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Seleka v The State (Criminal Appeal No. 7 of 1982) [1982] BWCA 13 (7 December 1982)

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IN THE COURT OF APPEAL OF
THE REPUBLIC OF BOTSWANA
Criminal Trial No. 30 of 1982 Criminal Appeal No. 7 of 1982
In the matter of:
PILATE SPAR HAZAZA SELEKA Appellant vs. THE STATE
Mr. V. J. G. Matthews for the Appellant Mr. R. J. Chakalisa for the State
JUDGMENT
CORAM: Haisels JP Aguda JA Kentridgfj JA
AGUDA JA:
In an indictment dated April 22, 19U2, the appellant was charged with the murder of one EDWA LYDIA THANA at or near Selibe-Phikwe on January 20, 1982. The case came before the High Court presided over by the Chief Justice O'Brien uuinn sitting at Selibe-Phikwe on May 10, 1982. Eight witnesses gave evidence for the prosecution whilst a number of exhibits were tendered. After the prosectuion had closed its case the defence decided to call evidence. The

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appellant gave evidence and called another witness. In a well considered judgment delivered on May 13, 1982, the learned trial Chief Justice found the appellant guilty of the offence charged, and after considering the question of extenuating circumstances, came to the conclusion that no sufficient evidence of such circumstances existed to warrant his reducing the punishment laid down by law in respect of the offence of murder. Therefore the learned Judge held that he had no alternative than to impose the death penalty on the appellant. Five days later on May 18, 1982, the appellant gave notice of appeal against the senttnce. In elaborating on this ground of apneal in a Supplementary Grounds of Appeal subsequently filed by Attorney V. J. G. Matthews, the appellan alleged that -
1.       the trial Judge misdirected himself in concluding that there were no extenuating circumstances that could justify the imposition of a sentence other than the one imposed;
2.       that no reasonable Court could have come to inv other conclusion r.har that there
are extenuating circumstances in tne case; and
3.       that the learned trial Judge erred in
failing to distinguish between the relevance
of certain findings in rer-rd to liability
and the relevance of these findings in
relation to reducing the none blameworthiness
of the accused.
For the purpose of this judgment it is unnecessary to go into the details of the evidence led in the case. Suffice it to refer to tne facts as found by the learned Chief Justice and in respect to whicn the appellant has not raised and

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could not have raised any serious objections. The deceased had been a girl friend to the appellant. On the night of January 29, 1982 the deceased and another young woman by the name of KUTLWELO THABANELO had slept in their house when the appellant came to wake the deceased and tried to persuade her to go out with him. The deceased refused. Thereafter the appellant went away but came back before long to attempt to make the deceased go with him. rie was furious, saying that he had been buying clothes for the deceased. However, on this occasion the deceased went out witn the appellant. He locked the door of the room against Kutlwelo. Very shortly after the deceased had gone out with the appellant Kutlwelo heard sounds which appeared to her as if one person was hitting another. She was frightened, as a result of which she broke the window of the room as she had been locked in, in oraer to escane. .Vhen she got out she found a dark object near the corner ot me no use. ^ne was so i Tightened that she could not <o Hfjar to ..'hat she nad seen. She, however, ran to Lne aouso oi a f"i Li^'e hv tne name ; [ c'LonA MOLEkl and m^de a. raport. r'laan and h<-r husband ca;ne out and discovered that the dark object which Kutlwelo had seen was the dead body of the deceased. Flora, who was a retired nurse, noticed wounds on each side of the deceased head, and also saw stab wounds on the front of the right shoulder and centre left of the chest of the deceased.
Later a report was made to the police and the appellant was arrested. The evidence of Dr. Tissera who performed a

