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IN THE HIGH COURT OF BOTSWANA

HELD AT FRANCISTOWN

CTHFT-000016-10

DATE: 10 FEBRUARY 2011

IN THE MATTER BETWEEN:

THE STATE

AND

OAGENG DICHABA

Mr Sebetela for the state

Mr Yoganathan 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 31st December 2004, at Monarch Area in Francistown in The Francistown Administrative District of the Republic of Botswana, he murdered Ronney Makatsang. He pleaded not guilty to the charge.

2. At the commencement of the trial the summaries of evidence of five of the prospective prosecution witnesses were admitted in accordance with section 273 (1) of the Criminal Procedure and Evidence Act. Six witnesses were called to give viva voce evidence for the prosecution.

3. Upon being put on his defence the accused opted to give unsworn testimony and call no witnesses in his defence.

4. Nophaus Sole (PW1) testified and related the events that occurred on the 31st December 2004. Nophaus testified that he knew both the deceased, Ronney Makatsang and the accused, Oageng Dichaba. He said on that fateful day, the accused Oageng came to him and asked for a cigarette. Upon being asked for a cigarette he had left his place. Ronney, who was his neighbour had also left his home and followed them. Oageng stayed further on but in the same area. PW1 was friends to both the deceased and accused. PW1 who had lit the cigarette and smoked it passed it on to Ronney. Oageng had then asked Ronney to pass on the cigarette to him. Ronney had then responded by saying that “I will give you the cigarette Sedola”. According to PW1, “Sedola” meant a frog. This witness testified that he had once heard someone calling Oageng by that name but he did not like it. Accused had then said that deceased should not call him by that name. Accused had then called the deceased an Orphan.

5. Norphaus testified that the two traded insults. That Ronney insulted Oageng saying “your testicles” after Oageng had said that he was an orphan. Oageng also insulted him saying “your testicles”. According to this witness Ronney had hit Oageng with a fist and he had fallen to the ground. Ronney punched Oageng as he lay on the ground and PW1 was pulling him (Ronney) away from Oageng. According to this witness Ronney was on top of Oageng and punching him. PW1 eventually managed to pull Ronney away from Oageng and the fight had stopped.

6. According to PW1, when the fight stopped Oageng walked away about 10 metres. The time was around 7 and 8 pm and there were some lights from the neighbourhood. Oageng had then come back saying Ronney was disrespecting him. He was, according to this witness coming towards Ronney. The two had then exchanged remarks and advanced towards each other. A fight ensued again with both of them on their feet. As they fought Oageng then ran away. Then Ronney was holding his abdomen. PW1 stated that he did not see how Ronney got hurt. Accused ran away and Ronney caught up with him and hit him with a brick several times. Ronney was still holding his abdomen where he had been hurt. From the evidence as it unfolded, Ronney had been stabbed by the accused.

7. PW1 was the star witness in this case. He was the one who witnessed the events as they occurred. He was a friend to both the deceased and accused. The case of both the prosecution and defence can either stand or fall based on PWl’s evidence. The defence did not challenge his evidence.

8. The admitted evidence of Bonani Montsho is to the effect that on the 31st December 2004 around past seven or to eight in the evening whilst preparing for supper, his two kids, Kitso and Lesedi came running into the house and told him that there was a fight outside.

9. When he went to see what was happening, he saw one man facially known to him running after another and holding a stone which he threw towards the fence where the other man had jumped. The man had showed him a wound on the left hand side just below the ribs where he was pushing back intestines which were by then coming out from that wound.

10. Fidzane Reetsang (PW3) related to the court how Ronney Makatsang, his cousin, left around 6 pm saying he was going for entertainment. He had then come around 8 pm holding his left side on the abdomen. When he lifted his T-shirt she saw that his intestines were out of the stomach. His clothes were soaked with blood and he was weak. She was with Pogiso who also saw everything. She testified that she stayed with Pogiso. He told them that he had been stabbed with a knife by Oageng (accused). This witness said that Ronney had burn injuries on his left side from the arm down to the leg. That he had those burn injuries a long time back and never complained about them. This witness was cross-examined as to whether Ronney could have eaten anything on the way to the police station 5 km away and she said she was not aware if he did. She further said the tuckshops were far away and he could not have bought anything.

