Court name
Supreme Court
Case name
S v Hanekom
Media neutral citation
[2001] NASC 2











SA 4/2000







IN THE SUPRME COURT OF
NAMIBIA







In the matter between:






ALBERTUS
JACOBUS HANEKOM APPELLANT







Versus







THE STATE
RESPONDENT







Coram: Strydom, C.J.; O’Linn,
A.J.A. et Manyarara, A.J.A.



Heard on: 2001/04/02



Delivered on: 2001/05/11











APPEAL JUDGMENT











STRYDOM, C.J.: The
appellant was charged before the Regional Court, Windhoek, firstly of
the crime of rape and secondly of indecent assault. Both charges
related to an incident which took place on 6 January 1998 at Dorado
Park, Windhoek. In regard to the first charge it was alleged by the
State that the appellant did wrongfully, unlawfully and intentionally
have sexual intercourse with one SM, a female person, without her
consent. On the second charge it was alleged that the appellant did
unlawfully, indecently and lasciviously assault the said SM by
placing his penis in the mouth of the complainant and forcing her to
suck it.







The appellant pleaded not guilty
to these charges and was throughout legally represented. After a
somewhat lengthy trial the appellant was convicted on both charges.
The convictions were taken together for purposes of sentence and the
appellant was sentenced to seven years imprisonment of which one year
imprisonment was suspended on certain conditions.







The appellant appealed against
his convictions to the High Court but was unsuccessful. Thereafter,
and with leave of that Court, he appealed to the Supreme Court. In
this Court the appellant was represented by Mr. Botes whereas Mr. Von
Wielligh represented the respondent.







The grounds of appeal are set
out on pages 818 to 821 of the record and reads as follows:







1. That the learned judges
erred in the law and/or facts in not rejecting the complainant’s
evidence in toto;








  1. That the learned judges erred in
    the law and/or on the facts in finding that the differences between
    the complainant’s evidence, her police statements and the evidence
    of Anna Beukes were not material in context;









  1. That the learned judges erred in
    the law and/or on the facts in finding that the cross-examination
    conducted by the defence attorney was improper and should not be
    allowed especially if one have regard to inter alia;










    1. The nature of the complainant’s
      evidence in court;











    1. The complainant’s evasiveness
      in answering questions put to her;











    1. The complainant’s refusal to
      answer certain questions;











    1. The duration of events as to
      which the complainant testified.










  1. That the learned judges erred in
    the law and/or on the facts to give no, alternatively insufficient
    weight to the fact that there was not corroboration of whatsoever
    nature for the complainant’s version.









  1. That the learned judges erred in
    the law and/or on the facts to give no, alternatively insufficient
    weight to the evidence of the medical doctor, Dr. Asser, who
    testified as to the possibility that semen could have entered the
    complainant’s vagina from the outside to the inside as well as to
    his findings as to the physical condition of the complainant when
    examined.









  1. That the learned judges erred in
    the law and/or on the facts to find that it is extremely improbable
    that the complainant had no conceivable reason to not disclose the
    appellant’s identity to the police or to her father.









  1. That the learned judges erred in
    the law and/or on the facts to find that the only conceivable reason
    why the complainant reported a case of rape and indecent assault to
    Beukes and the police was that she wanted to get the appellant into
    trouble as suggested by the appellant because she was angry at his
    rejection of her invitation to have sexual intercourse.









  1. That the learned judges erred in
    the law and/or on the facts to rely on the quoted passage in the
    judgment of Davis, A.J.A. in R v D. Dhlumayo & Another
    1948(2) SA 677 (A) at p. 705 especially in the light thereof
    that it was clear that the learned magistrate in several respects
    misdirected herself on the facts and in law.









  1. That the learned judges erred in
    the law and/or on the facts in giving insufficient weight to the
    evidence of Mr. Pfeifer which evidence clearly corroborate the
    evidence of the appellant.









  1. That the learned judges erred in
    the law and/or on the facts to give no, alternatively insufficient
    weight to the improbabilities in the complainant’s version as was
    set out in the appellant’s Main Heads of Argument on appeal.









  1. That the learned judges erred in
    the law and/or on the facts in not finding that it cannot be said in
    all the circumstances that the appellant’s version of the events
    could not reasonably be true.









  1. That the learned judges erred in
    the law and/or on the facts to find that it cannot be said that the
    court a quo was wrong in finding that the state’s case had
    been made out beyond reasonable doubt.”








Most of the grounds of appeal are
aimed at the acceptance, by the Court a quo, of the evidence
of the complainant, and the rejection of the evidence of the
appellant. In regard to what actually happened, there were only two
witnesses namely the complainant and the appellant. The other
evidence consisted mainly of reports made by the complainant to
various other people, the medical evidence and circumstantial
evidence.







It was common cause that about 4
o’clock on the 6th January 1998 the appellant went to
the house where the complainant stayed with her parents. The two
versions of how this came about and what then happened were
completely divergent. According to the complainant her parents were
away on holiday to Swakopmund. Shortly after her brother had also
left the house she received a phone call and a foreign male voice
told her that he knew that she was alone at home. She later
elaborated on this phone call and said that the caller also told her
that if he was alone he would acquire a blue movie and do it to
himself. She then told him that he was sick and put the receiver
down. She then took a bath and lay down on a mattress in front of
the television. She fell asleep and was awoken by a knock on the
front door. She looked on her watch and saw that it was 4 o’clock.
Before she opened the door she looked through the window but she
could not see anything.







