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Kagiso v The State (Criminal Appeal No. 33 of 1982) [1983] BWCA 6 (8 April 1983)

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IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA
Criminal Appeal No. 33 of 1982
In the matter of:
PETER KAGISO     Appellant
vs.
THE STATE
Appellant in Person
Mr. S. A. Afful for the State
JUDGMENT
Coram: Maisels, P., Young, J.A., Van Winsen, J.A.
Dendy-Young. J.A.
Appellant, a young man of 21 years was charged with Murder contrary to Section 207 of the Penal Code, the allegation being that on the 16th March, 1982 he stabbed to death one Molemi Mondira a young man of 25 years.
Appellant pleaded not guilty. He was represented by Counsel. - in the event appellant was convicted of Manslaughter contrary to Section 205 of the Penal Code and sentenced to Seven Years Imprisonment.
The appeal is against sentence only.
The following is an exerpt from the record:
"Mr. Du Toit(Counsel): As I understand the accused he pleads not guilty to murder but we are prepared to plead guilty to Manslaughter.

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Judge: On what grounds?
Counsel: provocation and extenuating circumstances w. The tendered plea to manslaughter was rejected by the State and the matter proceeded to trial. At this point Counsel for the Appellant made a formal admission in these terms:
"All witnesses except PW5 PW7 and PW10", meaning that the evidence of the remaining witnesses was accepted. There were fourteen State witnesses on the list and the list together with summaries of the evidence they would give was handed in.
The prosecution also put in evidence without objection the knife which had been used, the postmortem report on the deceased and a statement by Appellant to a judicial officer.
The effect of the evidence is summariaed by the trial judge as follows:
"The evidence of all the State witnesses except three was admitted and these three witnesses were called to give evidence. The evidence given was to the effect that on 16th March, 1982 a group of people was sitting talking near New Naledi in Gaborone when the accused arrived and conversation started regarding the place of origin of the accused, his tribe and his totem. An argument developed among the men who were present and the Accused and bad language was used with regard to the alleged intention of the accused to take their women away.

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Two men came and told the accused to stop making trouble and to go home. The accused didn't go home and the deceased told him to stop insulting them whereupon a fight between the accused and the deceased took place one person pushing the other. The person, Kldo, told them to stop and tried to separate them but they continued fighting in various places some small distance away from where the rest of the group was. The two men who had earlier told the accused to go home returned and separated the accused and the deceased but shortly afterwards the deceased was seen to come back and, supporting himself against the wall of the house said that the accused had stabbed him. He was taken by Kido to the hospital where he later died". Later the judge continued:
"None of the witnesses actually saw the stabbing of the deceased and the evidence was mainly that there had been a fight in which the accused was the aggressor and that the deceased received three stab wounds on the chest from which he died". It would appear that these were the trial judge's findings of fact on the evidence.
The statement by Appellant to the Judicial Officer which had been put in evidence by the prosecution follows the lines of the State case as given by the witnesses until fighting started.

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The statement then continues:
"one boy stood up and kicked me in the tummy two of them held me and threw me on the ground. The girls ran away into the house. They hit me with fists and kicked me on the body, my mouth was injured and my eye swollen. Seabelo with whom I live came, tried all in vain to separate us. 1 was beaten up while he was holding me. I fell on the ground and when I got up I pulled out a knife and stabbed one of them once therefore I got a chance of running away. I don't know where 1 stabbed him because we were in confusion, 1 didn't know these boys' names but I knew the girls because they are my neighbours. I had no intention of killing a person, it is a mistake that occured". That concluded the State's case. The trial Judge took the view that there was no case to answer on a charge of Murder but that there was a case against the accused on a charge of Manslaughter. He accordingly amended the charge to one of Manslaughter and caused it to be put to the Appellant as amended. After consultation with his legal representative the Appellant pleaded guilty to the charge.
According to the Judgment, the Appellant "informed the
Court that he accepted the facts according to trie prosecution
evidence and he was convicted of Manslaughter accordingly."
The evidence of the three witnesses has not been transcribed
(a competent procedure where the Appeal is against sentence
is only ) but the effect /given by the trial Judge in the passage already recitedT

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In my view the proceedings reveal a certain irregularity
which has resulted in difficulties for this Court. Section
177(1) of the Criminal Procedure and Evidence Act(Cap. 08:02)
lays down that: "Every criminal trial shall take place and
is the witnesses shall, save as/otherwise expressly provided
by this Act or any other law, give their evidence viva-voce
in open Court in the presence of the Appellant". This
provision must be read with Section 170(1) which -is- this:
"in any criminal proceedings the accused or his
representative in his presence may admit any fact relevant
to the issue and any such admission shall be sufficient
evidence of that fact". Section 170(1) deals with formal
admissions made during the trial which render it unnecessary
for the prosecution to call witnesses to prove the fact or
facts so admitted.
It will be seen that the requirements of Section 177(1) are premptory and therefore an accused cannot consent to a form of procedure other than that specified in the Section. This position was emphasised in the case of State vs. Nzuza 1963(3) S.A. 631(a) which dealt with an Identical provision in the South African Criminal Procedure and Evidence Act. Furthermore the admission of witnesses' statements cannot, in my view be Justified under Section 270(1). The admission of a witness*s statement cannot be equated with the formal admission of a fact or facts dealt with in the statement unless the fact or facts admitted is or are clearly identified in the admission.
Now as the trial/

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Now as the trial Judge pointed out, none of the State witnesses saw what happened at the crucial time when the stabbing took place. The only account of what led to the actual stabbing is to be found in the statement . iade by the Appellant to the Judicial officer. It is not clear, in my view,what weight the trial Judge gave to Appellant's statement, The trial Judge does not state specifically that he rejected the Appellant's account nor, does he find th facts relating to the final episode when the stab wounds were inflicted. I have recited the Appellant's statement. The trial Judge in his Judgment specifically refers to the statement but does not indicate, clearly at any rate,what parts of it he rejects or accepts. On the Appellant's statement the drawing of the knife could probably be Juetified
appellant but/has not Justified using it three times., Moreover the
Appellant pleaded guilty to Manslaughter* It seems to me
of that the effect/ the trial Judge's Judgment presents something
of a dilemma. If the learned Judge ignored the Appellant's
account of what happened then,in my view there was a
misdirection. There was nothing in the evidence to take the
place of the Appellant's account and the learned Judge didnot
purport to fill the gap. Tnis Court would therefore be at
large in regard to sentence. On the other hand,7if the
learned Juage accepted in substance the version of the final
episode then it seems to rne with respect that the sentence
was excessive. On the Appellant's account of the stabbing/
the case was very near one in which Justification could have
been pleaded.
It is true that/        

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It is true that the Appellant speaks of inflicting one stab
wound only when the medical evidence revealed three wounds ,
but Appellant did say that there was a state of confusion
and he may well have been under the impression 'that the
knife connected with the body of the deceased once only.
There appears to be no basis for rejecting the Appellant's
evidence and as I have indicated earlier there is in truth
nothing to take its place. It may well be that the Appellant
went too far in stabbing the deceased three times, but there
is no need to persue the matter further. The Appellant
guilty pleaded/to Manslaughter and the correctness of that plea
has not been put in issue.
Taking the view as I do that this Court is at large on the question of sentence on one or other of the two grounds mentioned earlier I am of the opinion that the Appellant deserves no more than a sentence of THREE YEARS IMPRISONMENT. I would accordingly allow the appeal and reduce the sentence to THREE YEARS IMPRISONMENT.
DENDY-YOUNG JUDGE OF APPEAL
LOBATSE. 8.04.83.

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