Court name
High Court Main Division
Case number
CA 61 of 2013
Title

Ameb v S (CA 61 of 2013) [2013] NAHCMD 324 (08 November 2013);

Media neutral citation
[2013] NAHCMD 324
Coram
Hoff J
Siboleka J












REPORTABLE



REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION



WINDHOEK








JUDGMENT








Case no: CA 61/2013








In the matter between:













ISMAEL
AMEB.............................................................................................APPELLANT



and



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








Neutral citation: Ameb
v State
(CA 61/2013) [2013] NAHCMD 324 (8 November 2013)








Coram: HOFF J and
SIBOLEKA J








Heard: 11 October 2013



Delivered: 08 November
2013













Summary: A trial
judge or magistrate has advantages which an appellate court cannot
have, namely seeing and hearing witnesses and being steeped in the
atmosphere of the trial – The main advantage such a presiding
officer has is not only the opportunity to observe the demeanour of
the witnesses but also the appearance and the whole personality of a
particular witness.








Where a court which heard
a case was influenced by the demeanour of a witness and says so, the
court of appeal is, as a rule, guided by the trial court, in the
absence of irregularities or misdirections.










ORDER





(a) The appeal is
dismissed.








(b) The convictions and
sentences imposed by the trial court are confirmed.










JUDGMENT










HOFF J (SIBOLEKA J
concurring):








[1] The appellant was
convicted in the Regional Court in Tsumeb of the crimes of assault
with intent to do grievous bodily harm and rape (in contravention of
the provisions of s (2)(1)(a) or (b) of the Combating
of Rape Act of 2000 read with the provisions of the Domestic Violence
Act 4 of 2003) and sentenced to imprisonment for periods of five
years and 16 years respectively. The period of five years
imprisonment was ordered to run concurrently with that of 16 years
imprisonment.








[2] In a notice of appeal
the appellant stated that the appeal lies against both the conviction
and the sentence.








[3] In respect of the
charge of assault with intent to do grievous bodily harm it is
alleged in the charge sheet that the incident occurred on 4 November
2006 at the farm Welgevonde and that the appellant assaulted the
complainant by beating her with a clenched fist on the head and by
burning her with ‘a fire-wood all over the body’. The
accused in his plea explanation admitted burning the complainant only
on her thigh with a piece of firewood but stated that he had been
provoked by the complainant and that he had no intention to seriously
injure her.








[4] In respect of the
charge of rape the appellant explained that he had consensual sex
with the complainant whom he referred to as his girlfriend or his
wife, referring to a Friday on which he had sexual intercourse with
the complainant. The appellant was not legally represented during the
trial in the court a quo.








[5] This appeal was
previously struck from the roll due to non-compliance with Rule 67 of
the Magistrate’s Court Rules and due to the fact that there was
no condonation application for the late filing of the notice of
appeal. Subsequently, the appellant filed an affidavit stating the
reasons for the late filing of his notice of appeal but did not file
an new notice of appeal.








[6] The appellant, as a
layperson, drafted the notice of appeal and what can be discerned
from the grounds of appeal was that the ‘learned magistrate
erred in law or on the facts in failing to accept appellant’s
version that the appellant did not rape the complainant ‘ and
further stated that the magistrate erred in failing to request the
State to bring ‘technical evidence’ to prove the offence
of rape. The reference to ‘technical evidence’ in my view
refers to medical evidence.








[7] The notice of appeal
was filed about two weeks out of time and the appellant explained
that he was ignorant as to where the notice of appeal should have
been filed and blamed the personnel at the prison for not acting
promptly in filing his notice of appeal.








[8]
The grounds of appeal is an important document and serves a specific
purpose namely to inform the trial magistrate in clear and specific
terms which part of the judgment is appealed against, whether they
relate to issues of fact or law or both, and it also serves to inform
the respondent of the case it is required to meet.
1








[9] However this Court
has the discretion to condone the non-compliance with the Rules of
Court. In S v Zemburuka 2008 (2) NR 737 at 738G-H this Court
per Van Niekerk J stated as follows:








In this case, the
letter was clearly written by a lay person without the assistance of
the lawyer. I do not think that an overly fastidious and technical
approach should be followed in the circumstances of this case in
considering whether it is a notice of appeal. I think justice will be
served if the court rather seeks, if possible, to interpret the
letter in a manner upholding its validity as a notice of appeal so
that the merits of the matter may be dealt with and the appeal may be
disposed of.’








[10] I am of the view
that we should take the same approach in this appeal.








[11] Mr Ipumbu who
appeared on behalf of the appellant as amicus curiae did not
take issue with either the conviction in respect of the first count
of assault with intent to do grievous bodily harm or the sentence
imposed in respect thereof but focused his submission in respect of
the second count of rape.








