Gaboganwe v The State (Criminal Appeal No. 13/201) [2001] BWCA 19 (20 July 2001)

The appellant was convicted of murder in the High Court sitting at Francistown. The learned trial Judge concluded that there were extenuating circumstances and sentenced the appellant to 12 years imprisonment. The appellant appeals against both conviction and sentence.

accusations throughout the trial and claimed that he resented being falsely accused by the deceased. The appellant mentioned three occasions on which the deceased's accusations caused a confrontation between the two men, the last of which led to the death of the deceased. The appellant tried to justify his assault on the deceased by relying on the alleged provocation of the deceased.

However, the whole basis of the appellant's case fell away when the deceased's wife (PW1) told the trial court that she and the appellant indeed had a secret love affair prior to the death of the deceased, that it lasted for about three months and that they had sexual intercourse on three different occasions during that period, the last of which occurred on the night when the deceased was assaulted by the appellant. According to her evidence she was still in the appellant's hut when her husband, the deceased, came to look for her. She managed to slip out of the hut. When she got outside she saw the deceased lying on his side on the ground. According to her he was not even drunk. The Court a quo believed her and we have not been persuaded that the Court a quo was wrong in this regard. Counsel for the appellant could not advance any convincing reason why the deceased's wife (PW1) would have wanted to implicate the appellant falsely.

The Court a quo accordingly found that the appellant did have a sexual relationship with the deceased's wife and that he was untruthful in denying it. In my view the Court a quo was fully justified in rejecting the appellant's testimony in this regard.

I shall deal briefly with the first two confrontations between the appellant and the deceased, but in greater detail with the third and final confrontation. The first confrontation mentioned by the appellant occurred when the deceased arrived late one afternoon at the appellant's place of residence with an axe. The deceased alleged that he had followed his wife's footprints to the appellant's yard. Thereupon the deceased entered the appellant's hut without permission, removed a blanket and P20.00 from the hut and walked away. The appellant reported the matter to the headman who ordered the deceased to return the blanket. The deceased's daughter refunded the P20.00.

The second confrontation took place some time thereafter at a shebeen. According to the appellant's version the deceased approached him where he was sitting and called him a "Bushman beggar" who claims to be a Bangwato and then takes another man's wife. The appellant's uncle intervened and persuaded the appellant to leave the shebeen.

That same night the deceased confronted the appellant for a third time. He came to the appellant's hut in the early hours of the morning, knocked on the door and said he wanted his wife. The appellant denied that she was there. While the

appellant was getting dressed the deceased opened the door of the hut and went inside. The appellant alleged that the deceased had a small stick in his hand. He grabbed the deceased and pushed him with force against the metal door-frame. The deceased fell down in front of the hut and for some unknown reason did not get up again. The appellant said that the deceased appeared to be drunk, but he also suggested that the deceased could have sustained a head injury when he was forced against the door-frame. The deceased's wife who was still on the scene at that stage saw the deceased lying outside the door, but she does not support the appellant's version that he was drunk or that he first entered the hut before she saw him lying on the ground.

The appellant left the deceased on the ground and went to his uncle's hut nearby where he found a leather halter to beat the deceased. For some unknown reason the deceased did not make use of the opportunity to run away while the appellant went to fetch the leather halter. The appellant returned to where the deceased was lying in front of his door and started to beat him with the leather halter. The leather halter was unfortunately not available for inspection by the members of this Court, but counsel informed us that it was a simple halter made from a strip of hide. The appellant alleged that he went on beating the deceased in order to punish him for coming to his home at night and he added:

ever hit him on the head. The appellant maintained that the deceased's extensive head injuries could not have been caused by the leather halter and suggested that those injuries were sustained when the deceased's head hit the door-frame, or an outside gate pole when he eventually left the appellant's yard.

