Kemoikantse Chawe @ Cairo v The State (Criminal Appeal No. 24 of 2004) [2004] BWCA 15 (1 July 2004)

The main State witness (PW1) Londani Mogoro was also employed by this concern. She and the Appellant and deceased appear to have resided in properties which were in close proximity to one another. Both deceased’s and Appellant’s parents and other relatives also lived nearby.

The events of 3 and 4 September 2003 as also those of the preceding days are not in dispute. The deceased met her death on Sunday 3 September or early on 4 September. PW1 testified to the fact that on the preceding Monday she walked home from her work at roughly the same time as the deceased and the Appellant were doing so. She heard the deceased crying. When she went to investigate she came upon the Appellant who was holding the deceased by the arm. The deceased, while being so held, complained that Appellant had assaulted her. PW1 intervened and escorted the deceased away. PW1 then spent the night with the deceased in what is described as her (that the deceased’s) hut. On the following day a very similar incident occurred. On this occasion the assistance of a relative of the deceased’s – her cousin – was invoked. He asked the Appellant why he was assaulting the deceased. The Appellant’s response was that it was because the deceased “wanted to jilt him.” When PW1 and the cousin could not prevail upon the Appellant to release his hold on the deceased the assistance of another of deceased’s relatives - an uncle – was sought. The uncle then wished to summon the assistance of Appellant’s own father but he was apparently not to be found. The deceased was nonetheless eventually freed and taken to spend the night with an aunt. On the following morning Appellant’s conduct was reported to the police.

For the following four days Appellant did not go to work. On the Sunday, the day of the deceased’s death, however he must have done so because PW1, the Appellant, the deceased and her uncle walked together from the Hollywood Bar to their respective homes. PW1 accompanied deceased to her hut and before leaving made sure that the deceased was safely locked into her hut. This accomplished PW1 left to go to her own residence. When leaving she encountered Appellant who said to her that he wished to obtain certain documents from the deceased. PW1 suggested to him that this was something which he should rather do on the following morning. Appellant then, it is clear, made a pretence of accepting this advice by turning in the direction of his own residence. In fact what he then did is that he went to the deceased’s hut and induced her to admit him. Appellant’s own evidence establishes that there was then an altercation which led the deceased to seek the assistance of her father who had, at some earlier stage, informed Appellant not “to enter his yard under any circumstances.” The deceased’s father was unfortunately not at home and deceased proceeded to an aunt’s home, Appellant followed her. When she tried to discourage him from doing so a struggle ensued. In the course of the struggle Appellant took hold of the deceased from behind and locked her neck in the crook of his arm. He then dragged her back to her own hut. At times her feet were completely off the ground. By the time he had forced her into her hut she was in a semi-conscious state. He then threw her (in this state) onto her bed.

It is obvious that he thereafter took possession of a jacket belonging to the deceased and stole the wages she had just been paid – a sum of P200.00 Thereafter he locked her door from the outside leaving her unconscious or, at best, in a semi-conscious state. The following morning she was found dead where he had left her. Her death was caused by strangulation suggesting that she died at or about the time when she was thrown onto her bed.

All that need be recounted further is that Appellant later made some unsuccessful “attempts” of suicide. In the course of one such “attempt” he wrote a suicide note which included the phrase – “as for Kwedzani – we are going together. I am going to rest in peace.” In the days that followed, however, he sought actively to distance himself from what had taken place. The suicide note suggests that Appellant was not a completely unsophisticated person.

The court below held that in all the circumstances there were extenuating circumstances. But it sentenced Appellant to twenty five years imprisonment. The only issue before this court is whether that sentence is excessive. The principles which apply are clear (and not in dispute) and it is therefore unnecessary to cite authority. It is appropriate, however, to reiterate that what has to be considered in the assessment of sentence is the triad consisting of the crime, the offender and the interests of society. Punishment should then fit the criminal as well as the crime, be fair to the accused and be blended with a measure of mercy.

When I consider the issue of punishment in the present case I am conscious of the fact that a sentence of twenty five years imprisonment is normally imposed only for most aggravated crimes. In this case, while the Appellant’s actions cannot be condoned, they can at least, in one sense, be understood. Appellant’s anger arose because he did not wish to end his relationship with the deceased. No weapon was used. The killing was not a planned one. In all these circumstances I feel that the sentence does induce a sense of shock and that this court can and should reduce it.

An appropriate sentence, given all the features of the crime (which I have outlined above), would in my view be imprisonment for a term of fifteen years.

The order which I make is:
1.

Botswana: Court of Appeal

Kemoikantse Chawe @ Cairo v The State (Criminal Appeal No. 24 of 2004) [2004] BWCA 15 (1 July 2004)