When she opened the door a
strange male person was standing there. She asked him if she could
help him and told him that her father was not there. He replied that
he hoped that she was not disappointed and that he came for her. The
complainant tried to close the door but the person blocked the door
with his foot. This person, who later proved to be the appellant,
then grabbed her hand and she fell down on the floor. Thereupon the
appellant touched her all over her body. Complainant said that she
was screaming and crying. The appellant opened his trousers and
pulled them down. He then grabbed her by her hair and put his penis
into her mouth and he pulled her head upwards and forwards.
Complainant struggled and fought the appellant. At one stage the
appellant succeeded in parting her legs and to remove her panty. He
then inserted his penis into her vagina. Before he ejaculated he
however pulled out and ejaculated over her. The appellant got up and
after he had fastened his trousers he said that something like that
was bound to happen to a beautiful girl like her and walked out of
the door. The complainant then took a bath because she felt dirty
and took a taxi to the house of one Anna Beukes from where she was
taken to the police and the doctor.







The complainant testified that
she did not know the appellant but that from the 1st up to
the 6th January he phoned her every day. On the first
occasion he asked to speak to her cousin and she informed him that
her cousin was no longer staying with them. Complainant also
testified that on each and every occasion the appellant phoned her
she was able to recognise his voice. She also testified that on the
4th January she went to see a doctor.







The appellant’s version of what
happened on the 6th January started with a chance meeting
with one Aletta, a cousin of the complainant. This happened during
the end November 1997 when appellant gave her a lift in his car. She
informed him that she was writing her matriculation examination and
was on the lookout for work. Aletta asked the appellant if he could
not assist her in this regard. He told her that he was employed by
Transnamib and, although there were no vacancies at that stage, he
undertook to let her know if any should become available. Aletta
wrote her name and a telephone number in his diary where appellant
could contact her. It later proved that Aletta, at that time, was
living with complainant and her parents, and that the telephone
number she gave to appellant was their house number.







Appellant testified that he
subsequently went on holiday and returned to work at the beginning of
January 1998. On the 5th January he was transferring
information, noted in his old diary, into the new one, when he came
upon Aletta’s name and telephone number. As there were then some
vacancies at Transnamib he phoned the number to inform Aletta
thereof. The phone was answered by one S who told him that she and
Aletta had a quarrel and that the latter was no longer staying with
them. Appellant told S that Aletta had asked him for a job and
whether she knew where he could find her. S, who proved to be the
complainant, told the appellant that she was also looking for a job
and appellant said that she should come to Transnamib to fetch
application forms. However, complainant had a problem. She informed
the appellant that she did not have transport and that she had a
doctor’s appointment. Complainant suggested that they meet in the
afternoon at a café called Le Bistro. Appellant agreed to
this arrangement but wanted to know how he would be able to recognise
her. Complainant then told him that she had two highlights in her
hair which resembled horns and that she would be wearing a black
dress.







Appellant went to Le Bistro at
one o’clock but when by one forty-five the complainant had not as
yet turned up, appellant returned to work. The next day, that was
the 6th, appellant again phoned the complainant to find
out what had happened. He was told by complainant that she was
delayed at the doctor. After some further discussions complainant
asked him to bring the application forms to her house. He agreed to
do so after work at 4 o’clock. Appellant then obtained the address
from her namely L Street in Dorado Park.







Appellant further testified that
he left his office at 4 o’clock and he took with him the necessary
application forms. He could however not find the complainant’s
house. In Hebra Street he asked a Mr. Pfeiffer, a teacher at the
Augustinium School, for directions. Mr. Pfeiffer also did not know
where L Street was but with the aid of a refuse street map of
Windhoek they were able to locate the street. Pfeiffer also showed
appellant where to turn off to find L Street. With the assistance
of Pfeiffer appellant was then able to find complainant’s house.







When the appellant knocked on the
door, the complainant opened it, and introduced herself as S. The
appellant introduced himself as Kobus and was invited into the house.
Complainant locked the door and explained that her brother was due
home any moment and would find it strange to see them there. They
went to sit in the TV room where a mattress was lying on the floor.
After expressing an interest in the layout of the house, the
complainant took him on a guided tour of the house.







They subsequently returned to the
TV room where the complainant started to talk about sex. Appellant
testified that after continuing in this vein for some time, the
complainant undressed herself, stroked his penis over his trousers
and also stroked over her vagina and invited him to have sex with
her. The appellant said that he was overwhelmed by the boldness of
her behaviour and the invitation. He stated that he became aroused
but was nevertheless scared, knowing about Aids, and the fact that
she had been to see a doctor the previous day. He in turn began to
stroke her vagina, took out his penis and started to masturbate. He
satisfied himself in this way and ejaculated over her. He then got
up and went to the kitchen where he washed his hands. The
complainant called him to come back but he unlocked the door and went
to his car. He said that the complainant was very angry and unhappy
with him. He was still sitting in his car when the complainant came
out of the house. She now wore jeans and a white T-shirt. He
asked her if he could take her somewhere but she declined his
invitation. Appellant said that he again phoned the complainant on
the 15th January but when the phone was answered by a
strange voice he put down the receiver.