[12] Before I deal with
the questions whether or not the commission of the offence of rape
had been proved by the State beyond reasonable doubt one should
consider the extent of the injuries sustained by the complainant
during the assault since these injuries are relevant also to decide
the afore-mentioned question.








[13] One should also bear
in mind that it appears from the charge sheets that the alleged rape
was committed one day after the complainant had been assaulted.








[14] A medical report
(J88) was handed in as an exhibit (A) with the consent of the
appellant. It is evident from this document that the complainant was
examined on 6 November 2006 (a day after the alleged rape) by a
medical doctor who described the injuries sustained by the
complainant as multiple burn wounds over the whole body (face, neck,
head, legs, private part, buttocks) indicating not less than 20 burn
wounds. The hands and face of the complainant were swollen and she
also sustained a fracture of the 7th rib on the right
side. The burn wound on the private part of the complainant was
observed on the area known as mons pubis. The clothes of the
complainant were observed to be bloodstained. The complainant also
sustained a wound above the left eye indicated on the J88 with the
word ‘beaten’.








[15] The complainant
during her testimony confirmed that the appellant was her former
boyfriend and described how she was beaten and thereafter burnt with
a piece of firewood which he had taken from the fireplace until she
collapsed. When she regained consciousness she was taken into the
house and put on a bed where she slept until the next morning when
she saw that she was ‘swollen’. The appellant then during
the course of that evening wanted to have sex with her which she
refused. The complainant testified that he was holding a knife in his
hand and told her that he wanted to have sex with her or otherwise he
would stab her. The appellant then told her to lay on her back and to
remove her underwear which she did and thereafter he had sexual
intercourse with her. It was against her will. The complainant
testified that she submitted to intercourse with the appellant out of
fear for further injuries.








[16] According to the
complainant they were the previous evening at a party where both
herself and the appellant had been drinking strong liquor (Clubman)
and that afterwards the appellant wrongly accused her of having
another boyfriend on another farm and that this was the reason for
the assault on her.








[17] The complainant
reported that she had been raped the next day to the personnel at the
hospital where she was examined and treated for her injuries. She
testified that the reason why she did not tell anyone on the farm
about the rape was the likelihood that she would have been assaulted
again by the appellant. She remained in hospital for a period of one
week and also reported the incident to her father when she was
discharged from hospital.








[18] During
cross-examination it was put to her by the appellant that it was on
Friday 3 November 2006 when they had sexual intercourse and appellant
denied that he had sexual intercourse with her on 5 November 2006.
The complainant however was adamant that the appellant had sexual
intercourse with her against her will the day after the assault ie on
Sunday 5 November 2006.








[19] Theresia Ochurus
testified that she visited the hospital where the complainant had
been admitted and was informed by the complainant that the appellant
had sexual intercourse with her after he had assaulted her and whilst
she was in pain.








[20] The appellant when
he testified admitted assaulting the complainant because she
allegedly told him that she had another boyfriend. The appellant
denied raping the complainant on Sunday 3 November 2006.








[21] The magistrate
called a witness whom he thought was the investigating officer but
turned out to be the police officer who took a statement from the
complainant. Catherine Guises testified that she took a statement
from the complainant at the hospital on the Monday when the
complainant informed her that the appellant (her boyfriend) had
assaulted her and had sexual intercourse with her against her will.








[22] The appellant in his
address to the court a quo emphasised the fact that the
complainant testified that he had ejaculated in her during sexual
intercourse with the complainant on the day in question.








[23] Mr Ipumbu submitted
that since the complainant is a single witness in respect of the
charge of rape that her evidence must be treated with caution. He
critised the evidence of the complainant in a number of ways. Firstly
it was submitted that when the complainant was asked during
cross-examination why she had not reported to her grandmother or the
husband of the grandmother (who lived on the same farm) that she had
been raped, the complainant replied that she was not able to walk. It
was in this regard submitted that immobility did not preclude the
complainant from reporting that she had been raped. If one has regard
to the surrounding circumstances it will be apparent that this
criticism is not well-founded. The grandmother lives quite a distance
from the complainant and complainant was in such a weakened state
that she testified that when the police arrived on the farm they had
to pick her up and loaded her in the police van and transported her
to hospital.








[24] The complainant in
any event testified that had she informed anyone on the farm that she
had been raped by the appellant the appellant would have been
confronted and that she feared that he would have assaulted her
again. In this regard it was submitted by Mr Ipumbu that there is no
evidence that the appellant threatened to assault the complainant
should she inform other persons of the rape, adding that her fear was
unfounded.








