Botswana: Court of Appeal

                  Court of Appeal Criminal Appeal No. 041 of 2005

In the matter between

ERNEST LUCKY BOBE                                            APPELLANT

Lobatse, 11 and 26 January 2006

RAMODIBEDI JA

[1]      It will no doubt be convenient if I commence this judgment by pointing out that after hearing counsel’s submissions on 11 January 2006, this Court upheld the appellant’s appeal and duly set aside both conviction and sentence in the matter. It was intimated that reasons would be furnished later. These are the reasons.

[2]      The appellant stood trial in the High Court on a charge of murder contrary to section 202 of the Penal Code. It was alleged that on 1 June 2000, and at Maipaafela cattle post in the Central Administrative District in the Republic of Botswana, the appellant “murdered” Snake Motshwariemang (“the deceased”).

[3]      The appellant was convicted of manslaughter and sentenced to five years’ imprisonment two of which were conditionally suspended for a period of three years.

[4]      The appellant’s appeal to this Court is pertinently based on the sole ground that the learned judge a quo erred in rejecting the appellant’s plea of self-defence “considering the circumstances and evidence on how the offence was committed.”

[5]      At the outset, it requires to be stated that the facts in this case are hardly in dispute. This is so because the learned trial judge specifically preferred and accepted the appellant’s version of events in material respects. In this regard the learned judge expressed himself in the course of his judgment in the following crucial terms:

“The accused was generally impressive as a witness and was not shaken under cross-examination. His evidence, which was in my view credible and clear, should, in the absence of any other contradicting (sic), be accepted regarding how the deceased met his death. I will therefore rely on the accused’s version regarding the circumstances leading to and including how the deceased met his death.”

[6]      In a nutshell, the uncontested facts show that the appellant, a young man of about 26 years old and a herdboy at Maipaafela cattle post, was unlawfully attacked by the deceased on 1 June 2000. It is common cause that such attack was totally unprovoked. It is the appellant’s version, supported by his aunt, Mma Motlhasedi Ndzinge (PW2) that the deceased had a misunderstanding with the latter at a nearby cattle post where the couple stayed. The deceased and PW2 were lovers. The deceased who had apparently consumed a lot of alcohol complained that PW2 had refused to hand over a certain mug to him. He sulked and told PW2 that he was leaving her. He then stormed out of the house despite appellant’s plea not to do so.

[7]      In these circumstances, PW2 then took a decision to go and sleep at the appellant’s cattle post since she was afraid to remain alone at her cattle post. Significantly she says that she was “afraid” of the deceased, no doubt due to his violent mood. Thus, she left with the appellant and her two minor children. However, the deceased turned up at the appellant’s cattle post too.

[8]      It is the uncontroverted version of the appellant that, back at his cattle post that night, and as he was explaining to his fellow herdboy, Konego Senwametse (PW1), that PW2 had come to put up for the night at their cattle post, the deceased suddenly “jumped and kicked” the lamp that was on the table where the appellant was sitting. There was complete darkness in the house. At this stage PW1 went outside. He was followed by the deceased and PW2. The deceased was “violent.”

[9]      Fearing that the deceased might attack him, the appellant remained inside the house. After some time he went outside and proceeded to hide away from the deceased “by the bags of the cattle feed.” PW2 ultimately persuaded the appellant to join the other people sitting by the fire outside. These included the deceased who was still in a foul mood. He charged that the appellant was disrespectful to him even though it is clear from the record that this was not so. At this point the deceased suddenly stood up, apparently to attack the appellant. According to the evidence of PW1, the deceased cut a “thick” branch from a certain “motopi” tree and thereafter charged at the appellant who ran away.

[10]     It is common cause that the deceased then chased the appellant around the court yard not once but four times. The appellant decided to run a little farther but the deceased was still hot on his heels. As he was running, the appellant tripped over a piece of firewood and fell to the ground. This gave the deceased an opportunity to catch up with him.

[11]     Evidence shows that the deceased then grabbed the appellant by his hand. He thereupon started beating the appellant with a belt. In the process a knife fell down from the deceased. The appellant picked it up and stabbed the deceased with it only once in the chest. Initially he testified in his evidence in chief that he was merely trying to “scare” the deceased with the knife. Under cross-examination he made it abundantly clear, in my view, that he was relying on self-defence when he said this:

“The way he (the deceased) was holding me I tried to stab him so that he could leave me.”

[12]     Indeed it is pertinent to observe that on page 49 of the record the appellant testified that he thought the deceased intended to stab him.

[13]     It is not disputed that as soon as the appellant stabbed the deceased once with a knife, the latter let go of him. The appellant immediately ran away. The deceased then chased him for a short distance and fell down. He sadly died on the spot.

[14]     It is further pertinent to mention at this stage that according to the post-mortem report, the deceased died of “shock and haemorrhage as a result of stab injuring chest.” Only one “stab” wound was seen on the deceased’s body.

[15]     I pause there for a moment to consider the principles applicable to self-defence. Section 16 of the Penal Code provides for self-defence in the following terms:

“16.      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 anyone 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.”

