Botswana: Court of Appeal

                           Court of Appeal Criminal Appeal No. 51 of 2003

In the matter between

CORAM:   KORSAH J.A.
                  PLEWMAN J.A.

KORSAH J.A.

The Appellant was on 2^nd June 2003 convicted in the High Court, Lobatse, of the offence of murder, contrary to section 202 of the Penal Code (Cap. 08:01). The court a quo found that there were circumstances of extenuation and sentenced him to 10 years imprisonment.

On 9^th March 2001, the victim Rankaga Nkaga died in the yard of his home at Kanye almost immediately after he had been hit by a stone hurled at him by the Appellant. The appeal is solely against his conviction.

The uncontroverted evidence was that the Appellant and the deceased were neighbours. The deceased was 58 years of age while the Appellant 38 years of age at the relevant time. The Appellant admitted that he was aware that the deceased was a sick man because he used to call for an ambulance from the home of the Appellant’s sister and at other times he asked the Appellant to transport him to buy some food-stuffs. The deceased’s home was a chibuku outlet.

On the fateful day, 9^th March 2001, the deceased returned home from work around 6.00p.m to find people drinking chibuku in his yard. One of them was Appellant. The deceased proceeded to the back of the house where he was offered food by his wife. His wife also gave him a cob of maize which she had cooked. As the deceased sat eating at the back of the house the Appellant approached him and a quarrel ensued. A child of one of the friends of the wife of the deceased awoke from sleep and began to cry. The wife of the deceased requested the deceased to share his maize with the child. The deceased was unable to break the cob with his hands and so he took an okapi knife from a holder on his belt to cut the cob and give a piece to the child. He then folded the knife and replaced it in its holder on his belt.

The deceased’s wife returned to her three friends with whom she was drinking at the back of the house, but from there she could hear an exchange of words between the deceased and the Appellant. The Appellant charged the deceased with a dislike of him and said that by the deceased calling him a thing the deceased meant he was a puppy and by implication his parents were dogs. The wife said the deceased tried to ignore the Appellant, but the Appellant continued with the accusations that the deceased did not like him or want him in his house. Eventually the deceased left the Appellant and went into the main house, passing about one and half metres in front of the Appellant without attacking him and this, at a time when the quarrel had reached its zenith. The Appellant remained at the back of the house for a few minutes and then departed for the front of the main house continuing his accusations against the deceased in a loud voice.

According to the wife of the deceased, the deceased emerged from the main front door of the house and told the Appellant that he had long made him, the Appellant, aware that he, the deceased, did not want him in his yard and requested the Appellant to get out of his yard. Upon hearing those words, the Appellant ran past the deceased, dropped the cartons of chibuku he was holding, picked up two stones, got out of the yard and hurled one of the stones at the deceased. The stone hit the deceased on the left side of the chest. The deceased exclaimed: “Ijoo!” and then collapsed. She denied that the deceased had come out of the house with an open knife and chased the Appellant - this being an assertion made by appellant in the presentation of his defence to which reference is made below.

PW3, Motlalepula, confirmed that the deceased only took the knife from its holder in his belt to cut the cob of maize when both she and the deceased had failed to break it with their hands. She admitted under cross-examination that she had said in her statement to the police that she saw the deceased chasing the Appellant from the yard, but explained that by chasing she did not mean the deceased ran after the Appellant, but rather that the deceased ordered the Appellant to leave his yard.

The daughter of the deceased, who was the second witness for the prosecution, testified in relevant part, that when the deceased went out through the front door he was walking and he was not holding a knife when he requested the Appellant to leave his yard. He did not chase the Appellant, but stood outside the front door demanding the departure of the Appellant from his yard. She said the Appellant walked to the outside of the wall of the yard carrying the two stones he had picked up. The wall, she indicated, was a low wall over which you could see a child of three years walking outside. The Appellant stood facing the deceased as he threw the stone at the deceased. When the deceased collapsed after being hit by the stone hurled at him by the Appellant, she went to her father. She observed that her father’s knife was in its holder in his belt and not in his hand. There was no knife lying around next to the deceased.

