Appeal at your own risk: the power of an appellate court to enhance a sentence on appeal in Botswana

by | Sep 9, 2025 | SACJ, SACJ V38 I1 2025

ARTICLE

Appeal at your own risk: the power of an appellate court to enhance a sentence on appeal in Botswana

Authors: Baboki Jonathan Dambe & Olebile Daphney Muzila

ISSN: 1996-2118
Affiliations: LLB (Botswana) LLM (Edinburgh); Lecturer of Law, Department of Law, University of Botswana; LLB, LLM (Botswana); Attorney at Law, Botswana
Source: South African Journal of Criminal Justice, Volume 38 Issue 1, p. 94-113
https://doi.org/10.47348/SACJ/v38/i1a4

Abstract

The right of an accused person to appeal their conviction and sentence to a superior court is an indispensable component of due process and an extension of the right to a fair trial. Principally, an accused person appeals with the hope that the appellate court will reach a more favourable decision than that of the trial court. However, an appeal presents the inherent risk that the appellate court may enhance both the sentence and the conviction. This paper assesses the powers of the High Court and the Court of Appeal of Botswana to enhance the conviction and sentence when dealing with an appeal. The circumstances under which this power is exercised and the factors that are taken into account by the appellate courts are examined. The paper highlights that the appellate courts retain the discretion to enhance a sentence even when the accused person ultimately attempts to withdraw their appeal. The authors interrogate the propriety of the appellate court’s discretion to decline an application by an accused person to withdraw their appeal. The paper juxtaposes the aforesaid power with that of appellate courts in South Africa to enhance sentences imposed by the trial court.

Reconsidering criminal liability for encouraging suicide in South African law through the lens of Commonwealth v Carter

by | Sep 9, 2025 | SACJ, SACJ V38 I1 2025

ARTICLE

Reconsidering criminal liability for encouraging suicide in South African law through the lens of Commonwealth v Carter

Author: Dr Jacques Matthee

ISSN: 1996-2118
Affiliations: LLB, LLM, LLD. Senior lecturer in law, University of the Free State
Source: South African Journal of Criminal Justice, Volume 38 Issue 1, p. 114-133
https://doi.org/10.47348/SACJ/v38/i1a5

Abstract

In 2017, Michelle Carter was convicted of involuntary manslaughter in the United States for encouraging her boyfriend, Conrad Roy, to die by suicide, despite being nowhere near the scene at the time of his death. Her conviction, based primarily on text messages and phone calls, raises complex legal questions about causation, culpability, and the limits of criminal liability for speech alone. This article reconsiders criminal liability for encouraging suicide in South Africa through the lens of the Carter case to assess whether a similar outcome could be reached under South African law. While South African courts have addressed assisted suicide and supplying the means for suicide, the legal position on verbal encouragement, particularly through digital communication, remains underdeveloped. The only relevant precedent, Ex parte Minister van Justisie: In re S v Grotjohn, offers limited guidance, having been decided decades before the advent of phenomena such as social media and cyberbullying. This article argues that the Carter case invites a critical re-evaluation of South Africa’s legal principles to address the unique harms of virtual suicide encouragement. It identifies legal gaps and advocates for developing a tailored causation approach standard and statutory reforms to better protect vulnerable individuals from psychological manipulation while upholding fundamental principles of justice.