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Kenosi v The State (Criminal Appeal No. 6/1993 ) [1993] BWCA 3; [1993] B.L.R. 268 (CA) (14 July 1993)

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of the Appellant, it is apposite for me to set out in precis form the facts which gave rise to the Appellant being charged and convicted.
On the 23rd June 1990, and at Kasane, the Appellant, one Nelson Masule (PW.2), one Lalatlhego Matseokane (PW.7), one Abednego Mhama (PW.3) and the deceased were enjoying themselves at a discotheque held at the Kasane Community Hall. The latter two were quarrelling with Matseokane and certain banal vulgarities were exchanged. The deceased then entered the verbal fray and apparently accused the Appellant of lacking proficiency in the English language and added a metaphoric barb to this comment. Vulgarities and expletives were exchanged and thereafter, according to the witness, Matseokane, the Appellant then moved towards the deceased and struck him from behind with "something" having previously "put his hand into his pocket". (I shall comment in detail on this aspect of the evidence hereunder.) The deceased then ran away pursued by both the Appellant and Abednego. He (the deceased) was later found some 300 metres from the Community Hall in a pool of blood with a stab wound immediately above his left collar bone.
A postmortem examination conducted upon the deceased's body demonstrated that the deceased had been stabbed twice, once in the left side of the neck and once in the mid-parietal region. The former stab wound had undoubtedly caused the death of the deceased.
I turn now to deal with the events which occurred during the trial of the Appellant before the Court a quo. The Appellant was represented by Counsel. The postmortem report was admitted by consent, as was a sketch plan prepared by Sgt. Zinami Basupi upon information given to him by the Appellant. Most importantly, a statement made by the Appellant before a judicial officer was admitted with the consent of the Appellant's Counsel. This statement amounted to a confession, and

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because of its importance the contents thereof are cited in full:
"When I left the hall I found a fight in process. There
was a fight between Ngwenya and Nelson. I separated the
fighters. I said to Ngwenya, "Leave me ..." I then heard
Mososeche saying your father's testicles, you do not know
English and you will end up insulting your father. I drew
Abednigo's attention to the insult. I was then beaten by
a person who was with Moseche, Moseche joined. I took refuge
by Abednigo's. Moseche drew a knife. He attempted to stab
me only to end up scratching my hand. I realised that my
I        assailants will kill me. I therefore drew my own knife and
stabbed Moseche on the neck. He then ran away. The other man remained and continued assaulting me. Abednigo got hold of me and told me to go to the police station. We were advised not to go to the hall again. We left and parted with Abednigo. When I arrived home I found Ngwenya Johnson and Boiki in the house. I told them that I was nearly killed and that I stabbed one of my assailants. I took the knife from my pocket and went to bed."
Surprisingly, despite the fact that his confession had been admitted
j without demur, after the close of the prosecution case, the Appellant
elected to give evidence which was wholly at variance with what was
contained in his confession. His evidence in the witness stand
amounted to an exculpatory denial of any knowledge of the incident.
This denial was, however, not only at variance with the Appellant's
confession but was also contradicted by the following: First by the
sketch plan signed by the Appellant, to which I have referred above,
and which depicted inter alia, a point where the deceased and the
! Appellant had been arguing; second, the witness Abednego (who had origi-
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I nally also been arrested in connection with the death of the deceased)
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! testified that the Appellant had confessed to him that it appeared that
! he (the Appellant) had stabbed the deceased; third, I have already
alluded above to the fact that the witness Matseokane placed the
: appellant at the scene of the incident, which evidence was not contro-
I verted in cross-examination; fourth, the witness Masule also placed the
' Appellant at the scene of the incident, once again without being contro-
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verted in cross-examination; and fifth, a witnes named Pitseyagane (PW.6) who shared accommodation with the Appellant, testified that on the date of the incident the Appellant had placed a knife(which incidentally belonged to the witness) upon a table and told the witness that he had stabbed "someone" with it.
Against the backdrop of the evidence which I have sketched
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! above, it remains now to consider the arguments advanced by Ms. Garekwe,
I who appeared before the Court on behalf of the Appellant.
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J        It was argued that the Court a quo had misdirected itself by
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admitting and relying upon the Appellant's confession. This argument was predicated upon the basis that in his viva voce evidence the Appellant had stated that he had made his confession under duress. This j argument cannot be sustained, for as I have pointed out above, the
j Appellant through his Counsel, took no umbrage at the confession being
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j admitted. Accordingly no investigation as to whether the confession
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i was voluntarily made was conducted. Indeed, no investigation was called
for because the line of cross-examination of the Respondent's witnesses
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! was consonant with the Appellant having been on the scene of the
j
I incident rather than him having been absent.
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:        Ms. Garekwe next argued that the Court a quo erred in being
i selective in its reliance on the confession, and had further misdirected
! itself in not having regard to those aspects of the confession which
;tended to support suggestions of self defence and provocation. The
;simple answer to this line of argument is that the Court did in fact
!quite correctly and fairly and notwithstanding the Appellant's volte
face, deal with the possible issues of provocation and self-defence.
The jurisdictional premise for the partial justification of
iprovocation is enshrined in section 205 of the Penal Code. In terms of
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the provisions of this section, a Court is enjoined to have regard to
any provocation which may have resulted in such person having unlawfully
caused the death of another. However, these considerations are only
to apply where the act which causes the death bears a "reasonable
relationship" to the provocation. I am in complete agreement with the
i learned judge a quo's rejection of provocation as a possible partial
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| justification. No epithet, vulgarity or insult bears any reasonable
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I relationship to the killing of the deceased in this case by stabbing.
|        In regard to the total justification of self defence, section
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I 16 of the Code provides that a person shall not be criminally J responsible for the use of force in repelling an attack on his person, provided that he uses means which are no more than are reasonably necessary in the circumstances. In this regard the only evidence which
i might conceivably have likened the Appellant's act to some form of self
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defence was contained in his confession which I have quoted above. It i is to be noted that none of the prosecution witnesses testified that the deceased had threatened the person of the Appellant with a knife I or otherwise. But even were one to accept that the deceased had > brandished a knife and threatened the Appellant, there is no reason whatever, in my view, for the Appellant to have inflicted a lethal stab wound upon the deceased. The simplest and safest course open to the Appellant would have been to embrace discretion as the better part of valour and to have turned tail and fled. There is no evidence that the Appellant sought to do so or to defend himself in any other manner. Accordingly, even on the version of the facts most favourable to the Appellant, the justification ground of self defence must fail.
Appellant's Counsel also submitted that the Court a quo relied on evidence led by the Respondent which was "highly" contradictory.

