Motiki v. The State

Criminal Appeal 51 of 1986; [1986] BWCA 22
Download Judgment: English
Country: Botswana
Region: Africa
Year: 1986
Court: Court of Appeal
Health Topics: Medical malpractice
Tags: Health care workers, Inappropriate treatment, Negligence, Traditional medicine

The Appellant provided a woman with traditional medical treatment. This treatment involved the Appellant placing his hands on the woman’s abdomen and applying pressure. The Appellant applied enough pressure during the treatment to rupture the woman’s spleen, causing a hemorrhage that resulted in her death.

The Appellant, who had practiced traditional medicine for 15 years but was not medically qualified, was charged with murder. He was convicted of manslaughter at trial, and sentenced to 10 years imprisonment. The Appellant appealed.

Section 220 of the Penal Code of Botswana provided that:

“it is the duty of every person who, except in the case of necessity, undertakes to administer surgical or medical treatment to any other person, or to do any other lawful act which is or may be dangerous to human life or health, to have reasonable skill and to use reasonable care in doing such act; and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to observe or perform that duty.”

 

The Court affirmed that the Appellant was guilty of manslaughter by negligently causing the death of the woman. Further, while Botswana was tolerant of traditional medicine and did not require medical practitioners to be licensed to practice, everyone who attempted to provide medical treatment of any sort was bound by the duties under section 220 of the Penal Code.

However, the Court considered that a sentence of 10 years imprisonment was too harsh, and replaced it with a sentence of one year’s imprisonment and a fine of P200. The Court decided its appeal on the basis that such long periods of imprisonment were not usually given for negligent conduct. It noted that the sentence for negligent medical practice not leading to death was usually six months.

Against this, the Court considered that the appellant had caused an unnecessary death by his negligent and reckless behaviour and held that the appropriate sentence should serve as a deterrent to the appellant and to others who undertook similar work, so as to prevent such deaths.  The Court therefore substituted the sentence with a one year term of imprisonment and a fine of P200.

“On the facts there can be no doubt that this was a negligent and indeed what may be described as a reckless act. This does not, however, mean that a fifty-two year old man should be sent to prison for a period of ten years for his negligence.” Pages 4-5.

“We were informed, and it appeared to be common cause that the appellant received remuneration for what he did. Far from curing the deceased he negligently killed her; the death of the deceased has probably lowered his reputation in the area in which he lives and his practice is most likely to be affected by her death.” Page 5.

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