Court name
High Court Main Division
Case name
Kamaze v S
Media neutral citation
[2013] NAHCMD 147
Judge
Ndauendapo J
Shivute J


















REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








APPEAL JUDGMENT



Case No: CA 85/2008








In the matter between:








BEN KAMAZE
..................................................................................................APPELLANT








and








THE STATE
..................................................................................................RESPONDENT








Neutral citation:
Kamaze v State (CA 85/2008) [2013] NAHCMD 147 (31 May
2013)








Coram: NDAUENDAPO
J et SHIVUTE J



Heard: 15 APRIL
2013



Delivered: 31 MAY
2013








Flynote: Criminal
procedure—Appeal-against convictions and sentences on rape and
incest—Sentence of 18 years and 3 years respectively—Grounds
of appeal—Guilt of appellant not proven beyond reasonable
doubt—Complaint single witness—Sentences
unreasonable—State proved the guilt of the appellant beyond
reasonable doubt—Conviction on incest charge—Duplication—Appeal
allowed-Appeal against rape dismissed.








Summary: The
appellant was convicted of rape and incest of his own daughter. On
the rape charge, he was sentenced to 18 years imprisonment and on the
incest charge to 3 years imprisonment. The sentence on incest was
ordered to run concurrently with sentence on the rape charge.








He appealed against both
convictions and sentences. His grounds of appeal are, inter
alia, that his guilt was not proved beyond reasonable doubt,
that the complainant was a single witness, that his rights to legal
representation were not explained and not assisted by the presiding
officer during the trial and that the sentences imposed were
unreasonable.








Held, that although the
complainant was a single witness on the actual rape, her evidence was
corroborated by witnesses and the J88 and that the guilt of the
appellant was proved beyond reasonable doubt.








Held, further, that, on
the charge of incest, there was a duplication of convictions because
the appellant only had a single intent to rape the complainant who
happened to be his daughter








Held, further, that his
right to legal representation was explained and appellant was duly
assisted by the presiding officer.








Held, further, that the
sentence of 18 years on the rape charge was in order.








Held, further, that the
appeal against conviction and sentence on the rape charge is
dismissed.








Held, further, that the
appeal against conviction and sentence on the incest charge is
allowed.








____________________________________________________________________



ORDER



______________________________________________________________________



1. The appeal against
conviction and sentence on the rape charge, is dismissed.



2. The appeal against
conviction and sentence on the incest charge, is allowed.








_____________________________________________________________________



JUDGMENT



______________________________________________________________________



NDAUENDAPO J [1]



The appellant was
convicted of contravening section 1, 2 (2), 2 (3), 3, 4, 5, 6 and 7
of the Combating of Rape Act, 8 of 2000 and incest in the Regional
Court, sitting at Windhoek.








The allegations on the
rape charge are ‘that during 17 January 2004 at or near
Windhoek in the Regional Division of Namibia the accused did
wrongfully and unlawfully and intentionally and under coercive
circumstances namely by applying physical force to the complaint
commit or continues to commit a sexual act with another person,
namely Erna Komumungondo of which the sexual act consisted of
inserting his penis into her vagina.’ ‘The allegation
on the crime of incest are that’ In that upon or about 17
th
January 2004 at or near Katutura in the Regional Division of
Namibia the said accused being a male person, and the complaint being
a female person, did unlawfully and intentionally have sexual
intercourse with one another, the said accused being by blood
relationship the father of the said Erna Kamumungondo whom he was
consequently legally prohibited from having sexual intercourse.’
He was sentenced to 18 years imprisonment on the rape charge and
3 years imprisonment on the incest charge.








[2] He now appeals
against both conviction and sentence. The grounds of appeal are as
follows:








AD CONVICTION








I. The State did
not prove the charges against him beyond a reasonable doubt.








ii. The learned
magistrate erred by convicting the appellant on the word of the
complaint. And that the complaint was a single witness whose evidence
was not corroborated.








iii. The learned
magistrate failed to assist the appellant who was unrepresented and
was facing a serious charge.








iv. The learned
magistrate failed to explain to the appellant his rights to legal
representation.








v. The learned magistrate
erred by admitting the medical report which is hearsay evidence.








vi. The learned
magistrate erred by not drawing a negative inference from the failure
of the State not to call the doctor who examined the complainant.








vii. The learned
magistrate erred by not drawing a negative inference from the failure
of the state to take the appellant for medical examination.








ix. The learned
magistrate erred by rejecting the evidence of the appellant and his
witnesses.








x. The learned magistrate
erred by failing to approach the evidence of the state witnesses with
great caution since they are family members of the complainant.