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post mortem examination on the body established the facts that the deceased nad received two stab wound injuries, one on the front of the right side of the chest near the shoulc.er and the other on the left side of the chest. The first stab was 4 inches deep, whilst the second was 1 1/2 inches deep. Apart from these the deceased also had two abrasions of 3 inches and 2 inches one each side of the face in front of the ear. finally tne doctor found that tne deceased had suffered a fracture of tne skull. It was the doctor's ODinion that the deceased had died from shock, haemorrhage and damage to the brain. The fracture of the skull could have been caused by an axe, whilst the stab wounds could have been caused by a knife.
According to tne police, investigations were carried out with the assistance and co-operation of the appellant. This was after he nad been cautioned in the usual manner. As a result, ot the investigations an axe found near the scene oi crime was traced to a house next to tnat in wnich the appellant Lived. The axe nasi i.Lr>.-: ..tains- and the biood was L iia-r lomid to belong to the- same blood ^roup as that of the dece: sed. As a result oi further co-operation
bv the ast >.'   ,: :f ..,. • •:• . :      • r 'roe where
according ;.o t-o appellant ne naa aitenipteo to hang himself
wits -m :' t- < .. : ri r:>\.\'-- a ft>-J '.< : *. Killed the deceased.
i .. : t - v. '         ! .. ;.. '; . . >tj ., . •-••;>(; th'.M'1-. /lie
oroken pieae. J <^wrcl<j biocn >v . .,;, -..,,.. JUI^J iant was aliened u> n. : ..a. A t.a .. ;usx ,,o.. si. a -.-•. • t Lin- Joceisea

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were found near the body of the deceased. The appellant also after the caution took the police to where he had collected the block since there were no such blocks near to where the deceased was killed. In his statement which he made voluntarily before the district Commissioner after caution, the appellant admitted killing the deceased because, according to him, she had refused to come out that nip.ht to follow him to his iiouse. He then said that "then it occurred to me that I should kill hrr, and later on kilL myself. Then after killing her L went to the bush, to kill myself, but I failed to kill myseli hyperlink after 1 had tied the rope, to the tvvn i hpc.'iuie afraid tn hmng myself."
Now in view of this overwhelming evidence the learned Chief Justice had no difficulty, rightly in my view, in finding the appellant guilty of murder and convicting him accordingly. It is therefore not surprising that the appellant has filed no appeal against his conviction. However, as I have stated earlier, he has filed an appeal against the sentence of death pronounced on hi;u alleging that the learned Chief Justice erred in not finding extenuating circumstances in his case. In nis oral argument before this Court, Mr. Matthews for the appellant submitted that the learned Chief Justice did not appear to have considered all the factors that would affect the moral blameworthiness of the appellant. He was, however, unable to point out to any such factor, and I have not been able to discover any. In Mr. Matthews's submission a distinction has to be made between premeditated

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murder and murder on the spur of the moment. For purposes of considering moral blameworthiness this distinction is in my view valid. The difficulty which confronted Mr. Matthevs in this case is of course that although the appellant might not have planned the murder months or weeks or even days before the act, he nevertheless did not kill the deceased 01 the spur of the moment. It was after the deceased had refused to go out with the appellant, that night that he went out to collect the instruments with which he killed her. This was after he had persuaded her on the second visit to follow hin. It should be noted that after the deceased had gone out with him he locked in the other occupant of the room.
Now, before sentencing the appellant to be hanged the learned Chief Justice had directed himself under a portion of the judgment headed "SENTENCE" as follows:
"I have considered all that your Counsel has said on your behalf. I have considered that you are a young man of only 23 years of ape. I have considered that you and the deceased had been lovers for some period of time . 1 have even considered your father's pie:, that you may have been bewitched but that cannot hove, in any way, affected your ,'>uilt.
You have, deliberately, and with premeditation taken the life of the deceased. The only reason for your having done so is your annoyance at her not leaving her bed late at night and going to your home. I accept the fact that you had some drink taken but, try as I may, I cannot accept that you were as drunk or as affected by dagga as you have tried to make out."
I can find no misdirection in this and it is clear that the learned trial Chief Justice has not over-looked any

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material fact in favour of the appellant in his consideration of the question of extenuating circumstances. In all these circumstances I would dismiss the appeal against sentence. The appeal is dismissed.
GIVEN at the Court of Appeal, Lobatse this 7th day of December, 1982.
T. A. AGUDA Judge of Appeal

I agree.
I. A. MAISELS Judge President


I agree.
S. W. KENTRIDGE Judge of Appeal

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