
with as he pleases; he is guilty of no breach of trust F in employing it; he is not answerable to the principal if he puts it into jeopardy, if he engages in a
hazardous speculation; he is not bound to keep it or deal with it as the property of his principal, but he is of course answerable for the amount, because he has
contracted, having received that money to repay to the principal, when demanded, a sum equivalent to that paid into his hands. G
That has been the subject of discussion in various cases, and that has been established to be the relative situation of H banker and customer. That being
established to be the relative situation of banker and customer, the banker is not an agent or factor, but he is a debtor."

This principle was applied as remarked earlier, in the case of R. v. Davenport (supra). The facts of the Davenport case are very close to the
facts in the present case, namely that, a servant received from his employer signed cheques with instructions to fill in the cheques the names
of the payees to whom the employer wished payment to be made. Instead the employee filled in the name of the bank of a personal creditor
and gave the cheques to that creditor. The creditor paid the cheques into his bank

2001 (1) BLR p542

NGANUNU J
account, and the cheques were duly presented and paid. The employer's account was thereafter debited with the A proceeds of those
cheques. The servant was charged and convicted of larceny of the sum of money represented by the cheques, but the appellant's conviction
was set aside.
The Court of Criminal Appeal explained its decision at pp. 41­2 as follows: B
"The fallacy that led to the charges of stealing money was this: It was thought that because the master's account got debited that was enough to constitute a
theft. But, although one talks about a person having money in a bank, it is just as well that it should be understood that the only person who has money in a
bank is a banker. If I pay money into my bank C either by paying cash or a cheque, that money at once becomes the money of the banker. The relationship
between banker and customer is that of debtor and creditor. He does not hold my money as an agent or trustee; the leading case of Hill v Foley (1848) 2 H.L.C.
28, exploded that idea. Directly the money is paid into the bank, it becomes the banker's money, and the contract between the banker and the customer is that
the banker receives a loan of money from the customer as against his promise to honour the customer's cheques on demand. When the banker is paying out,
whether in D cash over the counter or by crediting the bank account of somebody else, he is paying out his own money, not the customer's money, but he is
debting the customer in account. The customer has a chose in action, that is to say, a right to expect that the banker will honour his cheque, but the banker does
it out of his own money. Therefore, the money paid E on these cheques was the banker's money but it led to the customer's account being debited. If the
appellant had been charged with the fraudulent conversion of the cheques, there could have been no answer at all, but he was charged with larceny, and it is
quite obvious that he could not be convicted of larceny because he did not steal the company's money. He caused their account to be debited, but that is not the
stealing of money." F

The case of R. v. Stanbridge 1959 (3) S.A. 274 (C) is a good illustration of the application of the principle laid in the leading case of Foley v. Hill
(supra) and that of R. v. Davenport (supra). Bloch J. at p. 279A quoted with approval from the judgment of De Villiers C.J. in Baylis's Trustee v.
Cape of Good Hope Bank (1885­6) 4 S.C G 439 at p. 442 the legal effect of depositing money in a bank. It was there stated as follows:
"The effect of the payment to the bank was not to make it a mere bailee of the particular coins or negotiable securities deposited, but to constitute the bank a
debtor of the person or persons to whom it was under a legal obligation to repay the H money."

In this jurisdiction this principle was applied in the case of Ditlhabi v. The State [2001] 1 B.L.R. 424 decided by O'Brien Quinn C.J. There the
learned Chief Justice allowed an appeal by the appellant where he had been convicted for theft by a servant, of moneys of his employer, the
© 2018 Juta and Company (Pty) Ltd. Downloaded : Sun Feb 04 2024 21:54:14 GMT+0200 (South Africa Standard Time)
Bank
 depositor is regarded as a creditor of the bank with a right to be paid that money on demand.