AD SENTENCE








[3] xi. The learned
magistrate erred by taking into account the prevalence of the offence
of rape when no statistics were presented to court to show the
prevalence of the offence.








xii. The learned
magistrate erred by failing to assist the appellant who was
unrepresented during his mitigation of sentence.








xiii. The sentence
imposed on the appellant is so unreasonable that no reasonable court
could have imposed it.’








Ms Nyoni appeared for the
state and Mr Karuaihe for the appellant.








[4] Legal
representation








The appellant complained
that his rights to legal representation were not explained, but the
record shows that was done on 20 January 2004 when he appeared in
court. He opted to appoint a private lawyer. On 12 March 2004 his
right to legal representation was again explained and he opted for
legal aid counsel. Mr Hengari was appointed to represent him. On the
date of the trial Mr Hengari did not turn up at court and the trial
proceeded without Mr Hengari. Counsel for the appellant submitted
that the presiding officer should not have allowed the trial to
proceed in the absence of the legal representative of the appellant.
He contended that the conviction was tainted by an irregularity in
that the appellant suffered prejudice due to lack of legal
representation.








Counsel, in support of
his submissions, relied heavily on the case of S v Seheri an
Andere
1964 (1) SA 29 A (at 36) where it was held that an accused
unrepresented at a trial through his attorney’s fault, does not
as a result forfeit his right to legal representation, and that a
refusal to grant a postponement to the accused to enable him to be
represented later amounted to a failure of justice’.








That case is clearly
distinguishable from the present one. In casu, there was no
request for a postponement which was refused. The record clearly
shows that the appellant was asked by the presiding officer what ‘he
wanted to do in the absence of his lawyer’ and he informed the
court that ‘he will stand on his own’, based on that the
trial proceeded. The appellant’s right to legal representation
was explained to him and he was fully aware of his right to legal
representation from the date that he appeared in court and that is
why he applied to legal aid. When his lawyer failed to turn up at
court, he chose to represent himself. The record also shows that
during the trial the presiding officer duly assisted him and his
rights to cross examination was also fully explained to him. That
ground is, in my view, without merit.








STATE’S CASE








[5] Elna Komumungondo








She testified that she is
the biological daughter of the appellant and was in grade 10 at
Namcol. On 17 January 2004 she came from the reserve to Windhoek to
visit the appellant (her father) and stepmother, at the room which he
was renting. On that day she and the appellant were watching tv in
the room. Her stepmother left and went to look for meat at her aunt’s
house. She remained with appellant in the room. The appellant stood
up from the bed, went to close the door and peeped through the window
and closed the curtains, he then came back and lay on the bed. She
was seated on the bed. She testified that the appellant grabbed her
on the throat and started to play with her breasts. He then asked her
whether he was not going to give him a ‘bit’. She asked
him what he wanted to be given, but he did not say what he wanted. He
started kissing her, trying to put his tongue in her mouth. He let
her lay down on the bed and put her arms behind her back with his one
hand, lay on top of her and with the other hand lifted her skirt,
removed her panty and then took out his penis and inserted it in her
vagina. He then had sexual intercourse with her and ejaculated in
her. During that ordeal she was wrestling and trying to get him off
from her, but she could not as he was holding her. After he
ejaculated he started dressing himself and gave her panty to her and
she put it on. She went around the bed and went to sit on the head
side of the bed. Her stepmother came in and sat on the bed. They ate
the meat that she brought with. After that, she went to the bathroom
and took a bath. She washed off the semen from her private parts.
There after she went to Jacqueline, her sister and she was crying.
She told her that she was raped by the appellant. Together with
Jacqueline they went to her niece, Priscilla, still crying and told
Priscilla that the complainant was raped by the appellant. From there
they went to the Women and Child Protection Unit to lay a complaint.
There after she was taken to the hospital. At the hospital a medical
examination was carried out on her and a medical report was compiled.
(J88).



During cross examination,
the appellant never challenged the complainant’s evidence about
the rape. Nor did he put to her that it was her mother who instigated
her to falsely implicate him as he claimed when he testified.








