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IN THE HIGH COURT OF BOTSWANA HELD AT FRANCISTOWN

CTHFT-000056-09

DATE: 25 NOVEMBER 2010

IN THE MATTER BETWEEN:

THE STATE

AND

EDWARD MOTSUMI

Mr A Tjizera for the State

Mr T Matilo for the accused

JUDGMENT

SOLO Ag J:

1. The accused faces a single count of murder contrary to section 202 of the Penal Code. It is alleged that on or about the 17th day of December 2006 at Gantsi, in the Gantsi Administrative District of the Republic of Botswana, he murdered Bulane Wadipudi.

2. At the commencement of the trial the summaries of four of the prospective prosecution witnesses were admitted in terms of section 273 (1) of the Criminal Procedure and Evidence Act.

Some admissions were also made during the course of the trial. Three witnesses gave viva voce evidence for the prosecution.

3. The accused made an unsworn statement and called no witnesses in his defence.

4. Winnie Jimmy (PW1) testified and related the events that occurred on the 17th December 2006. This was at Gantsi, at Mmapula’s shebeen. On that day Winnie was selling traditional beer under a sexanana tree. There were some people playing cards including the deceased and accused. Subsequently a misunderstanding developed between the deceased and accused. According to Winnie, the deceased hit the accused who fell down. Accused had then stood up, took his bag and went to a shack 4-5 metres away. Winnie continued assisting her customers and when she looked up accused was holding something which appeared like a knife. Accused then went to where deceased was and when deceased tried to get up, accused pushed him and stabbed him on the left hand side below the armpit. The accused had pulled back the knife and deceased put his hand where he had been stabbed. Realizing that he had been stabbed he tried running away. When running away, he picked up stones attempting to throw them at the accused who was going after him holding the knife.

5. The deceased tried to throw a stone at the accused but it did not reach far. As soon as it hit the ground, the deceased also fell to the ground. The accused was heading for the deceased. This witness went on to say that deceased stood up and once more fell to the ground. He never got up. Accused had then went to the shack, took his bag and went out through the gate.

6. Cross-examined, the witness said he saw the deceased beating accused with fists. She indicated that she did not know what had happened before the accused pushed the deceased and before the deceased punched the accused. The witness said she thought the fight was over when accused walked towards the shack.

7. Qane Bobojane also testified for the state. Her testimony is in line more or less with that of PW1. That both deceased and accused were amongst the people playing cards. That the deceased hit the accused twice, and accused had then went to a shack, took his knife from his belt and went back. That while the deceased was bending down, accused had come from behind and stabbed him.

8. According to PW2, the deceased fell down holding a stone. The deceased had tried to stand up and throw the stone at the accused but he fell down. He tried again but again fell down.

Prior to this incident, the witness admitted in cross-

examination that there had been an altecation between Noko (Itireleng Motshabi) and the deceased.

9. Itireleng Motshabi testified as PW3. This witness stated to the court that he had gone to relieve himself and when he came back he saw the accused holding a knife. The place was noisy and the people had tried to warn the deceased to watch out but the accused had stabbed him. The deceased had taken two stones and ran away with accused chasing him. He tried to throw a stone at accused but failed. He tried again but fell down. The accused had then went away.

10. Accused made an unsworn statement to the court. He said that he was employed at Thys as a mechanic. That on the day in question he went to Ghantsi which was about 5 kilometres away to visit his sister. That he had left a knife there and he took it and placed it in his bag. He testified that he passed by Mukebe’s shebeen where he found the deceased, his younger sibling and some of their friends. They entertained themselves imbibing alcoholic beverages. Later, they moved to Mmapula’s shebeen where they continued drinking alcohol. They saw some people playing and betting on cards and they joined them. After the money they had was finished, the deceased younger sibling took out a 100 United States dollar note. Since converting the 100 United States dollar note into local currency would be a lot of money, it was agreed that the betting for that money

would be PI 60. Accused testified that he ended up accumulating P80 in that money, another person had P40 and another had P60. Maano took the money to exchange it at a nearby liquor restaurant. As Maano stood up and prepared to leave, the deceased chatted with him. After chatting with him Maano left and they resumed playing cards. Ten minutes passed and Maano still had not returned.

11. Accused testified that he stopped the playing of cards so that they could look for Maano to give them back their money. The deceased had then said the cards belonged to him. A misunderstanding developed and they then argued. The deceased had hit him and he fell. When he got up the deceased hit him again with a fist and he fell to the ground once more. According to the accused the deceased was saying that he was going to kill someone and people were not taking him seriously. He said he then took out his knife with the intention to scare him but he was in an attacking mood and by mistake he stabbed him. After stabbing him, he left.

12. The prosecution bears the onus to prove the accused’s guilt beyond reasonable doubt. For a verdict of murder to be returned the court must be satisfied that all the elements of the offence have been proved namely:

a) That the person alleged to have been killed is dead;

b) That the death of the deceased was caused by the act of the accused;

c) That in causing the death of the deceased, the accused had malice aforethought as defined in section 204 of the Penal Code; and

d) The act was unlawful in there being no partial or full justification for the act.

13. With respect to the first element namely, whether the deceased is dead, it is common cause between the prosecution and the accused that the deceased is dead. That is clear from the admitted evidence of Dr S. Mapunda (PW13) who performed a post mortem examination on the body of Bulane Wadipudi identified to him by Radibaba Wadipudi. PW13’s report indicated that the deceased died of haemorrhages and shock and a stab penetrating wound.