As previously stated no other
witness could really add to what had actually happened between the
complainant and the appellant but from the evidence of some of the
witnesses probabilities emerged and inferences could be drawn which
support one or other of the versions.







The magistrate in the Regional
Court accepted the evidence of the complainant and rejected the
evidence of the appellant. These findings were mainly based on the
evidence of the forensic analyst, Mrs. Noble, who stated that swabs
and smears taken by the doctor inside and outside the vagina, were
proved on analyses to contain spermatozoa which caused the witness to
express the opinion that intercourse must have taken place.
Furthermore the court found that there was no reason why the
complainant should have lied and also found corroboration for her
evidence in the evidence of Mrs. Beukes. The magistrate was further
of the opinion that such discrepancies and conflicts that existed in
the evidence of the complainant were of a relatively minor nature and
was to be expected from an honest but imperfect recollection by the
witness. In the light of what had happened the magistrate found the
version of the appellant totally unacceptable and improbable.
Issues such as how appellant could have known the outlay of the house
if, according to the evidence of the complainant, he at no stage went
further than the entrance-hall, was found by the magistrate not to be
material to a charge of rape and indecent assault.







Although on appeal the Court a
quo
did not in all respects agree with the findings and approach
of the Regional Magistrate, the Court, with reference to the case of
R v Dhlumayo and Another 1948(2)SA 677(A), pointed out the
advantages the trial court had of seeing and hearing the witnesses,
and was satisfied that there were no grounds upon which they could
interfere with the magistrate’s findings on credibility. To this
must be added what the Court termed the extreme improbability of the
appellant’s version. The Court found that there may have been
questions which the evidence had not answered, such as how the
appellant discovered the address of the complainant and acquired
knowledge of the outlay of the house, and certain of its contents,
but was not persuaded that such shortcomings could disturb the
findings on credibility by the magistrate. However at no stage did
the magistrate undertake an analysis of the evidence and because of
its acceptance of the findings of the magistrate, neither did the
Court a quo.







Having set out the versions of
the two main characters it is now necessary to refer also shortly to
the other evidence presented by the State and the appellant. After
the complainant had left her house she went to the house of Anna
Beukes in search of her brother, M. He was not there and she
intended to leave when she was called back by Mrs. Beukes.
Complainant started to cry and reported to Mrs. Beukes that she had
been raped. When M arrived at the house it was decided to report
the matter to the police. From there the complainant was taken to
the doctor the same day. She was examined by the doctor who also
took smears and swabs inside and outside the vagina for analysis.
However, the doctor did not find anything untoward and concluded that
there was no good evidence to show any sexual intercourse. In
regard to his examination the doctor testified that it was easy.







As a result of the incident the
parents of the complainant cut short their holiday and returned to
Windhoek. On enquiries made by the father of the complainant the
police informed him that they had not made any progress as far as
their investigation of the case was concerned. The complainant had
however told the witness of the telephone calls made by the appellant
and he then obtained a printout from Telecom of calls made to his
house. This printout was made from the 4th to the 6th
of January at the request of the complainant’s father. Two of the
calls, namely one on the 5th and one on the 6th,
were made from Transnamib Marketing where the appellant was employed.
Mr. M went to Transnamib Marketing where he spoke to the switchboard
operator. Because of the description given to him by the
complainant the operator was able to give him two possible names.
One of these people he could eliminate immediately because of the
thick spectacles he was wearing. The other person, namely Kobus
Hanekom, was not at Transnamib and Mr. M decided to hand this
information to the police.







With the information obtained
from Mr. M, Sergeant Mujambo of the Woman and Child Protection Unit
went to the offices of Transnamib where he introduced himself to the
appellant and informed him that he was investigating a complaint of
rape. He said that the appellant was shocked and asked to phone his
father to arrange for a lawyer. The appellant was allowed to make
the call and the sergeant overheard the appellant telling his father
that there was an allegation that he had raped someone but that he
knew nothing about it. On the way to the offices of the Unit,
Mujambo asked the appellant some questions, inter alia,
whether he had a non-white girlfriend or whether he knew a non-white
girl, to which the appellant replied that he did not.







At the Offices of the Unit the
appellant was interviewed by Sgt. Mujambo and the Commanding Officer
of the Unit, Warrant Officer Katjipara. During this interview Sgt.
Mujambo saw a diary in the pocket of the appellant and when he paged
through it he saw the name of the complainant and her telephone
number written in the diary. The appellant said that he could not
remember whose name and telephone number it was. The appellant was
then warned of his rights and given the opportunity to make a
statement. This, the appellant refused to do stating that he first
wanted to consult a lawyer.







The following day an
identification parade was held where the complainant pointed out the
appellant as the person who had raped her. Aletta, the cousin of
the complainant, also attended the parade but she was unable to
identify the appellant as the person who had given her a lift and
whom she had asked for a job. Mujambo testified that after the
parade the appellant said that he wanted to tell the Sergeant
something but he must not mention this to his lawyer. He then told
Mujambo that he now recognized the two ladies who were at the
identification parade and he told Mujambo what had happened.







A Mrs. Nkushenghili of the Unit
also testified that she was the person who completed certain forms
whereby the rape kit was sent to the forensics laboratory. Cst.
Hansen, another member of the Unit, testified that she accompanied
the complainant to the doctor and was present during the examination.
During the examination the complainant cried and the witness could
see that she was in pain.