2001 (1) BLR p541

NGANUNU J
He submitted that the various amounts shown as money of bank clients in the bank are in fact bank money and A not money of the clients.
Although counsel and the old authorities spoke in terms of "bank clients" it is probably better in modern parlance to refer to them as
"depositors".
He therefore contended that when the appellant transferred the sum of P1,500.00 from the Commission Remittance account to the suspense
account, whether to assist Miss Bafalotse or not, or whether by a B misposting or not, that can be no theft by the appellant of the money so
transferred because whichever bank account the money is transferred to it still remains the property of the bank. It is not stated that Bafalotse
ever had the use of that money.
He has quoted the authority of R. v. Stanbridge 1959 (3) S.A. 274 (C). That case adopted the principle laid out in C the old English case of
Foley v. Hill (1848) 2 H.L. Cas. 28, H.L. (E.) as set out at page 36. The principle of Foley v. Hill (supra) has been followed in many cases
including in England in the case of R. v. Davenport (1954) 38 Cr. App. R. 37, C.C.A. This has also been followed by other cases in South Africa
and in Botswana as in the case of State v. Ditlhabi [2001] 1 B.L.R. 424. In the case of Foley v. Hill, the following appear in the judgment of the
Lord Chancellor: D
"Money, when paid into a bank ceases altogether to be the money of the principal; it is then the money of the banker who is bound to return an equivalent by
paying a similar sum to that deposited with him when he is asked for it. The money paid into the banker's, is money known by the principal to be placed there for
the purpose of being under the control of the banker; it is then the banker's money; he is known to deal with it as his own; he makes what profit he can, which
profit he E retains to himself, paying back only the principal according to the custom of bankers in some places, or the principal and a small rate of interest,
according to the custom of bankers in other places. The money placed in the custody of a banker is, to all intents and purposes, the money of the banker, to do
with as he pleases; he is guilty of no breach of trust F in employing it; he is not answerable to the principal if he puts it into jeopardy, if he engages in a
hazardous speculation; he is not bound to keep it or deal with it as the property of his principal, but he is of course answerable for the amount, because he has
contracted, having received that money to repay to the principal, when demanded, a sum equivalent to that paid into his hands. G
That has been the subject of discussion in various cases, and that has been established to be the relative situation of H banker and customer. That being
established to be the relative situation of banker and customer, the banker is not an agent or factor, but he is a debtor."

This principle was applied as remarked earlier, in the case of R. v. Davenport (supra). The facts of the Davenport case are very close to the
facts in the present case, namely that, a servant received from his employer signed cheques with instructions to fill in the cheques the names
of the payees to whom the employer wished payment to be made. Instead the employee filled in the name of the bank of a personal creditor
and gave the cheques to that creditor. The creditor paid the cheques into his bank

2001 (1) BLR p542

NGANUNU J
account, and the cheques were duly presented and paid. The employer's account was thereafter debited with the A proceeds of those
cheques. The servant was charged and convicted of larceny of the sum of money represented by the cheques, but the appellant's conviction
was set aside.
The Court of Criminal Appeal explained its decision at pp. 41­2 as follows: B
"The fallacy that led to the charges of stealing money was this: It was thought that because the master's account got debited that was enough to constitute a
theft. But, although one talks about a person having money in a bank, it is just as well that it should be understood that the only person who has money in a
bank is a banker. If I pay money into my bank C either by paying cash or a cheque, that money at once becomes the money of the banker. The relationship
between banker and customer is that of debtor and creditor. He does not hold my money as an agent or trustee; the leading case of Hill v Foley (1848) 2 H.L.C.
28, exploded that idea. Directly the money is paid into the bank, it becomes the banker's money, and the contract between the banker and the customer is that
the banker receives a loan of money from the customer as against his promise to honour the customer's cheques on demand. When the banker is paying out,
whether in D cash over the counter or by crediting the bank account of somebody else, he is paying out his own money, not the customer's money, but he is
debting the customer in account. The customer has a chose in action, that is to say, a right to expect that the banker will honour his cheque, but the banker does
it out of his own money. Therefore, the money paid E on these cheques was the banker's money but it led to the customer's account being debited. If the
appellant had been charged with the fraudulent conversion of the cheques, there could have been no answer at all, but he was charged with larceny, and it is
quite obvious that he could not be convicted of larceny because he did not steal the company's money. He caused their account to be debited, but that is not the
stealing of money." F

The case of R. v. Stanbridge 1959 (3) S.A. 274 (C) is a good illustration of the application of the principle laid in the leading case of Foley v. Hill
(supra) and that of R. v. Davenport (supra). Bloch J. at p. 279A quoted with approval from the judgment of De Villiers C.J. in Baylis's Trustee v.
Cape of Good Hope Bank (1885­6) 4 S.C G 439 at p. 442 the legal effect of depositing money in a bank. It was there stated as follows:
"The effect of the payment to the bank was not to make it a mere bailee of the particular coins or negotiable securities deposited, but to constitute the bank a
debtor of the person or persons to whom it was under a legal obligation to repay the H money."

