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IN THE COURT OF
APPEAL OF THE REPUBLIC OF BOTSWANA

HELD AT LOBATSE

COURT
OF APPEAL CRIMINAL APPLICATION NO. CLCGB-012-13

HIGH
COURT CRIMINAL TRIAL NO CTHLB.000009-10

DATE:
26 FEBRUARY 2013

In the Matter
Between:

KARABO
BOFETILE……………………………………………………………………….APPLICANT

And

DIRECTORATE OF
PUBLIC PROSECUTIONS………………………….RESPONDENT

Attorney R.N.
Lekorwe and F.D. Leburu for the Applicant

Ms Attorney M.
Kgosietsile for the Respondent

RULING

GAONGALELWE JA:

1. Applicant has
moved this application seeking an order granting him leave to appeal
out of time challenging the decision of the
High Court pronounced in
a murder trial. That trial was concluded in March 2011 when he was
convicted of the offence of murder
and sentenced to 11 years
imprisonment.

2. His notice of
appeal was only filed with the court on 9th November 2011 which was
after a period of eight months after the conclusion
of the trial.

3. In an application
of this nature the applicant must set out good and sufficient reasons
for the delay in his affidavit and further
set out material
demonstrating that he has prospects of success on appeal.

4. Regarding delay
applicant avers that on 6th April 2011 which was within the period of
noting an appeal he drafted a notice and
grounds of appeal while in
prison and handed same to a named prison officer who undertook to
file accordingly. He says later in
November 2011 he drafted a
supplementary Notice of Appeal the essence of which was to
sufficiently particularise his grounds in
a more precise fashion. He
had apparently been advised by other inmates that his earlier grounds
were vague.

5. His current
attorney has drawn the court’s attention to the opening sentence of
the grounds filed in November 2011 to demonstrate
that it indicates
that this was not the first notice. Part of that sentence reads;

“…I failed to
sufficiently state what I was appealing against and this I hereunder
do as follows…”

I must say there is
merit in the submission that he had drafted an earlier notice of
appeal which he had intrusted to a prison officer.

6. I now address the
subject of prospects of success. Here I have to address matters
pertaining to conviction and sentence separately.

Ad Conviction

7. The grounds of
appeal filed by the attorneys currently acting for applicant are two.
They read as follows;

“(1) The Court
a quo erred and misdirected itself in rejecting the
evidence/explanation of the accused merely because it had
accepted
the evidence of the prosecution.

(2) The court a quo
erred and misdirected itself in holding that on the proved facts self
defence was not available to the appellant”
(sic).

8. In regard to the
first ground counsel has relied on the Court of Appeal decision in
Bolowe/The State 2001(1) BLR page 170 (CA).
In the same case the
court criticised the approach of the trial court in simply rejecting
the version of the accused simply on
the basis that it had accepted
the prosecution evidence. It was held citing the South Africa
decision of R v. Sigh 1975(1) (SA)
page 227 that the proper approach
in a case where there is a conflict on the evidence is for the court
to apply its mind not only
to the merits and demerits of the
prosecution and the defence witnesses but also to the probabilities
of the case (my underlining).

9. In casu the
evidence of PW1 is that on the day of the incident she was in her
house when the deceased dashed in being chased
after by applicant.
The witness said the deceased clung on to herself asking for
protection against applicant. Part of her evidence
reads;

“My lord I
pleaded with the accused to forgive the deceased. As he was clinging
on me for help I was half dressed at the time,
partially dressed. My
Lord I pleaded with accused to forgive the deceased and in response
he said he wanted to punish him for his
name. Karabo pulled Tumo from
me and they went outside.”

Karabo is the
applicant and Tumo is the deceased.

10. It is pertinent
to note that applicant’s then attorney did not challenge the evidence
that applicant said he wanted to punish
the deceased. There is also
the evidence of PW2. This was the crucial witness in the entire trial
who testified that after the
two came out of the house of PW1 he saw
applicant pulling the deceased at the same time hitting him with
fists. He further said
he saw applicant stab the deceased with a
knife.

11. As against the
above pieces of evidence applicant himself testified that the
deceased was the initial aggressor. He said after
they came out of
the house of PW1 the deceased unexpectedly delivered a fist blow on
him in the region of his head. He said he
himself delivered a fist
blow in retaliation whereupon the deceased fell to the ground. He
then said as the deceased stood up
he the deceased took out a knife
and tried to stab him. He said he grabbed the same knife from the
deceased and stabbed him.

