Court name
Supreme Court
Case name
S v Monday
Media neutral citation
[2002] NASC 3












CASE NO.: SA 08/2001







IN
THE SUPREME COURT OF NAMIBIA







In
the matter between:







ALBERTOS
MONDAY ACCUSED







AND







THE
STATE RESPONDENT







CORAM:
Strydom, C.J.; O’Linn, A.J.A. et Chomba A.J.A.



HEARD
ON: 9 October 2001



DELIVERED
ON: 21/02/2002










APPEAL
JUDGMENT











O’LINN,
A.J.A.:



SECTION
A:



INTRODUCTION:



The
appellant was convicted in the High Court on 19th May 2000
on a charge of Rape, read with the provisions of section 94 of the
Criminal Procedure Act, Act 51 of 1997. He was sentenced to twelve
(12) years imprisonment.







The
trial judge, Teek, JP, refused to grant leave to appeal to this
Court. This Court however, granted leave to appeal but only against
conviction.







Mr.
Cohrssen appeared for the appellant before us, amicus curiae,
and Ms Lategan appeared for the State.







For
the purpose of convenience, the appellant will hereinafter be
referred to as the accused and the respondent as The State. In view
of the tender years of the victim, the said victim will hereinafter
be referred to as Ms. L., her sister as L1. and her mother as Mrs. D.







The
State contested the appeal. Before the hearing of appeal, the Chief
Justice, after consultation with the other judges of appeal, gave the
following notice to counsel through the medium of the Registrar of
the Supreme Court:






Should
the allegations by the accused that he was not suffering from
gonorrhea, not have been investigated and if so, what is the effect
if it was not so investigated?”








This
issue was raised mero motu by this Court because, when the
alleged victim was examined by the medical practitioner, Dr. Linda
Liebenberg after the complaint was lodged, she was found to suffer
from gonorrhea. The accused, although available, was not examined
for gonorrhea, but a sample of his blood was drawn to be examined for
other purposes.





During
the accused’s trial and in the course of his cross-examination of
Dr. Liebenberg, the accused indicated that he did not suffer from
gonorrhea and suggested to the Court and to Dr. Liebenberg that he
should be examined to establish whether or not he suffered from
gonorrhea. Dr. Liebenberg expressed the opinion that such an
investigation would be futile at that stage and counsel and the Court
did not take the matter further.





The
accused conducted his own defence after Mr. Neves, the legal
practitioner instructed to defend the accused by the Legal Aid
Directorate, withdrew before plea and the Directorate refused to
appoint another counsel.





The
charge contained in the indictment was changed on the application of
the prosecutor, Ms. Lategan, before the accused was requested to
plead. The relevant part of the charge originally read:





In
that on or about May 1999 and at or near Katutura in the district of
Windhoek the accused unlawfully and intentionally had sexual
intercourse with Ms. L., a female person, under the age of consent,
namely 8 years old.”








The
time of the alleged offence was changed to read: “… From
November 98 until and including May 1999…”.





In
the State’s summary of substantial facts it was alleged:





The
accused, who is a family friend, had sexual intercourse with the
complainant on three different occasions during May 1999 at his house
in Katutura in the District of Windhoek.”








The
particulars in this summary remained the same and was thus
inconsistent with those contained in the indictment as amended.





SECTION
B:





THE
MAIN GROUNDS ON WHICH THE APPEAL WAS ARGUED:



  1. THE
    ACCUSED DID NOT HAVE A FAIR TRIAL:






Counsel,
Mr. Cohrssen, contended that:







    1. The
      manner in which Mr. Neves withdrew from the defence constituted an
      irregularity in the proceedings
      .







The
facts relating to this issue as it appears from the record are:





At
the outset of the trial before plea, Mr. Neves made the following
announcement:





My
Lord I have to inform the Court that at this stage I have to withdraw
as legal practitioner of the accused and I will place the following
on record. I have discussed the contents and the consequences of
this matter with my client I did inform him of the possibility of a
plea of guilty and I was suddenly faced with the response that I’m
forcing him to plead guilty. Next issue that I was requested was to
ask for a postponement so that one of the defence witnesses could be
summonsed to be here. I informed my client that we do not need that
witness at this stage, it is the State to conduct their case and when
it is our turn we will then surely have enough time to have the
witness here. Then the next thing I was requested My Lordship was to
apply for bail of which I do not have instructions. In light of the
above I humbly apologize to the Court for wasting its time but I
cannot proceed in such a confusion of instructions and accusations.
I did not force anybody to plead guilty, those are my submissions
when consulting with a client and I have the evidence before me and
it does not look good My Lord if I can put it in plain and simple
English. Due to this My Lord I will inform Legal Aid of what
happened and my reasons for withdrawing and I will leave it then in
their hands to decide if they want to appoint another practitioner
for Mr. Monday. As the Court pleases.”











The
Court then put the position to the accused as follows:






Now
the lawyer want to withdraw because you are accusing him of unethical
behaviour and are giving him conflicting instructions.”










The
interpreter then conveyed the accused’s reaction to the question as
follows:





Mr.
Monday is saying he received a lawyer but the lawyer cant force him
to plead guilty because he didn’t do it. So that’s why he asks
for cancellation.”










The
Court then said:






Are
you saying the lawyer was forcing you to plead guilty or not?”











The
accused replied, according to the interpreter:











Since
the lawyer said he should plead guilty because if not they are going
to give him maybe 8 years or 15 years imprisonment.”











Thereafter,
Ms. Lategan, for the State, expressed herself as follows:











As
the Court pleases Your Lordship. Well if Mr. Neves don’t see his
way open to continue in this matter my only concern is with the
children that has to testify and it appear that most likely if
another representative from Legal aid is obtained for the accused it
will go the way of a trial. Therefore I would want to suggest that
Mr. Neves report back to the Legal Aid Board and see whether they can
acquire another person for tomorrow because the matter has been set
down for three days. I must also just inform the Court and Mr. Neves
is also aware thereof that the J88 examination was performed by Dr.
Liebenberg who is currently not in the country anymore and has moved
to South Africa where she is busy with further studies. … I have
spoken to her this morning. An arrangement is made, there is also
other cases I understand from my colleagues where in which she would
have to come and testify and arrangements have been made with her for
the 18th and the 19th of May on which date she
will come just to testify in several post-mortem and J88
examinations. So this matter would in any event not conclude this
week with the State’s case but as I said because of the
youthfulness of the complainants I also would beg of the Court that
it is not postpone for a long period of time and that the children
still testify about it when it’s fresh in their memories.”









The
Court then wished to know from Mr. Neves whether there was a
possibility for someone else to take over the defence by the next
morning at 10h00. Mr. Neves responded:





Your
Lordship I will try my outmost best to inform Legal aid and to inform
them of the seriousness of the matter and of the State’s request
and that there is young children involved in this matter and ask them
to try their utmost best to obtain a new legal representative for Mr.
Monday. Your Lordship I just wish to place on record further that
when Mr. Monday refers to 8 years imprisonment and 10 years
imprisonment it was explained to him the two consequences of wasting
the Court’s time when there is no case My Lord apparently on my
views and the consequences of wasting and being unethical…”











The
Court in conclusion excused Mr. Neves in the following terms:





Mr.
Neves you are excused you may withdraw from the case and please try
to find a substitute in your place for tomorrow morning 10h00.”








The
Court then adjourned. When the Court resumed the following morning
at 10h00, Ms. Lategan made the following report to the Court:





When
I by this morning 09:45 haven’t heard anything from Legal Aid I
phoned there and spoke with Mr. Windstaan who is employed with Legal
Aid he then informed me that Dr. Mtopa who is apparently in charge of
deciding who gets legal aid or not have decided after Mr. Neves
conveyed to him the situation and what the reasons for his withdraw
was that Legal Aid would not further provide legal counsel for the
accused before Court. In the premises of that Your Lordship I again
whish to stress as I already yesterday put on record that there is
minor witnesses involved and the Court roll being full until November
of this year, the State would argue and do submit that the accused
can’t misuse the due processes of law and him having not been
satisfied with the counsel that has been provided for him and Legal
Aid now not having being granted to him again should continue on his
own because on the other hand if not also being the interest of
justice that this matter is again postponed for a lengthy period of
time when a trial date is available due to the fact that the
witnesses as I said is minor children and do forget the evidence as
the time passes by and I shortly just wish to refer Your Lordship to
a recent decision in this court by your Sister Gibson, J, State vs
Hoveka
delivered on the 8th of February 2000 where
apparently it was also a matter where the accused was not satisfied
with the counsel provided for him and then wanted another counsel
where the Court gave the accused an hours time to get the counsel
that he wanted then and whereafter, when he didn’t succeed in
getting that counsel the Court ruled that the matter is continuing
and the accused then has to appear on his own behalf. That is the
State’s argument on this aspect Your Lordship.”











The
accused was then asked by the Court:





“Yes,
accused where is your counsel?”





He
replied that he had no counsel but was willing to accept another
counsel appointed by the Legal Aid Board. The Court then reacted:





Legal
Aid is not prepared to give you another counsel because you rejected
the one they gave you”.








The
accused then asked for bail in order “to continue with his
employment so that he can find another lawyer who can continue with
his case. It must be noted that the accused had been in detention
for approximately 9 months before the date when the matter was
brought to trial. According to the evidence, the accused was also
employed before his arrest.





The
request of the accused was rejected. The relevant part of the
Court’s ruling read as follows:





The
accused now applies for a postponement and to be granted bail so that
he could get an employment and be in a position to pay for legal
services. Any further postponement is opposed by the Prosecution on
the basis that not only are there witnesses to be called of tender
years but also the complainant is of tender years at the time of the
commission of the crime 8 years. And that it would not be in the
interest of justice, the administration of justice if further
postponement is granted, especially when regard is had to the fact
that the accused had the benefit of the services of a legal
representative which he did not make good use of. I’m therefore
not prepared to grant the accused further postponement and the case
should continue today and tomorrow. Yes, you may be seated.”





It
is clear from the above-quoted proceedings that:






(i) Mr.
Neves strongly advised the accused to plead guilty and that the
accused strongly resisted that course.






