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Molebatsi v The State (Criminal Appeal No. 9 of 1991) [1991] BWCA 1 (1 January 1991)

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scars were said by the Appellant to have resulted from injuries inflicted by the deceased shortly before she was stabbed by the Appellant on the 22nd October. The learned trial judge found that the healed wounds were inflicted by the Appellant during the course of attempting to commit suicide, but their situation is such as to be consistent with his version of an attack by the deceased with a knife being warded off by him with hands and arms.
The visit of certain persons from South Africa started the chain of events leading to the death of the deceased. The guests were divided between the house of a Mrs. Dichi and that of the deceased and the Appellant. Mr. Poscalis Dibuke was initially allocated to Mrs. Dichi's house. A picnic was spoiled by a storm and later the parties visited a night club in Gaborone, where there appears to have been some difficulty about when to leave and tension between the deceased and the Appellant. According to Mr. Dibuke it was decided that he should sleep in the house of the deceased and the Appellant. This was a three bed-roomed house and he says he was given a room to himself though the Appellant had asked him to sleep in the same room as the other two visitors who had been allocated to the deceased and the Appellant's house.
Mr. Dibuke was rather drunk when he got back from the night club and says that he fell asleep immediately. He does remember that the deceased followed him into the bedroom and was there when he fell asleep. The bedroom was in fact the room used by the deceased and the Appellant. When he woke up he heard

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quarrelling. He knocked on the door of the spare bedroom occupied by the deceased and the Appellant, and when he tried to enter, found the door locked. He went back to bed and to sleep. He was wakened in the early hours of the morning by someone screaming. The screaming stopped and he went back to sleep.
There is no witness other than the Appellant who can depose to the real events which occurred while Mr. Dibuke was alseep.
The learned trial Judge, albeit reluctantly, was prepared to accept the possible veracity of the account given by the Appellant of the events which occurred when the party returned from the night club. The Appellant made a lengthy statement which was handed in by the State as an exhibit and he also gave evidence. His evidence under oath concerning the actual stabbing of the deceased was clearly untrue. He painted a picture of an accident caused by the deceased "rushing" onto the knife held in the right hand of the Appellant. This does not square with the medical evidence which reflects three penetrating wounds on the left side of the chest close to each other. At the hearing of the appeal Counsel for the Appellant relied on the so-called confession statement as a proper and more accurate reflection of the truth concerning the details of the fracas which occurred when the parties had returned from the night club. The original statement is in Setswana.
The Appellant sets out circumstances which disturbed him concerning the attitude of the deceased who had not introduced him to the guests from South Africa when they first arrived and had started drinking beer without the customary request

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to him for permission to do so. There seems little doubt that a short time after the arrival of the visitors the Appellant was in a state of depression. He was the odd man out and the deceased was over-friendly to Mr. Dibuke.
The visit to the night club does not seem to have been a success because the Appellant was very quiet and this was remarked upon by the deceased. When they left the deceased and Mr. Dibuke departed in a taxi without waiting for him. The Appellant later took a taxi and, when he arrived at the house, he found that the door was not locked. He assumed that the two visitors whom he expected had left the door open for him. He lit the lamp and opened the door of the bedroom which he and the deceased occupied to find the deceased sleeping on top of Mr. Dibuke with a white towel in her hand. Words passed; the bedroom door was locked; the deceased struck the Appellant; the Appellant went into the kitchen and stood by the refridgerator; the deceased struck him again; he escaped to the sitting room; she came into the sitting room with a large knife used for cutting meat. She then said that if the Appellant did not die, she would, and proceeded to attack him. He defended himself with his arm and received the cuts, the scars of which were found at the medical examination at the end of November.
The Appellant then ran into the spare room followed by the deceased. They fought in the dark and the Appellant disarmed the deceased. He says that he was "then very angry" and he stabbed the deceased in the chest or the arm pit. He attempted to kill himself with the knife with which he had stabbed the

