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2
The apellant was a sergeant in the Botswana Defence Force(B.D.F.) serving in the Sir Seretse Barracks in Mogoditshane. On the evening of the 20th of April, two young men reported to 2nd Lt. Gabarongwe an officer at the Barracks that they had seen a combi bus
parked for sometime in the open grassland near Mogoditshane Village. There were no movements or other signs of life around the bus. The indication conveyed by the young men to Lt. Gabarongwe was that the circumstances surrounding the position of the bus near the Village were suspicious and called for enquiry. The officer passed on this report to Lt. Colonel Matswa, the Duty Field Officer at the Barracks at the material time. How long the vehicle had been parked at the Village before the report was made was a matter on which the evidence varied. But the hard fact was that the report was made at about 8 p.m. of that day. Lt. Colonel Matswa instructed Lt. Gabarongwe to take a patrol of soldiers with radio communication equipment to investigate the report. Lt. Gabarongwe ordered the
appellant, who was on standby duty, to take the section under his command to investigate the report. Together with the appellant, there were 10 men in all, each armed with the AK47 rifle with 120 rounds of live ammunition, who went on that expedition.
It was common cause that there was no police station at Mogoditshane. This fact led to an examination by the trial judge of the question whether the report would have been made to the B.D.F. if there had been a police station at Mogoditshane and whether the soldiers under the appellant went on that day
3
on a mission of civil investigation as the police would have done, had there been a report to them, or they were acting in their usual capacity as soldiers. Some evidence was given in this regard that soldiers and the police had somewhat different conceptions of what constituted, and what they should do in pursuit of instructions to do, an investigation.
The appellant and his men went out to the scene. It was a dark and cloudy night. The appellant on getting there briefed his men about what to do. Eight of the ten men approached the combi from behind, the men breaking into two flanks when they got to about 50 metres from the vehicle. Nearer the vehicle, the appellant ordered his second in command to shout "halt", which the second in command said he did. Kelesitse Gilika, the subject of the attempted murder charge, who was indeed one of the two person in the vehicle gave evidence on this point and said that while in
the vehicle that evening he heard the sound of people approaching and someone shout "hoh". Some time was devoted by the learned trial judge to determining whether the shout actually made was "halt" or hoh". The judge eventually found that the shout hailed was "hoh" not "halt". In coming to this conclusion, he was influenced by the fact that the vehicle to which
the shout was hailed was already at rest and he thought it unreasonable for a man to shout, halt to a vehicle or anyone who was not in motion. The judge also concluded that as Gilika was a credible witness and he heard the shout as "hoh", that must have been what was uttered.
Pausing here in the narrative of the evidence for a moment, the question which the learned judge a quo should in my view have
4
borne in mind was whether it was necessary for the determination of the case if the shout had been "halt" or "hoh". It is not unknown for people trained to follow a certain drill in given circumstances to go through that drill even when pursuing that course would result in the use of meaningless language. A soldier trained to challenge a suspicious person with the word "halt" may use it to a person whose presence appears to him suspicious but who is not actually moving, when what he needs to say is "don't move". In any case the fact that Kelesitse Gilika said he heard "hoh" does not mean that "hoh" was the word actually shouted. And when one thinks of it, if "halt" was without meaning when applied to a vehicle which was not moving, one might well
ask what the meaning of "hoh" was in the circumstances of this case. The main point which the prosecution sought to make by its evidence was that a warning shout was given. The witness who shouted said he was asked to shout "halt" and he did. The person to whom the warning was intended said he heard a shout "hoh". Neither of them is necessarily lying. The important fact which remains is that taken either way some sort of warning was given and received. What Gilika may have heard may have been different from what the prosecution say was shouted. But it does not mean that the prosecution witness was necessarily lying. What was heard could well have been a distorted version of what was said. I have dwelt for some time on this small point because it illustrates a danger which a trial judge may easily fall into when apparent conflict in the evidence of two witnesses which may not
involve either of them telling an untruth is dealt with as if the
5
conflict must mean that one of them must necessarily be lying. Such conclusion could lead to the unfortunate rejection of the evidence of the alleged lying witness on other more important matters.
