Court name
High Court Main Division
Case number
CA 39 of 2013
Case name
Fleermuys v S
Media neutral citation
[2013] NAHCMD 378
Judge
Geier J
Parker AJ










REPUBLIC
OF NAMIBIA





HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK JUDGMENT





In
the matter between:


Case
no: CA 39/2013





DATE:
21 OCTOBER 2013





JOHANNES
FLEERMUYS.........................................................APPELLANT





And





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





Neutral
citation: Fleermuys v The State (CA 39/2013) [2013] NAHCMD 378 (21
October 2013)





Coram:
GEIER J et PARKER, AJ





Heard:
21 October 2013





Delivered:
21 October 2013





Flynote:
Criminal law
- application for condonation for the late filing of
an appeal - applicant had been sentenced to 17 years imprisonment on
a charge of rape - in accordance with the provisions of Section 2(1
)(a) of the Combating of Rape Act, Act 8 of 2000 - explantion for
late noting of appeal held to be not reasonable - prospects of
success on merits of appeal against conviction and sentence also not
good - condonation refused - appeal dismissed.





Summary:
The facts appear from the
judgment.






ORDER





1.
The appellant’s application for condonation for the late noting
of the appeal is hereby refused.


2.
The appeal is dismissed.





RULING





GEIER
J (PARKER AJ concurring):





[1]
The appellant was arraigned on a charge of contravening Section 2(1
)(a) of the Combating of Rape Act, Act 8 of 2000.


[2]
He was convicted on 13 May 2011 and sentenced to 17 years
imprisonment on 23 May 2011.


[3]
A Notice of Appeal was filed only on 21 January 2013.


[4]
An application for condonation in this regard was delivered on 7
October 2013.





THE
EXPLANATION FOR DELAY





[5]
In that application the appellant stated that he immediately, on 23
May 2011, instructed his legal representative Mr Coetzee, appointed
by the Directorate of Legal Aid, to launch an appeal against his
conviction and sentence.





[6]
As the appellant was subsequently imprisoned at the Hardap Prison in
Mariental, he had very little contact with the outside world. He thus
only received occasional visits from his parents and his girlfriend.





[7]
He had no contact with his lawyer since he was sentenced.





[8]
His mother informed him however that the appeal had been noted and
that she had made several visits in this regard to Mr Coetzee.





[9]
Eventually and out of desperation his mother and sister went to see
Mr McNally - that was on 7 November 2012 - who made enquiries and
established that no Notice of Appeal had ever been filed.





[10]
Appellant’s mother apparently immediately instructed Mr McNally
to note an appeal which so came to be filed on the 21st of January
2013.





[11]
The sister of the appellant confirmed that Mr Coetzee had informed
her that he had noted an appeal.





[12]
She then went on to state that she, as well as her parents, had made
enquiries to Mr Coetzee on almost a weekly basis. On each occasion
they were informed that he was still awaiting a reply from Windhoek
and that they had no reason to disbelieve Mr Coetzee.





[13]
Eventually and out of desperation they went to see Mr McNally who was
able to establish that no appeal had been noted. He was then
instructed to do so.





[14]
Mr Coetzee confirmed that he was instructed to note the appeal. He
however explained that he had no authority to do so in terms of the
procedure followed by the Directorate of Legal Aid and that all he
could do, was to forward the record to his superiors, who would then
decide whether there would be merits in the appeal.





[15]
He thus couriered the record to Head Office on 24 May 2011.





[16]
He acknowledged that he had received a letter from Mr Uirab, a
colleague indicating that he could not read the record. He
immediately arranged the record to be typed at his own expense,
whereupon he forwarded it back to Mr Uirab.





[17]
Mr Uirab from Legal Aid, in turn, confirms that Mr Coetzee wrote a
letter to Head Office for a possible appeal sometime in May or the
beginning of June 2011 as well as the receipt of the handwritten
record of the matter which was forwarded to him for a decision. As he
was unable to read the record he requested Mr Coetzee to have the
record typed. This was apparently done, but the record, upon reaching
the office of the Directorate of Legal Aid, was not given to him.





[18]
During December 2012 he was contacted by Mr McNally, who informed him
that he had received instructions to prosecute the appeal. When he
thus started to look for the record he discovered that it had been
misplaced/misfiled at the Legal Aid Office. Accordingly he only
forwarded the record to Mr McNally in January 2013.





