IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
CRIMINAL APPEAL NO. 36/2001
In the matter between: THE STATEAppellant And GABATSHOGE KELEFITLHETSERespondent Mr. L. Z. Ngcongco for the Appellant Mr. S. Seisa for the Respondent
JUDGMENT
CORAM: K.R.A KORSAH J.A N. ZIETSMAN J.A M. DIBOTELO A.J.A KORSAH JA:
At the hearing of this matter, counsel for the Respondent conceded that an order
be made remitting this matter to the trial court and directing the trial Judge to:-
1. impose a sentence on the count of Rape for which the Respondent was convicted; and
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2. pass the appropriate sentence in terms of a proper finding on extenuating circumstances with regard to the conviction on a charge
of murder.
The two charges arose in respect of the Rape and Murder of Mmamphane
Papina.
The trial court found that extenuating circumstances were present with regard to the charge of murder and sentenced the Respondent
to 13 years imprisonment in respect thereof. For reasons that do not appear on the record, the trial court imposed no sentence on the count charging the Respondent with the rape for which the trial court had already convicted
the Respondent.
The appellant sought, and was granted, leave by the said court to appeal against the findings of the High Court on points of law.
The two grounds of appeal set down for consideration by this court are as follows:-
1.
The Court a quo misdirected itself in law by treating an aggravating factor as a circumstance in extenuation.
2.
The Court a quo erred in law by sentencing the Respondent on the one charge of Murder alone after convicting him of two different
charges: Murder and Rape.
A synopsis of the evidence adduced in proof of the offences elucidates the basis
of the complaint levelled by the Appellant against the judgment of the trial court.
Of the fourteen witnesses that the State had intended to call in substantiation of the offences charged, Counsel for the Respondent
admitted the summarised statements of eleven prospective prosecution witnesses, together with
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associated exhibits, in terms of Section 273(1) of the Criminal Procedure and Evidence Act [Cap 08:02]. The State led viva voce evidence
from only two witnesses.
The Respondent's father, Kelefitlhetse Kejele, testified that he was awakened by
the Respondent's sister in the middle of the night and told that the Respondent
wanted to see him urgently. When he got up and went to the entrance of his hut
he saw the Respondent standing at the entrance of an adjacent hut. The
Respondent approached him and addressed him thus:-
"Father you have seen me for the last time. I have come to bid you farewell. I am saying this because I have killed a person."
The Respondent walked out of the yard without indicating whom he had killed, or explaining how he came to kill the person.
Kejele said he went to wake his neighbour, by name Ditlhare Moremi, and narrated to him the report that the Respondent had made. Moremi
suggested that the matter should be reported to the headman, but Kejele fearing the Respondent may have killed his girlfriend, insisted
that they should first check on Annie Shimane, who was the Respondent's girlfriend and the mother of Respondent's child.
Annie Shimane told them that the Respondent had just visited her to bid farewell to her and her son by the Respondent, and left. Thereafter
Kejele and Moremi
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went to make a report to the headman. The headman's reaction was that since it was still night time they should wait till dawn, when
they could see, before carrying out any investigation. Kejele and Moremi repaired to Kejele's yard where they sat on chairs waiting
for the dawn to break.
After they had been sitting in the yard for some time they saw other villagers running towards a place. Upon enquiring as to the reason
for the pandemonium, they were informed that a woman, proceeding to her fields, had stumbled upon the body of her niece, Mmamphane
Papina, who had been killed. From then on they understood what the Respondent was saying about having killed a person.
Maipelo Baoki, the second prosecution witness testified that he was awakened before dawn by his girlfriend and found the Respondent
outside his house. The Respondent told him that he had killed one Mmamphane Papina. He said the Respondent was wearing jeans with
the legs of the trousers cut off, and he was bare chested. He was asked to accompany the Respondent to where the body of the deceased
was lying; and he obliged.
At the scene, Baoki said he saw the body of the deceased lying at a place a bit outside the village settlement in the bush within
Lepokole village area. The body was covered with the cut-off legs of the Respondent's jeans on the upper part of her trunk and thighs
and was lying on her back. It was when the Respondent
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removed his trouser legs that Baoki was able to see the deceased properly and identify her as Mmamphane Papina.
The Respondent's father testified that, prior to this incident, he was unaware that the Respondent, 26 years of age and living in
the same compound as his father, drank alcoholic beverages.
