ABEL v THE STATE 2007 (2) BLR 720 (CA) Citation: 2007 (2) BLR 720 (CA) Court: Court of Appeal, Lobatse Case No: Crim App 3 of 2007 Judge: Grosskopf, Moore and Twum JJA Judgment Date: July 24, 2007 Counsel: B Sechele for the appellant. T C Mulalu for the State. Flynote Criminal law - Murder - Self-defence - When person attacked and fearing for his life or fearing that he would suffer grievous bodily harm, he could defend himself to extent necessary to avoid attack - Degree of force employed in repelling attack should be no more than reasonably necessary in circumstances. Headnote The appellant was convicted of murder and appealed against the conviction. The evidence showed that the deceased, the appellants father, asked her to perform a chore. When she did not do as she was told, the deceased hit her with a sjambok on her back. The appellant retaliated by stabbing the deceased with a knife lying close by. The appellant claimed that she had acted in self-defence. Held: (1) When a person was attacked and feared for his life or feared that he would suffer grievous bodily harm, he could defend himself to the extent necessary to avoid the attack. The degree of force employed in repelling the attack should be no more than reasonably necessary in the circumstances. (2) The means used by the appellant in the circumstances had been clearly disproportionate to the alleged offensive act by the deceased. (3) The appellant freely admitted that the deceaseds act had been a form of reprimand and that she was not in any fear of her life nor did she believe that her father was about to cause her grievous bodily harm. Neither self-defence nor provocation was available to the appellant. Case Information Cases referred to: State v Lesogo [1999] 1 B.L.R. 506 State v Ramaisho [2001] 1 B.L.R. 14 2007 (2) BLR p721 APPEAL against conviction for murder. The facts are sufficiently stated in the judgment. B Sechele for the appellant. T C Mulalu for the State. Judgment TWUM JA: On 29 September 2006 the appellant was convicted of murder by ?Mosojane J sitting at the High Court, Francistown. She has appealed to this court against conviction. The facts leading to the offence were not in dispute. The deceased was the father of the appellant. The deceased, the appellant and the grandmother lived in the deceaseds place in Senete village. About 11 am on 25 June 2005 the appellant was washing dishes and other kitchen utensils in one of the huts used as a kitchen. The deceased who was engaged elsewhere in the yard asked the appellant to go and let out the goats from the kraal so that they could go out for grazing. The appellant replied by saying that it was too early to let them out and that she would do so later. It is not clear whether the deceased heard the appellants reply. If he did, he did not show it. After waiting for some five minutes or so, he fetched a sjambok, entered the kitchen and hit the appellant over her shoulder with it. It landed on her back, causing a swelling. The appellant, there and then, stood up, picked up a knife from amongst the utensils she was washing and stabbed him. He died of this stab wound. The appellant was arraigned before the High Court, Francistown, on a charge of murder, contrary to s 202 of the Penal Code (Cap 08:01). She pleaded not guilty. At her trial the prosecutions evidence was not challenged. She gave sworn testimony but called no witnesses. In her testimony, she said that in response to the deceaseds instructions, she had told him that it was too early for the goats to be let out for grazing that day. She said it was a cloudy day and that a more appropriate time to release them would be about noon. Under cross-examination, she admitted that she appreciated that her father only intended to chastise her for not carrying out his instructions immediately. She knew that he did not intend to kill her. She also said she knew that a knife was a lethal weapon which could kill a person. The quintessence of her defence, as it appeared from her answers to the cross-examination, was that in stabbing her father she was defending herself because he assaulted her first. The main issue for the court was therefore whether or not the defence of self-defence was available to the appellant. In their final submissions to the learned trial judge at the end of taking evidence, counsel for the State argued that the appellant acted unlawfully in that she had no recognisable defence to what she did. In the circumstances, the defence of self defence in terms of s 16 of the Penal Code was not available to her. Counsel for the appellant on the other hand, argued that the appellants actions were justified in terms of s 16 of the Penal Code. In particular, he submitted that the attack by the deceased on the appellant, was unlawful, even though it was intended as a reprimand of the appellant. He referred to s 305 of the Criminal Procedure and Evidence Act, (Cap 08:02), 2007 (2) BLR p722 TWUM JA and the regulations made thereunder, and submitted that those laws regulated the manner in which corporal punishment by the State on convicts was to be administered. Consequently he submitted that the attack by the deceased justified his being stabbed by the appellant. The appellant was therefore not guilty of murder as charged. After a very careful evaluation of the evidence and counsels submissions, the learned trial judge held that in all the circumstances, the defence of self-defence was not open to the appellant because in his view, the means used by the appellant were clearly disproportionate to the alleged offensive act by the deceased. He then considered the defence of provocation and concluded that since in his view the act of the deceased in chastising the appellant was lawful, the issue of provocation did not also arise, relying on s 206(3) of the Penal Code. He convicted her of murder as charged and sentenced her to imprisonment for a term of five years. It is against that conviction that the appellant lodged this appeal. In her notice of appeal the following grounds were noted: (1) The learned judge a quo with respect erred when he held that self-defence was not in the circumstances available to the appellant despite the fact that the accused stabbed the deceased in reaction to an attack on her person. (2) The learned judge a quo fell into error when he held that the actions of the deceased amounted to lawful chastisement of the accused despite the fact that the deceased employed the use of a plastic sjambok to carry out such chastisement. The second ground is really a rehash of the first and I will deal with them together. Before I deal with learned counsels submissions on these grounds it may be profitable to rehearse the conditions which must be satisfied before a court, properly informed of the law, may accept a plea of self-defence on behalf of an accused person. In the first place, the defence is open only to persons charged with murder. It is a complete defence which exonerates the accused from the legal consequences of his act. It is therefore a special plea, the conditions for which should be jealously guarded by the court so as to ensure that a charge of murder is not trifled with. There are two main statutory provisions which set out the requisite conditions. Section 4(2)(a) of the Constitution of Botswana itself provides: (2) A person shall not be regarded as having been deprived of his or her life in contravention of subsection (1) of this section, if he or she dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably justifiable - (a) For the defence of any person from violence or for the defence of property. This provision is reinforced by s 16 of the Penal Code as follows: Subject to the express provisions of this Code or any other law for the 2007 (2) BLR p723 TWUM JA time being in force, a person shall not be criminally responsible for the use of force in repelling an unlawful attack upon his person ... 