Court name
High Court Main Division
Case number
CC 3 of 2013
Title

S v Nghidinia (CC 3 of 2013) [2015] NAHCMD 40 (08 June 2015);

Media neutral citation
[2015] NAHCMD 40
Coram
Tommasi J










REPUBLIC
OF NAMIBIA



HIGH COURT OF
NAMIBIA


NORTHERN
LOCAL DIVISION, OSHAKATI


JUDGMENT


Case
no: CC 03/2013


DATE:
06 AUGUST 2015


NOT
REPORTABLE


THE
STATE


And


NELSON
NGHIDINIA
.............................................................................................................CCUSED


Neutral
citation:
S v
Nghidini (CC 03-2013) [2015]
NAHCNLD 40
(6 August 2015)


Coram:
TOMMASI J


Heard:
16, 17, 18, 19 February, 16 June, 8 July 2015


Delivered:
6 August 2015


Flynote:
Criminal Law: Housebreaking with intent to rape
and rape – Rape in terms of common law – Defence of
sexual intercourse with consent of the complainant – Consensual
sexual intercourse with a girl under 16 not common law rape but
contravention of s 14 of the Combating Of Immoral Practices Act 21 of
1980 is an offence – Such is a competent verdict on a count of
common law rape - section 16 of same act creates a rebuttable
presumption of unlawfulness– Absence of evidence to dissuade
court from drawing an adverse inference that he knew his actions were
unlawful  State proved contraventions of s14 of the Combatting
of Immoral Practices Act – competent verdict.


Summary:
The complainant, a 12 year old girl,
had sexual intercourse with her uncle, the accused who was 18 years
old at the time. The State opted the charge the accused of
housebreaking with the intent to rape and rape in terms of the common
law and not read with the Combatting of the Rape Act. According to
the complainant the accused came to her hut on 3 occasions demanding
entrance. She refuse to allow him to enter and he pushed the door
open and entered her hut. He then had sexual intercourse with her
against her will.  The accused admitted having sexual
intercourse with the complainant. According to him the complainant
asked him for N$6 dollars and he gave it to her on condition she
agrees to have sexual intercourse with him. Held that the single
evidence of the complainant was unsatisfactory and found to be not
credible. The Sate failed to prove beyond reasonable doubt that the
accused was guilty of housebreaking with intent to rape and rape. The
court however held that the State proved beyond reasonable doubt that
the accused contravened s 14 of the Combatting of Immoral Practices
Act which is a competent verdict on a charge of rape.


ORDER


Count
1: The accused is found not guilty of housebreaking with the intent
to rape and rape but is convicted of having contravened s14 of the
Immoral Practices Act, 21 of 1980, as amended, which is a competent
verdict on a count of rape.


Count
2: The accused is found not guilty of housebreaking with the intent
to rape and rape but is convicted of having contravened s14 of the
Immoral Practices Act, 21 of 1980, as amended, which is a competent
verdict on a count of rape.


Count
3: The accused is found not guilty of housebreaking with the intent
to rape and rape but is convicted of having contravened s14 of the
Immoral Practices Act, 21 of 1980, as amended, which is a competent
verdict on a count of rape


JUDGMENT






TOMMASI
J:


[1]
The accused faced three counts of housebreaking with the intent to
rape and rape read with the combating of Domestic violence Act, 2003,
Act 4 of 2003. The State alleged that the accused, on three different
occasions. Unlawfully and intentionally broke into and entered the
house and or/room of LX with the intent to rape and did then
unlawfully and intentionally have sexual intercourse with LX, a
female person, without her consent. The State confirmed to charge the
accused with common law rape and not rape in contravention of the
Combating or Rape Act, 2000 (Act 8 of 2000)


[2]
The accused did not dispute that he had sexual intercourse with the
complainant. He however denied that it was without consent.


[3]
The complainant testified that during 2011, she was approached by the
accused at night time at her house. (a hut with a door made out of
palm branches) while she was sleeping with her 7 year old brother. He
wanted her to open the door so that he could have sex with her. She
refused and he pushed the door open. He undressed her and had sexual
intercourse with her. After he was done and before he left he
threatened to beat her if she would tell anyone about it. During
cross-examination the complainant testified that on that day she
asked the accused for N$1 and he gave her N$6.


[4]
She told her mother the next morning that the accused wanted to enter
the hut. She did however not tell her that he indeed entered and
neither did she report the fact that the accused had sexual
intercourse with her against her will. Her mother confronted the
accused and demanded that he refrain from coming to her homestead.


[5]
The accused thereafter stayed away for some months. During January
2012 he came to her hut on two separate occasions, opening the door
of the hut, undressing the complainant and proceeded to have sexual
intercourse with her against her will. She did not report these
incidents to her mother. During April or May her mother suspected
that she might be pregnant and took her to the clinic where her fears
were confirmed. The complainant told the nurses in her mother’s
presence that the accused had sexual intercourse with her.


