Amendment of an indictment: when is it proper under Botswana law?

Abstract

Section 149(1) of the Criminal Procedure and Evidence Act1 gives the court discretion to allow amendments to be made in the indictment or summons at any time before judgements if it considers that such amendment will not prejudice the accused in his defence. It provides: Whenever, on the trial of any indictment or summons, there appears to be any variance between the statement therein and evidence offered in proof of such statement, or if it appears that any words or particulars that ought to have been inserted in the indictment or summons have been omitted, or that there is any other error in the indictment or summons the court may at any time before judgment, if it considers that the making of the necessary amendment in the indictment or summons will not prejudice the accused in his defence, order that the indictment or summons be amended, so far as it is necessary, by some officer of the court or other person, both in that part thereof where the variance, omission, insertion, or error occurs, and in every other part thereof which it may become necessary to amend. The general rule is that an amendment of a summons should be done before the accused pleads and not during reading of judgement or delivery thereof.2 However, in terms of this section, amendment may be applied for and granted at any time before judgement. Notwithstanding the seemingly clear language of section 149(1) the extent of the power to amend conferred by this section has been the subject of conflicting decisions of the High Court. The controversy has centred on what constitutes an "amendment" within the subsection. This paper seeks to analyse the judicial views expressed on the subsection and to ascertain which one is appropriate in the absence of a definitive opinion of the Court of Appeal.