If
that is all that happened, no criticism could be levelled at either
party. However, the legal representative’s advice that if the
accused refused to plead guilty, he could be sentenced from 8 – 15
years imprisonment because he would be wasting the Court’s time,
was a misrepresentation of the legal position, because even if he
pleaded guilty, he could be sentenced to “8 – 15 years
imprisonment”. Of course, the Court would take into consideration
once an accused has been found guilty, that the accused by pleading
“Not Guilty” and persisting in an obviously false defence, had
not shown any remorse and would consequently be dealt with more
harshly than an accused who had admitted his guilt and co-operated
with the prosecution in bringing the matter to an expeditions
conclusion. But the conviction on behalf of the legal representative
that the accused has “no case”, does not justify him declining to
defend the accused if the accused persisted in pleading “Not
Guilty”. It is a trite rule of professional ethics that the legal
practitioner, who is not the judge, is not entitled to prejudge the
issue of guilt. In such a case he is bound to continue with the
defence, even if the accused persists in denying guilt. Even where
an accused admits guilt to the legal practitioner, but wishes to
plead “Not Guilty”, the accused may be allowed to plead “Not
Guilty”, but with the clear understanding that the legal
representative would not call the accused as a witness to testify
under oath and will not make factual assertions to state witnesses in
cross-examination which is inconsistent with the accused’s
admission of guilt to his legal representative.





In
this case however, the latter course was not in issue because it is
common cause that the accused had at all times in his instructions to
Mr. Neves, claimed that he was innocent.





The
approach of Mr. Neves in this regard was unprofessional and wrong.






(ii) The
remarks in open Court by Mr. Neves to justify his withdrawal
aggravate the wrongfulness of his conduct.







To
tell the Court that he “has the evidence before him and it does not
look good My Lord” and that “there is no case”, is not only
completely unnecessary, but outrageous. What must the accused and
the public think if the legal representative of the accused,
appointed and paid by the State, portrays the accused as “guilty”
even before the opportunity to plead to the charge.






Ms.
Lategan has argued that such remarks would not necessarily influence
the Court and that judges are trained to obliterate inadmissible
material from their consideration. That may or may not be correct.
Unfortunately, judges are also human, and some more human than
others. Even if they do what Ms. Lategan contends, it would be
difficult to remove such material altogether from your mental
process. It may subjectively influence the best of judges.





But
this is not the only problem. It is important that not only the
accused, but the public, should have the perception that the
proceedings are fair to the accused, as well as the victim. Mr.
Neves was appointed by the Director of Legal Aid to defend the
accused. It must be emphasized that a legal representative so
appointed, is bound by the same rules of professional ethics as a
legal representative appointed by an accused himself.





It
must also be pointed out that the accused had not accused Mr. Neves
of “unethical behaviour” as stated by the trial judge, but this
was a description used by the judge for the behaviour complained of.






(iii) Mr.
Neves also told the Court in justifying his withdrawal, that the
“next issue” was the request by the accused to apply for a
postponement so that one of the defence witnesses could be summoned
to be here. “I informed my client that we do not need that witness
at this stage, it is the State to conduct their case and when it is
our turn we will then surely have enough time to have the witness
here”.







Once
again the attitude of Mr. Neves left much to be desired. If there
were other defence witnesses, how would he be able to judge the
veracity and usefulness of such witnesses, if they are not summoned
to be available for consultation and calling as witnesses, if not
subpoenaed to be present at or even before the trial. Mr. Neves
would have been better able to judge whether or not his client had a
case, if he arranged for them to be subpoenaed before the trial
started. Furthermore, he would not have known what to put to the
state witnesses in cross-examination, if the defence witness or
witnesses were not subpoenaed in advance.







(iv) The
next point mentioned by Mr. Neves was that the accused requested him
to apply for bail but he did not want to do that because, as he said
– “I did not have instructions”.







This
is incomprehensible. Mr. Neves had, according to him, a request from
his client to apply for bail. Surely this was his only relevant
instruction.







(v) Mr.
Neves further said: “I cannot proceed because of the confusion of
instructions and accusations”.







The
accused according to him told him that he was innocent, wanted to
plead “Not Guilty”, requested his legal representative to
subpoena a witness or witnesses before trial and to apply for bail.







If
there was “confusion” herein, it was not the “instructions”
given by the accused, but those in the mind of the legal
representative. And if there were “confusion” in the
“instructions” and “accusations” it must have been
accusations and instructions not mentioned by Mr. Neves – because
those he mentioned in Court were quite straight forward






In
all the circumstances, it is not surprising that the accused lost
confidence in the legal representative allotted to him.





What
is surprising however, is that the learned trial judge appeared to
have accepted the cogency of the arguments and statements by Mr.
Neves, instead of accepting that the accused had just cause to refuse
to follow the advice of Mr. Neves.





To
add insult to injury, the trial judge, in refusing bail and/or a
postponement, gave as the reason that the witnesses to be called by
the State are of tender years and that it would not be in the
interest of justice, the administration of justice, if further
postponement is granted, but then added: “especially when
regard is had to the fact that the accused had the benefit of the
services of a legal representative which he did not make good use
of
.” (My emphasis added.)





In
the circumstances herein set out, there was no justification for the
latter ground of refusal by the learned trial judge.







    1. The
      trial Court also erred in not taking appropriate steps to enable
      the accused to be legally represented.







Mr.
Cohrssen contended in this regard:





The
right to legal representation of a person’s own choice is
cornerstone of the right to a fair trial. Art. 12(1)(e) of the
Namibian Constitution provides:





All
persons shall be afforded adequate time and facilities for the
preparation and presentation of their defence, before the
commencement and during their trial, and shall be defended by a legal
representative of their choice.’”












Mr.
Cohrssen further contended that the Court’s failure to ensure
compliance with the provisions of this Article read with sections
8(2) and 10(1) of the Legal Aid Act, amounted to a failure of justice
in the circumstances of this case.





I
agree with Mr. Cohrssen for the following reasons:






  1. The
    interest of accused, the prosecution and the victim had to be
    balanced by the Court in fulfilling its function to ensure a fair
    trial.







  1. In
    performing this balancing act, the following facts had to be kept in
    mind.






The
accused was not responsible for the delay of almost nine (9) months
in bringing the matter to trial. During these 9 months, the accused
was in prison and as a result could not earn a living by working.
Before his arrest and detention, he was, according to the evidence,
in full-time employment and owned a house in Windhoek where he
resided at all relevant times. His domicile and employment was known
to the State.





A
further postponement of 3 months, when the crucial state witness Dr.
Liebenberg was available to testify, and which necessitated a
postponement to May 2000 in any event, would not have prejudiced
unduly, the two state witnesses of tender years, in view of the
further fact that they had made written statements to the police,
from which they could refresh their memory, with the assistance of
the police and/or their mother. Such a postponement, particularly if
accompanied by an order releasing the accused on bail, could have
made it possible for the accused to obtain legal representation at
his own expense.






  1. A
    postponement to obtain legal representation at his own expense, or
    legal representation provided by the Legal Aid Board, was crucial to
    a fair trial in this case, because the accused was facing a very
    serious charge and the indictment as amended, covered a long period,
    without any specific dates on which the alleged three instances of
    rape allegedly occurred. A conviction would inevitably have
    resulted in a very long period of imprisonment.






The
accused clearly was not schooled in the law. He would not be able to
avail himself of the benefits and protection provided by section 93
of the Criminal Procedure Act 51 of 1977, if he could and wished to
raise an alibi defence.






  1. The
    trial Court could have and should have taken more effective steps,
    in my respectful view, to ensure that the Legal Aid Board and/or
    Legal Aid Director, provide the accused with another legal
    representative, in the place of Mr. Neves.






At
the time of trial, section 8(2) of the Legal aid Act was still
applicable which read:





If
an accused before the High Court is not legally represented and the
Court is of the opinion that there is sufficient reason why the
accused should be granted legal aid, the Court may issue a legal aid
certificate.”









Section
10(1) provided:





“The
Director –






(a) shall
grant legal aid to any person in respect of whom a legal aid
certificate has been issued under section 8(2).”










The
discretion of the High Court Judge to issue the certificate amounts
to a quasi-judicial discretion which had to be exercised in a
reasonable manner and on reasonable grounds. That is also the
position since article 18 of the Namibian Constitution became part of
the Supreme Law of Namibia in 1990.





In
the circumstances of this case, the trial judge had to consider this
course and to exercise this discretion in accordance with section
8(2) of the Legal aid Act, read with Articles 12(1)(e) and 18 of the
Namibian Constitution.






  1. In
    the alternative to issuing a certificate, the trial judge could at
    least have ensured that the accused, who was in detention at all
    relevant times, had a proper opportunity to put his case to the
    Legal Aid Board or the Director of Legal Aid. This is so because
    Mr. Neves had told the Court that he would now explain to the
    Director of Legal Aid, the reasons for his withdrawal. That Mr.
    Neves version above was put before the Legal Aid Board, is quite
    clear from the report of Ms. Lategan to Court and in Court the
    following morning when she confirmed that further legal aid was
    refused by Dr. Mtopa, on behalf of the Legal Aid Directorate, after
    Mr. Neves had “conveyed to him the reasons for his withdrawal”.
    No wonder, that further legal aid was refused in the absence of an
    explanation by or on behalf of the accused.






The
learned trial judge must have anticipated that in the absence of the
accused, or the Court record or a favourable recommendation by the
trial judge himself, only a biased picture would be placed before the
Legal Aid Directorate and that the result would be a foregone
conclusion. The learned trial judge apparently did not take such
steps because in his own words in refusing bail and postponement, he
stated that the accused had not “made good use” of the counsel
provided.





In
my respectful view, the learned trial judge had failed to exercise a
proper discretion in accordance with section 8(2) of the Legal Aid
Act, read with Articles 12(1)(e) and 18 of the Namibian Constitution,
alternatively had failed to take the necessary steps to ensure that
the accused’s case is placed fairly before the Legal Aid
Directorate.






  1. The
    Legal Aid Directorate on the other hand had failed to take the
    necessary steps to ensure that the accused’s case for Legal Aid
    was properly and fairly considered in accordance with Article
    12(1)(e) read with Article 18 of the Namibian Constitution.






It
failed to consider that the reason for granting legal aid in the
first place, still remained, notwithstanding the withdrawal of Mr.
Neves.





It
failed to give the accused an opportunity to put his side of the
case, orally or in writing, before it reversed its previous decision
to provide legal aid.