As I said, a shout was given and heard in the combi. Then, according to the prosecution an order for the firing of warning shots was given and two warning shots were fired. Of this Gilika gave no evidence. With the course that events later took, it may well be understood why he did not specifically identify these warning shots. Gilika said on hearing the shout he started the vehicle with the intention of turning it and especially its lights on those who were approaching the vehicle. There is no dispute that after the vehicle had started moving a hale of bullets were fired at the vehicle. At this point Gilika started shouting that those inside the combi, were Batswana. That in itself would seem to suggest that Gilika realised that the attackers, whoever they were, had mistaken the inmates of the vehicle
for some other persons and that shouting out their true identity might make some difference to those attackers. True enough when the attackers heard that the vehicle was occupied by Batswana, the firing stopped. Gilika walked out of the vehicle naked. Fortunately apart from being severely shaken, he personally was not seriously injured. Inside the vehicle, the B.D.F. contigent found the deceased with a wound in her thigh. She was also naked. Gilika and she had spent some time in the vehicle making
love. She had suffered several gun shot wounds from which she died.
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of the Penal Code (Cap 08:01). It provides that:
"9 (1) A person who does or omits to do an act under an honest and reasonable but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believe to exist.
(2) The operation of this rule may be excluded by the express, or implied provisions of the law relating to the subject".
The effect of this provision is that unless the rule is expressly or by implication excluded in the provisions of the law on a subject, a person who acts under an honest and reasonable belief in a state of facts which is wrong must be judged not by
the facts as actually existed but by the assumed though wrong facts in which he believed. The belief must be honest. Accordingly, if the facts upon which the person alleges that he based his belief were known by him to be false or nonexistent, he cannot claim that the belief was honest. The honesty with which a belief is held is normally a matter which is subjective to that person. He may be wrong. But if he genuinely believes in a thing and that belief is not based upon facts known to him to be untrue, the belief would be taken in his favour. Honesty of belief by itself may import a subjective test. But the belief must also be reasonable. In law, whenever an opinion or belief is required to be reasonable, the test applied in determining the reasonableness of the opinion or belief is objective in nature. As the belief required in section 9 must satisfy both the test raised by it being honest and reasonable, the overall effect must be that the belief must in
the end result be judged by the more general of the
8
tests, namely, the objective test.
This use of the words "honest" and "reasonable" importing different possible standards as the applicable test for determining the existence of a qualifying "belief" may explain the differences in the decisions which the review by the learned judge
of the authorities on mistake of fact disclosed in both South Africa and England. See for example the cases usefully collected by him, namely: the South African cases of Rex v Mbombela 1933 AD 269 (applying the objective test); R. v. Mkize 1951(3) S.A. 28 (A) and S. v. De Bloom (1977) 3 SA 513(A) (applying the subjective test); and the English and other Commonwealth cases of Wainer v Metropolitan Police Commissioner (1968) 52 Cr. App. R. 373 at p. 383; New South Wales v Piper (1897) AC 383, 389, 390; Flannery v Prendergast (1969) V.R. 31, 34; Sweet v Parsley (1968) 52 Cr. App. R. 221 at p. 248; R. Tolson (1889) 23 Q.B. 168 (applying the objective test); and R. v. Williams (1984) 78 Cr. App. R. 276; DPP v Morgan (1975) 61 Cr. App. R. 136 HL, R. v. Kimbe (1983) 77 Cr. App. R. 225 (CA); Beckford v R. (1987) 3 ALL E.R. 425, PC and R. v.Jones and others (1968) 83 Cr. App. R. 375 (applying a subjective test).
The learned judge a quo after his review of the authorities
properly decided that the test to apply to the belief under
section 9 was objective. For he concludes:
"It appears to me therefore that apart from insane
persons, and persons whom the law brands as dolus
incapax, the standard to be adopted in deciding
whether ignorance or mistake of fact is reasonable
or not is the "reasonable man". In other words the
ordinary person of the class of the community to
which the accused belongs,
".
