The unsworn statement of the appellant is substantially along the same lines up to the point where he found himself outside the club. There at a certain stage, according to the appellant, the deceased with six of his friends attacked him and he stabbed the deceased in order to escape. This is refuted by the evidence of the State witnesses, in contrast to an unsworn statement. This version of how the stabbing took place was correctly rejected.
In his judgment on the merits the learned judge (Letsididi Ag.J) thus dealt with the
question of provocation in the context of whether it ought to warrant a conviction
of manslaughter rather than murder.
"I have considered these actions by the deceased and find that he behaved in a reprehensible and aggressive manner that:
(a)
he took part in stealing money from the accused, which fact I find in favour of the accused;
(b)
on two occasions, he threatened to assault the accused but was prevented from so doing; and
(c)
he took PW3's beer and spilt it with no apparent reason.
These actions by the deceased were such that they could cause; and did cause, the accused to be so provoked as to cause him lose his power of self-control."
As to (a), one notes that it was very fairly assumed in favour of the appellant that
the deceased had in fact taken the appellant's money (according to the appellant
the amount was P370). As to (c), one notes that this was proof of the deceased's
aggressive mood, and perhaps his drunken condition, but this conduct was not
directed at the deceased and could not have played any part in provoking him. The court quite correctly held that this provocation did not warrant the lesser verdict.
The difficulty that presents itself in this appeal before us is that in finding that there were extenuating circumstances there is no mention of provocation. The other factors taken into account were the drunken condition of the appellant, the absence of premeditation and the loss of his money. Similarly,
in the judgment on sentence there is no mention of provocation. His personal circumstances are referred to and are weighed against features of aggravation. It would seem that once provocation had been considered in reference to the verdict, it was thereafter left out of account. This is the inference to be drawn from the record and to be accepted in favour of the appellant. As such it amounts to a material misdirection on sentence. This court is therefore entitled, indeed obliged, to consider the question of sentence afresh. See, for instance, S v FAZZIE 1964(4) 673 (A) 685 D-E.
The aggravating circumstances are manifest. It was a brutal, sustained and largely unwarranted attack. He did have one serious previous conviction: arson, for which he received in 1989 to a suspended sentence and an order for reparation. On the other hand, the appellant genuinely, and let it be assumed correctly, believed that the deceased was involved in taking all his money. The deceased was a persistent would-be aggressor at least until the appellant left the building.
Weighing up these opposing considerations - the aggravating features and those which are mitigatory - and taking into account the
deterrent requirement of punishment, I consider that a period of 12 years' imprisonment is the appropriate sentence.
The appeal on sentence succeeds to the extent that it is altered to a period of 12 years' imprisonment antedated to 13 September 1997.
Delivered in open court at Lobatse this....... day of January 2001.
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