In this jurisdiction this principle was applied in the case of Ditlhabi v. The State [2001] 1 B.L.R. 424 decided by O'Brien Quinn C.J. There the
learned Chief Justice allowed an appeal by the appellant where he had been convicted for theft by a servant, of moneys of his employer, the
Bank

2001 (1) BLR p543

NGANUNU J
of Credit and Commerce. It appeared in that case that the appellant had drawn two cheques on his personal A bank account at the Bank of
Credit and Commerce and deposited these cheques in an account he opened at the Botswana Building Society. He then withdrew the money
from the account at the Botswana Building Society. In the meantime, the Building Society cleared the cheques with the Bank of Credit and
Commerce which latter bank debited them to its central account. It was intended that there would be a debiting of the appellant's personal
account in the bank, thus replacing the money into the central account. The appellant who worked there B prevented his account being
debited by simply getting hold of the two cheques and hiding them. It was successfully argued that a charge of theft of the money of the Bank
of Credit and Commerce by the appellant as its employee could not be sustained. C
It does appear therefore that it is now settled law of Botswana that money deposited in a bank by the clients of the bank ­ the depositors ­ is
the property of the bank once it is so deposited and those depositors are mere creditors vis­à­vis the bank. The fact that the bank keeps
individual accounts for each depositor is for book D keeping purposes and ascertainment of what the bank as debtor is obliged to give to the
depositor when he demands his money or when the condition of the deposit is satisfied. Therefore if a bank employee should move the funds
from one account to another within the bank, he cannot commit a theft simpliciter of that money whilst it remains, as it were, in the bank.
The situation may be different if one examines the question of theft by fraudulent conversion; and the facts of this E case would appear to
point in that direction. However, the statement of facts does not admit of an examination of this limb of the definition of stealing under section
264 of the Penal Code (Cap. 08:01). There simply was not enough elaboration of the facts to stretch and cover stealing by fraudulent
conversion as defined in the Penal Code. The question of whether an accused person may be convicted of stealing by fraudulent conversion in a
situation where he could not be convicted of theft simpliciter was left open in the case of R. v. Davenport (1954) F 38 Cr. app. R. 37, C.C.A.
I will say no more about it as that would lead to speculation not based on facts. The point is, that in the instant case the money had not been
taken out from the bank. It remained in the ownership of the bank regardless of the account to which it had been transferred or credited by the
appellant. His admission that he stole the money will G not constitute a theft where that is impossible in law ­ "A conviction on a charge which
discloses no offence is in itself a failure of justice and a legal impossibility and should not be allowed to stand." ­ per van den Heever J.A. in R.
v. Preller 1952 (4) S.A. 452 (A) at p. 473 A. It is the same for a conviction based on facts that cannot disclose the offence charged.
The conviction therefore could not be supported on the basis of the facts mentioned by the prosecutor. There H now remains the question of
what directions I should give in terms of section 10 of the High Court Act (Cap. 02:04). In certain circumstances the setting aside of a
conviction will lead to a complete discharge of the appellant and in others the case may be remitted to magistrate's court for a rehearing. Mr
Modisanyane for the appellant argued that the case be remitted to the magistrate's court as there

2001 (1) BLR p544

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 and gave the cheques to that creditor. The creditor paid the cheques into his bank