In
my respectful view, both the Court a quo and the Legal Aid
Directorate had failed to comply with the letter and the spirit of
Articles 12(1)(e) and 18 of the Namibian Constitution read with
section 8(2) and 10(1) of the Legal Aid Act as it stood at the time
of the decisions aforesaid.









1.3 The
restriction of and interference by the Court in the cross-examination
by the accused of Mrs. D., the mother of the victim
.





Mr.
Cohrssen contended in this regard:





In
this matter the accused was effectively restricted from
cross-examining the person whom he alleges falsely caused the charges
to be laid against him.”








It
is trite law that a Court should do everything reasonably possible to
assist an accused who is not defended by a legal practitioner, to put
his case before Court by calling witnesses and cross-examining the
state witnesses.






Mr.
Cohrssen also correctly points out:





The
clumsy attempts of an undefended accused in a criminal trial to
cross-examine a witness should not be met with the placing of
obstacles in his way, but should rather be guided by the presiding
officer. Assisting an accused in these circumstances in any event
assist the Court in making its findings of fact at the end of the
day.”
1












Mr.
Cohrssen further argues:











Too
much is often expected of undefended layman defending themselves in
criminal trials. Too much is also frequently read into their failure
to cross-examine, or to cross-examine thoroughly. The importance of
this factor can easily be exaggerated.”
2








Mr.
Cohrssen referred to a number of passages where, according to him the
trial judge “severely curtailed” the cross-examination by the
accused.






  1. The
    first passage related to a visit by the said Mrs. D. to his house
    and the accused’s questions in that regard. The accused asked:
    “If she can tell the Court the truth. Can she recall when she
    told me that her belongings are outside, outside the house…”.
    Before the accused could finish the question, the trial judge
    intervened by saying: “Yes, those questions have nothing to do
    with your case.”. The interpreter then said: “He is saying
    that is where she started to send her kids to his house.”. The
    Court then once again said: “That has nothing to do with his
    case.”.3







I
must note here before I proceed that the Court did not ask the
accused to give a plea explanation in terms of section 115 of the
Criminal Procedure Act after he had pleaded “Not Guilty”.






The
Court also did not ask the accused what was the relevance of his
question. How the Court concluded summarily that the questions “had
nothing to do with his case” is not apparent from the record. It
must also be pointed out that the accused had already put it to the
victim, Ms. L. that he had a relationship with her mother.4





The
accused may have put this question to get more particulars as to the
precise date or dates when the witness or her children visited the
accused. He may also have put the question as introductory to his
case that Mrs. D. came to stay with him and had a sexual relationship
with him. This is indicated by him asking her whether she could
recall “when she told him that her belongings were outside, outside
his house.” Be that as it may, the learned presiding judge was
patently wrong in disallowing the question and in doing so on the
ground that it had nothing to do with the accused’s case.






  1. The
    next example relied on by Mr. Cohrssen relates to an occasion when
    the accused attempted to question Mrs. D. about the time and place
    of her alleged observation that the victim had a discharge on her
    panties. The accused asked: “Now on the second time when you say
    the discharge, on which day was it? The witness answered the
    question but before the accused could proceed with his further
    cross-examination, the Court once more intervened by saying: “Now
    let me assist you a bit. The witness testified that on a certain
    night you arrived there with the complainant, crying, what do you
    say about that?”5






The
accused thereupon left the issue about which he was cross-examining,
namely the occasions when a discharge was seen, and tried to switch
to what he thought the presiding judge was referring to, namely the
allegation by Mrs. D. that the accused had brought the child to her
one night – crying.





When
the accused tried to cross-examine on the latter allegation, the
Court again intervened by saying: “No, no I won’t allow those
kind of questions.” The Court then put the following question to
the accused: “Are you saying that you arrived there with the
complainant crying at the place or the house where the witness was or
not?” The accused replied to the question by the judge: “I
don’t know anything about it.”





The
Court then put it to the witness that the accused says that he knew
nothing about such an event. Mrs. D., in reply, reiterated her
allegation.6





It
seems that the Court managed for the time being in changing the
direction of the accused’s cross-examination. Why the Trial Court
proceeded in this manner, is unclear to this Court. What is certain
however, is that it must have been confusing to the accused and that
the intervention was unjustified.






  1. When
    the accused continued asking questions about the alleged occasion,
    all or most of which was not a direct translation by the interpreter
    in the first person and consequently sometimes difficult to follow
    for that reason, the judge again intervened and said: “No, no,
    any other question.” The judge did not explain to the accused
    what was wrong with his question.







  1. The
    accused at one stage returned, or attempted to return to the issue
    of Mrs. D’s December visit to his house and whether he escorted
    her to any address and if so, which address. In the course of
    trying to get more clarity from her in this regard, the accused
    asked: “Now did I take you, did I escort you at this Nama 833 or
    …” the Court again intervened and ruled: “No, that question
    has nothing to do with this case.”7






The
learned judge did not ask the accused about the relevance of the
question or explain to him why the question had nothing to do with
the case. The Court, immediately after ruling that accused’s
question had nothing to do with his case, continued with a
questioning of the witness during which he elicited evidence about
the explanation of the victim when confronted by the witness. This
examination by the judge proceeded as follows, whilst the accused was
reduced to a mere spectator:






Q: You
testified that the complainant made a report to you after you
confronted her with this discharge. What did she tell you?







A: When
I asked her where she was coming from she told me that she was coming
from Uncle Albertos’ house and when I asked her why her panty is
looking like that, where is the discharge coming from and then she
told me that uncle Albertos did it to her.







Q: Did
she tell you how many times or on how many different occasions that
happened with her between her and the accused?







A: Yes,
she did.







Q: What
did she say? How many times?







A: She
said for the first time it was in the sitting room that Uncle
Albertos came out an started touching her and kissing her and stuff
like this and that where …(intervention).



Q: Yes.
No what I just want to know. I don’t want to know details. Did
she tell you how many times the accused had sexual intercourse with
her or not?







A: She
said three times.”










The
judge now turned to the accused and put the following question to
him: “Yes what do you have to say about that, that the complainant
made a report to the witness upon the witness seeing the discharge on
her panties that you had sexual intercourse with the complainant,
thrice? Are you saying that that never happened? It is not true.
The complainant lied to her?” The accused answered: “Yes.”





Then
the judge again turned to the witness and put the following question
to her: “Yes, what do you have to say? The accused says what the
complainant told you was not true. She was making up those stories
against him”. The witness then confirmed that her testimony is
true and came with the following new allegation: “My Lord, if he
is saying that the child is lying then I am asking, the time that we
were sitting in the vehicle why did he then say why didn’t I come
to him first so that we could have talked about the case so that he
could pay me N$200 every month?”





The
Court then put this new allegation to the accused, but added words to
the allegations which were not contained in the allegation made by
the witness. The question as formulated by the Court was: “Yes –
the witness also testified that while you were seated in the police
vehicle in the presence of the complainant, you asked the witness why
she reported the matter to the police and why she didn’t come to
you to discuss the issue with you because you were going to lose
your house and your employment and your children will
suffer and
you would give her N$200,00 a month. What do you say about that?
Did that happen or not?” (My emphasis added to distinguish the
words added by the judge to the allegations by the witness.)





The
accused replied: “It didn’t.”





Thereupon
the Court again put the accused’s denial to the witness and the
witness confirmed her previous allegation.





And
to crown it all – the Court now turned to the accused and asked:
“Is that all? Do you have any other questions?” But as soon as
the accused asked his first further question he was again silenced.
This part appears as follows in the record:






Q: “When
you three arrived at the Women and Child Abuse Centre, who got out of
the car first?”







COURT: “No,
no, no. I wont allow this kind of question. What has that got to do
with the evidence? You denied that you told her, you asked her those
questions. Any other question you have?”






The
accused then tried to proceed on another point. He asked: “As the
complainant told you that I raped her now should the discharge b e
blood or should it be some whitish or yellowish substance? The Court
once more intervened: “No, the witness is not a doctor, you can
put that question to a doctor.”





It
must be noted here that the evidence elicited by the judge about the
report of the “complainant”, was deliberately prevented by the
prosecutor, Ms. Lategan, when she examined the witness in chief. Ms.
Lategan then said: “The question was just, did Ms. L. relate a
story to her? I don’t want to know what was said.”8





The
obvious reason why Ms. Lategan did not want the witness to testify
about the contents of the report was that the report amounted to
inadmissible hearsay in the light thereof that it did not comply with
the requirements of a first report because it was elicited by the
witness Mrs. D. by threat. The evidence in chief of Mrs. D. was that
after several questions to the victim Ms. L. and the denial by the
victim that anything untoward had happened, Mrs. D. told her: “Tell
me the truth. Where are you coming from? Tell me the truth. Where
are you coming from? Otherwise I will beat you.”





The
Court thus not only elicited new evidence from the witness
prejudicial to the accused, during the attempted cross-examination by
the accused, but evidence which was inadmissible hearsay against
him.9





This
is an irregularity distinct from the irregular and prejudicial
intervention by the judge and even turning the accused’s
opportunity to cross-examine the state witnesses into
cross-examination by the Court of the accused.






(v) The
accused attempted another angle with what appears to be a completely
relevant question. He asked the witness Mrs. D.: “Did you that
first week until the 14th, the witness mentioned that she
saw the first discharge on the Tuesday, now why did she, exactly from
that stage, why didn’t you exactly go to the police to report
this?” The judge then intervened and said: “Any other
question?”






The
accused tried several other questions, some about the dates on which
the witness sent the children to his house and indicated that without
her help, he was unable to recognize the days. He probably required
the dates to assist him in proving his defence that he was absent at
the time.







The
learned judge motivated his refusal to allow such question by saying:
”That’s a matter for argument. You have stated your statement
to her that you did not have sexual intercourse with the complainant.
So the dates have become irrelevant.”







The
Court’s refusal was based on a wrong premise. Surely even if an
accused denies that he had raped a person, it is nevertheless
justified for the defence to require dates of the alleged incidents
of rape to enable the defence to disprove the allegations of the
State, particularly if the defence is an alibi or an alibi in part.







The
accused finally tried to explain: He said: “I want to know this
because I have been accused. That is why I want to know whether the
mother knows.” The Court then commented: “Yes neither the
complainant nor the mother can help us with specific dates. Any
other question? If you have no more questions you may be seated.”







The
Court did not allow the witness to answer. She may have been able to
say whether or not she did not remember any specific dates. But even
if she did not know any specific date, she may have been able to give
the month or the week or whether it was daytime or nighttime.







