In the matter between:
PATRICK MAFA
Appellant
And
THE STATE
Respondent
For the Appellant: O A Ajayi
For the Respondent: M Tladi
J U D G M E N T
CORAM:
Tebbutt J P
Moore J A
McNally J A
MOORE J A
1.
I have had the benefit of reading in draft the judgment of my Brother McNally JA and agree
with the conclusion to which he has come that the appeal be dismissed and that the conviction and sentence be confirmed. However,
I do not share my Brother’s interpretation of certain aspects of the facts found in the Court a quo. Nor do I necessarily agree with the inferences which he has drawn from those facts.
2.
The case of S v Kamanga [2005] 2 BLR 135 was cited in support of the decision of Kirby J who relied specifically on the provision of s 206(3) of the Penal
Code for rejecting the plea that the provocation in that case was capable of reducing the crime from murder to manslaughter. This
is how the relevant section of the judgment reads at page 146 D:
“Mr Boko argues on the strength of State v Momoti (2) 1974(2) BLR 92, CA that the accused is here guilty of manslaughter only. In that case it was held that a husband who surprises
his wife in the act of adultery and forthwith kills her paramour may be found guilty of manslaughter although he intended to kill.
In my judgment that defence must fail in this case for a number of reasons, even accepting that he loved Koketso, and found her in
circumstances from which recent or intended lovemaking could be inferred.
First, the act discovered or apprehended was not adultery. There was no marriage – customary or common law – between Koketso
and the accused. Close though their relationship may have been, the deceased’s perceived conduct in sleeping with her, however
distasteful or immoral this may have been, was not unlawful. It could thus not amount to provocation for the purposes of excusing
a murder.”
3.
While I agree with Kirby J that the defence advanced in the Kamanga case must fail in the present one, it does not fail for the reasons set out by the learned Judge. It fails because Boipelo was not
caught in flagrante delicto having intercourse with another man. The circumstances there differ toto caelo from those in this case. Nor does the question of adultery or whether Boipelo and the deceased were married, enter into the picture
so as to bring into consideration whether their sleeping together was lawful or unlawful. The provocation in this case, as I shall
show, was caused by the accused’s amorous advances being insultingly rebuffed by the deceased followed by her kicking him,
which was obviously an assault and therefore unlawful.
4.
At about two o’clock in the morning, long after the Appellant and the children had retired
to bed, the Deceased returned home. The Appellant was hoping that she would return earlier as he had let her know that he was in
the mood for love since the previous afternoon. He fretted with her about her coming home so late but his irritation soon subsided
as his feelings for love making mounted. The Deceased having undressed and got into bed, the Appellant began to make advances. He
touched her buttocks caressing her. Instead of reciprocal caresses or contended acceptance of his efforts, the Appellant was rebuffed
with the insulting suggestion by the Deceased that he was caressing her because he wanted to check if she had had sex with someone.
5.
According to the Appellant’s testimony in Court, the parties were quarrelling “and
before she could get out of blankets she kicked me up.” The strength of the Appellant’s feelings for the Deceased, notwithstanding
that he suspected that she had many lovers including a certain gentleman in South Africa, is captured in his own words. “Even
though this woman behaved in this manner I still loved her. I loved her so much and she was such a beautiful woman…Even though
she did these things to me – drink alcohol, frequent bars and was involved in improper associations with other men –
my love for her did not end.”
6.
I am of the view that the suggestion by the Deceased alone, that by caressing her buttocks
the Appellant was “making research that she had a sexual intercourse as is seen from the buttocks”, if not amounting
to provocation in itself, does in my opinion amount to provocation when coupled with the kick which the Deceased delivered upon the
Appellant. I do not hold to the view that “this kicking (and more so a two-footed kick) should not be over-emphasised.”
A kick is by its very nature, a demeaning blow which combines an insult with a hurt. It is true that the Appellant made no mention
of being kicked in his statement to the judicial officer. But he did testify to being kicked. His testimony about the kick was not
challenged in cross-examination by prosecuting counsel. The Judge was fully justified in accepting it as he evidently did.
7.
The Judge’s recollection of the evidence was that the Deceased “was so incensed
that she got out of the blankets and kicked the Appellant with both legs and she got up.” It was certainly possible for the
Deceased to have kicked the Appellant, and reasonably possibly true that, while she was lying in bed as the Appellant tried to make
love to her, she kicked him in the manner described by the trial Judge. At all events, the Judge approached the question, as he was
entitled to do, from the standpoint of the Appellant being kicked by his paramour.
8.
The Judge appeared to reach a tentative view that the Appellant had not been “sufficiently
provoked to deprive him of self-control and induce him to assault her in the manner that he did.” But he was of the “firm
opinion that the accused’s reaction did not bear a reasonable reaction to the provocation offered.” I agree. The Judge
was therefore correct to find that the partial defence of provocation failed because the Appellant’s reaction did not bear
a reasonable relationship to the provocation in terms of s 205(2) of the Penal Code (Cap. 08:01).
ORDER
It is the order of this Court that:
(i)
The appeal be and is hereby dismissed.
(ii)
The sentence of 12 years’ imprisonment be and is hereby confirmed.
DELIVERED IN OPEN COURT AT LOBATSE THIS 28TH DAY OF JANUARY 2008.
------------------
S A MOORE
Judge of Appeal
TEBBUTT J P
I have read the judgments of my Brethren McNally and Moore in this matter and while I also agree that the reaction by the Appellant
was out of all proportion to any provocation, and that accordingly the conviction must be confirmed, I respectfully, and with regret,
differ from my Brother McNally in the rest of his findings in paragraphs 34 and 35 of his judgment. I do not agree that there was
nothing unlawful in what the deceased did thereby bringing into application the provisions of Section 206 (3) of the Penal Code.
I am in respectful agreement with the views expressed by my Brother Moore in this regard. I agree that the sentence must be confirmed.
_______________
P H TEBBUTT
JUDGE PRESIDENT
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