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Sethukga v The State (Criminal Appeal No 6 of 1980) [1980] BWCA 4 (8 December 1980)

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occupied. The cause of death was haemorrhage and shock following multiple incised and stab wounds inflicted by 90irte instrument. The doctor who conducted the post mortem examination listed in his report 22 separate wounds two of which were necessarily fatal and several were grievous. The wounds were inflicted by the Applicant with a chisel. He was a carpenter by trade and his tools including a chisel were in the hut. Applicant had imbibed beer that day.
In evidence Applicant gave an account of what happened that night, how a sraouldering quarrel flared up in the dim light of a lamp, how deceased went to the fire in the hut, picked up a piece of wood and tried zo strike Applicant with it, how Applicant grabbed her hands and triod to take the piece of wood from her -there was a struggle - that the deceased was more powerful than the Applicant, at any rate in the condition of drink in which he was, but the deceased did not manage to hit him with the piece of wood.
In cross-examination the Applicant gave the
following account of what happened at the material time.
He said:
" I just found myself using a chisel on her. I don't know how I got it from among the other tools. I don't know when I let go of her hands. I just found I had let go. At the time I was stabbing her with the chisel I felt a blow on my elbow. It is not possible that I hit it against the piece of wood she was holding. It was in the middle of stabbing. Durinr the

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stabbing I felt no other blow. I did not see her lifting the stick or striking. The lamp was still burning, not very bright. There was also a light from the fire which was just beginning to build up. During the stabbing I do not know if the deceased was standing all the time. She was standing when I was trying to get the piece of wood. When I stopped I don't remember if she was standing. I don't even know when I stopped. The chisel (as exhibited) is the one I was using. It is mine. I put it on the small table in the hut. Also a screw-driver, a brace-bit, and other chisels. I picked up the chisel. I don't know how in anger I picked it up. I would say I was angry. It was anger that caused us to fight. I can't remember picking it up. The motivation could have been anger plus the effect of beer. When I felt the blow I wasn't fully conscious of stabbing. It appeared to me as a dream in which I was stabbing. I don't remember feeling that I was stabbing. I don't know if something was wrong with my brain. When I left I had the chisel with me. As I was walking I found myself sitting down. Trying to think over what was happening. Indeed it occurred to me that I was not dreaming. I left the chisel there and went to my parents* place. I was afraid of telling them what had happened. I was overcome with fright so I did not go back to confirm what had happened. In my custom I have rights over my girlfiend but not if her parents don't know of our relationship. I had rights over her then because I discussed with her that I was gciny to marry her and she agreed. It is true I had not notified the parents. There were other obstacles. I don't know where the parents were - they are in Rhodesia. I don't know what part. It is not true that I did

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not notify them because I wasn't satisfied with her. Later she did not satisfy me due to her affair with Kereng. But this did not disturb me very much. "
The Applicant added in re-examination:
" Kabelo couldn't ordinarily overpower me. On
this occasion I was drunk so she might have been been able to. "
The next day the Applicant indicated the spot where he left the chisel and there it was found by the police. This evidence raised issues of malice aforethought, self-defence and provocation. The Trial Court found malice aforethought to be present and negatived the pleas of provocation and self-defence.
On the issue of malice aforethought the Trial Judge
excluded the possibility of temporary insanity and then
considered the effect of liquor on the Applicant's capacity
to form an intention to kill. He found that Applicant was
quite capable of realising what he was doing and to form an
intention at least to do grievous bodily harm. He
commented that on the evidence of the Applicant he was
quite rational and lucid with regard to the period
surrounding his stabbing. It was only in Applicant's
recollection of what happened during the actual stabbing
that Applicant's memory failed him or that he was hazy.
In his judgment at page 31 of the record the learned Judge
said:
" I am not prepared to accept the accused's story that his memory of what occurred after the start of his altercation with the deceased was a virtual blank,
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and I am not prepared to accept "-.hat at the time when the stab wounds were.inflicted on the body of the deceased the accused was unaware of what he was doing. This is not, I consider, a case of a person unaware at the time of what he is doing, but possibly - if there is any element of truth in the accused's profession of inability to recall what happened in the course of the stabbing - of the mini refusing to entertain a recollection which horrifies and appals it. "
There was no medical evidence on the point but a condition of hysterical amnesia is a well-known phenomenon. There is no doubt that the Applicant acted in a state of frenzy but that he realised what he was doing seems certain. I can find no fault with the learned Judge's finding of malice aforethought.
On the issue of provocation the "".earned Judge referred to sections 210 and 211 of the Penal Code and held that the reaction of the Applicant was out of all reasonable relationship to the provocation, for the purposes of section 210 subsection 2. That provocation did in fact cause the Applicant seme temporary loss of self-control making him not the master of his mind, must I think be accepted but that does not alone suffice to bring the case within the subsection. I do not think that the judgment can be faulted on the score of provocation either.
On the issue of self-defence, the learned Judge referred' to section 18 of the Penal Code which reads as follows:
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" Subject to the express provisions of this Code or any other law for the time being in force, a person shall not be criminally responsible for the use of force in repelling an unlawful attack upon his person or property or the person or property of anyone whom it is his moral or legal duty to protect if the means he uses and the degree of force he employs in so doing are no more than is reasonably necessary in the circumstances. "
1 can find no fault with the learned Judge's rejection of the plea of self-defence. It follows therefore that in my view the conviction for murder was correct.
On the question of the penalty, the sentence as I
have said was twelve years' imprisonment. The learned
Judge found extenuating circumstances and then continued:
" Your Counsel on your behalf has set forth considerations which I should, he suggests, take into account in fixing the sentence which I impose on you. He has pointed out that you have been in custody since 10th September last year; that, according to the indictment you are no longer a young man, being 44 years old; that your conduct after the crime may be taken to indicate some remorse on your part, and that you co-operated with the police. He has also mentioned that as a result of this crime you have lost your prospective fiancde. I take all these matters into account. "
I interpose here the consumption of liquor, the jealousy
and the fights were regarded as extenuating circumstances.
The judgment continue:
" When all is sail and done, this was a very terrible crime which must shock everyone who
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learns of it, and it is impossible for me, in accordance with my duty, to impose a light sentence. "
Mr Skelemani for the State agrees that the sentence is severe, and to my mind it is possible that the learned Judge did not give sufficient weight to the emotional state in which the Applicant may have been. The amnesia he developed suggests that he acted totally out of character. Althouyh a reasonable perse n may never have lost control of his mind, the fact that the Applicant obviously did lose control, explains to some extent the disproportionate reaction which he revealed and which made him liable for murder. However, after taking account of those considerations, it is still a matter of difficulty to infer that the learned Judge exercised his discretion improperly with regard to the sentence imposed by him. I myself would have preferred a lighter sentence, but this alone would not justify interference with the discretion of the learned Judge.
I would dismiss the amplication for leave to appeal against both conviction and sentence.
(Sgd.) J R DENDY-YOUNG Judge of Appeal
I agree. (Sgd.) R J HAYFRON-BENJAMIN Chief Justice
I agree. (Sgd.) T A AGUDA        Judge of Appeal
The Application is dismissed.
Lobatse
8th December 1980