[25] It is indeed correct
that there is no evidence that the appellant threatened her with
assault should she report the rape, but I do not agree that her fear
was unfounded in the circumstances. The magistrate observed the
appellant was ‘visibly an emotional person’ and the way
he looked at the complainant when he cross-examined her that anyone
in the shoes of the complainant would have had good reason to be
afraid since the appellant had demonstrated how brutal he could be by
burning her with a log all over her body.








[26] Mr Ipumbu further
submitted that the testimony of the complainant was that her vagina
was swollen and that if this is correct then the swelling of the
vagina would have made penetration difficult if not impossible. This
in my view amounts to an opinion by counsel since there is no medical
evidence (expert evidence) that penetration would have been difficult
if not impossible.








[27] Mr Ipumbu criticised
the State for not calling the doctor who had examined the
complainant. Mr Ipumbu also ciriticised the magistrate in respect of
a remark made after he had given judgment, when the appellant
insisted on evidence which could prove that he had raped the
complainant. The magistrate informed the appellant that ‘by the
time the complainant talked about the rape when she was taken to
hospital, it was already too late for them to get any sperms because
she only mentioned this after the medical examination and that time
she had already been examined’.








[28] I agree that this
remark was factually incorrect and in contrast with the evidence of
the complainant during cross-examination, when she was asked why she
did not ask the doctor to take ‘urine’ in order to
determine she had been raped or not the complainant replied that she
was in pain and ‘was not even thinking about those things’.








[29] The magistrate
during his judgment remarked that there was ‘a glaring
shortcoming’ in the State’s case namely the absence of
medical evidence supporting the complainant’s allegations of
rape. The magistrate observed that exhibit A seems to deal
exclusively with physical assault and not sexual assault and that
everyone at the farm was aware of the assault but did not hear the
allegations of sexual assault.








[30] The reason why there
was no examination in respect of the allegations of rape it appears
to me was because the doctor had not been informed of such
allegation.








[31] The magistrate
during judgment however pointed out that the complainant did not
mention that she had been raped on the farm out of fear of further
assaults.



[32] The magistrate after
he had given judgment and had convicted the accused at the stage when
the appellant insisted on medical evidence, stated the following:








But the finding of
this court is that her story was believable with or without sperms.
Sperms were not material. Her evidence is convincing without the
evidence of the doctor. And therefore the court came to the
conclusion that even in the absence of that evidence, still the
complainant’s story is true that she was forced to have sexual
intercourse when she was in pain.’








[33] The magistrate
during his judgment asked the rhetorical question namely, does the
absence of medical evidence mean that the complainant was not raped?








[34] The magistrate in
analyzing the evidence of the complainant stated that the complainant
was ‘steadfast’ that the sexual intercourse occurred on
Sunday night (ie after the assault) and that her demeanour in court
was beyond reproach. The magistrate found that the complainant had no
reason to lie since the accused was her sexual partner, and the
complainant had asked the appellant (during cross-examination) why he
did not wait until she had ‘healed’ (recovered from her
injuries) and then ask for intercourse and that the only reason for
not wanting intercourse was that the complainant was in pain and
‘swollen’. The magistrate further observed that the
complainant was an illiterate girl from the San community and that
she did not strike the court as a person who would fabricate such a
story of being raped by her boyfriend. The magistrate further stated
that the complainant’s description of the rape struck him as
genuine and truthful.








[35] The magistrate
further remarked that what must have riled the complainant was the
fact that the accused had assaulted her severely, including the
burning of her vagina with a piece of burning wood and yet was intent
on ‘gratifying his sexual appetite . . .’








[36] In respect of the
evidence of the appellant the magistrate referred to the s 119
proceedings in the district magistrate’s court where the
accused pleaded not guilty to the charge of rape and during his plea
explanation stated that he had sexual intercourse with the
complainant with her permission. The magistrate remarked that the
material day when the rape was allegedly committed was reflected on
the charge sheet as 5 November 2006.








[37] The magistrate
further stated that the appellant during his plea (in the regional
court) repeated the same response and that the version of the
appellant that the sexual intercourse took place on the 3rd
of November 2006 appears to be an afterthought.








[38] It must however be
stated that the appellant during his plea explanation in the regional
court stated that on ‘that Friday night I asked her sex and she
agreed then I have sex with her because she is my girlfriend’.








[39] The 3rd
of November 2006 was on a Friday. However I agree with the magistrate
that the appellant when he pleaded in the regional court never stated
that he did not have sexual intercourse with the complainant on 5
November 2006 and that the impression at that stage might have been
created that only the allegation of lack of consent was in dispute.








[40] I agree with the
magistrate that it was never the case of the appellant when he
pleaded during the s 119 proceedings as well as when he pleaded in
the regional court that he did not have sexual intercourse with the
complainant on 5 November 2006. This only surfaced during
cross-examination. It is not apparent from the record that the
appellant could have been under the impression that the charge sheet
referred to an incident on 3 November 2006.