(vi) I
have quoted the proceedings relating to the accused’s attempted
cross-examination of this witness extensively.







It
is obvious that the accused’s attempts to cross-examine were clumsy
and inept. But instead of assisting him the Court frustrated his
every endeavour.







(vii) The
position is aggravated by the fact that the Court in its judgment
held it against the accused that he had failed to put to Mrs. D. in
cross-examination the defence that he had an affair with the mother
of the victim but had chased her from his house because she drank
excessively and that she concocted the case against him in revenge.







When
the accused began to put questions to her about her arrival at his
house with her belongings outside his house, he was stopped.







In
any event, this is a clear instance where the Court should have
recalled the witness to give the accused the opportunity to put this
part of his defence to her. Alternatively, the Court itself
should have, after the recall of the witness, put to the witness this
part of the defence of the accused.







The
Court did not only have the power to act in such manner, but in the
circumstances of this case, it had the duty to act in terms of
section 167 of the Criminal Procedure Act 51 of 1977.







This
is so inter alia because unless this course was taken, the
Court would not have been justified to reject the evidence of the
accused in this regard merely on the ground that he had failed to put
it to the defence witness in cross-examination. On the other hand,
if the Court accepted the uncontradicted evidence of the accused in
this regard, because it was uncontradicted, that would unduly have
prejudiced the state case and the interests of the victim.







Consequently,
the only way for the Court to ensure that justice was done in this
case, was to make use of section 167 of the Criminal Procedure Act 51
of 1977. This it had failed to do.







The
power and duty to act under section 167 and 186 have been referred to
and explained in many decisions of the High Court and Supreme Court
but it seems that some judges of the High Court still ignore these
provisions and decisions or for some other reason, fail to implement
it.10







This
is a regrettable situation and is not in the interests of justice.







In
the instant case, the failure by the Court to recall the witness and
to allow the accused a further opportunity to put this allegation to
her or if necessary, to put the allegation itself, amounts to a
misdirection, if not an irregularity, particularly in view thereof
that the Court used the failure of the accused to put the allegation
to the witness as one of the reasons for rejecting the accused’s
defence.







The
manner in which the Court interfered with the cross-examination by
the accused of the witness and disallowed several of his questions
and even elicited inadmissible hearsay evidence against him, amounts
to a further irregularity in the procedure, which clearly prejudiced
the accused in his defence and so undermined his fundamental right to
a fair trial.












    1. The
      failure of the state, the investigating police officers, the
      prosecution to have the accused examined to establish whether or
      not he was suffering from gonorrhea and the failure of the trial
      court to consider and examine and/or investigate the issue or
      having it considered examined and/or investigated







This
issue, as explained in the Introduction, supra, was raised
mero motu by the Court. It arose in the following manner in
the Court a quo: The State witness, Dr. Linda Liebenberg,
testified that the alleged victim, Ms. L., was examined by her on the
16th May. She testified: “There were no extra-genital
injuries but the hymen was torn, thick, red and inflamed. The tears
did not appear completely fresh but due to the inflammation it was
difficult to state or decide on a time that the tears had been
sustained. Then I did not measure the extent of the hymen because
the examination was too painful. The fourchette, that is the
posterior aspect of the vaginal opening was thin and red, also
indicating infection and inflammation. The perineum, that is the
area between the vagina and the anus, showed skin excoriation as one
sees with a chronic vaginal discharge. Then there was discharge from
the vagina, namely thick yellow pus. No haemorrhage seen. The
examination was painful. … At the time the findings I thought to be
consistent with the full penetration causing the hymen to tear all
round and there was definite evidence of infection like gonorrhea.”





The
clinical evidence to substantiate the finding relating to gonorrhea
according to her was: “This very red inflamed appearance of the
genitalia and the thick yellow pussy discharge. The various sexually
transmitted diseases have a relatively specific clinical signs and
this is most consistent with gonorrhea.” Doctor Liebenberg further
confirmed that gonorrhea is a sexually transmitted disease that could
not be transmitted in any other way than by a sexual act for example
by a penis and not by means of the mouth or fingers or skin contact.
Dr. Liebenberg did not say that gonorrhea could only be
transmitted by full penetration during intercourse. Whether
or not it could be transmitted by a sexual act not amounting to full
penetration and intercourse, was not canvassed and remains an open
question. The gonorrhea of the victim, consequently indicates no
more than a sexual act, with a person having gonorrhea. In further
questions, Dr. Liebenberg explained: “The transfer of this disease
is by genitalia contacting.”





Smears
were also taken from the victim as well as blood samples from both
the victim and the accused. The blood samples showed that Ms. L. and
the accused belonged to different blood groups. No semen or
spermatozoa was detected by the Forensic Laboratory to whom the
vaginal smears and sanitary pad of the girl was sent for analysis.





Apart
from the blood sample, no further examination was done to establish
whether or not the accused was suffering from gonorrhea or any other
sexually transmitted disease, notwithstanding the fact that he was
available and apparently cooperated with the police and medical
practitioner.





It
is clear from the aforesaid evidence that it was impossible to
determine, not even approximately, when the hymen was torn, when the
intercourse, causing the tear, took place; whether intercourse took
place on diverse occasions, and if so, on which of the aforesaid
occasions and when gonorrheal infection took place. It seems further
clear that no chemical tests or other tests were done to establish
beyond doubt from what sexual disease Ms. L. was suffering, although
the probability was that she was suffering from gonorrhea. On the
assumption that Ms. L. was indeed suffering from gonorrhea, it
follows not only that someone suffering from gonorrhea must have
transmitted the disease to Ms. L., but that once she had contracted
the disease, she in turn could transmit it to anyone with whom she
had sexual intercourse or with whom she had committed a sexual act as
described above.





At
the outset of Dr. Liebenberg’s cross-examination by the accused,
the intelligible part of his first question was: “… So, it
means, can a child still walk properly if it is raped and with this
evidence by the doctor. Is it possible?” Before Dr. Liebenberg
could answer, the learned presiding judge said: “I don’t think
the Dr. is in a position to answer that.” Then the judge
apparently tried to improve on the accused’s question and said:
“Doctor, when the complainant, I think what the accused want to
know is, when the complainant was brought to you on the 16th
May 1999, yes, what was the information given to you? When was she
actually molested or assaulted?” Dr. Liebenberg replied: “What
I had written there is that the alleged incident would have been
around two weeks before my examination. No specific date was given.
The mother was doing most of the talking. The child just agreed. So
it was difficult to establish precisely what, when, where, how
etcetera but two weeks was more or less the working information.”
It must be pointed out that this “working information” was of
course inadmissible hearsay evidence.





The
accused further put it to Dr. Liebenberg: “So, I was accused that
I raped the complainant so as it is stated that no spermatozoa was
found in the complainant’s vagina so how is it possible that I am
the one who have given this gonorrhea to the complainant?” Dr.
Liebenberg replied: “… There are no scientific evidence linking
him with the tests that was done…”.






Then
the following question and answer followed:





Q: As
I was not having any intention of raping the complainant, is it
possible for the doctor to examine me also so that they can maybe
find out whether I was having this gonorrhea which has been found on
the complainant?


A: My
Lord, maybe just to clear up matters I could just say men are capable
of carrying gonorrhea without having symptoms. They can be
asymptomatic carriers although they might have gone through a phase
of burning discharge or burning when urinating. I am not in a
position to examine this accused and since the lapse of time is a
year it would be senseless.”






Thereafter
the accused commented: “So, as the doctor say she can’t examine
me, I have nothing more to say.” The Court commented: “Yes,
thank you, you may be seated.”





Notwithstanding
the many questions the learned presiding judge asked the State
witness Mrs. D. during the purported cross-examination by the
accused, no further questions were asked by him on this occasion and
the issue was ignored by the Court in its judgment.





In
my respectful view, it was necessary in the interests of justice not
to have accepted the mere say so of Dr. Liebenberg, without at least
questions for clarification to enable the Court to decide what course
it should take on the important issue raised by the accused. It was
an important issue because if the accused was found to have gonorrhea
at the time of the examination of the alleged victim, that would have
constituted strong circumstantial evidence corroborating the State’s
case. But if not, it would have corroborated the accused’s denial
to the effect that he never had intercourse with the victim.





If
the Court allowed the accused to be examined at the time when Dr.
Liebenberg gave evidence nine (9) months later, the result may still
have been a fact, or factor in the form of circumstantial evidence,
corroborating the one or other version, although obviously at that
late stage, it would carry less weight.





The
fact that the examination was not done, on any of these occasions,
was not the fault of the accused. Once it was found that the alleged
victim Ms. L. was probably suffering from gonorrhea, it was obvious
that an examination of the accused to establish whether or not he was
suffering from gonorrhea, was the obvious course for the prosecution,
consisting of the police and prosecutors, to take. They, and Dr.
Liebenberg, had the power to do so in terms of section 37(1)(c) of
the Criminal Procedure Act. The Court furthermore had the power to
order such an examination in terms of section 37(3) of the said Act.





The
purpose of these provisions is quite clearly not to aid or prejudice
one or other of the parties, but to assist in the search for the
truth and so ensure that justice is done.





It
is quite clear that the accused did not at the time object to the
taking of his blood. There is no reason to believe that he would
have objected to have his body examined in accordance with section 37
to establish whether or not it shows any condition or appearance –
in this case whether it showed that he was suffering from gonorrhea
or not.





During
the trial, the cross-examination of Dr. Liebenberg by the accused,
amounted to a clear indication that he was inviting such an
examination. But even if the accused objected to such an examination
at any stage, he would have had no leg to stand on.





So
all that the investigating police officer had to do was to request
Dr. Liebenberg to do the examination. Dr. Liebenberg on the other
hand, being an experienced medical practitioner employed by the
State, could and should even have suggested or initiated it once she
found that the victim was suffering from gonorrhea. The accused
could not have been expected to initiate such an examination, because
he obviously had no knowledge of the law and was in detention at all
relevant times after the complaint was laid. He was probably unaware
of the doctor’s findings regarding gonorrhea until the trial.