[16]     It will be seen that this section does no more than codify the common law principle of self-defence. Now, it is a fundamental essence of this principle that where an accused person raises self-defence, the state bears the onus to negative such defence beyond reasonable doubt. Indeed, it is well established that this is so even though an accused person does not rely on self-defence. If the evidence suggests the existence of self-defence as a reasonable possibility then the accused is entitled to an acquittal. See for example S v. Ntuli 1975 (1) SA 429 (A).

[17]     As a general principle, there are three requirements for a successful defence of self-defence, namely, if it appears as a reasonable possibility on the evidence that:

(1)      the accused had been unlawfully attacked and had reasonable grounds for thinking that he was in danger of death or serious injury at the hands of his attacker;
(2)     

the means he used in defending himself were not excessive in relation to the danger;
(3)     

the means he used in defending himself were the only or least dangerous means whereby he could have avoided the danger. See R v Attwood 1946 A.D. 331.

[18]     It is also salutary to bear in mind the apposite remarks of Lord Morris in Palmer v R 1971 [55] Criminal Appeal Reports 223 (PC) at p 242, namely that:

“It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. … It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. … If there has been no attack, then clearly there will have been no need for self defence. If there has been attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action.”

[19]     Finally, it is of fundamental importance for a trial court not to adopt the role of an armchair critic, being wise after the event.

[20]     To revert to the facts then, it remains to say that the learned trial judge appears to have premised his conviction of the appellant on the basis of the “weapon” used by the deceased, namely, a belt. In this regard he expressed himself as follows:

“In casu, the accused was being assaulted with a belt. There is no evidence that the deceased was even using his fists. With due regard to the foregoing, I am of the view that there were no reasonable grounds, regard being had to “offensive weapon”, to apprehend that death, serious injury or grievous bodily harm would eventuate.”

[21]     I regret that I am unable to agree with the trial court’s approach and finding in the preceding paragraph. In my view, this approach is fundamentally flawed in at least three respects:

(1)      A suggestion that an assault with a belt may not cause serious bodily harm is, in my view, unjustified. And so is the suggestion that a reasonable person in the position in which the appellant was might not have reasonably thought that the deceased intended to inflict grievous harm on him in the circumstances.
(2)      Similarly, the court a quo wrongly adopted the approach of an armchair critic and thus failed to put itself in the position in which the appellant was in the circumstances. It follows, in my view, therefore, that the court unfairly judged reactions to fast moving events with the benefit of hindsight. I have not the slightest doubt that had the trial court tried to put itself in the position in which the appellant was in the circumstances, it would inevitably have come to a different conclusion to the one it did.

[22]     Two further factors require to be mentioned at this stage:
(1)     

According to the court a quo’s own findings, the deceased was much bigger and taller than the appellant who was himself “evidently of a small structure.” This factor, in my view, clearly favoured the appellant in the circumstances of the case. Accordingly, I have come to the conclusion that the following remarks by the trial court are equally not only unjustified on the facts but clearly amount to armchair criticism without due regard to the circumstances of the case. The trial court said this:

“The accused was in the prime of his youth and would have been in a position to break the deceased’s grip, considering the deceased’s age and state of inebriation. What the accused may have considered as divine providence, by the knife falling at his feet at what he may have perceived as an opportune moment, was not the only and best means by which he should have avoided the danger. There is no suggestion that both his hands were tied such that he could not avert the attack by hitting back at the deceased, either with his hands or feet in areas that could serve to disempower and immobilize him.”

In any event, the suggestion that the deceased was an old man is not supported by any evidence. On the contrary, the post-mortem report clearly shows that the deceased was aged 50 years old. Similarly, the trial court overplayed the “state of inebriation” of the deceased. Although it is true that PW1’s evidence was to the effect that the deceased was “drunk” and “staggering” it must be borne in mind, however, that he was contradicted by both PW2 and the appellant on this issue. As pointed out previously, the appellant was found to be an “impressive” witness, and rightly so in the circumstances. It remains merely to say that this case bears a remarkable resemblance to Sechaba Magula v S Cr. App 006/05 decided by this Court during this session. This Court had no hesitation in upholding the appellant’s appeal based on self-defence under substantially similar circumstances.

(2)     

It appears to be common cause that the deceased in the instant case was known to go about carrying, not only one knife, but several knives. This evidence was elicited by counsel for the State in his cross-examination of the appellant. He put the following questions:

“Q:       Your co-worker said you knew that the deceased was a person who went about carrying knives. Is that correct?

A:       Yes my Lord.

Q:       Did you know that one of the knives he always carried was in a sheath?

A:       Yes my Lord.” (Emphasis added.)

[23]     In the light of the aforegoing considerations, viewed at cumulatively, the prosecution failed, in my view, to negative self-defence beyond reasonable doubt. It follows that the prosecution failed to prove its case beyond reasonable doubt.

[24]     The appeal was accordingly upheld. Both conviction and sentence in the matter were set aside as fully explained in paragraph [1] above.