2001 (1) BLR p542

NGANUNU J
account, and the cheques were duly presented and paid. The employer's account was thereafter debited with the A proceeds of those
cheques. The servant was charged and convicted of larceny of the sum of money represented by the cheques, but the appellant's conviction
was set aside.
The Court of Criminal Appeal explained its decision at pp. 41­2 as follows: B
"The fallacy that led to the charges of stealing money was this: It was thought that because the master's account got debited that was enough to constitute a
theft. But, although one talks about a person having money in a bank, it is just as well that it should be understood that the only person who has money in a
bank is a banker. If I pay money into my bank C either by paying cash or a cheque, that money at once becomes the money of the banker. The relationship
between banker and customer is that of debtor and creditor. He does not hold my money as an agent or trustee; the leading case of Hill v Foley (1848) 2 H.L.C.
28, exploded that idea. Directly the money is paid into the bank, it becomes the banker's money, and the contract between the banker and the customer is that
the banker receives a loan of money from the customer as against his promise to honour the customer's cheques on demand. When the banker is paying out,
whether in D cash over the counter or by crediting the bank account of somebody else, he is paying out his own money, not the customer's money, but he is
debting the customer in account. The customer has a chose in action, that is to say, a right to expect that the banker will honour his cheque, but the banker does
it out of his own money. Therefore, the money paid E on these cheques was the banker's money but it led to the customer's account being debited. If the
appellant had been charged with the fraudulent conversion of the cheques, there could have been no answer at all, but he was charged with larceny, and it is
quite obvious that he could not be convicted of larceny because he did not steal the company's money. He caused their account to be debited, but that is not the
stealing of money." F

The case of R. v. Stanbridge 1959 (3) S.A. 274 (C) is a good illustration of the application of the principle laid in the leading case of Foley v. Hill
(supra) and that of R. v. Davenport (supra). Bloch J. at p. 279A quoted with approval from the judgment of De Villiers C.J. in Baylis's Trustee v.
Cape of Good Hope Bank (1885­6) 4 S.C G 439 at p. 442 the legal effect of depositing money in a bank. It was there stated as follows:
"The effect of the payment to the bank was not to make it a mere bailee of the particular coins or negotiable securities deposited, but to constitute the bank a
debtor of the person or persons to whom it was under a legal obligation to repay the H money."

In this jurisdiction this principle was applied in the case of Ditlhabi v. The State [2001] 1 B.L.R. 424 decided by O'Brien Quinn C.J. There the
learned Chief Justice allowed an appeal by the appellant where he had been convicted for theft by a servant, of moneys of his employer, the
Bank

2001 (1) BLR p543

NGANUNU J
of Credit and Commerce. It appeared in that case that the appellant had drawn two cheques on his personal A bank account at the Bank of
Credit and Commerce and deposited these cheques in an account he opened at the Botswana Building Society. He then withdrew the money
from the account at the Botswana Building Society. In the meantime, the Building Society cleared the cheques with the Bank of Credit and
Commerce which latter bank debited them to its central account. It was intended that there would be a debiting of the appellant's personal
account in the bank, thus replacing the money into the central account. The appellant who worked there B prevented his account being
debited by simply getting hold of the two cheques and hiding them. It was successfully argued that a charge of theft of the money of the Bank
of Credit and Commerce by the appellant as its employee could not be sustained. C
It does appear therefore that it is now settled law of Botswana that money deposited in a bank by the clients of the bank ­ the depositors ­ is
the property of the bank once it is so deposited and those depositors are mere creditors vis­à­vis the bank. The fact that the bank keeps
individual accounts for each depositor is for book D keeping purposes and ascertainment of what the bank as debtor is obliged to give to the
depositor when he demands his money or when the condition of the deposit is satisfied. Therefore if a bank employee should move the funds
from one account to another within the bank, he cannot commit a theft simpliciter of that money whilst it remains, as it were, in the bank.
The situation may be different if one examines the question of theft by fraudulent conversion; and the facts of this E case would appear to
point in that direction. However, the statement of facts does not admit of an examination of this limb of the definition of stealing under section
264 of the Penal Code (Cap. 08:01). There simply was not enough elaboration of the facts to stretch and cover stealing by fraudulent
conversion as defined in the Penal Code. The question of whether an accused person may be convicted of stealing by fraudulent conversion in a
situation where he could not be convicted of theft simpliciter was left open in the case of R. v. Davenport (1954) F 38 Cr. app. R. 37, C.C.A.
I will say no more about it as that would lead to speculation not based on facts. The point is, that in the instant case the money had not been
taken out from the bank. It remained in the ownership of the bank regardless of the account to which it had been transferred or credited by the
appellant. His admission that he stole the money will G not constitute a theft where that is impossible in law ­ "A conviction on a charge which
discloses no offence is in itself a failure of justice and a legal impossibility and should not be allowed to stand." ­ per van den Heever J.A. in R.
v. Preller 1952 (4) S.A. 452 (A) at p. 473 A. It is the same for a conviction based on facts that cannot disclose the offence charged.
The conviction therefore could not be supported on the basis of the facts mentioned by the prosecutor. There H now remains the question of
what directions I should give in terms of section 10 of the High Court Act (Cap. 02:04). In certain circumstances the setting aside of a
conviction will lead to a complete discharge of the appellant and in others the case may be remitted to magistrate's court for a rehearing. Mr
Modisanyane for the appellant argued that the case be remitted to the magistrate's court as there