The statement of a certain Gabankitse Keaitshwenya, also known as Sempu (PW6), was admitted by the appellant at the start of the trial in the Court a quo. Sempu stated that he spent that particular night as a guest at the house of the appellant's neighbour, Tapela Kgope, also known as Mmasemodene (PW5). At about 03:00 in the morning the witness PW5 asked Sempu to go and investigate what was causing the commotion next door. Sempu went to the appellant's yard where he found the deceased lying in front of the appellant's hut. The appellant was standing over the deceased and he was busy assaulting him with a leather halter. Sempu approached the appellant and told him to stop the assault. The appellant paused for a moment and told the witness that he was beating the deceased because he was accusing him of sleeping with his wife.

The appellant then resumed assaulting the deceased with the leather halter. The appellant admitted that Sempu was at his house that night but said that he had already stopped beating the deceased when Sempu arrived. According to the appellant the deceased stood up and followed Sempu when he left. At one stage in his evidence the appellant even alleged that the deceased ran after Sempu. Sempu certainly never said that the deceased followed him.

Sempu's version is corroborated by the witness Boaketswe Jimmy Mantshebu (PW7) whose statement was also admitted by the appellant. Jimmy went to the appellant's yard in his motor vehicle. He parked the vehicle in such a way that the headlights fell on the area in front of the appellant's hut. jimmy also saw the appellant standing over the deceased who was lying on the ground. He ordered the appellant to stop what he was doing seeing that the deceased was in a helpless condition. The deceased made repeated but unsuccessful attempts to stand up. Jimmy left the scene to report the matter to the police and the deceased's family. When he returned he met the deceased along the road. According to Jimmy, the deceased was in a bad state. He could barely walk and had to be lifted onto the vehicle. In view of these statements which were admitted by the appellant his version of how the deceased followed Sempu, ran towards Jimmy's motor vehicle, dashed into a gate pole and then quickly got up and went to the motor vehicle, must be rejected as false. What does however assist the appellant's case is that these witnesses saw the appellant using only a leather halter and no other weapon. If that is so, how did the deceased sustain the fatal head injuries?

The specialist pathologist who performed the post mortem examination on the body of the deceased some ten days after his death reported that death was due to severe head injury. The following head injuries are set forth in the doctor's report which was admitted by the defence and handed in as an exhibit.

"Scalp is bruised with haematomas. There is a depressed and penetrating fracture of the parietal bone. The fractures are extensive covering the right and left temporal, parietal bones and the frontal bones. There is a large left epidural haematoma. An occipital subdural haematoma of 50ml. A subarachnoid haemorrhage. There is an intracerebral haemorrhage in the ring right hemisphere measuring 7cm x 5cm."

The doctor was not called as a witness and there was no evidence to show that these extensive head injuries could have been caused by the leather halter. Counsel for the State quite fairly conceded that there is a lacuna in the State case in this respect. It should further be borne in mind that the deceased was found lying in front of the appellant's hut, apparently incapable of walking away, even before the appellant went to fetch the leather halter.

"I am therefore inclined to take the view that the deceased's fatal head injuries that caused extensive fractures of the head bones were actually caused by the accused himself by banging [deceased's] head on a hard surface."

Although there Is a distinct possibility that the appellant assaulted the deceased in some way other than hitting him with a leather halter, there is no evidence to support such a finding. The finding of the learned trial Judge therefore remains mere speculation.

It follows that the conviction of murder cannot be sustained and that it should be set aside. It is clear on the appellant's own evidence however that he assaulted the deceased with intent to do grievous bodily harm. The appellant conceded that it was a prolonged attack on the deceased (an elderly man of 60 years) with the intention "to make him feel pain". It is further not in dispute that the assault caused actual bodily harm.

In the result the appellant's appeal against his conviction of murder and the sentence of 12 years imprisonment succeeds and the conviction and sentence are set aside. The appellant is however convicted of assault occasioning actual bodily harm and sentenced to four years imprisonment to run from the date he was first taken into custody, i.e. 19 July 1997.

Botswana: Court of Appeal

Gaboganwe v The State (Criminal Appeal No. 13/201) [2001] BWCA 19 (20 July 2001)