9
This was his final statement of the position, and I am satisfied, the test which he applied. Although earlier in his judgment he seems
to have stated the law in terms of a universal reasonable man to which counsel for the appellant took objection, in my opinion, that final statement of the law was correct. But the learned judge concluded "[A|fter a sober reflection of the entire evidence" that whatever belief the accused might have
had on that fateful night was not honest and reasonable and he rejected the defence. Was that conclusion in the circumstances of this case, right?
His conclusion has been attacked in this appeal on a number of grounds, the basic objection being that the learned judge ignored or
gave no or inadequate consideration to certain important factors, or took into consideration irrelevant or erroneous factors in arriving at the conclusion. Thus, it was submitted that the learned judge in his determination of the honesty and reasonableness of the defence of mistake of fact failed to
appreciate the proper nature and effect of the report made to the B.D.F. having regard to the backdrop of attacks, then not so long ago, by South African Security Forces against property and people in Botswana, and the fact that some of those raids had
sometimes been made with the same type of vehicle as the one which the appellant was sent to investigate. Evidence of these attacks and the use of combis carrying South African commandos was given on behalf of the appellant by a senior officer of the B.D.F. The point being made was that a soldier like the appellant, called upon to investigate a suspicious vehicle of the type which has often
10
been used by South African Security Forces to attack persons and
property in Botswana would have as one of the real possibilities of
the vehicles's identity the fact that it might be a South
African attack vehicle. If it turned out to act in any way
which was suspicious, that possibility would in the mind of the
soldier be quickly translated into certain belief.
The learned judge was not much impressed by this argument
or the evidence given in its support. His approach was in short
to examine the genuineness of the report made to the B.D.F. but
not from the stand point of the effect such report might have had
on the thinking of a soldier sensitive to the suspicions and fears
induced by recent commando raids from across the border. He began
by examining whether the young men who had made the report had
cause which justified the suspicion they attached to the presence
of the vehicle in the neighbourhood. Hence the following passage
appears in his judgment.
"It is pertinent to note that even though Ofilwe [one of the two who made the report] was listed as a witness in this case, every effort by the prosecution to trace him to come to testify in this court came to nought. He has so to speak, vanished into thin air. In my view, this is not surprising, since it is obvious from the evidence that he and (PW10) - Lomae [the other person joining in the making of the report]
initiated the events which led to the tragic death of Susan in her teens. I believe and accept (FW14) Margaret Rakaisa's testimony that she saw nothing suspicious about the combi parking in the open field where pedestrains as well as vehicles frequently passed
in going about their legitimate business. Indeed, the pictures as shown in the photo-album (Exhibit Bl - B9) are eloquent testimony to convince the most doubting Thomas that the vehicle was not in any way parked in
a concealed place and it would be naive and indeed unreasonable for any one without some ulterior motive to jump to the conclusion
or even entertain the suspicion that because the vehicle was seen parked there between 6 p.m. and 8 p.m. it must
14
Police. The use of the section to determine the nature of the
appellant's mission at the material time was inappropriate.
There were complaints made by the appellant through
Counsel of certain findings of fact. I do not propose to go
into these, especially as in our position as an appellate court
our powers of interferences with such findings are limited, and
as in this case there had been serious misdirections in the law
which make it unsafe to rely on the conviction of the appellant
for the offence of murder. If the question were asked
whether or not in the circumstances of this case the appellant was
at the material time acting under an honest and reasonable, even
though mistaken, belief that the vehicle he and his men had to
investigate contained South African commandos, I would not be able
to say with any confidence that he was not. There is no better
acknowledgment of this fact than the words of the trial judge
himself when he was considering mattes in extenuation. Talking
about the position that the appellant found himself when the
vehicle he had come to investigate started moving after the warning
shouts had been given, and possibly the warning shots had been
fired, the learned judge said:
"There is yet another factor which in my view judgment, reduces the accused's moral obliquy, and so operated on his mind and
induced him to commit the offence as a socius and that is his fear of punishment by his superior officers for dereliction of duty
for non-compliance of the B.D.F. Standing Orders if he were to allow the vehicle to escape. He was torn between the devil and the
deep blue sea and unfortunately took a a wrong decision".