11. Victor Nkwata stated that he was on duty at Monarch customary court in the section starting from 2 pm to 10 pm. Whilst on duty Ronney Makatsang came in and introduced himself as such. He was in the company of some people who were assisting him. He was soaked in blood and appeared to have an injury. This witness said Ronney was weak and he could see it was due to the injury he had and he appeared to have lost a lot of blood. He was holding his left side on the abdomen. The witness could see the intestines hanging outside. The intestines had blood and one of them had a wound. According to Nkwata, Ronney said he had a misunderstanding with Oageng Dichaba over a cigarette and Oageng had taken out a knife and stabbed him. Ronney was then rushed to the hospital. After Ronney had been taken to hospital accused had then come to the Monarch customary court whereupon he was detained. This witness said that they were informed the following morning that Ronney had died.

12. The sum effect of Dumilano Manyanja who gave viva voce evidence, was that, on the 31st December 2004, around 8 pm, Fidzane (PW3) called her. She found Ronney at Monarch kgotla. He was soaked with blood in the chest area. She got into the police motor vehicle with him at the back when he was taken to Nyangabwe hospital.

13. Sub-Inspector Tlotlanang Mogwase cautioned the accused and explained his rights to him. Accused made a statement to a judicial officer which statement was admitted in terms of section 273 (1) of the Criminal Procedure and Evidence Act.

14. Dr V. Patnaik, a forensic pathologist conducted the postmortem examination on Ronney Makatsang. He compiled a report MH 2034 on the deceased. According to this expert witness, death was due to complications due to a stab injury in the abdomen.

According to his additional observations; he perused the medical records and noted the following statement:

“Choking by food particles as cause of death was noted, ultimate cause of death is asphyxia consequent to choking.”

15. In explaining the above position, Dr Patnaik said death was due to a stab wound in the abdomen. It was 15 x 2 cm. It had pierced the diaphragm. He said although death was due to a complication as a result of choking by food particles, without the stab injury there would not have been a complication. The exact cause of death was asphyxia consequent to choking. Deceased had an emergency operation necessitated by the stab injury and there had been no chance to prepare the patient for the operation.

16. Cross-examined, the witness said one of the known causes of death in an unprepared patient’s operation was vomiting and consequent asphyxia. He stated that was what happened in this case. When re-examined Dr Patnaik said the operation was done in an emergency to save the life of the deceased.

17. The accused, Oageng Dichaba, gave an unsworn statement. He did not call any witness in addition to his testimony. According to his statement to the court, he went to MmaDalas place at 3 pm which is a beer spot where he met Nophaus Sole (PW1).

There they drank chibuku. They left the shebeen around 6 pm. PW1 had then gone to his place whilst he remained at Kabelo’s place. At 7 pm he left Kabelo and went to PWl’s place where he asked PW1 for a cigarette. Ronney had then come from behind and joined them. The accused said PW1 had given him a cigarette and he had refused to share it with the deceased. It is his statement that the deceased had called him a “Sedola”. In reply he had had said that deceased was talking like an orphan. Accused said deceased started fighting him. That he pushed him to the ground, sat on top of him, punching him with fists. He said his wallet had fallen. He went away for a distance of 3 metres and came back. Where he got to the spot where the wallet had fallen to pick it up he found a knife. He said he did not know whether it fell from the deceased or was just there. He stated that the deceased then came to him fighting and he took the knife to threaten him. He said he was moving the knife trying to scare him but ended stabbing him in the abdomen. He said deceased was holding stones and approaching him. He tried to jump into the neighbouring yard but deceased hit him with stones at the back. Accused said he then ran away.

18. The onus is on the prosecution to prove the accused’s guilt beyond reasonable doubt. In order for a verdict of murder to be returned,

the court must be satisfied that all the elements of the offence of murder have been proved. These are:

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) That the act was unlawful in there being no partial or full justification for the act. See State v Mothokgo, 1989 BLR 247 at 250.

19. It is common cause between the prosecution and the defence that the deceased is dead. That is clear from the evidence of Dr Patnaik who performed a post mortem examination on a body identified to him by Dumilano Manyanja and prepared a report which was admitted in evidence. It is common cause that accused stabbed the deceased but there is no common cause on who caused the death of the deceased. On the question of malice aforethought and unlawfulness there is no common cause.

20. Counsel submitted that there was a novus actus interveniens in that the chain of causation of death had been intervened and interrupted by the vomiting and consequent axphyxia which was the ultimate cause of death.

21. In the State v Reetsang, 1979 -90 BLR 48 Mahomedi J said:

“Basically there are two approaches by the law to the problem of causation.

(a) The first approach is based on “the direct consequences” theory. The test is whether death is a consequence which flows directly from the act of the accused.