[6]
The complainant’s mother, in accordance with their tradition,
requested the headman to take the complainant to the house of the
accused and to confront him with the fact that he had impregnated the
complainant. The accused admitted it.


[7]
The complainant returned to school and was allowed to continue with
her classes. The matter was reported to the police during July 2012
after the school Inspector insisted on an investigation. The
complainant gave birth to a baby girl on 13 September 2012.


[8]
The accused admitted that he had sexual intercourse with the
complainant during 2011 and in January 2012. His version was that
during 2011 on a Monday the complainant asked him for N$6 dollars. He
agreed to give her N$6 on condition that they have sexual
intercourse. The complainant agreed to these terms. When he came to
her hut that evening, she opened the door for him; she undressed
herself; and they had consensual sex. As he was leaving the
complainant invited him to come back to have sexual intercourse with
her.  He returned on Wednesday and the complainant once again
opened the door for him and led him into her hut where they had
consensual sexual intercourse. On Friday they met at a communal water
tap and she again invited him to come to her house to have sexual
intercourse. Complainant’s mother discovered the money he gave
the complainant which led the complainant to inform her mother that
he came to their homestead.  The complainant’s mother told
him to stop visiting her homestead and he did so. After two days or a
week in 2012, the complainant came to his homestead two days in
succession and they once again had sexual intercourse in his room.  


[9]
The undisputed evidence proves that the accused had sexual
intercourse with the complainant on three occasions in her hut. The
issues in dispute are whether the complainant consented to sexual
intercourse and whether the accused broke into the hut of the
complainant.


[10]
Mr Matota, counsel for the State, urged the court to accept the
version of the complainant and to reject the accused version that the
complainant consented as false. He submitted that the accused was a
bad witness in that he contradicted himself and failed to put crucial
parts of his version to the complainant. He further submitted that
the complainant’s evidence was clear and satisfactory in every
material respect. Mr Nyambe, counsel for the accused, pointed out
certain unsatisfactory aspects of the complainant’s evidence.


[11]
When evaluating the evidence the court is reminded to apply caution
to the evidence of the complainant as she is a single witness in
respect of the rape. It is trite that the uncorroborated evidence of
a single witness is sufficient for a conviction.[1]
In
S
v Noble

2002 NR 67 (HC), Maritz J, as he then was, at p 70 F – 71- B
stated the following:


Judicial
experience of the inherent danger to convict on the evidence of a
single uncorroborated witness 'evoked a judicial practice that such
evidence be treated with utmost care' (Du Toit et al Commentary on
the Criminal Procedure Act at 24-1). The most basic requirement
demanded by our courts for the acceptability of such evidence is that
it must be credible.
That
requirement was also expressly demanded by s 231 of the Criminal
Procedure Ordinance, 1963 and its predecessor, s 243 of the Criminal
Procedure and Evidence Proclamation, H 1935. The statutory omission
of that requirement in s 208 of the Criminal Procedure Act 1977, is,
as Diemont JA pointed out in
S v Sauls
and Others
1981 (3) SA 172 (A) at
180D-E,  'of no significance; the single witness must still be
credible, but there are, as Wigmore points out,
''infinite
degrees in this character we call credibility''
.
(Wigmore on Evidence vol III para 2034 at 262.) 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 it 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 569). It has been said more than once that the
exercise of caution must not be allowed to displace the exercise of
common sense.'   ”


[12]
I have to agree with counsel for the State that the accused was a
poor witness. The complainant however corroborated to some degree the
fact that she asked him for money and that he gave her N$6. The
unsatisfactory aspect of the complainant’s evidence in this
regard is that she failed mention this during her examination in
chief. It is of significance that the money was exchanged the same
day as her first sexual encounter. This unsatisfactory aspect of the
complainant’s evidence must be considered together with her
testimony that, although she knew that the accused wanted to enter
the room with the intent to have sexual intercourse, the thought of
waking her brother next to her or raising alarm did not cross her
mind. The complainant withheld information of the sexual intercourse
with from her mother because the accused threatened her. However she
continued to withhold this information after her mother created a
secure environment and the accused failed to execute his threat. The
complainant furthermore testified that she for no reason at all
withheld the fact that the accused had sexual intercourse with her on
two occasions during January 2012.


[13]
The evidence of the accused that he gave the complainant money on
condition that she gives him sex, in view of the corroboration and by
the complainant, rings true. I however do not believe his testimony
that the complainant was the great temptress who had invited him to
return to her hut for sexual intercourse.