Mr.
Cohrssen referred the Court to “The Forensic ABC in Medical
Practice, a Practical Guide” by T.G. Schwär, J.A. Olivier and
J.D. Laubser where it is stated at p. 389:





The
accused or suspect in a rape case may be brought to a medical
practitioner by the investigating police officer, for examination.
The latter should hand over a formal written request to the medical
practitioner – the completed SAP 308(A) or a request with similar
particulars. This includes written confirmation that the accused or
suspect has been formally arrested. The medical practitioner can
then proceed with his examination without the consent of the accused
or suspect, but he must always attempt to obtain the full cooperation
of the accused or suspect.”









Amongst
the guidelines under the heading “Examination of the genitalia”,
one of the specific guidelines is: “Look specifically for the
presence or absence of sexually transmitted diseases”. Such an
examination has become even more important since an accused person
may transmit a deadly disease such as HIV. to a victim and such fact
would be an aggravating factor in considering sentence.






To
return now to the explanations given by Dr. Liebenberg in reply to
the accused’s question whether she could examine him whether “he
was having gonorrhea” or whether he was “still having gonorrhea”.






Explanation
(i)
: “I could say that men are capable or carrying
gonorrhea without having symptoms. They can be asymptomatic
carriers although they might have gone through a phase of
symptoms of burning, discharge o burning when urinating.”





Comment: Even
if taken at face value, Dr. Liebenberg’s phrases “are capable of”
does not say that a diagnosis that the person has gonorrhea
will not be possible when a proper examination, including blood
tests, are done. The phrase also does not say or even imply that
symptoms will generally not be discernable externally. The words
they “can be asymptomatic carriers” certainly does not mean that
they all are asymptomatic carriers. Her qualification that in those
cases where men are “asymptomatic carriers, they might have gone
through a phase of some symptoms of burning, discharge, or
burning when urinating”, makes that part of her statement very
confusing because the “discharge” at least would be a symptom
visible in an external examination.





According
to Dr. Liebenberg, gonorrhea is a very “treatable disease” but if
untreated, “it would have very serious consequences in a child
especially because of anatomical … reasons. This infection can
travel upwards and cause fatal peritonitis. If not that severe it
can still cause permanent sterility due to the infection of the
internal genitalia, the uterus and fallopian tubes. It can lead to
various types of systemic disease, arthritis, uvulitis, cystitis it
can be a very severe prolonged illness”.





Dr
Liebenberg also confirmed that she gave Ms. L. the standard treatment
which not only treated “the gonorrhea, but also the other sexually
transmitted diseases that she might have been at risk of”.





Although
again Dr. Liebenberg did not testify how gonorrhea would normally
affect the male person and was not asked about this important issue,
it must follow as a matter of common sense and general knowledge,
that if gonorrhea contracted by a male person is not treated, it
could also have grave consequences for such male. In such cases,
symptoms of such diseases, would probably also be discernible.





Without
examination of such male person, his state of illness will not be
discernable. It is consequently nonsensical not to examine a male
person, on the ground that he may be “asymptomatic”.





Explanation
(ii)
: “I am not in a position to examine this accused and since
lapse of time is a year, it would be senseless.”





Comment: Dr.
Liebenberg does not say that she “is not in a position to examine
the accused” because of the lapse of time”. There are
consequently two distinct parts of her statement.





The
first part – “I am not in a position to examine the accused” is
not explained and is confusing. Certainly she was entitled to make
such examination after examining the alleged victim on 16th
May 1999, provided she was requested to do so by the investigating
police officer in accordance with section 37(1)(c) read with section
37(2)(a). When she testified, she could still have conducted such an
examination in terms of the same sections or alternatively, in
accordance with a Court order issued in terms of section 37(3)(a).





Again,
no one can say that there would be or would not be symptoms. As
pointed out before, the gonorrhea may in the meantime have led to
other diseases, that would probably be identifiable on a proper
examination.





Dr.
Liebenberg’s statement that it would be senseless at that stage to
examine because of the lapse of time, should, like her other
statements above-quoted, have been further examined or elucidated by
questions from the Court, if the State advocate left the matter
without clarification.





This
is an instance where the Court had to decide whether or not an
examination would be valuable or valueless, not the medical
practitioner. Particularly whether or not an examination would give
certainty about a relevant fact constituting circumstantial evidence,
is the function of the Court.





I
must also point out that the State advocate or other prosecutor, must
always regard the establishment of the truth its main objective and
not only to ensure that the accused is convicted and sentenced. When
an accused is not represented by a legal representative, there is a
greater responsibility on the prosecution, as well as the Court, to
ensure that the accused is not prejudiced by the fact that he/she has
no legal representation. This duty extends to the disclosure of an
important fact or factor known to the State which is consistent with
an accused’s innocence. The Court shall in such cases, use its
powers to facilitate the discovery or disclosure of such fact or
factor.





Ms.
Lategan did not at the trial put any questions to Dr. Liebenberg to
clear up some of her ambiguous statements referred to above. Ms.
Lategan’s written submissions on appeal as contained in her heads
of argument is introduced by the following words: “In respect of
the accused’s allegation that he was not suffering from
gonorrhea…”. The State therefore clearly concedes that the
accused had alleged that he was not suffering from gonorrhea.





Ms.
Lategan referred to Dr. Liebenberg’s evidence that “men are
capable of having gonorrhea without having symptoms” did not say
why that, even if a fact, was justification for not examining the
accused.





She
continued: “And more importantly since the lapse of time is a year
it would be senseless to examine the accused… furthermore as the
complainant could not give dates in the respect of the incidents, had
the accused tested positive for gonorrhea at the time of his arrest,
it could not be ruled out that he had contracted it through sexual
contact with another person, similarly had the accused tested
negative, the possibility could not be ruled out that he had received
treatment since his last contact with the complainant.”





Surely,
the possibility of such explanations, does not mean that a finding
that the accused was or was not suffering from gonorrhea, would not
be a factor of considerable weight corroborating either the state
case or the defence case. So e.g. if at the time the accused showed
no symptoms of gonorrhea and/or was diagnosed as not having
gonorrhea, the State’s ability to prove its case beyond reasonable
doubt would obviously have been severely weakened.





That,
consequently as I have shown supra, would also have applied if
at the trial, 12 months later, the accused on examination was shown
to have no symptoms whatever of gonorrhea or a disease caused by
gonorrhea. What is important and completely ignored by Dr.
Liebenberg, Ms. Lategan and the Court, was the fact that the accused
was apparently in detention in the Windhoek Prison for the whole of
the 12 months from the time that the complaint was lodged to the time
when Dr. Liebenberg testified. He was thus under State control
during this whole period.





It
is furthermore a notorious fact amongst knowledgeable people, that
prisoners cannot receive medical treatment in prison without consent
of the prison authorities and without some records being kept and
available. If the accused therefore had gonorrhea when he was first
detained and he did not receive proper treatment during this 12
months period since then, he would probably have been in a very
serious diseased state when he raised the issue in Court of being
examined for gonorrhea and asserted that he did not have and never
had gonorrhea. On the other hand, if he, on examination during his
trial, was found not to have gonorrhea or any disease arising from or
caused by gonorrhea, it would have been an easy matter to establish
whether he nevertheless had gonorrhea whilst in prison and/or whether
he had received treatment for such condition which could explain why
he had no gonorrhea at the time of trial.





In
my respectful view the trial Court erred in the following respects:






(a) Its
failure to put questions to Dr. Liebenberg to clear up the
ambiguities in her evidence on this aspect.






(b) Its
failure not to allow or order a proper medical examination of the
accused in May 2000 during the trial after the accused had
pertinently raised the issue.






  1. Its
    failure to consider and give weight to the failure of the
    investigating police officers and/or the prosecution in arranging
    for a thorough medical examination of the accused after it was
    established that the victim suffered or probably suffered from
    gonorrhea.






As
pointed out supra, the Court had the power to act in terms of
sections 167 and 37(3), read with section 37(1)(a) and Art. 12(1)(e)
of the Namibian Constitution. In the circumstances of this case the
Court had a duty to do so.11





This
failure constituted an irregularity in the trial. The irregularity
prejudiced the accused because his assertion in Court that he did not
suffer from gonorrhea at the time of trial and also did not suffer
from the disease at the time when he was first detained 12 months
earlier was not considered and assessed as a factor supporting his
denial of guilt and detracting from the State case against him.





The
only manner in which this prejudice could have been avoided by the
Court, was if the Court had accepted the accused’s above-stated
assertion as an important factor detracting from the State case and
supporting his plea of “Not Guilty”. This, the Court also failed
to do.





It
is also necessary to emphasize here that even before the Namibian
Constitution became the Supreme Law of Namibia in 1990, and Art. 12
became part of this Supreme Law, the basic and fundamental principles
of a fair trial were laid down in the authoritative Court decisions
in South Africa and Namibia. These fundamental principles included
the requirements and principles in regard to the investigation
of the crime or offence preceding the actual trial.





In
the Namibian decision of State v Burger and Van der Merwe, a
decision by Berker, J.P., as he then was, who became Namibia’s
first Chief Justice in 1990, the irregularities in question were
irregularities in respect of the investigation of the case.12
He referred to these irregularities as follows:





Basically
it means that the whole investigation was so interwoven with
irregularities, many of which were not of much importance. … It is
however, the cumulative effect of these irregularities which the
Court must, in my view, consider in order to come to a conclusion
whether it is of such a nature that justice was not in fact done …
After much serious consideration I however, came to the conclusion
that in the specific circumstances of this case, there were so many
irregularities, that justice, in the sense as it is explained in the
cases referred to, will not be accomplished if the accused are found
guilty.”


(My
free translation from the Afrikaans.)








the
decisions referred to by the learned judge was inter alia the
decision of the South African Appellate Division in S v Xaba13,
where Botha, J.A. said:





Generally
speaking, an irregularity or illegality in the proceedings at a
criminal trial occurs whenever there is a departure from those
formalities, rules and principles of procedure with which the law
requires such a trial to be initiated or conducted (See R. v
Thielke
1918 AD 373 at 376; S v Mofokeng 1962(3) SA 551(A)
at 557G). The basic concept underlying s 317(1) is that an accused
must be fairly tried (see S v Alexander and Others (1) 1965(2)
SA 796(A) at 809C – D; and cf S v Mushimba and Others
1977(2) SA 829(A) at 844H).”








In
the Mushimba case, which originated in Namibia, the irregularity
referred to had its beginning in the investigation by the Security
Police but which was continued into the trial itself. The accused
Mushimba, had been convicted in the High Court of SWA on charges of
contravening the Terrorism Act and sentenced to death.