[19]
When considering this application for condonation for the late noting
of this appeal against the applicable principles as set out for
instances in S v Ngombe1
or in S v Nakale2
and thus the reasonableness of the explanation offered in this
regard by the appellant the following shortcomings emerged:





(a)
appellant failed to explain, whether or not, he, himself ever made
any efforts from Hardap prison, through the available channels there,
to ensure that his appeal had indeed been noted;


(b)
from his affidavit it appears that he himself made no such efforts
and that he left this task to his mother and sister who made several
visits to Mr Coetzee;


(c)
it took the appellant and his family some 18 months from May 2011 to
November 2012 to become so desperate that they decided to see Mr
McNally;


(d)
it is unlikely that they went to see Mr Coetzee on an almost weekly
basis for some 18 months in order to follow up and ensure that an
appeal had actually being noted;


(e)
no indication was given in regard to whether or not Mr Coetzee, who
knew that he did not have the power to note an appeal, did in fact
explain this to appellant or his family.


(f)
it is unlikely that Mr Coetzee would not have informed the appellant
and his family of this;


(g)
it is also unlikely that Mr Coetzee, as Legal Aid counsel, would have
miss- informed the appellant’s family that an appeal had been
noted, well- knowing that his superiors would first require the
record to make a decision in this regard and in respect of which he
was required to have the record transcribed;


(h)
it is thus unlikely that the appellant or his family could have
harboured or laboured under the misapprehension that an appeal was in
fact noted;


(I)
no dates or details are provided as to when the record was actually
transcribed and sent to legal aid - Mr Coetzee says he arranged for
the record to be typed at his own expense. Why then could he not
provide some proof or other detail or a date in this regard;


(j)
on the appellant’s version Mr McNally was approached on 7
November 2012. Yet he only contacted Mr Uirab on an unspecified date
in December 2013, informing him had received instructions to note an
appeal. This delay of a further month is not explained;


(k)
Mr Uirab then, on an unspecified date, says he started to look for
the case record, which was forwarded to Mr McNally in January 2013.
Mr Uirab does not say when he started to look for the record, how
long it took to find the record, when the record was found and when
it was sent to Mr McNally;


(I)
we are not informed when Mr McNally received the record and how long
it took him to formulate the Notice of Appeal, which was delivered on
21 January 2013;


(m)
the application for condonation for the late noting of the appeal was
only filed on 7 October 2012. No explanation for the delay in filing
the application for condonation from January to October 2013 was
provided in the application;


(n)
at the hearing Mr McNally explained that he considered it best to
launch the application at the same time as his Heads of Argument.





[20]
Although one would, on a first reading of the explanation, for the
extra¬ordinary delay in noting this appeal, have felt that there
was some reasonableness in the explanation, it however becomes clear,
on closer analysis - and with reference to the above listed factors -
that the explanation offered was very superficial and might even be
untruthful in certain respects and that it did not really account for
the inactivity of the relevant parties during long stretches of time.





[21]
A court is obviously dependant on the explanation offered by a party
seeking condonation. In order to determine the reasonableness of the
excuse offered, the absence of a full, honest and detailed disclosure
will obviously detract from the veracity of any explanation offered.
In this case - and with reference to all the shortcomings in the
explanation offered for the long delay - the conclusion cannot be
made that such explanation is reasonable. The appellant thus fails to
overcome this hurdle of the enquiry.





[22]
In addition it is also clear that the particular degree of lateness -
(and were it took one year and ten months for the filing of the
Notice of the Appeal - in circumstances where a 14 day period is
prescribed) - is severe.





AD
THE MERITS





[23]
The appellant also submits that he has reasonable prospects of
success on appeal.





[24]
In this regarded is correct to say that it is always the duty of the
State to prove its case beyond reasonable doubt. The evidence of the
State is that there was sexual intercourse between the accused and
the complainant but that the complainant did not consent to have
sexual intercourse. The appellant does not deny that he had sexual
intercourse with the complainant but his position is that the sexual
intercourse was consensual. While no onus rests on the appellant to
prove his innocence, he still has an evidential onus on a charge of
rape if he puts forward the defence that he had the consent of the
complainant to have sexual intercourse with her, which she denies and
that the State has adduced insufficient evidence to ultimately prove
that there was no such consent.





