Bonyongo v The State (Criminal Appeal No. 20/94 ) [1994] BWCA 9 (1 July 1994)

The appellant, who had been charged with murder, was convicted of manslaughter on 26th April, 1993 and later sentenced to six years imprisonment, of which two and a ha^f were suspended for three years. His primary contention against conviction was that at the material time he was acting in self defence, and he appeals against both conviction and sentence.

The facts of the case, as fully set out in the careful judgment of the trial judge, are somewhat unusual. In the course of the afternoon of 10th November 1991 the Appellant and the deceased, along with others, were gambling and at one stage the deceased lost a bet of P2.00. He accused the Appellant of cheating and demanded the return of his money, which the Appellant refused to do. According to the Appellant, who elected to give evidence, he discontinued the game and got up to leave,

accordingly concluded that the defence of self defence had been negatived. He had no hesitation however in holding that the behaviour disclosed by the evidence "was of such a nature as to be sufficient to deprive the accused of the power of self control" and convicted him of the reduced crime of manslaughter. I confess that I.have found the issue of self defence in this case a difficult one to resolve. It is of course the case that up to the point of the final act no form of weapon had been used on either side. As the trial judge observed, until the Appellant struck the deceased with a stone the fights had been confined to fisty-cuffs. I accept that the test applied by the trial judge, namely that the means used and the degree of force employed are no more than is reasonably necessary in all the circumstances, is the correct test. As I have said above the circumstances of this case are unusual. Not only was the deceased the initial agressor in this instance, but he persisted in his highly aggressive behaviour over quite a material period of time. Throughout the whole of that period, when he was being subjected to a series of assaults, the Appellant had repeatedly tried to break free and run away. On each occasion the aggressor caught up with him and subjected him to further aggression. The Appellant's reaction at the end cannot be measured in tooscale. Moreover this is not a case where a knife, for example, was produced from a pocket and used. What happened here was that a stone which was ready to hand was picked up and thrown at the aggressor. The question is whether, in all the circumstances, that action crossed the border-line between what was more than reasonably necessary into what was more than reasonably

whereupon the deceased seized hold of him and tried to take the Appellant's winnings from his trouser pocket. The Appellant decided to leave the yard and make his way to the yard of PW4 DINEO MONARENG. He was however followed by the deceased and when they arrived at her yard PW4 observed that the deceased was in an angry mood. He was again demanding money from the Appellant and again seized hold of him. At this point they apparently came to blows and PW4 told them both to leave the yard. After chasing the Appellant two or three times round the yard the deceased dragged him on to the Road outside and proceeded to assault the Appellant there. They both came to blows and at some point the deceased fell to the ground. It was then that the Appellant picked up a stone and struck the deceased on the side of the head with it. It would appear that he had thrown the stone at him and in answer to the Court he said that he had done so "to frighten

him so that I could run away I thought he would feel pain

and leave me alone." He also said that he was frightened and having been repeatedly chased and assaulted by the deceased this is hardly surprising.

The deceased was later found by the police at the scene and taken to the Princess Marina Hospital where he died four days later as a consequence of an acute sub-dural haemmorrhage with cerebral contusion.

In a careful evaluation of that evidence the trial judge reached the conclusion that the Appellant's final act in striking the deceased with a stone on the side of the head at a time when the deceased was either lying or sitting on the ground was more than was reasonably necessary in all the circumstances. He

4 in all the circumstances. It seems to me that this was indeed a border-line case and I have come to the view that in all the circumstances the Appellant should be given the benefit of the doubt which I entertain on the matter. I would accordingly, albeit with considerable hesitation, allow this appeal and quash the conviction.

Botswana: Court of Appeal

Bonyongo v The State (Criminal Appeal No. 20/94 ) [1994] BWCA 9 (1 July 1994)