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deceased. He then locked the door of the bedroom where the deceased lay and went to his mother's house to tell her what happened. The version of the Appellant is inconsistent with that of Mr. Dibuke in that the latter gave the impression that there was a substantial interval between the first quarrel and the scream in the early hours of the morning, but it must be remembered that he was drunk and had been asleep and was in no position to judge the passage of time.
It was argued at the trial that a defence of self-defence had been excluded by the State. At the appeal the debate was, rightly in my view, confined to the issue of provocation which, if established, and the requirements of the Penal Code satisfied would reduce the crime to manslaughter. Section 205 Code provides that, when a person who unlawfully kills another under circumstances which, but for the provisions of the section, would constitute murder, does the act which causes death "in the heat of passion caused by sudden provocation ... and before there is time for his passion to cool" he is guilty only of manslaughter. "Provocation" is defined in the following section, Section 206(1), as "any wrong-ful act or insult of such a nature as to be likely, where done or offered to an ordinary person
         to deprive him of the power of self-control and to
induce him to assault the person by whom the act or insult is done or offered". The term "ordinary person" means, "an ordinary person of the class of the community to which the accused belongs". (Sub-section (6)). The act of the accused which caused the death must bear a reasonable relationship to the provocation

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(Section 205(2)).
The provisions are clearly worded and do not involve any difficult questions of interpretation. In the present case at the end of the argument on behalf of the State it was clear that the existence of provocation which had been found by the learned Judge a quo was not in issue and that the sole problem was the narrow one of whether the Appellant's act bore a reasonable relationship to that provocation. In deciding this matter, however, it is necessary at the outset to assess the degree of seriousness of the act or acts of provocation.
By the time that the Appellant found the deceased and Mr. Dibuke in a compromising position in the bedroom the Appellant already had reason to be unhappy about the relationship which seemed to exist between them and the estrangement of the former from him. He was apparently depressed and unhappy. On seeing what was going on in his bedroom he had every right to be extremely angry. It seems that a stable relationship had been built up over the three years that the deceased and the Appellant had been living together. He did not at that stage react with violence to either of them. He left the room after having been struck by the deceased. In the kitchen he was struck again. He moved into the sitting room and from there into the spare-room pursued by the deceased. She had by then acquired the big knife with a red handle which was used for cutting meat and was stabbing at the Appellant with it inflicting cuts on his hand and arm when he sought to protect himself. Her misbehaviour followed by her violent attack upon

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the Appellant constituted in my view provocation of the most serious kind. When the Appellant says that he was "angry" at the stage when he disarmed the deceased this is, in my view, a very restrained description of his state of mind. It is very likely that he was angry to the extent that he was no longer able to exercise any measure of self-control. The ignominious position in which he had been placed and the violence of the attacks to which he had been subjected must have deprived him of all restraint. It was indeed provocation of the most serious kind.
He then deprived the deceased of her dangerous weapon and stabbed her three times in the same area of her body. The knife which he used, though smaller than that used by the deceased, was nevertheless a dangerous weapon. Some force must have been involved in stabbing her. Rut it seems to me that in all the circumstances the act of stabbing the deceased bore a reasonable relationship to the provocation and, if this is so, the Appellant is entitled to a verdict of manslaughter rather than murder with extenuating circumstances.
The learned Judge a quo found that there was provocation but that, the stabbing of the deceased three times with a lethal weapon bore no reasonable relationship to whatever provocation the deceased might have offered and that the defence of provocation was "negatived beyond reasonable doubt". The fact that there were three stab wounds does not in my view affect the matter adversely to the Appellant because a reaction to provocation necessarily involves a lack of ability to exercise

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restraint or to judge a situation with insight and balance. The provocation in the present case was gross and the reaction thereto was proportionately gross.
I would therefore allow the appeal and substitute for the verdict of murder with extenuating circumstances a verdict of guilty of manslaughter.
The change in verdict necessitates a reconsideration of the
sentence. It is true that the facts as found by the learned
Judge have not been materially departed from by this judgment,
but the nature of the verdict should, in my view, involve a
different sentence if only to emphasise the gravity of a
conviction of murder. In my view an apropriate sentence in the
circumstances would be four years imprisonment.
The following order is made:-
"The appeal is upheld. The conviction for murder with extenuating circumstances and the sentence of six years imprisonment is set aside. There is substituted therefor a verdict of guilty of manslaughter and a sentence of four years imprisonment".
DELIVERED IN OPEN COURT IN LOBATSE ON THIS 4th DAY OF JUIY 1991
W. H. R. SCHREINER
JUDGE OF APPEAL

I agree and it is so ordered:
A.N.E. AMISSAH JUDGE PRESIDENT

I agree:
T. A. AGUDA JUDGE OF APPEAL

SAtf^^
I agree
Judge President