One witness was called to testify
on behalf of the appellant, namely a Mr. Pfeiffer. Mr. Pfeiffer, a
teacher at the Augustinium High School, lives at Hebra Street, Dorado
Park. He testified that on the 6th of January the
appellant came to his house to ask for directions to a certain
street. He explained that at that stage there were not yet any
street name signposts in place. He further testified that that was
the first time that he saw the appellant and from what he could
recall the appellant was looking for L Street. By means of a refuse
street map he was able to locate L Street. Pfeiffer testified that
from time to time people came to his house to ask for directions and
he could remember that somebody came to him on the 6th
because he remembered that he was busy with preparations as school
was due to re-open again the following day. When asked whether he
was sure that it was the appellant he replied that he was a 100%
sure. Under cross-examination this witness further elaborated on
what had happened. He said that some three months after the
incident he read in a newspaper that a girl had been raped in L
Street whereupon he phoned the Woman and Child Abuse Centre which
gave him the telephone number of the investigating officer. He
phoned this officer because he thought that he could assist him with
a description of the person who had made enquiries at his house.
The said officer did however not contact him again. A few months
later the appellant came to his house and asked him whether he could
recall that he was the person who made enquiries at his house.
However, the person who made the enquiries had a beard and he was not
able to confirm that it was indeed the appellant who had been at his
house on the 6th. He was also not able to say at what
time the person, making the enquiries, was at his house. Further,
under cross-examination, the witness stated that he could not say
that it was indeed the appellant although the build of the appellant
was the same as that of the person who came to his house on the 6th.







On behalf of the appellant Mr.
Botes launched an attack on the evidence of the complainant. He
submitted that she was a single witness whose evidence was not
corroborated by any other witness. He furthermore referred the
Court to various examples where the evidence of the complainant was
in conflict with the evidence of other witnesses, to whom she had
made reports concerning the incident, or where her evidence
conflicted with evidence previously given by her. Mr. Botes also
submitted that the probabilities did not favour the version of the
complainant.







Mr. Von Wielligh, on behalf of
the State, argued that this Court should accept the credibility
findings made by the Regional Magistrate. In this regard he
referred us to the Dhlumayo-case, supra, and submitted
that there was no good reason to interfere with these findings.
Counsel found some corroboration for the evidence of the complainant
in the evidence of Mrs. Beukes who testified about the emotional
state of the complainant when she made the report to her and also
that she had felt a lump at the back of the complainant’s head when
she stroked her hair. Mr. Von Wielligh further relied strongly on
what he said was an improbability that complainant would lay a charge
of rape out of revenge and not reveal the identity of her attacker.
He further urged the Court to ignore the evidence of Mr. Pfeifer
because the witness had made a complete volte-face during
cross-examination and was not able to identify the appellant as the
person who had asked directions on the 6th. Counsel
also submitted that it was possible that the appellant asked
directions from the witness but that it was on a different occasion.







It is clear that it was common
cause that the appellant was at the house of the complainant on the
6th January. What had happened further the versions of
the complainant and the appellant differ almost completely. In the
case of State v K, 2000(4) BCLR 405 (NmS); 2000(1) SACR 162
(NmS), the cautionary rule, previously applied by our Courts in
respect of the evidence of complainants in sexual cases, was finally
put to rest. It was laid down that the Courts must approach such
evidence as it would approach and evaluate evidence in any other
case. The Court, in S v K, supra, cited with approval
the words of Taylor, CJ, in R v Makanjuola, R v Easton
[1995] [3] All ER 730 (CA) where the learned Chief-Justice succinctly
sets out the approach of a Court to such evidence at p 733c-d:



(3) In some cases, it may be
appropriate for the judge to warn the jury to exercise caution before
acting upon the unsupported evidence of a witness. This will not be
so simply because the witness is a complainant of a sexual offence
nor will it necessarily be so because a witness is alleged to be an
accomplice. There will need to be an evidential basis for
suggesting that the evidence of the witness may be unreliable. An
evidential basis does not include mere suggestions by cross-examining
counsel.”







The above passage was a guideline
laid down by the learned Chief-Justice after the cautionary rule,
concerning the evidence of complainants in sexual cases, was
abrogated by statute in England, as was pointed out in S v K,
supra. There is therefore no longer a specific cautionary
rule to be applied solely because the witness is a complainant in a
sexual offence.







Before evaluation of the evidence
of the various witnesses mention must also be made of the fact that
not every contradiction or discrepancy in the evidence of a witness
reflects negatively on such witness. Whether such discrepancy or
contradiction is serious depends mostly on the nature of the
contradictions, their number and importance, and their bearing on
other parts of the witness’s evidence. (See S v Oosthuizen,
1982(3) SA 571 (TPD) at p 576G.) (See further S v Jochems,
1991(1) SACR 208 (A) at p 211g-h; S v Mkohle, 1990(1) SACR
95(A) at p 98f-h and S v M, 2000(1) SACR 484 (WLD) at p
499h-j.) I also agree with the Court a quo that police
statements are often incomplete and not supposed to contain all the
witness’s evidence. Again, contradictions between the witness’s
evidence and the statement must be properly evaluated on the lines
set out herein before.