2001 (1) BLR p544

NGANUNU J
had not been a real trial ­ this was along the lines of the Ditlhabi case. A

Section 10 of the High Court Act gives this court wide powers to deal with a case brought to it on appeal, including in section 10(1) (a), the
power to confirm, amend or set aside any judgment and in (b) to order a new trial at the magistrate's court or for the High Court itself to hear
the matter anew.
It would seem to me that where there has been a proper trial and evidence led, and the accused is convicted B where he ought not to be
convicted the court should act by quashing the wrong conviction and setting the accused free. Where, however, as in the instant case, there
was a resort to the use of judicial Instruction No. 1 of 1975 and no evidence is led by virtue of the admission of guilt by the accused, it is a
question of the circumstances whether the case is remitted for a new and proper trial or whether the accused is set free. In the case of
Ditlhabi the then Chief Justice O'Brien Quinn remitted the case for a new trial, holding that there had not C been a trial at all and that on the
facts disclosed the appellant could have been charged with other offences. In the case of Kok v. The State [1983] B.L.R. 3, the learned Chief
Justice had remitted the case for a retrial after quashing a conviction. In that case the court reviewed some authorities in South Africa and
came to the view that where the appeal court is given power to order a retrial after quashing a conviction it will do so if the charge sheet D in
fact disclosed an offence and the only problem was that the statement of facts differed with the offence charged. Where the charge itself does
not contain all the essential elements of the offence then when the conviction is quashed the appellant should be released. The matter was
also considered by Corduff J. in the case of State. v. Monthopitsa 1981 B.L.R. 207 at p. 210. There the learned judge after quashing a
conviction on E the basis that the facts read in court on a plea of guilty by the appellant did not support the charge had to consider whether
to remit the case for a retrial or to release the accused. He had this to say:
"Appellant has spent four months in prison and I consider that to remit the case back to the Magistrate would occasion F Appellant further hardship which
would in all the circumstances be hard to justify. He is a first offender and whatever his sin in terms of section 321 he has paid pretty substantially for it not only
by serving a prison sentence but by the loss of the money he paid for the generator."

Clearly the learned judge had in mind that it was permissible to remit the case to the magistrate but in view of the G issues of hardship he
mentioned, he did not take that course.
I take the view that under section 10 (a) and (b) of the High Court Act I can remit the case to the magistrate for a retrial. I now do so, as
there appears to be no special factors of hardship and the original charge laid against the H accused did disclose an offence. The facts as read
out were inadequate to support the charge but the appellant considered that he was wrong and guilty by his plea, thus it can be taken for
granted that not all the evidence that could have come out was actually placed in the summary of facts. He has not been held in any prison for
too long as the events leading to the charge arose only on 10 January 1992 and the conviction was made on 17
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2001 (1) BLR p545
 Bank