Adam Sennanyana was the fourth witness for the prosecution. His testimony regarding the salient moment of what transpired was that he was in the Appellant’s group of four drinking under the tree in the front yard of the deceased’s premises. He saw the deceased emerge from the house saying in a quarrelsome manner: “I have long told you that I don’t want you in my yard.” He said the deceased was walking fast towards the Appellant. The Appellant put the chibuku which was in a plastic bag, down and ran towards the entrance of the yard. The Appellant picked up two stones comprising part of the wall around the house and hurled one at the deceased. The stone hit the old man and he died. This witness said although the gap between the deceased and the Appellant was closing, the deceased did not catch up with the Appellant and the manner in which the deceased advanced towards the Appellant was not threatening. He also testified that the Appellant was outside the yard when he threw the stone at the deceased who was within the yard. It was the testimony of this witness that he at no time saw the deceased holding a knife.

Vincent Sedi was the fifth witness for the prosecution. He was related to the Appellant. He had known the Appellant from birth and the relationship between them was good. On 9^th March 2001 he visited the home of the Appellant and chatted with the Appellant and his parents. Later he and the Appellant went to a place where chibuku was imbibed. The two of them ended up at the home of the deceased when the chibuku ran out at the first venue. Four of them, inclusive of the Appellant were drinking chibuku under a tree which was in front of the house, but in the yard of the deceased, when the deceased arrived home from work. He testified that the Appellant went to collect the chibuku which they bought from the back of the house and he heard him ask: “Are you opening a knife for me?” and the deceased replied: “I am not opening a knife for you. I am cutting a maize cob for the child.” He said that he momentarily lost sight of the Appellant and the deceased, but later saw the Appellant coming from between the house and the wall of the courtyard holding a plastic bag. He observed the deceased coming out of the front door of the house. Without any explanation, he said he saw the Appellant running and the deceased running after him. The Appellant ran to the wall, picked two stones turned around and hurled one at the deceased. The deceased fell down and the Appellant ran out of the yard. The importance of the testimony of this witness is that he said when the deceased fell he was in the crowd that went close to him to find out how he was faring and that he saw no weapon or knife on the ground by the deceased.

Sergeant Matibini, who was attached to the Criminal Investigations Department in Kanye, testified that at around 7.00p.m on 9^th March 2001, he received a report that a man had been assaulted with a stone in the village of Kanye. He proceeded to Kanye Seventh Day Adventist hospital to check on the condition of the deceased. He met the resident doctor who attended to the deceased and was told that the deceased had already been certified dead. It suffices for the purposes of this case that the Sergeant noticed that the deceased wore a belt around his waist. Attached to that belt was a pouch that was black in colour. In that pouch was an okapi knife with a brown handle and a stainless steel blade.

The Court a quo did not accept the Accused’s evidence that when he threw the stone at the deceased, he did so, because of his fear of an imminent attack by the deceased with a knife, in self defence.

“Subject to the express provisions of this Code or any other law for the time being in force, a person shall not be criminally responsible for the use of force in repelling an unlawful attack upon his person or property or the person or property of any one whom it is his moral or legal duty to protect if the means he uses and the degree of force he employs in so doing are no more than is reasonably necessary in the circumstances.”

In the instant case, if, contrary to the finding of the court a quo, this court were to conclude from the evidence that in applying such force as the Appellant did, he did so to repel an unlawful attack on himself or his property, then his conviction would have to be set aside and a verdict of acquittal substituted therefor. The relevant part of the Appellant’s testimony which was supposed to establish the degree of self-defence which he raised was that, when he went to the back of the house to collect his chibuku, he confronted the deceased with a rumour that the deceased was said to be spreading regarding an alleged affair between the Appellant and the wife of the deceased. According to the Appellant, upon confronting the deceased with this alleged rumour, the deceased angrily picked his knife and asked the Appellant to name the person or persons who told him so.

Nobody denies that the deceased took out his knife while eating at the back of the house, but all present were agreed that he brought out his knife, at the behest of his wife, to cut part of a cob of maize for a child. In fact the Appellant’s own relative testified that he heard the deceased say in response to a question by the Appellant: “I am not opening a knife for you. I am cutting a maize cob for the child.” It seems to me that even then, the Appellant was spoiling for a fight.

The next piece of evidence led by the Appellant to buttress the defence raised by him was that the deceased emerged from the front door of the house, knife in hand and demanding that the Appellant should leave his yard. He said the deceased was running after him with the naked knife and that it was only after he was cornered that he flung a stone at the deceased to repel the imminent attack by the deceased with a knife and to give him (Appellant) an opportunity to escape.

