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reads as follows:
"The accused person MONGANA KGWIXAE, on the 3rd of June, 1998 at Visser's Farm, in the Ghanzi Administrative District, in the Republic of Botswana murdered one XHARAE XHASEE.
Three persons who were eye-witnesses to the events which took place on the evening in question gave evidence in the High Court. From this evidence it was clear that the deceased, who was drunk,
was in an aggressive mood and harrassed the three state witnesses more particularly the witness PW2 - who were sitting around a fire. According to PW1, the drunken deceased chased PW2, caught her
and dragged her towards the bushes in the vicinity and away from the fire. PW2 broke free, returned to the fire and came to sit between
the appellant and his wife. A scuffle then ensued between the appellant and the deceased. In the course of this scuffle the appellant struck the deceased on the head with a log. This event occurred whilst the deceased was down on the ground and the appellant was standing up. The admitted medical evidence confirmed that the deceased had died as a result of a fractured skull.
Most of the facts of the matter are common cause. Indeed in a sworn statement which the appellant made before a judicial officer, he confirmed the principal elements of the State case.
In this statement, he says that he saw the deceased pulling "a certain lady" (PW2) away from where she was sitting around
the fire with them. The deceased was pulling the witness into what he calls "some darkness". However PW2 succeeded in freeing herself and came back to join him (the appellant). A struggle
then ensued between the deceased and the appellant. The statement then reads as follows.
"During the struggle the deceased fell down. The deceased during the struggle had wanted to cause me to fall to the ground but I resisted and when I freed my hand from his he fell down. When he stood up I beat him with a stick. The deceased
fell down again and never stood up"
At the trial, the appellant elected to make an unsworn statement. In this statement he elaborated upon the version of events contained in the confession statement referred to above. It is clear from
these statements as well as from the State evidence that the deceased behaved in a most aggressive manner on the evening in question.
Thus, for example, after attacking the appellant's sister (PW2) he kicked at the fire, the kettle and the pots which were on the
fire. After PW2 had escaped from his clutches whilst being dragged towards the bushes, she came and settled herself in between the appellant and his wife. According to the appellant, PW2 held on to his (appellant's) wife's hand.
The deceased took PW2's hand and pulled both the witness and the appellant's wife away from the fire. It was when this occurred that the appellant intervened and separated the deceased from his wife and the witness. At this point, everyone scattered and a struggle ensued between the appellant and the deceased in the course
of which the appellant was struck on the chest with a mug by the deceased. The deceased came off worst in the struggle, fell to the ground - and according to the finding of the trial court - was struck on the head with the log by the appellant whilst on his knees.
The injury caused by the blow to the head was inflicted by a very large log - a metre in length and 5-10 centimetres wide. There is no evidence from anyone that the deceased was ever armed. It is also clear that the other persons around the fire were not in any danger at the time when the appellant struck the deceased with the log. Indeed it was when the two were holding each other that they used the opportunity to run away.
It was on this evidence that the High Court convicted the appellant of culpable homicide. In his judgment the learned trial judge
said that he considered that the actions of the appellant in striking the deceased with the log as described "was disproportionate to anything being done to him". The court also concluded that the danger to PW2 on her own evidence "had
passed
However, he was drunk, he was unarmed, and he was unable to overcome any of the persons whom he harrassed. Indeed, despite the unacceptable and violent nature of his behaviour, there is no evidence
which could sustain a contention that anyone's life was in danger at any time during the events that took place. Indeed it is my
view that the approach adopted by the court below was not only correct but manifestly fair. See in this regard the well-researched
judgment of Murray J in STATE VS MOREPUTIA 1985 BLR 380 and the cases cited, particularly those at pages 392-393.
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5
before the blow was struck".
The court a quo quite correctly held that the conduct of the deceased was such that it was understandable that the appellant lost
"his self control". The court a quo also held that this conduct constituted provocation, more particularly in view of the fact that when the deceased arrived at the fire, he not only assaulted PW2 but was violent in e.g. kicking at the pots, the kettles
and the fire. It was because of this extensive provocation that the trial court convicted the appellant, not of murder but of "manslaughter
by reason of provocation."
Mr Mothusi, who appeared on behalf of the appellant, emphasised the fact that the events constituted a continuous series of provocative
and violent actions by the deceased. He cautioned against an approach which, with ex post facto wisdom, attempts to evaluate the propriety of the conduct of the appellant as if the occurrences were distinct, separate events. It was his contention
that the court below had not taken into consideration the continous nature of the events and the violence exhibited over a period of time.
There is no doubt that the conduct of the deceased was not only reprehensible and aggressive and that he behaved in a violent manner towards all those who were at the scene at the time.
For these reasons it is our view that the appellant was correctly convicted of the crime of culpable homicide. The appeal against the conviction is accordingly dismissed. The conviction and sentence are confirmed.
DELIVERED IN OPEN COURT THIS 27th DAY OF JANUARY 2000.
I agree
I agree
M. E. KUMLEBEN (JUDGE OF APPEAL)
URL: http://www.saflii.org/bw/cases/BWCA/2000/7.html
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