[6] Jacqueline
Komumungondo








She testified that she is
a sister of the complainant from the same mother. On 17 January 2004
the complainant came to her house. She was crying and she told her
that appellant had raped her. They proceeded to their niece’s
place and she informed Priscilla that the complainant was raped by
the appellant and from there they went to the women and child’s
protection unit to lay a charge of rape. She confirmed that the
complainant was then taken to the hospital where she was examined.








[7] Priscilla
Komumungondo








She testified that on 17
January 2004 between 16h00 and 17h00 the complainant and Jacqueline
came to her house. Jacqueline told her that the complainant had been
raped by the appellant. The complainant was crying and from there,
they went to the women and child protection unit, where she laid a
charge of rape against the appellant.








[8] Appellant’s
case








He testified that the
complainant came to visit them and she stayed for 2 weeks. When she
was ready to go back to school in Omaruru, she wanted N$2000. He told
her that he could not give her the N$2000 and an argument ensued as a
result. He explained that to his mother and sister who advised him to
send the complainant back to Omaruru, the complainant refused. On 17
January 2004 he was at work during the day. Between 13h00 and 14h00
he and his colleague came home and found his wife and the complainant
watching tv. The colleague remained seated in the vehicle. He sent
his wife across the road to go and buy russian and chips. The wife
returned and when she entered the room, the complainant went out. He
gave some of the food to his colleague who was seated in the vehicle.
The complainant returned to the room, took her shoes from underneath
the bed and then told him that she was going to her sister’s
house. It was raining and he asked her whether he could go and drop
her, but she said no. After he finished eating he went to the vehicle
and they drove off to work. He worked until 16h50 and then returned
home. His colleague dropped him and he left. His wife told him that
the complainant has not returned since she left lunch time. Around
23h00 the police arrived and arrested him for rape. He was locked up,
whilst in custody, the mother of the complainant went to his employer
and asked him for N$2000 so that she could withdraw the case. The
employer refused. He denied having raped the complainant.








[9] Kaumamuka Hangero








He testified that, on
that day the appellant told him that the complainant was asking for
money. They drove to the house of the appellant. He remained in the
vehicle and the appellant went inside the house and returned with
food. They then left for work. After work he came and dropped the
appellant his place. The next day he heard that the appellant was
arrested.








Erica Tjazirapi, the
mother of the appellant, testified that she heard that the appellant
had raped the complainant but she personally saw nothing. Her
evidence did not add anything further to the evidence of the
appellant.








That was the case for the
appellant








AD CONVICTION








[10] In his notice of
appeal the appellant in essence complained that the state did not
prove his guilt beyond a reasonable doubt and that the complainant
was a single witness who’s evidence was not corroborated.
Section 208 of Act 51 of 1977 provides: ‘An accused may be
convicted of any offence on the single evidence of any competent
witness’.








In
S v Sauls and Others
1981 (3) SA 172 (A) at
180 D-E the court held that
:








There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness (see the
remarks of Rumpf JA in S v Webber
1971 (3) SA
754 (A
) at 758).
The trial Judge will weigh his evidence, will consider its merits and
demerits and, having done so, will decide whether it is trustworthy
and whether, despite the fact that there are shortcomings or defects
or contradictions in the testimony, he is satisfied that the truth
has been told. The cautionary rule referred to by De Villiers JP in
1932 may be a guide to a right decision but is does not mean “that
the appeal must succeed if any criticism, however slender, of the
witnesses’ evidence were well founded” (per Schreiner JA
in R v Nhlapo (AD 10 November 1952) quoted in R v Bellingham
1955
(2) SA 566 (A) at 566).
It has been said more
than once that the exercise of caution must not be allowed to
displace the exercise of common sense.’