However, Baoki said in his evidence that he had known the Respondent over a long period; that they were friends and the Respondent
was his drinking mate. He said the Respondent drank occasionally and that the day prior to the day of the murder he and the Respondent
went out drinking and consumed a drink known as Sekhokho, or Babirwa Dry Gin at Sepui-James Motsumi's yard from 9 pm - 10 pm. As
he left the Respondent at James Motsumi's yard at 10 pm he noticed that the Respondent was slightly drunk as he was staggering.
Both the Respondent's father and Baoki testified that on the night that the Respondent reported to them that he had killed the deceased
he was sober and did not appear to be any the worse for drink. Baoki was certain that the Respondent was not in a drunken state and
that apart from the Respondent appearing abnormal in that he did not want to be approached, he was not smelling of alcohol or staggering.
None of the persons to whom the Respondent made a report that he had killed the deceased was of the impression that the Respondent
was under the influence of alcohol at the time they saw him that
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night. Annie Shimane saw him with torn trousers and with one hand bloodstained, but said nothing in her statement about the Respondent
being drunk at the time she saw him.
The Respondent's confession statement which was admitted in evidence without
demur, reads:-
"I raped a lady and thereafter, I told her that I think she is going to report me. She said she will not report me. I told her
that I was doubtful, she will report me. While I was talking to her I just realised I had stabbed her on the shoulder. I then stabbed
her on the throat and she fell and I ran away. I then heard her screaming and came back and stabbed her on the diaphragm and she
died. I then went to inform people and I ran away. I came back and told people to arrest me and they did arrest me."
The Respondent was also able to indicate to the headman for the area and other
villagers, a place about 15 metres from where the body of the deceased lay,
where he had hidden or left the pants of the deceased.
In view of the overwhelming evidence in substantiation of the offences charged and in the absence of any evidence in support of the
Respondent's assertion that he was suffering from temporary insanity occasioned by voluntary intoxication, so that he did not know
what he was doing, the trial court rightly rejected the Respondent's defences and convicted him on both counts.
After the Respondent's conviction on the count charging him with murder the trial court entered upon the second stage of the trial
- the receipt, consideration and evaluation of evidence and or submissions on any circumstances of extenuation
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which go to reduce the moral blameworthiness of the Respondent in the commission of the offence. In this regard both counsel made
written submissions and the trial court rightly embarked on the consideration and evaluation of the elements so canvassed by counsel.
The trial court's attention was drawn to the dictum of HOLMES J.A. in STATE VS LETSHOLO 1970(3) S.A. 476 AD that:-
"Extenuating circumstances have more than once been defined by this court as any facts, bearing on commission of the crime which
reduce the moral blameworthiness of the accused, as distinct from his legal culpability. In this regard, a trial court has to consider
-
a.
whether there are any facts which might be relevant
to extenuation, such as immaturity, intoxication or
provocation (the list is not exhaustive);
b.
whether such facts, in their cumulative effect,
probably had a bearing on the accused's state of
mind in doing what he did;
c.
whether such bearing was sufficiently appreciable to
abate the moral blameworthiness of the accused in
doing what he did.
In deciding (c) the trial court exercises a moral judgment. If its answer is yes, it expresses its opinion that there are extenuating
circumstances."
The trial court indicated that it was also cognisant of the principle expressed in STATE VS MOTHELESI [19891 BLR 78 AT 97; that in determining whether extenuating circumstances are present in a case, the Court after evaluating the possible extenuating circumstances
cumulatively, should move on to consider all aggravating factors cumulatively and when the aggravating features outweigh the
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extenuating circumstances then the Court should be reluctant in finding extenuating circumstances.
In LEKOLWANE VS THE STATE 1985 BLR 245 AT P.249B. BARON J.A.
commenting on paragraph (c) of the dictum of Holmes J.A in the LETSHOLO CASE (SUPRA) observed that:
"It is not explicitly stated, but it is I think implicit in this dictum (and particularly (c), that the court considers not only
the extenuating features, but also any aggravating features in the case itself and consider them cumulatively in arriving at its
value judgment. In other words, in making the moral judgment whether extenuating circumstances exist the court considers and weighs
all the features of the case, both extenuating and aggravating."
See also MAFOKATE VS THE STATE M9861 BLR 269 (C.A); DUO VS THE STATE 1985 BLR. 566 (C.A) AT 569H.