I accept for the purposes of the comments which follow, that in the instant case Counsel for the prosecution did in fact make available to the Appellant's Counsel a copy of the previous allegedly inconsistent statement. Now it is of course settled law that statements taken in contemplation of criminal litigation stand on the same footing as those taken for civil litigation and are accordingly priviledged. See in this regard R v. Steyn 1954 (1) S.A. 324 (CA) and S v. B and another 1980 (2) S.A.946 (A) . But priviledge can of course be waived. It is the duty of all parties in any litigation to assist the court in the ascertainment of the truth. This is particularly true of the prosecution in a criminal trial, and thus where there is a material discrepancy between a statement made by a witness and his evidence given in the stand, there is a positive duty upon the prosecutor to make the statement available to the defence for cross-examination. Of course this will only apply in cases where the discrepancy is material, in the sense that it may have a direct bearing on the guilt or innocence of the accused. The decision of materiality must perforce be left to the prosecutor's discretion. The following dictum of Greenberg J.A. in R vs. Steyn Supra, citing the judgment of Beadle C.J. a quo bears repetition:-
"In his reasons the learned Chief Justice said:-
"Disclosure must be left to the discretion of the Attorney General or his deputy. The prosecutor stands in a special relation to the Court, and, where there is a serious discrepancy between the proof of a Crown witness and what he says on oath at the trial, the Court has the right to expect that the prosecutor will, of his own motion, direct attention to the fact and, unless there is special and cogent reason to the contrary, make the statement available for cross examination. I may say that this is the almost invariable practice of prosecutors in this Colony."
A passage to the same effect appears in the reasons of
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Beadle,CJ., and my impression is that the same applies in the courts of the Union. In my opinion, the proper administration of justice requires that this practice should be invariable, and not "almost invariable" and I say this in the hope that the duty to observe it will be carried out by every prosecutor. "
In the premises the Appeal is dismissed and the Appellant's
conviction and sentence are confirmed.

DELIVERED IN OPEN COURT THIS
14TH
-DAY OF JULY, 1993.

C.E. PUCKRIN
JUDGE OF APPEAL

I agree
A.N7E. AMlSSm~ JUDGE PRESIDENT

I agree

W.H.R. SCHREINER JUDGE OF APPEAL