If the mistake of fact under which the appellant alleged
he acted were accepted the situation which he met and by
15
which he should be judged is whether a soldier knowing of previous raids in Botswana investigating a suspicious vehicle which might
well be a South African commando vehicle not too far from their barracks were to find that after verbal and gun shot warnings the
vehicle was trying to escape, were to order that the vehicle should be fired on to prevent the escape, commits murder if a person in the escaping vehicle were killed. I do not think so. That mistake would justify the shooting on a charge of murder.
I would therefore on the ground of the misdirections disclosed allow the appeal against conviction of murder.
I do not think, however, that that ends the matter.
The question now arises as to whether in that case the
appellant should be acquitted of any offence arising out of the
homicide of the deceased. Because if it is accepted that this
was a mistake of fact, then liability if any, has to be determined
on the basis that the mistaken fact was indeed the actual fact
(see section 9 of the Penal Code). To that question, one further
matter needs consideration: did the fact that the appellant
appeared not to have taken such precaution as was necessary to
ensure that only minimum force was used to prevent the
escape of the vehicle make his action unlawful? In that regard
we should remember that section 200(1) of the Penal Code provides
that:
"(1) Any person who by an unlawful act or omission causes the death of another person is guilty of the offence termed manslaughter".
(2) An unlawful omission is an omission amounting to culpable negligence to discharge
16
a duty tending to the preservation of life or health whether such omission is or is not accompanied by an intention to cause the death or bodily harm".
Granted that the appellant was labouring under a mistake of fact. There is evidence that the appellant and his men on the mission carried 120 bullets each for their AK47 rifles. These bullets were in magazines of 30 rounds of ammunition per magazine. When the appellant saw the vehicle moving he merely gave the order to fire without directing his men to aim at immobilising the vehicle. There is also evidence which was accepted by the judge that in one case a soldier fired 23 out of the 30 rounds of ammunition in a magazine, a second soldier fired 20 rounds out of the 30, a third soldier fired 15 rounds and a fourth, 4. Granted it was a dark and cloudly night. Granted that under such conditions it was difficult to aim accurately at the tyres of the vehicle. Was it neccesary to use such fire power to immobilise the vehicle? My view is that it was not, and that the appellant's failure to exercise such control leading to his men unleashing such intense fire power, was an omission on his part in terms of section 200(2) of the Penal Code.
In my view, therefore, his action brings him within the ambit of section 200(1). I would in the circumstances find him guilty of manslaughter.
The appellant was also convicted of attempted murder. That offence is defined under, section 217 as follows:
"217 Any person who -
(a)
attempts unlawfully to cause the death of another; or
(b)
with intent unlawfully to cause the death
(a)
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of another does any act, or omits to do
any act, which it is his duty to do, such act
or omission being of such a nature as to be
likely to endanger human life;
is guilty of an offence and is liable to
imprisonment for life".
Upon my reading of the facts, and consistent with my
conclusions with regard to the murder charge, I am bound to
say that the appellant is not guilty as the learned judge found
of that charge under section 217(a), because I do not think the
appellant made an attempt unlawfully to cause the death of
Kelesitse Gilika. The defence of attempted murder under that leg
requires a specific intent to cause the death of another person.
There is no evidence that the appellant had an intent to cause the
death of Gilika. He would on the facts of this case be caught by
the provisions on murder because of the wider ambit of the
definition of malice aforethought in section 204 of the Penal Code.
But that does not apply here. For the same reason, I do not think
that the appellant had an "intent unlawfully to cause the death" of
Gilika. On these grounds I would quash the conviction of the
appellant on the attempted murder charge and set aside the sentence
of 3 years imprisonment imposed thereon.
On the sentence to impose on the conviction for manslaughter,
which I would in the circumstances of this case substitute for the
conviction by the court a quo for murder, my view is this. The
case is tragic, but considering the offence for which the appellant
has been convicted and the fact that the appellant was out
performing duties as a soldier, even though, as it turns
out, with undue and excessive zeal, I would impose a sentence
of three years imprisonment.
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DELIVERED IN OPEN COURT IN LOBATSE ON 5th DECEMBER, 1991
A. N. E. AMISSAH JUDGE PRESIDENT
I agree:
T. A. AGUDA JUDGE OF APPEAL
I agree:
W. H. R. SCHREINER JUDGE OF APPEAL
SAFLII:
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