(b) The second approach (and the one more generally favoured particularly in criminal law) is the condition sine qua non and foreseeable result theory. In terms of this approach every act or omission of the accused, but for the existence of which death would not have resulted, is regarded as a cause of death, but the liability of the accused is excluded as a matter of policy if the accused could not reasonably have foreseen that this particular act would have that result.”

22. If the novus actus inteveniens is one which was reasonably foreseeable, the fact that it constitutes a novus actus in law will not absolve the doer of the original act from responsibility. See State v Reetsang 1979-80 BLR 48 at page 49.

23. Counsel for the state forcefully submitted that death was due to complications and stab wound on the abdomen. That the ultimate cause was asphyxia consequent to choking and these were additional observations. He submitted further that the deceased underwent an emergency operation thus there was no

opportunity to have the food in his stomach digested. I agree with counsel for the State that that is so, and further that the sole purpose of the emergency operation by the doctors was to save the deceased’s life. It cannot be said that the doctors’ intervention constituted a novus actus interviniens thus breaking the chain of causation. See section 209 (a) of the Penal Code. Using the second approach in State v Reetsang, I hold that it was reasonably foreseeable that doctors might try to save the life of the deceased which might or might not result in complications above.

24. It was submitted by counsel and I agree that the deceased and accused fought. That when they separated, the accused walked away for about 10 metres in terms of PWl’s evidence. He then came back saying “O an ntlwaela”, meaning “You are being disrespectful to me.” The fight erupted once more and deceased was stabbed as a result. There was no need for accused to have gone back. He could have avoided the fight. At that stage accused cannot say that he was in imminent danger of serious injury. Given the above scenario, the defence of self defence cannot avail to him. In his evidence which was unsworn, he confirms the pause in the fight and that he went 3 metres back. The sworn evidence of PW1 which was not challenged is that he went 10 metres away and that when he returned the fight ensued. I totally agree with the testimony of PW1, a friend to both the deceased and accused and had no reason to lie against either of them.

25. 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.”

26. Regarding provocation, 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.”

27. 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.

27. 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.

Ruling on extenuation

28. The accused stands convicted of the offence of murder contrary to section 202 of the Penal Code.

29. The court at this stage is required to make a determination as to whether there exists any extenuating circumstances entitling the court to impose any other sentence other than death.

30. Extenuating circumstances have been described as factors which however remote reduce the moral blameworthiness of an accused person.

31. Put differently:

“Any facts, bearing on the commission of the crime, which reduce the moral blameworthiness of the accused, as distinct from his legal culpability.”

See State v Letsholo, 1970 (3) SA 476 (AD).

32. In determining whether or not extenuating circumstances were present, section 203 (3) of the Penal Code requires this court to have regard to the standard of behaviour of an ordinary of the class of the community to which the convicted person belongs.

33. Although the accused and deceased traded insults but the provocation to the accused was held not sufficient to reduce murder to manslaughter, I am prepared to accept that accused’s subjective feelings of provocation somewhat impaired his judgment at the time he committed the offence thus reducing his moral blameworthiness.

34. It has been submitted that there was lack of premeditation and that accused was 22 years of age at the time of the commission of the offence. I agree with this submission and also note that the youthfulness alone will not constitute an extenuating circumstance.

35. I therefore find that there are extenuating circumstances and the accused is convicted of murder contrary to section 202 as read with 203 (2) of the Penal Code.

Sentence

36. The accused stands convicted of murder albeit with extenuating circumstances.

37. This is one of the most serious offences in the statute book.

38. I will take into account the triad of considerations in sentencing the accused. That the sentence must fit the crime, the particular circumstances of the accused and to also have regard to the interests of society. See ETI v The State, 2006 (2) BLR 482.

39. The court in considering the appropriate sentence to be imposed must temper justice with mercy. See State v Narker and Another, 1975 (1) SA 583 AD.

40. The accused is a young man who was 22 years at the time of the commission of the offence.

41. He is a first offender. He surrendered himself to the police immediately after the event.

42. I have listened carefully to what the defence counsel said in mitigation. I take it into account in passing sentence.

43. Accused is sentenced to 11 years of imprisonment. The time he spent in prison custody must be deducted from the effective term of imprisonment.

44. The accused is advised of his right to appeal against conviction and/or sentence to the Court of Appeal within six weeks from today.

DELIVERED IN OPEN COURT AT FRANCISTOWN

THIS 10TH DAY OF FEBRUARY 2011.

K. SOLO ACTING JUDGE

Directorate of Public Prosecutions - legal practitioner for the state

Nathan Associates - legal practitioner for the accused

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