Warona Nkape

Provocation
Section 205 and 206 and look at the core aspects of provocation.

Section 205: Crime Creating Provision

(1)When a person who unlawfully kills another under
circumstances which, but for the provisions of this section, would
constitute murder, does the act which causes death in the
heat of passion caused by sudden provocation as hereinafter
defined, and before there is time for his passion to cool, he is
guilty of manslaughter only
(2) The provisions of this section shall not apply unless the court is
satisfied that the act which causes death bears a reasonable
relationship to the provocation
Key elements of the provision
 The commission of the offense has to occur in the heat of
passion.
 The heated passion caused by sudden provocation before
there is time to cool.
 The act done in the heat of passion must have a reasonable
link to the provocation.
NOTE: The effect of 205 is to reduce what would be murder to be
manslaughter. It becomes manslaughter where a crime which
would ordinarily be murder is committed in the heat of
passion caused by provocation before cooling down.
Section 2 required that the act must be reasonablly linked
to the provocation; cause by the provocation.
Warona Nkape

Note these aspects and critic them according to how case law
defined heat of passion, sudden provocation and cooling down

Section 206: Definition provision

(1) The term "provocation" means, except as hereinafter stated,
any wrongful act or insult of such a nature as to be likely, when
done or offered to an ordinary person, or in the presence of an
ordinary person to another person who is under his immediate
care, or to whom he stands in conjugal, parental, filial or fraternal
relation, or in the relation of master and servant, to deprive him of
the power of self-control and to induce him to assault the person
by whom the act or insult is done or offered.

According to the actus rea, the provoking

conduct could be a physical act or
speech. In terms of speech, it is
narrowed to insulting speech only and
not any other speech
The class of individuals to which provocation has occured.
it draws a limit to those individuals to whom provocation must
relate.
A wrongul act or insult done to:

1. An ordinary person
2. In the presence of an ordinary person to another person
 Who is under their immediate care
Warona Nkape

 Whom he stands in conjugal, parental, filial or fraternal

relation
 Who is their master or servant

If provocation occurs outside the context of these relationships, it

cannot reduce the crime of murder to manslaughter.
The act or insult should deprive the accused of the right of
self-control. The conduct or speech (insult) to another
person who is in their immediate care must deprive them
of the power of self control and induce him to assault (that
leads to death) the person making the act or insult.
We have to look at the provocation to see if it meets out s206.
When studying cases, determine when an ordinary person is
deprived of the power of self control.

Summary
-provoking conduct (act/insult)
- ordinary person
- class of individuals
-deprivation of self control
- inducing assault leading to death

Subsections of 206: Conditions of

Provocation
Warona Nkape

The subsections stipulate the conditions in which the partial

defense of provocation operates
Look at sub 3,4 and 5. Parliament describes the ambit within which
provocation operates. What are these parameters

Subsection 3 states that lawful

provocation cannot be deemed as a
defense for provocation. For example, a police
officer acting within his duties to make a lawful arrest and you kill
him. This kind of provocation is not protected by the law and thus
one cannot benefit from the defense of provocation.

Subsection 4; the provocation should be

caused by the deceased and not a third
party that induced the accused to kill
the deceased. The deceased must manufacture the
provocation that invites the accused. If a person is provoked
by another to kill the deceased, the defense of provocation cannot
stand
Sub 5; speaks to a situation where the arrest is unlawful;
unless the accused is aware that the
arrest is unlawful, it will suffice as
evidence of provocation but if they are
unaware of the illegality of the arrest,
it may not be raised
Warona Nkape

Remember sub 2 in 205 addresses a reasonable link between the

act and the provocation.
Remember: there is a specific person labelled as an ordinary
person. An ordinary person is defined in 206.
In noting the core elements, the next task is to critically assess
what the courts say about the elements.
Read cases and look at the report from Moodle. The UK was
looking at provocation as a partial defense. The question of
abolishing the partial defense was discussed, that people killing in
anger from provocation should be convicted of murder because
there was a clear intention to kill. Others say that it was
happening in the heat of passion and therefore is justified.
Appreciate the problematic aspects of the partial defense.

State v Mokotedi
Upon not finding the wife at home, he went to look for her,
carrying an axe and found her at the deceased's house. He hit
them with an axe and confessed his intention to kill
[Link], no evidence was adduced as to the cause of the
deceased’s wounds and death due to the medical doctor in charge
of the post moterm leaving the country.
Legal Principle
Where there is medical evidence of the deceased’s serious injuries
which does not exclude the possibility of death caused by natural
causes, the prosecution must prove causation beyond reasonable
doubt
Warona Nkape

Holding
Thus, the court held that it was not established beyond reasonable
doubt that the axe caused the wounds that resulted in the
deceased dying the next day. Consequently, he could not be
convicted of murder or manslaughter and thus the issue of
provocation was not addressed. He was held to have an intention
to cause grievous bodliy harm and was convicted of the offense
thereof.