The
decision on appeal was in regard to a special entry by a judge a
quo
formulated as follows:





Whether
in connection with or during the proceedings there were irregular
and/or illegal departures from and infringements of the formalities,
rules and procedures which the law requires to be observed for a fair
trial, and which resulted in a failure of justice.”








It
appeared from the evidence, which was tendered in support of the
application for the special entry, that one Mrs. E, a member of the
staff of the firm of attorneys who defended the accuseds at the
trial, had given copies of statements by the accuseds and defence
witnesses and other confidential and privileged documents to the
Security Branch of the Police whilst the investigating officer in
charge of the case was a member of the Security Police. Thereafter
the statements and documents were given to the investigating officer
who gave instructions to the State counsel. The State counsel was
however, unaware of these irregularities which had occurred.





In
an appeal on the special entry it was contended on behalf of the
State that no irregularity had taken place, that if an irregularity
had taken place, it did not affect the proceedings and that, in any
event, the irregularity was not of such a nature that a failure of
justice had occurred.





The
Appellate Division of the South African Supreme Court, upheld the
appeal and set aside the conviction and sentence.





In
its judgment the Court per Rumpff, C.J., held:





That
the privilege which had existed between the accuseds and their
attorney had been breached in a particular manner: from the date
upon which the instruction to defend had been received to the end of
the case the Security Police, through Captain N (to whom the
documents had been given by Mrs. E, had completely penetrated the
defence and the privilege had simply been eliminated.





Further,
that the complete elimination of the privilege was not only an
irregularity, but was extremely gross irregularity which, as far as
it concerned privilege, could scarcely have been surpassed.





That
it could not be doubted that the breach of the privilege affected the
proceedings: a channel had been created which proceeded from the
offices of the defence right up to the prosecutor in the case. The
prosecutor himself was unaware of the channel, but that channel was
directly linked to the proceedings, and had been interspersed during
the entire period thereof, could not be doubted.





That,
from before the trial to the end thereof, by the action of the
Security Police, there was a complete elimination of the privilege of
the accused: that the Security Police had to fulfil its task of
ensuring that law and order was maintained with every lawful means at
its disposal could not be doubted, but public policy demanded,
however, that an accused in a case ought no to be subjected to what
had occurred in the present case.





That
accordingly, by reason of the nature and extent o the breach of the
privilege of the accuseds, that it had to be found that their
protection by the privilege before and during the trial had
disappeared totally through the action of the Security Police, that
thereby the trial did not comply with what justice required in this
respect and that a failure of justice had occurred.”









Berker,
C.J., in his aforesaid decision in the State v Burger and Van der
Merwe
, also referred to and followed S v Mangcola & Ors,
1987(1) SA 512(B) where it was held:





It
is abundantly clear from a consideration (of the cases quoted) that a
value judgment has to be made as to the nature and extent of the
prejudice to which the accused has been subjected…”








He
also referred to and followed the decision in Mushimba, supra,
and in S v de Lange, 1983(4) SA 621, where it was decided that
the onus is on the State to prove that there was no failure of
justice as a result of the irregularity.





The
failure of the Court in the instant case to act as herein set out
above, constituted an irregularity in that the principles, procedures
and rules in connection with a fair trial were not complied with and
that it caused prejudice to the accused. Furthermore, the State had
failed to prove that the above-stated irregularities by the State and
by the Court, did not constitute a failure of justice.





It
could therefore be argued that the aforesaid irregularities
constitute sufficient ground for setting aside the conviction and
sentence, but any doubt that may exist are removed by the further
misdirections in the judgment, dealt with hereunder.





SECTION
C: MISDIRECTIONS






1. The
apparent failure by the Court to apply the cautionary rule to the
witness Ms. L. the victim, and her sister L1.:






At
the time of the alleged incident or incidents, Ms. L. was only eight
(8) years old and her sister L1. seven (7) years old. When they
testified they were still very young, Ms. L. nine (9) years old and
L1. eight (8) years.





The
Court did not examine Ms. L. at the outset of her evidence to
establish whether she understood the nature of the oath and the
requirement to speak the truth. This enquiry was necessary to
establish whether she was a competent witness, and inter alia
competent to take the oath.





In
the case of L1., the learned trial judge did however, make some
enquiry at the outset to establish whether or not L1. understood the
need to tell the truth. But both Ms. L. and L1. were not asked
whether they understood the meaning of taking the oath before they
were sworn in as witnesses.





There
is no indication in the record that the Court, in assessing their
evidence applied the cautionary rule relating to witnesses of their
age in considering their testimony. This Court has ruled in a recent
decision that the cautionary rule in regard to complainants in sexual
offences is outdated and should no longer be applied in Namibian
Courts.14





However,
it pointed out that the cautionary rule in regard to single witnesses
and in regard to very young witnesses remained.





Ms.
Lategan contended: “The past 20 years, however, have seen a
greatly increased interest in cognitive psychology and child
development, consequent research has resulted in a reappraisal of
earlier beliefs and a realization that children’s ability to give
reliable evidence has been greatly underestimated… The explosion of
information and research on the child witness has not to date
impacted on the South African Courts…”.





Ms.
Lategan referred us to the work of Spencer and Flin as contained in
their book: The Evidence of Children: The Law of Psychology (1993
at 334) and the manner in which the views and finding of the said
authors were referred to and applied by Ebrahim, J.A., in the
Zimbabwean case of S v S.15
The learned judge, apparently relied heavily on the said work by
Spencer and Flin in identifying the six main objections to relying on
children’s evidence. These objections were set out as follows:






  1. Children’s
    memories are unreliable;


  2. Children
    are egocentric;


  3. Children
    are highly suggestible;


  4. Children
    have difficulty in distinguishing fact from fantasy;


  5. Children
    make false allegations particularly of sexual assault;


  6. Children
    do not understand the duty to tell the truth.






Ms.
Lategan relies on the examination by Ebrahim, J.A., in his judgment
of the “traditional objections in the light of research findings on
children’s cognitive ability” and where Ebrahim, J.A. held:





In
respect of (a), research has shown that children generally have a
good recall of central events but a poorer memory for detail and
evidence of surrounding circumstances, in respect of (b), it would
appear that only very small children are so egocentric that they are
unable to be objective concerning the truth and in respect of (c),
research has shown that children like adults are suggestible, in
respect of (d), although a child’s existence is more centered
around his/her imagination than an adult, children do not fantasies
about things that are beyond their own direct or indirect experience,
and in respect of (f), the contention that children do not understand
the duty to tell the truth is a gross generalization that does not
acknowledge the difference in age, intelligence and morality between
children.”








Ms.
Lategan has not placed the said book of Spencer and Flin, or any
extracts from it before this Court. Ms. Lategan was silent on
whether or not the learned authors were experts themselves or have
merely accumulated the work of alleged experts and/or other alleged
investigators in their book. It is also obvious that neither the
authors or any other experts testified in the Trial Court on this
issue and the accused was in no position to deal with such issue.
Neither the Trial Court nor this Court was therefore placed in a
position to properly consider and evaluate the alleged “explosion
of information and research” and in particular the reliability of
and the weight to be attached to the information and opinions,
contained in the aforesaid work of Spencer and Flin.





I
have already expressed caution in a previous decision of this Court
to the tendency of legal practitioners to refer the Courts in
argument to the opinions of alleged experts and/or other
knowledgeable people contained in publication, and some Courts then
relying on such opinions, without such opinions having been placed
before Court in accordance with the traditional rules of evidence
applicable in the Namibian and South African Courts relating to the
admissibility of opinion evidence.16





I
reiterate what I said in regard to the acceptance of opinions
contained in papers where the authors did not testify before the
Court as experts on the issue of the percentage of complaints in
sexual cases which were found to be false, compared with complaints
in other crimes:





Although
both the Namibian decision in S v D and the South African decision in
S v Jackson (supra) amount to strong persuasive opinion for this
Court on this issue, the following reservation must be made.






In
S v D it was accepted as a fact at 145i that:



'There
is no empirical data to support the contention that in cases of this
nature more false charges are laid than in any other category of
crimes. Indeed, the evidence that is available indicates the
contrary
. D Hubbard, A Critical Discussion of the Law of Rape
in Namibia
states at 34 of her discussion that ‘a US study
found that the incidence of false reports for rape is exactly the
same as that for other felonies - about two per cent’.'


(My
emphasis added.)




In
S v Jackson Olivier JA said at 474-5:



'…what
proof is there of the assumptions underlying the rule?


The
fact is that such empirical research as has been done refutes the
notion that women lie more easily or frequently than men, or that
they are intrinsically unreliable witnesses.'



As
authority for this statement the learned Judge refers inter alia to S
v D
and the aforesaid paper by Dianne Hubbard referred to above
and the LLAMA thesis, University of Cape Town, of one Collean Helen
Hall.





Olivier
JA further relies for the same alleged statistic on a publication by
DJ Birch 'Corroboration in Criminal Trial: A Review of the
proposals of the Law Commission's Workshop Paper'
for the alleged
fact that the New York Sex Crimes Analysis Unit has 'carefully
analyzed all allegations made to them over a period of two years' and
that 'they found that the rate of false allegations for rape and
sexual offences was around two per cent, which was comparable to the
rate for unfounded complaints of other criminal offences'.


The
ease with which the courts have accepted in their judgments,
statements of fact regarding the statistics involved, contained in
'papers' by authors, without having heard testimony of such authors
in the course of the trial, surprises me.





This
tendency is seen mostly in cases dealing with alleged breaches of
fundamental human rights and freedoms and where the issue in question
has become an emotional issue.



I
do not suggest for a moment that the 'authors' relied on are not
credible and that the alleged facts of statistics are not the truth.
The problem is rather that if the Courts relax their rules as to the
requirements for the admission of hearsay evidence or of the opinions
of experts in such cases, it will be difficult, if not impossible, to
draw the line when the Courts deal with any other issue of fact or
opinion. Such a tendency will not strengthen the search for the
truth, but will frustrate it.





I
will consequently assume for the purpose of this judgment that there
is no empirical evidence properly placed before this Court to support
the contention that in cases of this nature more false charges are
laid than in any other category of crime but will on the other hand
not assume 'that the evidence available, indicates the contrary'.”








It
is significant that, as conceded by Ms Lategan, that the said
information and research “has not to date impacted on the South
African Courts.”