[41] The only less than
satisfactory part of the evidence of the complainant was that she did
not report that she had been raped by the appellant to the doctor who
examined her. It appears that the magistrate accepted her reason for
failing to do so due to the fact that she was in pain and did not
think to do so at that stage. Obviously, had the complainant informed
the doctor about the rape the doctor would have done the required
examination.








[42] The magistrate was
however satisfied with the fact that the complainant informed the
police officer who took down her statement two days after the event
that she had been raped by the appellant and had also reported the
rape to the second state witness about one week later.








[43] The approach by a
Court of Appeal in considering a case is set out in R v Dhlumayo
1948 (2) SA 677 (A). One of the principles which must be borne in
mind by a court of appeal is that the trial judge or magistrate has
advantages which the appellate court cannot have, namely seeing and
hearing the witnesses and being steeped in the atmosphere of the
trial. The main advantage such a presiding officer has is not only
the opportunity to observe the demeanour of the witnesses but also
the appearance and whole personality of a particular witness.








[44] The question which
the trial court needed to consider was whether it could safely accept
the testimony of the complainant (in the absence of medical evidence)
that she had been raped by the appellant.








[45] In this regard the
magistrate made credibility findings in respect of the testimonies of
the complainant and the appellant respectively which resulted in the
acceptance of the testimony of the complainant and the rejection of
the testimony of the appellant. In this regard the magistrate also
considered the demeanour of these witnesses and the impression they
have made upon the court who saw and heard them.








[46]
A court of appeal in considering the findings of fact by the court a
quo must give due consideration to the trial court’s findings
in respect of the credibility of witnesses where such findings are
influenced by the demeanour of the witnesses.
2








[47] In Dlhumayo the
Court of Appeal referred with approval to Mans v United Meat Co.
1919 AD where it was stated at p 271 that where a court which heard a
case was influenced by the demeanour of any witness and says so, the
court of appeal is, as a rule, guided by the trial court.








[48] In S v Slinger
1994 NR 9 (HC) this court, in a full bench decision, as per O’Linn
J at p 10D-E held as follows:








Where no
irregularities or misdirections are proved or apparent from the
record, the court on appeal will normally not reject findings of
credibility by the trial court and will usually proceed on the
factual basis as found by the trial court.



It is trite law that the
function to decide on the acceptance, or rejection of evidence, falls
primarily within the domain of the trial court.’








[49] Another principle
mentioned in Dhlumayo is that it is impossible in an ex
tempore judgment to deal exhaustively with every aspect of the
evidence presented to court, and that it would be ‘most unsafe
invariably to conclude that everything that is not mentioned has been
overlooked’.








[50] Another important
factor which must be considered by a court of appeal is the trial
court’s reasons in a criminal trial in convicting an accused
person.








[51] I am of the view
that having regard to the reasons provided, the magistrate did not
commit any material misdirection in accepting the testimony of the
complainant and rejecting that of the appellant and eventually
convicting the accused of the crime of rape.








[52]
Regarding the issue of sentence the appellant in his grounds of
appeal referred to only one ground of appeal, namely that the
‘sentence is flatly unreasonable’. A court of appeal may
interfere with the sentence imposed by the trial court where the
trial court misdirected itself on the facts or on the law; where
there was an irregularity which was material during the sentencing
proceedings; where the trial court failed to take into account
material facts or over emphasised the Importance of other facts; or
where 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
the court of appeal.
3








[53] The appellant did
not point out any of the aforementioned factors which could have
compelled this court to interfere with the sentence imposed by the
trial court.








[54] In any event of the
provisions of s 3(1)(a)(iii)(ff) of the Combating of Rape Act
8 of 2000 prescribes, in the case of a first conviction and in
circumstances where a fire-arm or any other weapon was used for the
purpose of the commission of the rape, a period of imprisonment of
not less than fifteen years, in the absence of substantial and
compelling circumstances.








[55] In the result the
following orders are made:








a) The appeal is
dismissed.








b) The convictions and
sentences imposed by the trial court are confirmed.













E P B HOFF



Judge













A SIBOLEKA



Judge













APPEARANCES








APPELLANT:..........................................................................................T
Ipumbu



.....................................................................................................Amicus
curiae













RESPONDENT:...............................................................................K
Esterhuizen



...............................................Office
of the Prosecutor-General, Windhoek


































1S
v Khoza 1979 (4) SA 757 (N) at 758; and S v Kakololo2004 NR 7 (HC).





2See
S v Tshoko en ‘n Ander 1988 (1) SA 139 (A) at 142I-J –
143A; Dhlumayo (supra)





3S
v Tjiho 1991 NR 361 (HC) at 366A-B.