[25]
As the learned magistrate in the court below stated, consent can be
by conduct. It can also be given expressly. The learned magistrate
did not find any evidence tending to show any basis for the
appellant’s belief that the complainant did consent to the
sexual intercourse. He also did not find her untruthful. In any case
the complainant’s un-contradicted evidence was that accused
tried to lie on her but she pushed him away and folded her legs to
her chest - ‘but he straightened them, removed my underwear
with his hands and he put his penis into my vagina ’.





[26]
Apart from this direct evidence, the evidence of the surrounding
circumstances after the sexual intercourse are equally weighty. The
complainant immediately informed her friend that the appellant had
raped him and that friend told the complainant’s aunt who in
turn told the complainant’s mother. It is not a case where,
after consensual sex, the victim awaits until she is questioned by a
parent or husband and then, in order to cover up what was consensual
sex with another, person, incriminates the accused person. The fact
that the complainant pushed the appellant away and folded her legs to
her chest ought to have put the appellant on notice that the
complainant was saying ‘no’ to the appellant wanting to
have sexual intercourse with her.





[27]
From the totality of the evidence it would seem that appellant was of
the unjustified view that the complainant wanted to have sexual
intercourse with him. If that was indeed the case, why would the
complainant push the appellant away and fold her legs to her chest,
necessitating, the appellant straightening the complainant’s
legs in order to insert his penis into the vagina by moving the legs
and her underwear to the side.





[28]
Furthermore, on the appellant’s version, the complainant did
not ask or tell him to stop. The complainant’s response was
that she stopped him because I told him it was hurting but he just
said: ‘it is natural just lie (down). It will be over in a
second’.





[29]
In general, an appellate court will not easily interfere with
credibility findings and actual findings of the trial court unless an
irregularity or misdirection by the trial court is established.
Additionally what should guide an appellate court in an appeal, and
where there has been no misdirection on law or fact by the trial
court, the assumption is that trial court’s conclusion is
correct. The Appellate court will only reve4rse a decision were it is
convinced that it is wrong. 3





[30]
Upon the authorities and on the facts we are not persuaded that the
finding of the court below - that the complainant did not consent to
sexual intercourse with appellant - can be faulted, or that there are
reasonable prospects of success in this appeal on the merits.





[31]
The appellant also states that the complainant did not contend, on
her own version, that he tried to violently subdue her.





[32]
There is no merit in this submission. The following appears from the
record:





Mr
Alexander: Yes, - ‘He tried to push me to the room but I loosen
myself out of his


hands.


Yes
-


Then
I went to sit on the couch again.


Yes
-


He
put me in a lying position and tried to pull down my trouser.


Yes
-


Then
I pulled it up and said ‘please stop it’.


Yes
-


Then
he pulled out the trouser till the feet.


Yes
-


I
tried to turn myself to lie on the stomach.


Yes
-


Then
he turned me around again to lie on the back.


Yes
-


He
lied between my legs trying to kiss me.


Yes
-


But
I moved my face to the side.


Yes
-


He
started opening his trouser.


Yes
-


He
removed my underwear with his hand.


Yes
-


And
put in his hands again in the vagina.


Yes
-


I
asked what are you trying to do?


Yes
-


He
said ‘just relax it is natural’.


Yes
-


Then
he took out his penis from the underwear.


Yes
-


He
just removed my underwear again with his hands.


Before
you proceed you said he took out his penis from his underwear, then
he removed again his underwear with his hands - No, he removed my
underwear.


Okay,
he took out his penis from his underwear.


Yes
-


And
then he removed my underwear with his hands,


Yes
-


I
was asking ‘what are we trying to do?’


Yes
-


He
did not answer me.


Yes
-


I
tried to lie on him.


Sorry?


He
tried to lie on me but I pushed him away and folded my legs to the
chest.


Yes
-


But
he straightened them.


Yes
-


He
removed my underwear again with his hands,


Yes
-


He
put in his penis into my vagina.


Yes
-


I
was trying to push him away but I was too weak to get that right.


Yes
-


The
time when I was about to cry he stood up, closed his trouser.


Yes
-


And
said I must not be angry with him, we will continue another day.


Yes
-


Then
he went out then he went home.’





[33]
This extract from the record shows that the appellant - contrary to
the appellant’s contentions - used some degree of force to
subdue the complainant.





[34]
It shows a struggle until the appellant had achieved his aim.





[35]
Appellant goes on to aver that on complainant’s own version he
did not subject her to violence, assault or threats of assault.