I
see no good reason why the so-called “traditional approaches stated
by Schreiner, J.A. in R v Manda,17
and by Diemont, J.A. IN Woji v Santam Insurance Co. Ltd.18
and Wigmore in his “Code of Evidence”19
and “Wigmore on Evidence” and referred to by Ms. Lategan,
should now be abandoned.





I
also have difficulty in discerning any substantial or fundamental
difference between the so-called “traditional” guidelines and
those now put forward by Spencer and Flin and those summarized and
applied in S v S, supra. Furthermore, most of the
suggested new guidelines above-quoted as points (a) – (f), are not
very helpful in any case. I need only refer to the suggested new
guideline (f) where it is stated:





the
contention that children do not understand the duty to tell the truth
is a gross generalization that does not acknowledge the difference in
age, intelligence and morality”.








Surely,
one cannot generalize about children. It would always depend on age,
intelligence, education, the home and school environment, and to what
extent the child has been taught in his home environment the need for
moral values, in particular the meaning of the “truth” and the
need to tell the truth. The traditional cautionary rules, properly
understood, does certainly not exclude these considerations.





Children
are generally more vulnerable than adults. That is also one of the
reasons why e.g. it is an offence to have sexual intercourse with a
female under the age of 16 years and why a person is guilty of the
crime of Rape if you have intercourse with a child under the age of
12 years, notwithstanding the consent of such females.





Children
are mostly also dependant on adults, particularly on their parents
and consequently they are more vulnerable than adults to coercion and
other forms of undue influence by such parents or adults.





The
Court should have identified a danger sign when the testimony showed
that the alleged victim, Ms. L. never complained on her own
initiative until she was repeatedly coerced “to tell the truth”,
failing which she will be beaten.





The
Court failed to refer to and consider this coercion and its possible
impact on the “complainant” and the veracity of the story
eventually told in Court. Consequently I hold that Courts must still
abide by the cautionary rule relating to the testimony of young
children as contained in our existing law of evidence and laid down
and implemented in authoritative decisions of the South African and
Namibian Courts.





To
return now to the question whether or not the Trial Court applied the
cautionary rule. The Learned trial judge did not state anywhere in
his judgment, that he was aware of the cautionary rule; that the
child witnesses were very young; and that he must consequently
approach their evidence with the necessary caution contemplated by
the rule.20





The
nearest the Court came to the special consideration required by the
rule was when it said:





L1.
and the complainant gave their evidence in an honest and frank manner
despite their tender ages. They were very intelligent young girls.”








I
conclude that the learned Court did not apply the cautionary rule and
consequently misdirected itself in this regard.






2. The
Court misdirected itself in regard to whether or not there was
corroboration of the evidence of the victim






Corroboration
was required not only because of the youth of the victim Ms. L., but
because she was essentially a single witness in regard to the
question whether or not it was the accused who had sexual intercourse
with her.





At
the outset of deciding this question, it must be conceded that it was
proved beyond reasonable doubt that at some stage or other, a male
person had sexual intercourse with the victim Ms. L, during which
intercourse her hymen was perforated.





The
issue was whether or not the accused was the person who had
intercourse with her and who was responsible for the fact that she
was suffering from a sexually transmitted disease, namely gonorrhea.





The
rule already dealt with in the preceding subsection, that
corroboration would normally be required to satisfy the cautionary
rule relating to the youth of the victim. Such corroboration is
however, also required where the complainant is a single witness on
the issue of the identity of the person who had intercourse with her,
unless the evidence of the single witness is satisfactory in all
material respects.21





The
Court again did not warn itself of the single witness rule and did
not apply the rule, probably because it found that the complainant
was “in some material respects corroborated by that of L1. and
their mother, Mrs. D”.





The
Court however, misdirected itself in its finding that there was such
corroboration. I say so for the following reasons:






(i) Corroboration
by the mother of the victim:





The
Court did not state in what respects the mother corroborated the
complainant. The “complaint” by the complainant did not amount
to a complaint admissible in law.





The
evidence of the complainant was elicited by the trial judge wrongly
and irregularly during the cross-examination by the accused of the
Mother, Mrs. D., as indicated under Section B, supra.





Although
Ms. L. was the victim, she was not really a complainant because she
had never complained. According to the evidence of the mother, Mrs.
D., when Ms. L., was confronted by her because of the discharge on
her panty, she on two occasions declined to say what happened to her.
Then after she came home late from school on the 14th May
and when asked, she said she came from uncle Albertos’ house.
(i.e. from the house of the accused.) Nevertheless Mrs. D.
apparently did not believe her, because she continued to insist that
Ms. L. must tell her where she came from. She even threatened that
she will beat Ms. L. to force Ms. L. to say where she was coming
from.





Then
Christine, the cousin of Ms. L. who was allegedly present in the
house but not called as a witness, also intervened and repeatedly
asked Ms. L. to tell the truth in order to prevent a beating by Mrs.
D. Ms. L. however, continued to decline to “tell the truth”
until at some later stage, she related “the story” to Mrs. D.
When and where that happened and what the story was, was not
disclosed in the examination in chief of Ms. Lategan. It was only
when the learned trial judge elicited this evidence, that Mrs. D.
told the Court what Ms. L. had allegedly told her.





The
reliability of the testimony is further diminished by the evidence of
Dr. Liebenberg when asked about the information given to her when the
complainant was brought to her. Dr. Liebenberg was pertinently asked
by the Court: “When was she sexually molested or assaulted?”
The answer was: “What I have written there is that the alleged
incident would have been around two weeks before my examination. No
specific date was given. The mother was doing most of the talking.
The child just agreed. So it was difficult to establish what, when,
where, how, etc but two weeks was more or less the working
information…”





The
State’s case was that there were three occasions of rape, and not
only one incident; also not only approximately two weeks before the
examination, but during the period “from November 1998, until and
including May 1999”.





In
the aforesaid circumstances, the mother D. could not possibly be
regarded as having corroborated the complainant, as found by the
trial Court, at least not in regard to the issue of whether or not
the accused had sexual intercourse with her.





(ii) Corroboration
by the sister of the victim





The
sister L1., was only 7 years old when the incidents took place and 8
years when she testified.





The
Court found that L1. “in essence corroborated the evidence of the
complainant whenever she was present”. The “corroboration” was
set out by the Court as follows:





She
testified that their mother would send them to the accused’s house
to ask for food and that he would always give them food and money.
She corroborated the incident where the accused gave her 50 cents to
go and buy sweets and upon returning she called for the complainant
but did not received any reply but later the complainant emerged from
the accused’s bedroom. Another aspect of her testimony
corroborating the complainant is that when they arrived at the
accused’s house they found him seated outside, drinking beer. She
further testified that the complainant told her that the accused ‘
did it to her’, a phrase which has a sexual connotation to the
witness. However, the complainant told her not to report the
incident to the mother. She also observed that the complainant
couldn’t walk properly something also testified to by the
complainant.”









Unfortunately
the Court never considered whether or not Mrs. D, could have
influenced L1., just as she had influenced Ms. L. The phrase that
Ms. L. told her that the accused “did it to her” was particularly
suspicious because when the Court questioned her during the
cross-examination by the accused, she used the same phrase to
describe the report which the complainant had made to her. She said:
“When I asked her where she was coming from she told me that she
was coming from Uncle Albertos’ home and when I asked her why her
panty is looking like that, where the discharge is coming from and
then she told me that Uncle Albertos did it to her.”





The
evidence of L1. regarding the report allegedly made to her by Ms. L.,
was at any event elicited by Ms. Lategan by means of a leading
question and should consequently carry little weight if any. The
first question was: “Did Ms. L. ever tell you anything that uncle
Albertos did to her? (my emphasis added.) Although this was
a leading question, L1. answered unambiguously “No”. The learned
prosecutor was not satisfied and now put it even more leading. She
asked: “Did Ms. L. ever tell you anything that uncle Albertos
did to her?
(My emphasis added.) She now answered: “Yes
another time.” The next question was: “What did she say?”
And now she said: “She told me that uncle Albertos did it to her.”





The
court furthermore completely ignored the contradictions between the
aforesaid evidence of L1. in Court and her statement to the police.
In her evidence in Court she referred to an occasion when she had
been given 50 cent by the accused to buy sweets, and when she
returned to accused’s house, accused and complainant were in
accused’s house somewhere. In her police statement she said
however, that when she returned to accused’s house, the complainant
and accused were still outside. She further said: “According to
my observation my sister was calm and normal.”





In
her police statement she also said in regard to the second and last
incident, that her sister was “calm and normal”. The witness
also did not mention at all that complainant had told her that Uncle
Albertos “did it to her”. In her said statement she mentions
that the accused gave her 50 cent on one occasion, but in her
evidence in Court she mentions an amount of N$3,00 given to her on
one occasion and 50 cent on another occasion.





The
Court also held that the words “did it to her” was a phrase which
had a sexual connotation to the witness. This is another
misdirection because the witness clearly testified that she did not
know the meaning of the words that Ms. L. used in saying “Albertos
did it to her”. The learned judge then questioned the interpreter
and the latter explained that the connotation of the words: “I did
it to her” in the native language had the special connotation “it
is like you use it usually if you are trying to say that he sleep
with her but not in a direct way”.





L1.
was now asked by Ms. Lategan whether she told her mother about what
Ms. L. had said to her. L1. answered – “No”. She was then
asked why not and L1. answered: “Ms. L. said that I mustn’t tell
my mother”. None of this evidence was contained in L1.’s police
statement.





The
aforesaid allegation by L1. about Ms. L.’s statement to her was
inadmissible evidence and for that reason alone, the Court was not
entitled to use it as evidence corroborating the complainant. L1.’s
evidence in Court that she noticed unusual behaviour of Ms. L. in
that she couldn’t walk well was also never mentioned in her
statement to the police and in fact completely inconsistent with that
statement where she only talked of her sister Ms. L. being “calm
and normal” after the alleged incidents at his house.





When
L1. was referred to the occasion when she was given 50 cent and then
asked whether on another occasion, when she and Ms. L. was at the
home of the accused, that she saw Ms. L. disappear or that Ms. L. was
no longer there. She answered – “No”. This answer meant that
she does not know about such an occasion.