2001 (1) BLR p543

NGANUNU J
of Credit and Commerce. It appeared in that case that the appellant had drawn two cheques on his personal A bank account at the Bank of
Credit and Commerce and deposited these cheques in an account he opened at the Botswana Building Society. He then withdrew the money
from the account at the Botswana Building Society. In the meantime, the Building Society cleared the cheques with the Bank of Credit and
Commerce which latter bank debited them to its central account. It was intended that there would be a debiting of the appellant's personal
account in the bank, thus replacing the money into the central account. The appellant who worked there B prevented his account being
debited by simply getting hold of the two cheques and hiding them. It was successfully argued that a charge of theft of the money of the Bank
of Credit and Commerce by the appellant as its employee could not be sustained. C
It does appear therefore that it is now settled law of Botswana that money deposited in a bank by the clients of the bank ­ the depositors ­ is
the property of the bank once it is so deposited and those depositors are mere creditors vis­à­vis the bank. The fact that the bank keeps
individual accounts for each depositor is for book D keeping purposes and ascertainment of what the bank as debtor is obliged to give to the
depositor when he demands his money or when the condition of the deposit is satisfied. Therefore if a bank employee should move the funds
from one account to another within the bank, he cannot commit a theft simpliciter of that money whilst it remains, as it were, in the bank.
The situation may be different if one examines the question of theft by fraudulent conversion; and the facts of this E case would appear to
point in that direction. However, the statement of facts does not admit of an examination of this limb of the definition of stealing under section
264 of the Penal Code (Cap. 08:01). There simply was not enough elaboration of the facts to stretch and cover stealing by fraudulent
conversion as defined in the Penal Code. The question of whether an accused person may be convicted of stealing by fraudulent conversion in a
situation where he could not be convicted of theft simpliciter was left open in the case of R. v. Davenport (1954) F 38 Cr. app. R. 37, C.C.A.
I will say no more about it as that would lead to speculation not based on facts. The point is, that in the instant case the money had not been
taken out from the bank. It remained in the ownership of the bank regardless of the account to which it had been transferred or credited by the
appellant. His admission that he stole the money will G not constitute a theft where that is impossible in law ­ "A conviction on a charge which
discloses no offence is in itself a failure of justice and a legal impossibility and should not be allowed to stand." ­ per van den Heever J.A. in R.
v. Preller 1952 (4) S.A. 452 (A) at p. 473 A. It is the same for a conviction based on facts that cannot disclose the offence charged.
The conviction therefore could not be supported on the basis of the facts mentioned by the prosecutor. There H now remains the question of
what directions I should give in terms of section 10 of the High Court Act (Cap. 02:04). In certain circumstances the setting aside of a
conviction will lead to a complete discharge of the appellant and in others the case may be remitted to magistrate's court for a rehearing. Mr
Modisanyane for the appellant argued that the case be remitted to the magistrate's court as there

2001 (1) BLR p544

NGANUNU J
had not been a real trial ­ this was along the lines of the Ditlhabi case. A

Section 10 of the High Court Act gives this court wide powers to deal with a case brought to it on appeal, including in section 10(1) (a), the
power to confirm, amend or set aside any judgment and in (b) to order a new trial at the magistrate's court or for the High Court itself to hear
the matter anew.
It would seem to me that where there has been a proper trial and evidence led, and the accused is convicted B where he ought not to be
convicted the court should act by quashing the wrong conviction and setting the accused free. Where, however, as in the instant case, there
was a resort to the use of judicial Instruction No. 1 of 1975 and no evidence is led by virtue of the admission of guilt by the accused, it is a
question of the circumstances whether the case is remitted for a new and proper trial or whether the accused is set free. In the case of
Ditlhabi the then Chief Justice O'Brien Quinn remitted the case for a new trial, holding that there had not C been a trial at all and that on the
facts disclosed the appellant could have been charged with other offences. In the case of Kok v. The State [1983] B.L.R. 3, the learned Chief
Justice had remitted the case for a retrial after quashing a conviction. In that case the court reviewed some authorities in South Africa and
came to the view that where the appeal court is given power to order a retrial after quashing a conviction it will do so if the charge sheet D in
fact disclosed an offence and the only problem was that the statement of facts differed with the offence charged. Where the charge itself does
not contain all the essential elements of the offence then when the conviction is quashed the appellant should be released. The matter was
also considered by Corduff J. in the case of State. v. Monthopitsa 1981 B.L.R. 207 at p. 210. There the learned judge after quashing a
conviction on E the basis that the facts read in court on a plea of guilty by the appellant did not support the charge had to consider whether
to remit the case for a retrial or to release the accused. He had this to say:
"Appellant has spent four months in prison and I consider that to remit the case back to the Magistrate would occasion F Appellant further hardship which
would in all the circumstances be hard to justify. He is a first offender and whatever his sin in terms of section 321 he has paid pretty substantially for it not only
by serving a prison sentence but by the loss of the money he paid for the generator."