It does not seem to me that the trial judge was unaware that both extenuating and aggravating features must be put in the balance
and considered before arriving at a value judgment as to the existence or otherwise of extenuating circumstances. All the above mentioned
cases were brought to his attention. The problem was more fundamental. It was that the trial court did not appreciate that to kill
a person in order to escape from the law is a heinous aggravating feature of the crime of murder. It can never be classified as acting
under compulsion because the nature of the fear, in this instance, was to avoid the penalty of imprisonment. The reason why the Respondent
found himself in fear
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of the law was that he had ravished the deceased without her consent (see his confession statement (supra)).
If X commits a murder only because he is compelled to do so he is prima facie morally less blameworthy than if he had acted quite
voluntarily. R VS MNEKE 1961(2) S.A. 240. In the Mneke case the Appellant was being compelled by a third party to kill the deceased. From the Respondent's confession statement
in this case he killed the deceased voluntarily in order to escape the legal consequences, if his victim lived to make a report.
What is clear from the confession statement is that the Respondent, after being told by his victim that she would not report the
incident of rape if she was allowed to go, none-the-less killed the deceased. It would appear that no assurances by the deceased
that she was not going to tell anyone about being ravished by the Respondent could have saved her life.
The issue of a report being made by the deceased was, according to the
Respondent, discussed at length. It is therefore strange to read in the judgment
of the court a quo that
"the murder was not premeditated but was an impulsive reaction to the rape he had committed upon the deceased so as to avoid
detection and avoid possible heavy penalty for the rape offence, that have led me to accept the same as constituting extenuating
circumstances."
In my view the court a quo grossly misdirected itself in law as to the existence or otherwise of extenuating features. At 26 years
of age and a father of two, it
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would be a misnomer to label the Respondent as a callow youth. Be that as it
may, Mr. Ngcongco has drawn this courts attention to the case of TLHABOLOGANG MAAUWE AND ANOTHER VS THE STATE; CRIMINAL APPEAL NO.9 OF 1997. In that case the appellants killed their victim because
he had caught them while carving up a beast which belonged to him. The reason
they gave for killing their victim was "self-preservation" - to avoid the
consequences of being convicted for stock-theft. STEYN J.A. who gave the
judgment of the Court, delivered himself thus from page 16 of the cyclostyled
judgment to page 18
"I do not believe that the following facts, namely that the two appellants who are both married and in their mid-twenties, are
part of a rustic remote rural community and are illiterate, can either singly or cumulatively be regarded as factors reducing their
moral guilt. Indeed the sanctity of human life is a common denominator in all societies, sophisticated br otherwise. I also cannot find it an extenuating circumstances that they acted in "self-preservation" as an extenuating circumstance.
It is true that this was not a carefully planned assassination. Nevertheless there was an opportunity for deliberation and reflection.
There was time to talk, time to contemplate action, time to desist and resist the suggestion to commit the most serious of all crimes
- the unlawful and intentional killing of a fellow human being. The appellants chose the evil option of murder rather than to face
up to the consequences of their prior criminal act. The absence of lengthy premeditation cannot in my view in all the circumstances
of this case be regarded as an extenuating circumstance.
Indeed it is my view that the appellants' motive for the killing of the deceased, i.e. in order to conceal their crime, is an aggravating
circumstance and certainly cannot be a factor that diminishes their moral guilt."
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Remitting the matter to the trial Judge, in terms of Section 7 of the Appeal Court Act [Cap 04:01] as read with Section 10 of the
High Court Act [Cap 04:02], for the imposition of sentence on the count of rape and a revaluation of the circumstances of extenuation
on the right principles of law, in no way prejudices the Respondent. His right to appeal against his conviction and any sentence
imposed on either count is not compromised.
In my view the concession by Mr. Seisa was properly made. Accordingly it is ordered that:
1.
The sentence of 13 years imprisonment imposed by the trial court upon a conviction of the Respondent on the charge of murder is hereby
set aside.
2.
This matter is remitted to the trial court, and the trial judge is directed to:-
a.
impose a sentence on the count of Rape for which the
Respondent was convicted; and
b.
pass the appropriate sentence in terms of a proper
finding on extenuating circumstances with regard to
the Respondent's conviction on the charge of murder.
DELIVERED IN OPEN COURT AT LOBATSE ON THE .3$
DAY OF
JANUARY 2002.
/KTRAKOR JUDGE OF APPEAL 12
I agree
N. ZIETSMAN JUDGE OF APPEAL I agree
TOTELO AG. JUDGE OF APPEAL
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