[36]
The above quoted passage however shows the degree of force used by
appellant to overcome the complainant’s resistance. That
evidence shows that there was a degree of force in the form of
coercion. It is true that there was no violent assault or threats to
that effect, but rather, and in addition, that the appellant tried to
achieve this object by pacifying the complainant by stating:





'Relax
it is natural.’





[37]
In this regard sight should also not be lost of the fact that the
appellant here tried to induce a 14 year old girl to succumb to his
advances through trickery. Such course of conduct is just as
despicable as if violence would have been utilized to overcome the
resistance of a young girl.





[38]
Also the fact that the complainant came to sit alongside the
appellant before the incident and that she easily evaded his attempt
to take her to her parents room do not enhance the appellant’s
prospects of success:





a)
Firstly, the complainant and appellant were familiar with each other.
Their families had been in regular contact with each other for a
couple of years.


b)
Secondly, the complainant was also quite unsuspecting and did not
immediately cotton on to the appellant’s intentions.





[39]
Her unsuspecting actions, seen in this light, thus cannot exonerate
the appellant.





[40]
All the factors and arguments advanced in the application for
condonation - in support of the appellant’s submissions that he
has good prospects of success on the merits of his appeal - are
therefore exposed to be lacking.





AD
SENTENCE





[41]
The appellant was sentenced with reference to the minimum sentence
prescribed by Section 3(1 )(a)(iii)(cc) of the Combating of Rape Act
20004
, which prescribes a minimum sentence of not less than 15 years,
unless the existence of ‘substantial and compelling
circumstances’ would justify the imposition of a lesser
sentence.





[42]
In this regard the following factors were advanced in the
application:





(a)
I am a first offender.


(b)
I was the sole breadwinner of my family,


(c)
I was gainfully employed at the time of this incident.


(d)
It took some 5 years for the matter to go on trial and on top of that
I received the sentence of 17 years imprisonment.’


(e)
The expert could not establish a link between complainant’s
allegations that she was traumatized as a result of the alleged
incident.’





[43]
The first three of these grounds, although relevant to sentence,
clearly do not constitute ‘substantial and compelling reasons’
justifying any departure from the prescribed minimum sentence, even
if cumulatively viewed.





[44]
The fourth ground would have carried significant weight if the
appellant would have found himself in ‘trial- awaiting-
custody’ for a period of some years. This did however not occur
and the mere fact that he most probably felt some anxiety or stress,
awaiting his trial, (while on bail), during that period, and although
a factor, surely can also not be regarded as ‘substantial and
compelling’.





[45]
It is correct, as pointed out by appellant, that both Dr Hoffman and
Mr Manfred Jannik, could not link the complainant’s panic
disorder to the incident. This was because of the simple fact that no
previous medical/psychological records were available (for
comparison).





[46]
However this does not mean that the direct evidence - given by the
complainant - in regard to the effects felt by her - since the
incident - and the impact that the incident - according to her - had
on her life - could just simply be ignored.





[47]
In this regard she testified that she underwent counselling
subsequently and that she started to play with dolls. She complained
that even at the time of the trial, when she was 19 already, she
could not sleep without a doll in her hands. The thought of the
upcoming trial also caused her stress. She described how she would
get sick when she would dream about the incident. She was given
‘Leponex 50’, an anti-depressant, in addition to ‘Paxil’.





[48]
These effects (on the complainant’s life) - in our view - would
rather impact, on the Appellant’s sentence, in an aggravating
fashion, rather than justifying a lesser sentence.





[49]
In the sum total - the conclusion must be drawn - that the appellant
also was not able to show good prospects of success on appeal in
regard to sentence in the application for condonation.





[50]
During oral argument Mr McNally also tried to push home the point
that the complainant’s evidence, as a single witness, was not
corroborated in material respects and that, particularly, the almost
immediate complaint by the victim, after the incident did not amount
to corroboration in a material respect of her version on the merits
and that there was no reason why the appellant’s version should
be rejected.





[51]
It should immediately be stated, as was pointed out by my brother,
that this submission would hinge on the enquiry of what is material.





[52]
Obviously the admissibility of the complaint - after the incident -
as allowed by Section 6 of the Combating Rape Act 2000 - would amount
to a relevant fact. Whether such fact amounts to a material fact is
normally determined with reference to all the other facts - also
taking into account the delay between the commission of the offence
and the delaying of a complaint. The taking into account of the delay
between the commission of the offence and the complaint can however
not form the only basis for any inference to be drawn there from.