[14]
In
S v Glaco 1993
NR 141 (HC) Levy J, as he then was, p 147C - E stated the following:


However,
even if the accused is telling the Court a lie, in this respect this
lie does not prove the State's case. The State must prove the guilt
of the accused beyond reasonable doubt, and there is no onus on an
accused to prove his or her innocence. The fact that the Court may
disbelieve the version given by an accused, is immaterial. The
accused does not have to convince the Court of the truth of any
explanation which he or she gives. If the accused gives an
explanation, even if that explanation is improbable, the Court is not
entitled to convict, unless it is satisfied, not only that the
explanation is improbable, but that beyond any reasonable doubt it is
false. If there is any reasonable possibility of the explanation
being true, then the accused is entitled to an acquittal. (See
R
v Difford
1937 AD 370 at 373.)


[15]
Given the entirety of the evidence adduced herein I cannot safely
conclude that the complainant told the truth or stated differently, I
cannot reject the version of the accused as false beyond reasonable
doubt. I must therefore concluded that the accused version, that the
complainant consented to have sexual intercourse, is reasonably
possibly true.


[16]
In terms of the common law, consensual sexual intercourse with a girl
between the ages of 12 and 16 years does not constitute rape but a
contravention of section 14 (i) of the Combating of Immoral Practices
Act 21 of 1980 which reads as follow:


Any
person who-


(a)
commits or attempts to commit a sexual act with a child under the age
of sixteen years; or


(b)
commits or attempts to commit an indecent or immoral act with such a
child; or


(c)
solicits or entices such a child to the commission of a sexual act or
an indecent or immoral act,


and
who-


(i)
is more than three years older than such a child; and


(ii)
is not married to such a child (whether under the general law or
customary law),


shall
be guilty of an offence and liable on conviction to a fine not
exceeding N$40 000 or to imprisonment for a period not exceeding
ten years or to both such fine and such imprisonment.’


[17]
The accused in view of the above cannot therefore be convicted of
common law rape. It stands to reason that the court, given its
evaluation of the evidence herein, cannot reject the version of the
accused that the complainant opened the door for him and had
consensual sexual intercourse with him, as false. The State thus did
not prove beyond reasonable doubt that the accused is guilty of the
three counts of housebreaking with the intent to rape and rape.


[18]
This however is not the end of it. Section 261 (1)(e) of the
CPA provides that:


(1)
If the evidence on a charge of rape or attempted rape does not prove
the offence of rape or, as the case may be, attempted rape, but-


(e)
the statutory offence of-


(i)
unlawful carnal intercourse with a girl under a specified age;


(ii)
committing an immoral or indecent act with such a girl; or


(iii)
soliciting or enticing such a girl to the commission of an immoral or
indecent act;


the
accused may be found guilty of the offence so proved
.”


[19]
Counsel for the accused submitted that the accused did not know that
it was an offence. I am not persuaded that the accused did not know
the age of the complainant. In his warning statement he indicated
that he “knew the complainant was of young age, of thirteen
years.
”  Section 12 of the
Combating of Immoral Practices Act provides as follow:


(1)
When in any prosecution in terms of this Act the question arises
whether any carnal intercourse between a male and a female was
unlawful, such intercourse shall be presumed, until the contrary is
proved, to have been unlawful carnal intercourse.”


[20]
In S v Narib 1994 NR 176 (HC) the accused raised the defence
that he was deceived by the complainant regarding her age. The court
held that the accused bore the onus of establishing on a balance of
probabilities that the girl deceived him regarding her age. In this
case the accused submitted no evidence to dissuade the court from
drawing the adverse inference that he knew that his actions was
unlawful.


[21]
I find that the State proved beyond reasonable doubt the elements of
the statutory offence i.e that the accused had contravened s14 of the
Combating of Immoral Practices Act, as amended in that he committed a
sexual act with a child under the age of 16 on three separate
occasions, that he was more than three years older than the
complainant and not married to her.


[22]
In the result the following order is made:


Count
1: The accused is found not guilty of housebreaking with the intent
to rape and rape but is convicted of having contravened s14 (i) (a)
of the Immoral Practices Act, 21 of 1980, as amended, which is a
competent verdict on a count of common law rape.


Count
2: The accused is found not guilty of housebreaking with the intent
to rape and rape but is convicted of having contravened s14 (i) (a)
of the Immoral Practices Act, 21 of 1980, as amended, which is a
competent verdict on a count of common law rape.


Count
3: The accused is found not guilty of housebreaking with the intent
to rape and rape but is convicted of having contravened s14 (i) (a)
of the Immoral Practices Act, 21 of 1980, as amended, which is a
competent verdict on a count of common law rape.


MA
TOMMASI J


Judge


APPEARANCES


For
The State: Adv L Matota


Office
of the Prosecutor-General


For
the accused: Mr M Nyambe


Instructed
by Legal Aid


Shikongo
Law Chambers



[1]
Section
208 of the CPA, 51 of 1977