Mr. Botes has referred us to a
host of contradictions in the evidence of the complainant. These
contradictions exist not only in the evidence given by her in court
but also between her evidence and her police statements and reports
made by her to other witnesses called by the State. Some of these
discrepancies are of a minor nature but some need closer scrutiny.







An important issue concerns the
evidence of the telephone calls and the contents thereof. From the
evidence of the complainant the first impression gained was that she
was pestered by an unknown man who, from the 1st of
January until the 6th of January, phoned her every day.
Some of these calls had a sexual undertone and in some not only her
movements were described but also what she was wearing on a
particular occasion. This evidence created the image of a man who
was dangerous and who was lying in wait for an opportunity to strike
at his victim. This image would have fit nicely into the evidence of
the complainant, of a man, when he gained entrance to the house,
immediately threw her on the floor and raped her there and then. If
the situation developed in this way, as was testified to by the
complainant, then that would have been strong corroboration of her
version. A closer look at this evidence however shows serious
discrepancies.







In her first statement to the
police the complainant made no mention of any telephone calls. That
in my opinion is not of great significance because she also did not
mention the calls which were admitted by the appellant and which were
made on the 5th and the 6th. However, under
cross-examination it became clear that the complainant had made a
second statement to the police. According to her evidence it was to
correct the first omission and to tell the police of these calls.
Although the complainant persisted in her evidence that she told the
police of all the calls it was put to her that the statement only
reflected two calls namely that of the 5th and the 6th.
Although she initially said that she perused the statement after it
was written down, on further cross-examination as to why she then did
not correct the statement, so as to include also the calls made from
the 1st to the 4th, she then made an about-face
and stated that she did not peruse the statement after it had been
made.







Complainant also stated that she
told her father of the telephone calls that had been made. He
indeed went to Telecom and obtained a printout of calls made to his
telephone. What is however significant is that he asked for a
printout only from the 4th of January to the 6th.
He did so in order to assist the police in their investigation,
which, at that stage, was getting nowhere. It is inconceivable that
if Mr. M had known of the calls made on the 1st to the 3rd
that he would not have included those dates when he made the
enquiries from Telecom. The fact that he had included the date of
the 4th seems to me to have been a mistake made by the
complainant because the same mistake was made by her in her
evidence-in-chief where she testified that she went to see the doctor
on the 4th whereas, from other evidence, it is clear that
it was on the 5th.







There is however another piece of
evidence by Mr. M which is significant. He testified that after he
obtained the printout he saw that there were two very strange numbers
from which calls were made to his house. He was able to establish
that these numbers were from Transnamib Marketing and a phone booth
situated at Novel Ford. The one Transnamib call was made on the 5th
and the other on the 6th. The call from the phone booth
at Novel Ford was also made on the 6th. Nothing turns
around this call as, according to the evidence of the complainant,
she only spoke to the appellant once on the 6th. The
significance of all this is that on the 4th there was no
strange or suspicious phone call made to the house of the witness as
was testified to by the complainant. It seems from notes made on the
printout that Mr. M was able to trace all the calls made on the 4th.







This immediately raises the
question whether the complainant can be believed when she said that
calls were also made on the 1st to 3rd of
January. In the light of the unsatisfactory evidence given by the
complainant in this regard, the fact that she only informed the
police of calls on the 5th and the 6th, the
fact that on information given by the complainant, Mr. M limited his
enquiries as from the 4th and the fact that the printout
did not bear out the evidence of the complainant, I am of the opinion
that the complainant is not to be believed in this regard. All the
facts, except for the say-so of the complainant, supported the
version of the appellant regarding the calls he made. Under the
circumstances there is also no reason why the Court should not accept
the appellant’s version of the contents of the conversations
between him and the complainant. The printout also shows that both
calls were appreciably longer than any other call made to this
number, which seems to support the evidence of the appellant on this
point and does not support the evidence of the complainant who,
according to her, was an unwilling listener who, at least on the last
occasion, threw down the receiver of the telephone in order to end
the call. According to the printout the duration of the call on the
5th was 1190 seconds, i.e. more than 19 minutes, and the
call on the 6th 748 seconds, which was more than 12
minutes. This in no way corresponds with the evidence of the
complainant who testified that she was able to recognise the voice on
each occasion and who tried to convey the impression that she was an
unwilling listener. The duration of the calls alone shows that
something else was discussed than what the complainant wanted the
Court to believe. There is another inherent improbability in the
complainant’s evidence concerning these phone calls. She
testified that on the first occasion the appellant identified himself
as the person who offered to assist Aletta to find a job. That
being the case there was no way in which the appellant could have
hoped to retreat into anonymity as Aletta at least knew where he was
working and appellant could not have known that Aletta would not be
able to recognize him again.






Another
aspect which is closely related to the above issue, which reflects on
the image which the complainant wanted to create of the appellant as
a dangerous stalker, is the evidence of the appellant that after he
had left work at 4 o’clock, he was unable to find the house of the
complainant and stopped to get directions from Pfeiffer as to where L
Street was situated. In this regard the evidence of the appellant
was supported by that of Pfeiffer. However, the Regional Magistrate
did not at all deal with this evidence and one must accept that the
evidence was rejected by implication.