The Appellant called one witness Sadi Kebaitse, to say that she is a neighbour to the deceased. On 9^th March 2001 she was in her house when she heard raised voices coming from the yard of the deceased. She looked in the direction of the voices and saw the deceased and the Appellant pointing at each other. Contrary to the Appellant’s testimony, she said she did not see a knife in the hand of the deceased. He was pointing at the Appellant with his finger. Contrary to the Appellant’s testimony the two were four metres apart when the Appellant hurled the stone at the deceased. She thus contradicted the Appellant’s assertion that he threw the stone at the deceased when he had been cornered by the knife wielding deceased and he had to throw a stone at him in order to escape. From her testimony the Appellant was not in imminent danger from the deceased. She said she only saw the knife on the ground by the deceased after the deceased had been felled by a stone hurled at him by the Appellant.

It seems, from the foregoing, that when all the prosecution witnesses, inclusive of the Appellant’s blood relation, had attested to the fact that the deceased held no knife in his hand when he approached the Appellant and requested him to leave, Sadi Kebaitse, tailored her evidence in an attempt to give credence to the Appellant’s defence. Even then she did not succeed. Sadi met the Appellant outside the gate of the yard running away from the scene. The daughter of the deceased and others, inclusive of Appellant’s blood relation with whom he had gone to the beer drink, testified that when the deceased was felled by the Appellant there was no weapon in his hand or near where he lay. Sadi had been compelled to admit that from the distance she was from the scene she could not have observed a knife in the hand of the deceased. Her next ploy was to testify, contrary to the testimonies of all eye-witnesses, inclusive that of the Appellant’s blood relation, that she observed a knife lying beside the body of the deceased where he had fallen. The knife had a red handle and it was open. The wife of the deceased picked it up and said it was for cutting the maize cob, closed the knife and put it in the pocket of the deceased.

The testimony of this witness was palpably false as is herein demonstrated. The evidence of those at the scene was that after the deceased had cut the maize cob for the child, he folded the knife and returned it to its pouch on his belt even as he and the Appellant quarreled. Not a single witness, inclusive of the Appellant’s blood relation, saw that knife either in the hand of the deceased or near his body after he had been felled by the Appellant. The handle of the knife was brown and not red as attested to by Sadi. The investigating officer, Sergeant Matibini, found the knife in its pouch on the belt of the deceased and not in the pocket of the deceased as attested to by Sadi.

In S v. Ntuli 1975 (1) S.A. 429 (AD) at p. 436 Holmes J.A., said:

“(i)      A may intentionally and unlawfully apply such force as is reasonably necessary in the circumstances to protect himself against unlawful threatened or actual attack at the hands of B. The test whether A acts reasonably in defence is objective;

(ii)    

If A’s defence, so tested, is reasonable, both his application of force and his intention to apply it are lawful: “so there is no question of dolus or assault on his part. Dolus consists of an intention to do an unlawful act.”

“In applying these formulations to the flesh and blood facts, the Court adopts a robust approach, not seeking to measure with nice intellectual calipers the precise bounds of legitimate self-defence or the foreseeability or foresight of resultant death.”

There was uncontroverted evidence that the stone hurled by the Appellant at the deceased was a heavy one. The undisputed evidence of the pathologist was that the stone was hurled with such force that it broke four ribs of the deceased. The pathologist concluded that in such a case death would have resulted within a few minutes of the incident.

It is only fair to state that the pathologist in his post mortem examination of the deceased found that the fractured ribs were 7^th, 8^th, 9^th and 10^th on the left side of the chest. The deceased had an enlarged heart. Its weight was 610g; the normal weight should have been 350g. The enlargement of the heart was due to the thickening of the left ventricle. There was an accumulation of fluid in the lungs, which is a feature of acute heart failure. When he examined a section of the kidney of the deceased he found that he had features of hypertension. He concluded that the deceased died from acute heart failure due to a blunt force injury of the chest and hypertension.

“We have come to a situation therefore that the accused hit this man with a heavy stone at close range to the extent that his ribs broke …………. He also acted disproportionately to the danger that he may have perceived or that which was posed – even if I was wrong that he was frightened, I hold therefore that there was no self-defence in the case and the unlawfulness of the assault is proved beyond reasonable doubt.”