12. The above is the
kind of evidence that was being considered by the trial court. With
PW1 not having been cross examined on her
testimony that applicant
had said he wanted to punish the deceased and PW2 not having been
cross examined in relation to his crucial
testimony that it is
applicant who was hitting the deceased and that he applicant out of
nothing took out a knife and stabbed,
it cannot seriously be
contended that the probabilities were in favour of applicant who said
the deceased was the aggressor. It
is my view that the first ground
of appeal is completely a misguided one.

13. Next to consider
in determining the issue of prospects of success is the ground of
self-defence. I have already stated that
the witness i.e., PW2 who
told the court what happened was not cross examined on the material
parts of his testimony. If indeed
the deceased had delivered the
first blow and was the one who first wielded the knife it is my
considered view that such points
would have been in the forefront of
the cross examination.

14. The learned
Author D.T Zeffert in his work entitled “South African Law of
Evidence” Second Edition at page 912 states
the point precisely.
There it is stated;

“If a party
wishes to lead evidence to contradict an opposing witness, he should
first cross examine the witness upon the facts
which he intends to
prove in contradiction, so as to give the witness an opportunity for
explanation. Similarly if the court is
to be asked to disbelieve a
witness, he should be cross examined upon the matters which it will
be alleged make his evidence unworthy
of credit.”

15. The rule of
practice in criminal trials is that a party who calls a witness is
entitled to assume and take it that his testimony
has been accepted
by the opposing party as correct in so far as those essential and
material points on which he was not challenged
are concerned.

16. In the case of S
v Fortuin reported in the 2008 (1) S.A.C.R. page 511 it was held that
it is grossly unfair and improper to
let some material portions of a
witness’s evidence go unchallenged in cross examination and
afterwards argue that such testimony
is to be disbelieved by the
court.

17. I must point out
that though the rule is not one cast in stone this type of case does
not fall within the exceptions to the
rule. The rule will not for
instance be applied strictly against self actors. It will also not be
applied in a situation where
the evidence in question is manifestly
false and in cases where the unchallenged evidence is not on material
issues. The list may
not be necessarily exhaustive as there may be
some rare cases whose peculiar circumstances call for the relaxation
of the rule.
In this case the unchallenged evidence is against the
very substance of the defence of self defence.

18. It is also
important to examine the defence evidence on the issue. In his
evidence applicant came up with two versions on self
defence.
Initially as reflected at page 133 of the record he said;

“I then managed
to get it from him. And after taking it from him because I was drunk
I was surprised that I have stabbed him
on the thigh.”

19. Still in his
evidence in chief as appears at page 136 of the record the following
transpired;

“Q: Seeing that
the Deceased wanted to stab you and you have managed to wrestle the
knife from the deceased why did you then
stab him because you were
now already in possession of the knife?

A: At that time I
was frightened. I ended up stabbing him.

Q: What were you
frightened of?

A: I was frightened
when I saw him took (sic) off the knife.”

20. One would not
expect an accused person like applicant to be gifted in semantics but
even then his answers do not show that he
believed was in any real
danger. The use of excessive force cannot be accommodated in the
defence of self defence. It is a defence
of necessity when the
situation really looks serious and the accused genuinely believing
his life is in danger – See State v. Lesego
1999 (1) BLR page 506.

21. On the strength
of the above factors it is my considered view that the proposed
defence of self defence does not have reasonable
prospects of
success.

Ad Sentence

22. Under this
heading the complaint is that the prison sentence did not take his
pre-trial incarceration into account. In this
country it has become
the practice of our courts to backdate prison sentences to the time
of the start of the pre-trial incarceration.
This is not a rule of
law but an accepted practice. A court is not obliged to so backdate a
sentence but if it decides not to,
it must give reasons.

23. From the
evidence it appears he was in prison custody over the period
September 2008 to August of the following year. There
is nothing
further in the record which militates against such evidence.

24. Learned state
counsel has quite properly conceded that on the available evidence he
was in prison custody for about eleven months.

25. In the
circumstances the order I make is the following;

(a) The application
for leave to appeal out of time against conviction for the offence of
murder is dismissed.

(b) As regards
sentence the application succeeds but only on the issue of the
court’s failure to backdate the sentence without giving
reasons
therefor.

DELIVERED IN OPEN
COURT AT GABORONE THIS 26th DAY FEBRUARY 2013

M.S GAONGALELWE
JUSTICE OF APPEAL

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