On appeal to the High Court that
Court made specific findings in regard to the evidence of Pfeiffer.
Pfeiffer testified that the person who came to his house on the 6th
had a beard. In this regard the Court a quo found that it
was apparent that the appellant did not have a beard at the relevant
time. It is correct that there is no direct evidence that the
appellant did have a beard at the relevant time but it is also clear
that there is no evidence that he did not have a beard. In fact in
the statement of Mrs. Beukes, which was handed into Court, she stated
that the complainant described the man as a white man with long hair
and beard and he was fat.







The Court a quo also found
in this respect that a witness who made such a volte-face on a
central aspect of his evidence, namely by first identifying the
appellant positively as the person who came to his house on the 6th,
and thereafter stating that he was not able to do so, is a witness
whose evidence is of little or no value.







However, unless there are grounds
on which the Court could find that the appellant and Pfeiffer
colluded to fabricate false evidence, consideration should have been
given to this evidence. Both appellant and Pfeiffer testified that
they did not know each other and that the 6th was the
first time that they had come face to face. Pfeiffer’s evidence
as to what had happened on the 6th was in no way attacked
or discredited. But the further question remains how, in the
absence of any suggestion or grounds that showed the witnesses
colluded to fabricate evidence, would the appellant have known what
had happened at the house of Pfeiffer. Pfeiffer testified that at
the time there were no street signs in Dorado Park, which explains
why the appellant got lost, and both of them testified to the fact
that Pfeiffer himself did not know where L Street was and had to
consult a refuse street map of Windhoek. In argument before us Mr.
Von Wielligh submitted that the Court should reject the evidence of
Pfeiffer out of hand. But confronted with the fact that something
like that must have happened as there was no other reasonable
explanation for appellant’s knowledge, Counsel submitted that the
witness might be mistaken as to the date on which the appellant
visited him. Counsel’s argument was based on the evidence of
Pfeiffer that, because of the position of his house, people have,
from time to time, asked him for directions in Dorado Park. There
would have been merit in this argument but for the fact that
Pfeiffer’s evidence concerning the date of the incident was very
specific. He said that he remembered the date of the 6th
of January because it was a day before schools were to open for the
first term, and he was busy preparing for school. This is further
supported by the fact that when, three months later, he read about an
alleged rape in L Street in a local newspaper, he phoned the police
and offered his assistance. Under the circumstances I am satisfied
that the evidence of Pfeifer as to the date on which this happened
and what had happened, must be accepted. I am also satisfied that
it was indeed the appellant who asked directions from Pfeiffer to an
address in L Street and that the Court a quo were wrong to
reject this evidence by appellant and Pfeiffer.







The acceptance of this evidence
throws great doubt on the evidence of the complainant as was
correctly conceded by Mr. Von Wielligh for the State. Her version
that she was telephoned by the appellant and told that he knew that
she was alone at home presupposes that he knew where her house was
and that, prior to the call, he had observed the comings and goings
of people to and from this house. Furthermore that he continued
this vigil after the telephone call and up to the time he decided to
strike at his victim, otherwise how would he have known that she was
still alone at home. We know from the printout, “Exh. C”,
that the telephone call to the house of the complainant was made from
Transnamib at 13h49. Why the appellant then waited for more than
two hours before he launched his attack is somewhat inconceivable.
How, in terms of the scenario sketched by the complainant, the
appellant would know that her parents, or one of them, was not at
home is another unexplained piece of evidence. The only reasonable
explanation for this is that the appellant said that the complainant
herself told him.







In the light of the above
findings it is now important to look at the other evidence given by
the complainant in support of the scenario sketched by her. As to how
it happened that she landed on the floor of the entrance hall the
complainant gave various versions. She firstly said that she was
grabbed by the hand and landed on the floor (p. 14). Later she said
that she did not know how she landed on the floor (p. 31). It was
then put to her that according to her police statement she was thrown
to the floor (p. 148). According to Mrs. Beukes the complainant told
her that she slipped on a carpet and fell to the floor (p. 276). I am
mindful of the fact that Mrs. Beukes’s evidence on this point is
far from satisfactory. Her evidence ranges between an inference drawn
by her, namely that the complainant possibly slipped on the carpet,
to that she was in fact told by the complainant that she had indeed
slipped and still further that the complainant told her that she was
thrown to the floor. (See pp. 276, 287, 288 and 301.) Even if Mrs.
Beukes’s evidence is left out of consideration what had actually
happened is far from clear.







Another part of the evidence of
the complainant, which is conflicting, is her description of what had
happened when the appellant put his penis in her mouth. Apart from
the fact that it must have been exceedingly difficult to do so, as
she was at that stage fighting the appellant and further bearing in
mind that the penis was not a loose object which could be easily
manoeuvred, it seems also to have been a very risky operation under
the circumstances. Complainant could never explain why she did not
utilize the opportunity to put her assailant out of action. She
testified in this respect that at the time she felt like biting his
penis. However under cross-examination, and in an attempt to
explain why she did not do so, she stated that she did not think of
that possibility. Still later she said that she only thought about
it afterwards. (See pp. 21, 239 and 244). Also as to how the
episode ended complainant first said that the appellant himself
removed his penis from her mouth but later said she turned her head
and the penis then slipped out. To this can be added the very
unlikely story by Mrs. Beukes namely, that she could still smell sex
on the face of the complainant when she sat close to her. That was
after the complainant had taken a bath after she was allegedly raped.
(See pp. 233, 236 and 278.) The way in which the complainant
described this episode and tried to explain her lack of doing
anything is far from reassuring.