14. With respect to who caused the death of the deceased it is common cause that the accused stabbed the deceased, which act resulted in the death of the deceased. On the question of malice aforethought and unlawfulness there is no common cause.

15. The defence would seem to suggest that the accused was provoked by the deceased and therefore the partial defence of provocation should avail him. Further more that the accused acted in self defence.

16. In Palmer v R [1970] UKPC 2; 55 Cr App. R 223 (PC) the court said:

“If there has been an attack so that the defence is reasonably necessary, it will be recognized that the person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action.”

17. In Bobe v The State (2006) 1 BLR 254 (CA). Ramodibedi JA at 257 E - G of the report said -

“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:

(i) 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;

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

(iii) 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 AD 33.”

18. In Mmolotsi v The State [2007] 2 BLR 708 TWUM JA dealt with the requirements of self-defence at 712 G-713A as follows -

“Under the law of this country when a person is attacked and he fears for his life or fears that he would suffer grievous bodily harm he may defend himself to the extent necessary to avoid the attack.

In plain language, this means that the person attacked would be entitled to use force to resist the unlawful attack upon him. It also means that the degree of force employed in repelling the attack should be no more than reasonably necessary in the circumstances. The law also means that if the killing is perpetrated as a revenge or retaliation for an earlier grievance and there is no question that the would be victim was facing an emergency out of which he could not avoid serious injury or even death unless he took the action he did, the killing can hardly be described as self-defence.

In State v Lesogo [1999] 1 BLR 506 Nganunu CJ pointed out that excesses are not accommodated in the defence. It is not a feigned defence. It is a defence of necessity when the situation really looks serious and the accused really thinks so.”

19. On the basis of the above, the defence of self defence cannot avail the accused. PW1 said she thought the fight was over when accused walked towards the shack where he put his bag. PW2 said that deceased was bending down when he was stabbed. Clearly from the evidence there was no danger to the accused by the deceased when accused stabbed him.

20. There is evidence that accused was hit twice with fists and also fell to the ground twice. That as a result he took his bag went to the shack 4-5 metres away. He came back armed with a knife. He then stabbed the deceased who was bending down posing no danger to him. I reject accused’s statement that deceased was in an attacking mood and that he stabbed him by mistake. While accused may have been subjected to a wrongful act in the form of being hit with fists, his reaction to that wrongful act was

way out of proportion to the act. On that basis, the partial defence of provocation must fail.

21. Nganunu CJ had the following to say in State v Ramaisho [2001] 1 BLR 14 at 24 G -H.

“Furthermore, as required by section 205 (2) one must react proportionately to the provocation. That is some what contradictory, for when a person reacts to a sudden provocation under the heat of passion he is not in possession of his full senses. Nevertheless the rule is that the accused ought to react proportionately to the offensive behaviour.

That is a requirement of everyday living with others.

There ought to be proportionality between the degree of the provocation and the retaliatory act.

Thus in D.P. v Camplin (1978) 67 Cr. App. R. 14 H.L. (E) at p20 this element was especially emphasized, viz:

“A crucial factor in the defence of provocation from earliest times has been the relationship between the gravity of provocation and the way in which the accused retaliated, both being judged by the social standards of the day.”

22. In the circumstances of this case I hold that the defence of self defence cannot avail the accused. Furthermore that the partial defence of provocation can also not avail the accused by reason that his reaction was disproportionate to the assault.

23. I am satisfied that the prosecution has proved its case beyond any reasonable doubt and the accused is accordingly found guilty and convicted of murder contrary to section 202 of the Penal Code.

SENTENCE

15. The accused stands convicted of the offence of murder contrary to section 202 of the Penal Code, Cap 08:01.

16. Counsel for the accused submitted and I agree with him that there are extenuating circumstances in this case. This has been confirmed also by Counsel for the state.

17. This court is therefore at large to impose any sentence other than one of death.

18. That punishment should fit the offender as well as the crime while at the same time safeguarding the interests of society is now trite. Bogosinyana v The State, 2006 (1) BLR 208.

19. The accused should however not be visited with punishment to the point of being broken.

20. Counsel for the accused has said all that could be said on behalf of the accused. I take it into account in passing sentence. Particularly that he is a first offender and that from the evidence, the deceased appeared to be the aggressor.

21. I note that accused is a father to five children who look up to him for support.

22. Against his counsel’s plea is the fact that life has been taken away. Murder is a serious offence and its punishment will almost always be severe.

23. The use of okapi knife in incidents of this nature must always be discouraged.

24. Tempering justice with mercy, the accused is sentenced to 12 years of imprisonment. This will be reckoned from the time he was taken into prison custody.

25. Accused has a right of appeal to the Court of Appeal against both conviction and sentence which he must exercise within 6 weeks from today.

26. Okapi knife to be destroyed by the state. Exhibits to be returned to their lawful owners.

DELIVERED IN OPEN COURT AT FRANCISTOWN

THIS 25TH DAY OF NOVEMBER 2010.

K. SOLO ACTING JUDGE

Directorate of Public Prosecutions - Legal practitioner for the state

Tony Matilo Attorneys - Legal practitioner for the accused

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