Partial Defenses to Murder-Law Reform in UK Article

The issue was whether the defense of provocation was satisfactory
to determine whether the partial defense should be retained or
abolished.
The winner was that provocation be retained but gave out
principles that would govern a reformed provocation defense.
The principles are as follows:
Unlawful homicide which would = murder must be reduced to
manslaughter if there was
a. Gross provocation (conduct or insult or both) which caused
the defendant to have a justifiable reason of being seriously
wronged
b. If there was fear of serious violence towards the defendant or
another
c. A combination of a and b and a person of the defendant’s
age and ordinary temperant (ordinary tolerance and
self-restraint) in the circumstances of the defendant
might have reacted in the same or a similar way
Warona Nkape

(2) in determining whether a person of the defendant’s age and

ordinary temperant would have acted in a similar way, the court
should look at the circumstances which could affect the
defendant’s capacity of self control.
(3) The partial defense should not apply where the provocation
was incited by the defendant or the defendant’s pre-meditation
(4) A person cannot be deemed to have a pre-meditated
desire to revenge if they acted in fear of violence and
developed emotions of anger as s result of the fear.
The supposed requirement of a sudden and temporary loss of self
control has given rise to serious problems, especially in the “slow
burn” type of case.
The objective test that the provocation was enough to make a
reasonable person to act as the defendant did was interpeted in
the Smith case in a way that enabled a defendant to rely on
personal characteristics/traits which make them more short
tempered than other people. As a result, it could be accepted that
the net for the defense of provocation was cast too wide in such
instance

Rationale of the defense

The author held that the rationale of provocation was slippery and
has never been consistent. At the time of the Homicide Act 1957,
the excusatory ground of the defense was that the
defendant had suddenly and temporarily lost his or her
self-control because of provocation and a reasonable man
would have acted similarly.
Warona Nkape

Essentially, justifactory defences are those which recognise that

the conduct was legitimate in the circumstances e.g. self-defence.
Excusatory defences involve recognition that although the conduct
was not legitimate, the actor lacked personal culpability for some
reason or another, e.g. because of a disability.

Baoteleng v State
The appellant was convicted of murder and sentenced to death by
the HC because of hitting his wife with the back of an axeblade.
The deceased had grossly insulted him both prior to the night of
the quarrel and on the night of the quarrel by accusing him falsely
of having slept with other women and of likening his conduct to
that of a dog. She hit him with a mirror and threw the mirror on
the ground and broke it. After breaking the mirror, she picked up a
small knobkerry and started poking him with it in the stomach.
She was not saying anything, she was just hitting. It was at this
point that the deceased took the axeblade and hit her to her
death.
The issue was therefore whether it would be just, looking at the
facts to reduce the offense from murder to manslaughter
Legal Principle
s205 and s206 provided that provocation, even with malice
aforethought, would reduce the offense of murder to
manslaughter.
Under Section 203(2) of the Penal Code where a court is of the
opinion that there are extenuating circumstances it may impose
any sentence other than death
Warona Nkape

Extenuating circumstances are any facts, bearing on the

commission of the crime, which reduce the moral blameworthiness
of the accused, as distinct from his legal culpability.
In this regard a trial court has to consider - (a) (b) whether there
are any facts which might be relevant to extenuation, such as
immaturity, intoxication or provocation
whether such bearing was sufficiently appreciable to reduce the
moral blameworthiness of the accused in doing what he did.
In deciding, the trial court exercises a moral judgment. If its
answer is yes, there are extenuating circumstances.
Holding
The Court of Appeal held that the judge of the court a quo was
right in finding that there was no provocation as a defense within
the meaning of section 205 and 206 of the penal code.
However, the court of Appeal held that the deceased’s
actions(gross insults, false accusations of sleeping with women
and dog naming) sufficed as reducing the moral blameworthiness
of the accused and qualified as an extenuating circumstance.
Consequently, the death sentence was set aside for a 12 months'
imprisonment term

Momoti v The State

Material Facts
Warona Nkape

The appellant found the deceased with his wife in his bedroom and
inferred adultery. He claimed to have lost self-control when he saw
the deceased in his bedroom. A struggle ensued between the
deceased and the appellant hit the deceased with a shoe and
mulberry sticks. Appellant convicted of murder and thus appealed
against his conviction and sentence.
The court a quo held that it was unexpected and sudden for the
appellant to find them in his bedroom. The appellant was
described by the court a quo as a person devoted to his wife and
family and not a person who would normally resort to violent
behavior.
Legal Principle
Section 205; a person who may be on certain circumstances be
found guilty of murder is guilty of manslaughter where they
caused the death of another in the heat of passion caused by
sudden provocation, before there was time for passion to cool
There must be a causal link between the provocation and the act
casuing the death
and 206; provocation is a wrongful act or insult done to an
ordinary person or in front of an ordinary person to another whom
is in their immediate care, parental, conjugal, fraternal, or master-
servant relation, to lose power of self control and induce them to
assault the person doing the act/insult
Holding
The court of appeal held that the appellant’s sight of the
deceased with his wife in his bedroom, giving a reasonable
belief of adultery constituted a grave provocation as
defined in section 206(1) (made him lose self control and
Warona Nkape

induced him to kill the deceased) and that the appellant’s

actions were made in the heat of passion caused by the
stated provocation before there was time for his passion to
cool.
There was a reasonable link between the appellant’s
actions and the provocation, satisfying section 205(2).
Provocation or sudden uncontrollable passion may rebut
the presumption of malice or an intent to kill.
In conclusion, the conviction on murder was set aside and he was
convicted of menslaugter