A further aspect, which is of
importance, is whether the complainant had any injuries after the
attack on her. According to the complainant her private parts were
so sore after the attack that she was not able to sit properly and
when she was at the doctor she told him not to touch her there
because of the pain. However later she withdrew this evidence when
she said that she never talked to the doctor. She did however, when
at the doctor, vocally express pain and she also physically withdrew
when touched by him. She was also crying during the examination.
(See pp. 27, 28, 223/4/5, and 214). Complainant described her other
injuries. There was a lump at the back of her head, which was
caused when she fell on the floor; there were red marks on her arms
and bruises and red marks on her legs, caused when the appellant
forced her legs open. Her vagina was also still red. (See pp. 28,
33, 39, 40 and 224 ff) The doctor found none of these injuries.
He said that her emotional state was good and the examination was
easy. On the physical examination of the complainant he concluded
that there was no “good” indication of sexual intercourse.







Mr. Von Wielligh criticized the
doctor because he admitted in evidence that he was called to attend
to an emergency and that he was in a hurry. He said however that he
nevertheless did a thorough examination of the complainant. Even
if, under the circumstances, the doctor missed the red marks and
bruises he would hardly have described the examination as easy when
the complainant had vocally expressed pain and physically withdrew
when he touched her. The doctor was a state witness and even if the
Court should ignore his evidence in toto, which I do not think
is possible, he in no way corroborated the evidence of the
complainant.







There is however two witnesses
who, to a certain extent, supported the evidence of the complainant.
Mrs. Beukes said that when she stroked over the hair of the
complainant she could feel the lump on her head. She did not
mention this to the police when she made a statement. Nor did she
mention this when the prosecutor went through her statement with her
prior to giving evidence. Her reason for not doing so in the first
place was that she had forgotten about it and that she only
remembered it later on. She had no explanation as to why she had
forgotten to tell the prosecutor about it. (See pp. 286 and 291.)


The
second witness was Cst. Hansen, a member of the Woman and Child Abuse
Centre. She stated that she had accompanied the complainant to the
doctor and was present when he examined her. The witness said that
the complainant was crying a lot and that she cried when the doctor
inserted an instrument in her vagina. The witness inferred that the
complainant was experiencing pain because she grabbed the side of the
bed. Under cross-examination the witness admitted that she only
made her statement to the investigating officer more than a year
after the incident had taken place, that was on 20 January 1999.
That was after the complainant was already cross-examined for more
than two days. This evidence is in total contrast to that of the
doctor and also does not support the evidence of the complainant that
she verbally expressed pain. It is a pity that the witness did not
make her statement at the time when the investigation was launched.
When a witness, such as a police witness who was at all relevant
times available to make a statement, is called in to fill some gap in
the State’s evidence, such evidence is, rightly or wrongly, treated
with some suspicion.







Turning now to the evidence of
the appellant I must immediately say that his evidence is not free
from criticism. He certainly lied to Sgt. Mujambo when he stated
that he could not remember who S was and whose telephone number,
written next to her name in his diary, it was. I also think that
when Mujambo referred to non-white lady friends, the appellant had a
pretty good idea what was being referred to. That, no doubt, was
the reason why he feigned ignorance when he was confronted with the
name and telephone number. What is also somewhat inconsistent with
human nature is the length to which the appellant was willing to go
to assist the complainant in finding a job for her. I suspect that
it was not solely done out of the goodness of his heart or to be
helpful.







However, suspicion is not enough
to convict an accused, nor the fact that he or she has told a lie on
some immaterial aspect of the case. The accused was a married man
and a member of society where clandestine sexual affairs were
hopefully still frowned upon and which could have cost him his
marriage, and this could be so whether what had happened on the 6th
of January, amounted to rape or not. It is conceivable that under
such circumstances a person would lie. However, after the
identification parade it must have been clear to the appellant that
the matter was not going to disappear and he told Sgt. Mujambo his
version of what had happened. This was essentially the version
which he testified in Court.







This Court’s rejection of the
evidence of the complainant concerning the number of telephone calls
made and the contents thereof, and the acceptance of Pfeiffer’s
evidence, whereby the image created of the appellant as a stalker and
roaming rapist, was also rejected, places a completely different
complexion on the evidence of the appellant. Now the only
reasonable explanation of how the appellant knew that the complainant
visited a doctor on the 5th of January and what clothes
she was wearing and how her hair was done, was that he was told about
that by the complainant herself when they set up a meeting at Le
Bistro restaurant. The appellant was also able to give a fairly
accurate description of the layout of the complainant’s house and
what he could remember of the contents. This included a photograph
of the father of the complainant, which he saw in the study. This
would not have been possible if the incident took place in the
entrance hall as described by the complainant. Again it seems to me
that the only reasonable way in which the appellant could have gained
this knowledge was in the way as explained by him. He even referred
to the formal sitting room and the complainant admitted that that was
how members of the household referred to it. All these, of course,
further supported the Court’s findings that the incident did not
take place immediately on opening of the door and there at the
entrance hall.