The complainant not only
told the court a quo in detail how the rape happened, but she
immediately reported the rape to her sister who proceeded to her
niece and told her niece about the rape. She was crying and that was
confirmed by the sister and niece. That same night she was examined
by the doctor who completed a medical examination report that was
handed in court with the consent of the appellant. There was no need
to call the doctor as the J88 was admitted into evidence by consent
of the appellant. Her evidence about the rape is corroborated by the
J88. According to the medical examination report (J88), the doctor
who examined the complainant observed that ‘she was confused,
crying. The examination was painful. The findings of the doctor were
that: Hymen not intact, minimal bleeding from the introitus, she was
penetrated very fresh by penis’. He also observed: ‘whitish
vaginal discharge like sperms’








The allegations by the
appellant that it was the mother of the complainant who instigated
her to lay the charge of rape, was an afterthought. It was not
disclosed during his plea explanation. It was also not put to the
complainant during cross-examination. No evidence was presented to
corroborate the allegations. The complainant had no motive to make a
false charge of rape against the appellant whom she loved as a child.
Although the complainant is a single witness to the actual rape, the
fact that she immediately reported that to her sister and her niece
corroborates her evidence. She was crying because she was
disappointed by what the appellant did to her. The J88 also
corroborates her testimony that she was raped.








Having regard to the
totality of the evidence,I am satisfied that the guilt of the
appellant was proved beyond a reasonable doubt.








[11] Charge of incest








The appellant was
convicted of rape and incest based on the same evidence. Counsel for
the state correctly, in my view, conceded that the conviction on the
incest cannot stand as it was a duplication of convictions. In S v
Karengo
2007 (1) NR 135 HC the court held that ‘the most
commonly used tests are the single test and the same evidence test.
Where a person commits two acts of which each, standing alone, would
be criminal, but does so with a single intent, then he ought only to
be indicted for, or convicted of, one offence because the two acts
constitute one criminal transaction. See R v Sabuyi 1905 TS
170 at 171. This is the single intent test. If the evidence requisite
to prove one criminal act necessarily involves proof of another
criminal act, both acts are to be considered as one transaction for
the purpose of a criminal transaction. But if the evidence necessary
to prove one criminal act being brought into the matter, the two acts
are separate see S v Nakale and others 2007 (2) NR 405
HC at 420’. In this case the appellant had a single intent to
rape the complainant who happened to be his child. Therefore the
appellant should not have been convicted of both rape and incest.








[12]
AD SENTENCE








In
S v Tjiho 1991 NR 361
HC at 366 A-B, Levy J stated that:








The appeal court
is entitled to interfere with a sentence if:








(i) the trial court
misdirected itself on the facts or on the law;



(ii) an irregularity
which was material occurred during the sentencing proceedings;



(iii) the trial court
failed to take into account material facts or overemphasized the
importance of other facts;



(iv) the sentence
imposed is startlingly inappropriate, induces a sense of shock and
there is a striking disparity between the sentence imposed by the
trial court and that which would have been imposed by any court of
appeal.’








See:
S v Tjiho 1991 361
(HC) at 366 A-B








In
S v Pillay, it was
stated that:



the essential
inquiry in an appeal against sentence, however is not whether the
sentence was wrong or right, but whether the court in imposing it
exercised its discretion properly and judicially, a mere misdirection
is not by itself sufficient to entitle the appeal court to interfere
with the sentence, it must be of such a nature, degree, or
seriousness that it shows directly or inferentially, that the court
did not exercise its discretion at all or exercised it improperly or
unreasonably.








Counsel
for the appellant submitted that there was no evidence led that the
complainant was under the age of eighteen years old and the learned
magistrate therefore erred to have assumed that the complainant was
eighteen years old and to have sentenced the appellant to 18 years in
terms of section 3 (10 (cc) of Act 8 of 2000. He contended that the
appellant should have been sentenced to 10 years in terms of section
3 (1) (a) (ii) of Act 8 of 2000. Even if counsel is correct in his
submission that there was no evidence that the complainant was under
18 years old, section 3(1) (a) (ii) of Act 8 of 2000 refer to
imprisonment for a period of
not less
than ten years. The ten years is a minimum period and
there is nothing preventing the presiding officer to impose a period
more than 10 years. The sentence of 18 years imposed on the appellant
was therefore in order and no reason exist to interfere with that
sentence.













In the result, I make the
following order:


















1. The appeal against
conviction and sentence on the rape charge, is dismissed.



2. The appeal against
conviction and sentence on the incest charge, is allowed.
































































































































______________



GN Ndauendapo



JUDGE


















_______________



N N Shivute



JUDGE



APPEARANCES


















FOR THE APPELLANT: Mr
Karuaihe



Of Karuaihe Legal
Practitioners


















RESPONDENT: Ms
Nyoni



Office of the
Prosecutor-General