Clearly the learned judge had in mind that it was permissible to remit the case to the magistrate but in view of the G issues of hardship he
mentioned, he did not take that course.
I take the view that under section 10 (a) and (b) of the High Court Act I can remit the case to the magistrate for a retrial. I now do so, as
there appears to be no special factors of hardship and the original charge laid against the H accused did disclose an offence. The facts as read
out were inadequate to support the charge but the appellant considered that he was wrong and guilty by his plea, thus it can be taken for
granted that not all the evidence that could have come out was actually placed in the summary of facts. He has not been held in any prison for
too long as the events leading to the charge arose only on 10 January 1992 and the conviction was made on 17

2001 (1) BLR p545

February 1992. I now order that the case be remitted to the magistrate's court for a new trial. If the appellant is A convicted then any
sentence that is imposed should take into account any period of imprisonment the appellant may have served by virtue of the earlier
conviction. B
Conviction set aside and
case remitted for retrial de novo.
E.K.T.

2001 (1) BLR p545

C

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 Modisanyane for the appellant argued that the case be remitted to the magistrate's court as there

2001 (1) BLR p544

NGANUNU J
had not been a real trial ­ this was along the lines of the Ditlhabi case. A

Section 10 of the High Court Act gives this court wide powers to deal with a case brought to it on appeal, including in section 10(1) (a), the
power to confirm, amend or set aside any judgment and in (b) to order a new trial at the magistrate's court or for the High Court itself to hear
the matter anew.
It would seem to me that where there has been a proper trial and evidence led, and the accused is convicted B where he ought not to be
convicted the court should act by quashing the wrong conviction and setting the accused free. Where, however, as in the instant case, there
was a resort to the use of judicial Instruction No. 1 of 1975 and no evidence is led by virtue of the admission of guilt by the accused, it is a
question of the circumstances whether the case is remitted for a new and proper trial or whether the accused is set free. In the case of
Ditlhabi the then Chief Justice O'Brien Quinn remitted the case for a new trial, holding that there had not C been a trial at all and that on the
facts disclosed the appellant could have been charged with other offences. In the case of Kok v. The State [1983] B.L.R. 3, the learned Chief
Justice had remitted the case for a retrial after quashing a conviction. In that case the court reviewed some authorities in South Africa and
came to the view that where the appeal court is given power to order a retrial after quashing a conviction it will do so if the charge sheet D in
fact disclosed an offence and the only problem was that the statement of facts differed with the offence charged. Where the charge itself does
not contain all the essential elements of the offence then when the conviction is quashed the appellant should be released. The matter was
also considered by Corduff J. in the case of State. v. Monthopitsa 1981 B.L.R. 207 at p. 210. There the learned judge after quashing a
conviction on E the basis that the facts read in court on a plea of guilty by the appellant did not support the charge had to consider whether
to remit the case for a retrial or to release the accused. He had this to say:
"Appellant has spent four months in prison and I consider that to remit the case back to the Magistrate would occasion F Appellant further hardship which
would in all the circumstances be hard to justify. He is a first offender and whatever his sin in terms of section 321 he has paid pretty substantially for it not only
by serving a prison sentence but by the loss of the money he paid for the generator."

Clearly the learned judge had in mind that it was permissible to remit the case to the magistrate but in view of the G issues of hardship he
mentioned, he did not take that course.
I take the view that under section 10 (a) and (b) of the High Court Act I can remit the case to the magistrate for a retrial. I now do so, as
there appears to be no special factors of hardship and the original charge laid against the H accused did disclose an offence. The facts as read
out were inadequate to support the charge but the appellant considered that he was wrong and guilty by his plea, thus it can be taken for
granted that not all the evidence that could have come out was actually placed in the summary of facts. He has not been held in any prison for
too long as the events leading to the charge arose only on 10 January 1992 and the conviction was made on 17

2001 (1) BLR p545

February 1992. I now order that the case be remitted to the magistrate's court for a new trial. If the appellant is A convicted then any
sentence that is imposed should take into account any period of imprisonment the appellant may have served by virtue of the earlier
conviction. B
Conviction set aside and
case remitted for retrial de novo.
E.K.T.

2001 (1) BLR p545

C

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 too long as the events leading to the charge arose only on 10 January 1992 and the conviction was made on 17

2001 (1) BLR p545

February 1992. I now order that the case be remitted to the magistrate's court for a new trial. If the appellant is A convicted then any
sentence that is imposed should take into account any period of imprisonment the appellant may have served by virtue of the earlier
conviction. B
Conviction set aside and
case remitted for retrial de novo.
E.K.T.

2001 (1) BLR p545

C

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 E.K.T.

2001 (1) BLR p545

C

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