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Kasweka v The State (Criminal Appeal No. 2/89 ) [1989] BWCA 3; [1989] B.L.R. 211 (CA) (26 June 1989)
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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
COURT OF APPEAL CRIMINAL APPEAL NO. 2/89 (HIGH COURT CRIMINAL TRIAL NO. 25/88)
In the matter between:
BASHI KASWEKA
-
APPELLANT
vs.
THE STATE
-
RESPONDENT
Appellant In Person
Mr. S.A. Afful for the State
JUDGMENT
CORAM: A.N.E. Amissah, JP B.A. Doyle, JA W.H.R. Schreiner, JA
AMISSAH JP
The appellant is appealing against a sentence of 5 years imposed upon him after conviction of the offence of manslaughter with which
he was charged. From what he has said before us, the appellant also challenges his conviction.
The case made against him was that he unlawfully killed one Domi Chite at Broadhurst in Gaborone on the 26th of September, 1987.
On that day, late at night, the appellant stabbed the deceased twice with an Okapi knife. No one actually saw the stabbing although
there were people near by when it happened. When they went on the scene after they had heard screams about a stabbing, they found
that the deceased was lying down with his intestines out. The deceased was admitted to hospital where he had an operation on his
wounds and received treatment with anti-biotics and was discharged after eleven days.
The deceased, however, died about five weeks later. The trial
2
court accepted that he died as a direct result of the stab wounds inflicted by the appellant.
The stabbing incident took place at a shebeen after the two had quarelled over a knife, not the knife which was used on this occasion,
which apparently belonged to the deceased but was supposed to be in the possession of the appellant. The appellant had claimed that
the deceased had attacked him first and the deceased had also threatened him with the Okapi knife. There was no evidence to the contrary.
But the learned judge accepted that the stabbing had taken place after whatever real danger posed to the appellant had passed. The
appellant had then seized the knife from the deceased, the deceased was defenceless, caught in some barbed wire fencing and was getting
up from the ground when he was stabbed.
In the circumstances the learned judge found the appellant guilty on the manslaughter charge.
The appellant seems to think that because the deceased had been discharged from hospital after his admission following upon the stabbin
and had been seen drinking on occasion, his liability for the consequences of the stabbing thereupon ended. But the law says that,
if death ensues within a year and a day from the doing of an unlawful act and death is a direct consequence of that act, then the
person who did the act is responsible for the death. See section 216 of the Penal Code.
The appellant also complains that the doctors who originally performed the operation on the deceased extended the wounds. But there
was no evidence of any negligence on the part of the doctors. And the fact that they took remedial action as a result of the unlawful
act of the appellant does not make them party to the
3
killing.
We see nothing wrong with the conviction. Neither do we see anything wrong with the sentence of 5 years.
We accordingly dismiss his apt
A.N.E. AMISSAH JUDGE PRESIDENT
I AGREE
B.A. DOYLE JUDGE OF APPEAL
I AGREE
W.H.R. SCHREINER JUDGE OF APPEAL
26th JUNE, 1989
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