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. Section 4(1)(a) of the Constitution provides for the protection of the right of life by prohibiting the deprivation of any persons life intentionally except in the execution of a sentence of a court in respect of an offence under the law in this country for which that person has been convicted. There are certain rules of evidential burden of proof with which I am not now concerned. Suffice it to say that under the law, when a person is attacked and 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 repel an unlawful attack upon him. It also means that the degree of force employed in repelling the attack upon him should be no more than reasonably necessary in the circumstances. It is a corollary of the rule that in some circumstances the would-be victim of an unlawful attack would be expected to take avoiding action if the opportunity presented itself. It also means that if a 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. See State v Ramaisho [2001] 1 B.L.R. 14 at pp 22-23. Finally in State v Lesogo [1999] 1 B.L.R. 506, Nganunu CJ pointed out that ... excesses are not accommodated in the defence ... self-defence is not a feigned defence, it is a defence of necessity when the situation really looks serious and the accused genuinely thinks so. At the hearing of the appeal counsel for the appellant made a valiant attempt to persuade this court to hold that the learned trial judge erred in saying that the appellant was not entitled to the defence. His first obstacle was to satisfy the test of unlawful attack. In order to overcome this hurdle, counsel argued rather forcefully that all over the world, corporal punishment in general, and the parental right to chastise their children (as a special specie of corporal punishment) in particular, were being disavowed as barbaric and an unlawful attack on children. Counsel supplied the court with photocopies of an article written by Bernard Beknik, a senior lecturer in Public Law at the University of Pretoria entitled: When do parents go too far? Are South African parents still allowed to chastise their children through corporal punishment in their private homes? (2006) 19 SAJCJ 2, 173-191. Counsel then submitted that in light of international opinion, and/or conventions, the deceaseds act of hitting his 20 year-old daughter with a sjambok transcended the legitimate province of a parent chastising his child. Consequently the deceaseds act was unlawful and the appellant was justified in stabbing him as she did. He therefore submitted that the court should hold that the deceaseds act of hitting his child with the sjambok was an unlawful act within the meaning of s 16 of the Penal Code. In my opinion, learned counsel for the appellants submission is flawed. 2007 (2) BLR p724 TWUM JA The law of self-defence is not concerned with the acceptability or otherwise of the right of a parent to discipline his child by the international community. The so-called international agitation between the anti-smackers and the pro-smackers for the abolition or retention of parental rights of chastisement of their children, is based on whether or not the exercise of those rights constitutes an infringement of their childrens fundamental human rights. Meanwhile, it is begging the question to submit as counsel did, that child chastisement, irrespective of the mode or manner in which it is carried out, is an unlawful act within the meaning of s 16 of the Penal Code. A fair answer to this will be to say that the existence of the right should not necessarily make any difference to the statutory requirements which must be satisfied before the plea of self-defence can avail an accused person. This is because all acts, including the parental right of chastisement, should be judged for the purpose of the plea of self-defence by reference to the provisions of s 16 of the Penal Code. Hence, where a parent purports to chastise his child and the act of chastisement is so horrendous that it manifests an imminent threat to his life or exposes that child to grievous bodily harm, that act has scaled the legitimate threshhold and has become an unlawful act within the meaning of s 16 of the Penal Code. Clearly the essentials of the plea of self-defence are too inveterate in our criminal jurisprudence to be swept away by a side wind. In casu, the appellant freely admitted that before she stabbed her father, she was not in any fear of her life and neither did she believe that her father was about to cause her grievous bodily harm even though she thought her father was posed to strike her again. She freely admitted that her fathers act was merely a form of reprimand. Indeed she admitted that her stabbing her father was an unlawful act. The appellant clearly over-reacted against a non-existent threat to life, body or limb. In my view, (and I believe I am not adopting any arm-chair approach) the appellant was anguished by her ruffled dignity in being struck by a sjambok - an instrument used for hitting donkeys rather than because she was in any danger whatsoever. Even if that act of her father can be described as wrongful, the appellants mode of repelling that threatened second strike by her father was excessive and not reasonably necessary. I will therefore uphold the decision of the trial judge that the defence of self-defence was not available to the appellant. I also agree with the learned trial judge that the defence of provocation was equally not available to the appellant. In the appellants own words, what the father did was meant to be a reprimand. Indeed, the deceased, not knowing that he would succumb to death warned the appellant not to go back to his house after he had been stabbed. I will dismiss the appeal. Grosskopf and Moore JJA concurred. Appeal dismissed. 2007 (2) BLR p72
Posted on: Wed, 26 Nov 2014 20:06:51 +0000
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