Ms.
Lategan however, was not satisfied and pressed the witness once more
and referred her to a day when the witness allegedly went out to a
toilet and then asked: “Was there a day that you were inside the
house of the accused and you went to the inside toilet?” The
answer now was “Yes” and on further questioning the witness now
said that when she returned, Ms. L. and the accused was not in the
sitting room. When L1. was asked by Ms. Lategan what she did with
the money given to her by the accused, she said: “I cannot
remember”.





In
the circumstances, the corroboration if any, was not worth
mentioning. The Court had consequently misdirected itself in finding
corroboration in the evidence of L1. for the evidence of Ms. L.






3. Although
the Court was justified in observing that the evidence of the victim
had “a ring of truth about it, it failed to consider other defects
in the testimony of the two witnesses Ms. L and L1.. So e.g. the
fact that none of them, notwithstanding their purported intelligence
and veracity as found by the Court, could give any indication of the
days or even the months during which the alleged incidents took
place. The last incident, according to the “information” given
to Dr. Liebenberg took place about 14 days before the medical
examination. At best, it was an inference from the mother’s
discovery of the late arrival of Ms. L. from school and her
observation that there was some discharge on the panties of Ms. L.,
but why were the two witnesses not able to give any indication of the
month or day on which the alleged incriminating events took place.
Alternatively, why did the Court not elicit evidence from the
witnesses in this regard not only as a concrete test of their
intelligence and veracity, but because those facts were of great
importance to an accused who had to defend himself on serious charges
of Rape, purportedly committed on “diverse” occasions. Even if
the witness Ms. L. could not remember the date and month of the first
two occasions, there could be no reason for being unable to remember
the last occasion, if her story was true. It could be understood if
the Court considered this issue and found that the two child
witnesses, because of their youth, could not be blamed for being
unable to give reasonable particulars of dates and times, even if
only approximately. But the Court had not done so and relied on
their intelligence and veracity as witnesses instead.






4. The
Court had failed to consider the significance of the apparent
inability of the state witnesses to provide dates and times, or even
approximate dates and times of the alleged incriminating events and
that such inability may be consistent with and indicative of possible
fabrication.





The
Court had also failed to consider that the effect of the failure by
the State to provide approximate dates and times, even if sufficient
for the purposes of the validity of the indictment, was prejudicial
to the defence. More so, when the accused has no legal
representation, and indicates that he was probably at work when some
of the alleged incidents took place or that there were other people
staying at his home during various periods which would have made it
impossible to commit the acts alleged during those periods.






5. The
Court allowed the interpreters, who were casual interpreters, to
convey the questions put by the accused to the State witnesses in the
“third person” and convey the answer to the Court also in the
third person.







The
accused could not speak English and his questions as well as his
answers when questioned had to be translated from the Ombundu
language into English and vice versa.







The
Court failed to direct the casual interpreters to translate the
questions and answers directly and to convey it in the first person,
and not the third person.







This
form of translation was not only a wrong procedure, but was
prejudicial to the accused, particularly when he cross-examined,
because it impeded the flow of the questioning and made mistakes in
the transmission more likely.







6. The
Court misdirected itself by first accepting the evidence of the state
witnesses “as the truth” and only thereafter giving some brief
consideration to the accused’s version and then rejecting it “as
a lie”.







What
is required before evidence of an accused can be rejected as a lie,
is first a consideration of all the evidence, its strengths and
weaknesses and the probabilities and thereafter the finding of who
tells the truth and who tells the lies.







7. The
Court rejected the version of the accused as “a lie”, and stated
as a reason: “He lied and changed his version as he went along,
improvising his defence”.







The
Court would have acted more in consonance with the correct approach,
if it first set out how the accused “changed his version as he went
along, improvising his defence” and then using that as a reason for
concluding that he was lying. Unfortunately the Court failed to set
out where, when and in what manner or in what respect the accused had
“changed his version as he went along, improvising his defence”.







The
Court then gave the further reason for its finding as follows: “He
tried to give the reason for the alleged false incrimination as the
love relationship between him and the complainant’s mother which
went sour and that she had a grudge against him and instigated false
charges against him”.







The
statement then follows that “The accused’s version is rejected as
a lie”. Up to this stage, not one reason is given for rejecting
this part of the accused’s defence as a lie. The Court did not
test this part of the defence against the requirement of whether or
not it can be reasonably possibly true.







The
Court preferred to designate the accused’s evidence as a lie and in
doing so ignored the fact that the accused’s evidence in regard to
the relationship with the mother of the victim stand uncontradicted.
The mere fact that the accused had not put this allegation to the
mother in cross-examination is no ground for summarily rejecting his
allegation in the circumstances set out in Section B, supra.
I need only reiterate that the accused in fact put this issue to Ms.
L. when she testified and the Court then prevented an answer by the
witness by interrupting with the following words: “Yes, any other
question?” This interference was a clear indication by the Court
that the accused should not raise this issue. No wonder that when he
later cross-examined Mrs. D., the mother of Ms. L., he did not raise
the issue with her in cross-examination. In any case, as shown in
the aforesaid Section B, the cross-examination by the accused was
interfered with and disrupted to such an extent, that he was not to
blame for not putting the issue to the mother.







In
the result, the Court should have accepted the evidence of the
accused in regard to his relationship with the mother and then
considered how that fact impacts on his defence that the mother
concocted the charges to take revenge.















SECTION
D:







CONCLUDING
OBSERVATIONS AND FINDINGS






There
is no doubt that some person had sexual intercourse with Ms. L. and
has gravely abused her notwithstanding the fact that she probably was
a consenting party.





The
crucial factual question for the Court a quo was to determine
whether the accused was the male person responsible.





It
is not inconceivable that a child of tender years, who may be a
victim or even a consenting sexual partner, may in response to
coercion by a person or persons in authority such as parents, or in
response to other forms of undue influence, point out an innocent
person in order to protect the identity of the real culprit who is
her sexual partner, if in her judgment, such allegation will be
acceptable to the aforesaid persons in authority. Such cases have in
fact come before the High Court in the past.





The
Court’s duty was, as pointed out repeatedly in this Court and in
the High Court of Namibia, to act as an administrator of justice with
the main aim being to establish the truth. In exercising this
function, the Court must conduct a fair trial in accordance with
Article 12 of the Namibian Constitution and in accordance with those
procedures and principles laid down and applied in our case law.
More specifically, the Court must consider and balance the
fundamental rights and interests of the accused with that of the
State and the prosecution, but also with the fundamental rights and
interests of the victim. The aforesaid balancing function must
however, always be carried out subject to the specific constitutional
principle that an accused is presumed to be innocent until proved
guilty beyond all reasonable doubt, in a fair trial.





In
my respectful view, the irregularities and misdirections in this
case, are not merely of a technical nature which did not prejudice
the accused in his defence. The cumulative effect of all the
irregularities and misdirections are such that the conclusion is
inevitable that a failure of justice has occurred and that the
conviction and sentence must therefore be set aside, notwithstanding
the reasonable possibility – or even probability that the accused
had committed this heinous crime.





It
is unfortunate that in the circumstances justice is not done or seen
to be done to the victim and her mother. But this result could have
been avoided if there was a proper investigation of the case by e.g.
having had the accused medically examined at the appropriate time and
if the Court ensured that the accused had legal representation or at
least had a reasonable opportunity to obtain the services of a legal
practitioner and if the further procedures and principles of a fair
trial were adhered to.





This
case once again underlines the need for proper legal representation
of accused persons charged with serious crimes and why the right to
legal representation is entrenched in the Namibian Constitution.
Even very competent judges may err. Without appropriate legal
representation, the risk of error is so much greater.





In
conclusion I wish to express the Court’s appreciation of the
thorough argument put before it by counsel. In particular, the Court
appreciates the contribution made by Mr. Cohrssen in appearing for
the accused amicus curiae – i.e. at the request of the
Court.





In
the result I make the following order:






  1. The
    appeal succeeds.







  1. The
    conviction and sentence of accused are set aside.






(signed)
O’LINN, A.J.A.











I
agree.














(signed)
STRYDOM, C.J.











I
agree.








(signed)
CHOMBA, A.J.A.








/mv








COUNSEL
ON BEHALF OF THE ACCUSED: Adv. R.D. Cohrssen



(Amicus Curiae)





COUNSEL
ON BEHALF OF THE RESPONDENT: Adv. A. Lategan



(Prosecutor-General)









1
S
v M, 1989(4) SA 421T at 425 B – I.




2
S
v Mngomenzulu, 1983(1) SA 1152(N) at 1153 B – 1154 B.


S v Soabeb & Ors,
1992(NR) 280 (NmHC)




3
Record
p. 74, lines 12 – 19.




4
Record,
Vol 1, p. 40




5
Record,
Vol 1, pp 78 - 79




6
Record
Vol. 1, p 78- 80.




7
Record,
Vol. 1, p. 82




8
Record,
Vol 1 p. 70




9
State
v T, 1963(1) SA 484 (AD)


The South African Law of
Evidence, by Hoffmann & Zeffert, 3rd ed pp 117 –
122.




10
S
v van den Berg 1995(4) BCLR, 479 Nm at 523 – 531 A. Also reported
in 1996(1) SACR 19 at 63g – 72c


S v K 2000(4) BCLR 405
NmS 426 C – I


S v Silunga NmS
28/12/2000, not reported, where the aforesaid decision are referred
to and discussed


extensively; Kadila and
Others v the State (NmS) 9th October 2001, not reported,
pp 12 – 16,.




11
See
the discussion of the statutory provisions and the decided cases
referred to Section B of this judgment,
supra.




12
High
Court of S.W.A., 11/5/1989, not reported.




13
1983(3)
SA 717 at 728




14
S
v K, 2000(4) BCLR (NmS) 405 AT 418 I – 419 B.


For a further discussion
of this cautionary rule see The South African Law of Evidence, 4th
ed. by Hoffmann & Zeffert, p. 581/582.




15
1995(1)
SACR 50 ZC




16
S
v K, 2000(4) BCLR 405 (NmS) at 413 F –414 D.




17
R
v Manda 1951(3) SA 158(A)




18
Woji
v Santam Ins. Co. Ltd, 1981(1) SA 1020A at 1028 A - E




19
Wigmore,
Code of Evidence, par 568 at 128; Wigmore on Evidence, Vol. II, par.
506 at 596




20
S
v Makhanya, 1991(1) PH H9 (B) at 23


R v J, 1966(1) SA 88
(RAD) at 91 - 93




21
R
v Mokoena, 1956(3) SA 81(A) at 85 – 86.