[53]
When viewed against this background it emerges that the complainant
resisted the advances of appellant. Objectively speaking it is also
unlikely - and contrary to the appellant’s evidence given in
this regard - that he was able to penetrate the complainant fully.
Not only is such a finding commensurate with the evidence of
resistance offered in this regard but the appellant’s version
would also be in conflict with Exhibit H, which directly contradicts
the appellant on this score.


[54]
The medico- legal report recorded semen on the vulva and the labia
minora. Although the hymen was open, the vagina - as would be
commensurate with complainant’s age - was ‘one little
finger, which, on examination, was painful’.





[55]
Importantly bruising of the fourchette was also noted.





[56]
The medical evidence thus proves, in our view, that there was no full
penetration.





[57]
The only reason for the appellant to misrepresent this central part
of his evidence - and thus of his defence - must be for the reason
that a tale a full penetration would perfectly fit into the picture
of the alleged full consensual intercourse. The medical evidence
however does not strengthen the probabilities of the appellant’s
case in this regard - on the contrary - it rather destroys this
central facet of his case.





[58]
On the other hand, the medical evidence materially enhances and
corroborates the complainant’s version in a material respect.





[59]
If one thus considers, in addition, that the appellant also admitted
- during the plea explanation - that he understood that he had hurt
the complainant - it becomes clear that this aspect of the
appellant’s case just simply cannot be reasonably possibly be
true.





[60]
If one then views the proximity of the complaint to her friend and
the fact that the complainant was crying, at the time, identifying
the appellant as the perpetrator without waiver, then a negative
inference from this evidence can also be legitimately be drawn
against the appellant, which inference at the same time affords some
material corroboration for the complainant’s evidence given as
a single witness.





[61]
In addition - and also on the merits of the sentence and although a
substantial period of imprisonment was imposed, we cannot - in the
circumstances of this case - find that it induces a sense of shock.
In this regard the minimum sentencing regime of the Combating of Rape
Act - in the absence of any ‘substantial and compelling
circumstances’ - and - which would then not permit a departure
from the prescribed 15 year minimum sentence - cannot be disregarded.
The magistrate in the court a quo imposed two years over and above
that statutory minimum sentence. The relationship of the complainant
and the appellant was correctly found to be an aggravating factor,
given also the age discrepancy and the fact that they knew each other
and also had some knowledge of each other’s the domestic
circumstances. We also cannot say that the learned magistrate was not
entitled to take into account the evidence tendered in regard to the
effect that the incident had on the complainant. I again refer to
what has been stated in this regard above. In any event it is
unlikely that the incident would have left no emotional scars on the
complainant. This impact on the psychological well-being of the
complainant would always have been a relevant aggravating factor in
the imposition of any sentence.





[62]
It is further important to keep in mind that the appellant never
testified in mitigation and that also - all the other factors -
advanced in mitigation - do not amount - and do not render the
ultimate sentence imposed on appellant startlingly inappropriate in
the circumstances of this case.





[63]
As the appellant therefore, in the final equation, has failed to
provide a reasonable explanation for his default and was also not
able to show good prospects of success on the merits of this appeal,
we refuse to grant the condonation sought and also deem it
appropriate to dismiss this appeal.





H
GEIER





Judge








C
PARKER





Acting
Judge








APPEARANCES





APPELLANT: P
McNally c/o Delport Attorneys, Windhoek





RESPONDENT: K
Esterhuizen, Office of the Prosecutor-General,





Windhoek






11990
NR 165 (HC) at page 166




22011(2)
NR 599 (SC)




3See
for instance R v Dlumayo & Ano

1948
(2) SA 677 AD at 678





4(1)
Any person who is convicted of rape under this Act shall, subject to
the provisions of subsections (2), (3) and (4), be liable-



(a) in the case of a first conviction- (i)


(")



(iii) where- (aa)



(bb) ...



(cc) the complainant is under the age of
eighteen years and the perpetrator is the complainant's parent,
guardian or caretaker or is otherwise in a position of trust or
authority over the complainant;



(dd)to (ff)



to imprisonment for a period of not less than
fifteen years;


[1]
See: section 3(2)


[1]          
See
for instance : S v Lopez
2003
NR 162 (HC) (2004 (4) NCLR 95 at 116, S v Limbare

2006
(2) NR 505 (HC) at [9}