It is so that the trial court had
advantages which the Court of Appeal didn’t have in seeing and
hearing the witnesses and being steeped in the atmosphere of the
case. (See R v Dhlumayo and Another 1948(2) SA 677(A) at 705
to 706). The case however also made it clear that where the trial
court had misdirected itself on the facts, even though based on
credibility, the Appeal Court was then at large to disregard such
findings in whole or in part and come to its own conclusion on the
matter (p. 706).







In my opinion the trial court
erred in accepting complainant’s evidence in regard to the
telephone calls, their contents and the image created by the
complainant of the appellant as a stalker and by rejecting the
evidence of Pfeiffer. The High Court, on appeal, erred similarly.
A proper evaluation of this evidence would have shown that the
complainant was lying in this respect. (See S v Francis 1991
SACR 198a at 204d.)







The question remains what about
the allegation of rape by the complainant. The State must prove its
case beyond reasonable doubt. There is no onus on an accused and if
a prima facie case is made out against him he need not go further
than put a version before the Court that may reasonably be true. (See
R v Difford 1937 AD 370 at 373.)







The complainant was a single
witness whose evidence was only to a limited extent supported by the
unsatisfactory evidence of Mrs. Beukes and Cst. Hansen whose evidence
was based on an inference, which did not find any support in the
medical evidence. The evidence of the complainant is subject to the
cautionary rule applied by our Courts to the evidence of single
witnesses and the Court must be satisfied that her evidence is
satisfactory and can be believed. (S v Sauls, 1981(3) SA 172
(AD).)







From what has been set out herein
before, it is clear that the complainant was not a satisfactory
witness. There are serious shortcomings in her evidence and in
certain material respects it was found that she did not tell the
truth. The probabilities as to how this whole incident started,
how and why the appellant went to the house of the complainant, his
knowledge of the house and the fact that she visited a doctor on the
5th, what clothes she was wearing and what she looked
like, all favour the version of the appellant. To this must be
added the objective evidence of Mr. Pfeifer and the fact that,
notwithstanding the evidence of the complainant regarding injuries
and sex by force, the doctor found nothing. It is so that on
analysis spermatozoa were found to have been present inside the
vagina, according to the evidence of the analyst, Dr. Noble.
However the evidence of the complainant and the appellant is that the
appellant ejaculated outside the vagina. According to the medical
evidence there are two possible explanations. One is that
intercourse took place and that spermatozoa escaped into the vagina
prior to ejaculation. The other possibility is that no intercourse
took place and that after ejaculation spermatozoa, in contact with
the vagina, found their way into this organ. There is no evidence
that one possibility is more probable than the other and does
therefore not take the matter any further. But even if we accept
that intercourse took place the question remains whether such
intercourse was consensual or not. Bearing in mind the
unsatisfactory evidence given by the complainant this Court is not
able to answer this question in favour of the State, bearing further
in mind that it must do so beyond reasonable doubt.







I have already referred to the
various probabilities, which favour the version of the appellant and
other objective evidence, which is to the same effect. Much was
made of the fact that the complainant, when she laid a complaint with
the police, did not state the name of the appellant. This is not
what one would expect where the motive is one of revenge. However,
as was pointed out by Mr. Botes, revenge is not the only motive for
laying a false charge. Direct evidence of motive is seldom
available. To speculate would be impermissible but in a case, such
as the present, where the complainant was able to create a scenario
of telephone calls and of a person who was watching her every move,
which this Court has found not to be true, anything is possible. In
this regard it must be mentioned that the complainant did practically
nothing to initially assist the Police in their investigation. She
first of all did not mention the telephone calls which were made and
it is at least also clear that at that stage she also did not mention
the connection between the appellant and Aletta to the police. If
the complainant really wanted to bring the appellant to book then
this neglect is hard to understand.







The uncertainty created by the
evidence of the complainant draws, in my opinion, a veil of doubt
over all her evidence. Also her evidence that she was raped. If
intercourse took place and if it was without the consent of the
complainant then she has only herself to blame that on her evidence,
it is impossible for this Court to find beyond reasonable doubt that
the State has proved the charges against the appellant. The Court
need not go further than this but seen against this background, and
the totality of all the evidence, I am also satisfied that there is a
reasonable possibility that the version of the appellant may be true.
It follows therefore that the appeal must succeed.







There is one further matter to
which I want to refer shortly, namely the curtailment of the
cross-examination of the witness Noble by the Regional Court
Magistrate. In this regard Mr. Botes submitted that the appeal
should succeed on this point alone. This was in my opinion an
irregularity as was also correctly conceded by Mr. Von Wielligh.
Under certain circumstances the curtailment of cross-examination is
so serious that the prejudice or potential prejudice caused thereby
per se vitiates the proceedings. I agree however with the
Court a quo that in this instance there was no prejudice.
This is so because Dr. Noble found spermatozoa present on all the
smears and swabs that were taken inside and outside the vagina and
further cross-examination could not have taken the matter any
further.











In the result the appeal against
the convictions and sentence succeeds and the convictions and
sentence are set aside.











(signed)
STRYDOM, C.J.











I agree.















(signed)
O’LINN, A.J.A.











I agree.











(signed)
MANYARARA, A.J.A.



















COUNSEL ON BEHALF OF THE
APPELLANT: Adv. L.C. Botes



(HENNIE BARNARD & CO.)







COUNSEL ON BEHALF OF THE
RESPONDENT: Adv. H. von Wielligh



(PROSECUTER-GENERAL)