STATE versus FRANS HAMUTENYA
CASE NO. CC
46/99 Silungwe, J. 2000.05.03
Complainant a child of tender years - imaginativeness and
of children - application of cautionary rule.
THE HIGH COURT OF NAMIBIA
the matter between:
HAMUTENYA CORAM: SILUNGWE,
on: 1999.03.18-19, 1999.10.19-20, 1999.11.09
accused, who is now aged about 31 years, is arraigned for the crime
of rape, read with section 94 of the Criminal Procedure Act 51 of
1977 (hereafter referred to as the Act). It is alleged that during
the period July 1996 and November 9, 1997 at Farm Rente, in the
District of Gobabis, the accused unlawfully and intentionally had
sexual intercourse with Amanda Kativa, a girl under the age of
consent, namely: 4 years old. In pleading not guilty, he states, in
terms of section 115(1) of the Act: "I do not know these people
and I have never been at the farm Rente." During the section 119
proceedings, he told the Gobabis Magistrate's Court (omitting a
disputed sentence): "I
not know the complainant at all I deny that I had sexual intercourse
with an 8 year
whatsoever during July 1996. I know nothing about these allegations."
Kativa (hereafter referred to as the complainant) does not understand
the nature and import of the oath but she has, on being admonished to
speak the truth, been allowed to give evidence without taking the
oath, in terms of section 164(1) of the Act. As neither she nor her
mother, Paulina Samcao, knows her age, she has been X-rayed by Dr
J.A. Van Rooyen and found to be 6 years old, as is evidenced by
exhibit "B". This confirms that when this matter came to
light in 1997, the complainant was 4 years old.
summary of substantial facts in terms of section 144(3)(a) of the Act
July 1996 until 9 November 1997 at Farm Rente, in the District of
Gobabis, the accused regularly took the complainant, Amanda, out of
the house at night, informing the mother that he was taking her out
to urinate. The accused however was having sexual intercourse with
the complainant. One morning, Paulina, the mother of the complainant,
checked the panties of the complainant and found blood and semen on
it. She thereafter took the complainant to the hospital at Otjinene
Verhoef of the Prosecutor General's office appears for the State and
Mr Potgieter, who is briefed by the Directorate of Legal Aid, is for
the accused. Six witnesses have been called by the State and one -
the accused himself- by the defence.
State's case is that one Johannes Marthinus du Plessis runs Farm
Rente which is otherwise known in Herero as Ongava. He employed the
accused as a full time general farm labourer with effect from October
2, 1993, until November 8, 1997 - a period of 4 years. The accused
is, therefore, well known to him; he knows him as Muliki Kapumburo
but he is commonly known by his nick name, to wit, Frans.
to Paulina Samcao, she and the complainant's father used to live
together, apparently at Farm Rente, but when their relationship
ended, she became the accused's lover and the couple started to live
together in a one-roomed house at Farm Rente. The complainant and her
young sister called Tjikoko also lived with the couple. Paulina
confirms the evidence of Johannes that the accused was employed at
Farm Rente as a general farm labourer.
lived with the accused for two years and together had a son born to
them. The house they occupied did not have a toilet inside it.
her tender age, the complainant is an intelligent and articulate
grade 2 school girl. She tells the Court that she used to get on well
with the accused. Both the complainant and her mother, Pauline,
maintain that the accused did not allow the complainant to visit her
biological father who lived in another house, also at Farm Rente,
together with State female witness Muvatere Matuka who had since
become his girl friend.
gist of the complainant's account is that the accused, whom she names
as Frans, used to have sexual intercourse with her on several
occasions at night. The modus
that he would awaken her up at night on the pretex that he was taking
her outside so that she could pass water as there were no toilet
facilities inside the house. Sometimes he would wake up the
complainant's young sister, Tjikoko, as well but who, after urinating
outside, was sent back into the house so that the accused could have
the opportunity of taking advantage of the complainant's company,
which opportunity he used to satisfy his own sexual gratification. At
the accused's behest, she took off her panties and lay on her back.
The accused then took off his trousers and underwear and inserted his
penis into her vagina as he lay on top of her with her legs kept
apart. She felt pain and sustained injuries in her vagina which bled.
confirms the complainant's story to the effect that the accused often
used to take the complainant outside to urinate but, rather naively,
she did not suspect that the accused was up to mischief until she
started to observe blood and a white mucous-like substance on the
complainant's vagina. She then took the complainant to Otjinene
Clinic for examination. As a result of information received, and upon
their return home, Paulina kept the accused under surveillance.
about two to three weeks thereafter, Paulina heard the accused
telling the complainant to be taken outside to wee-wee whereupon both
went out of the house. According to the complainant, Tjikoko also
went outside but she was subsequently sent back into the house by the
accused. At the accused's behest, the complainant took off her
panties and lay down on her back with legs apart. The accused took
off his trousers and underwear and lay on top of her. While the
accused was busy having sex with the complainant, her mother came out
with a torch. The accused jumped up and put on his trousers. They all
then went back into the house to sleep. Under cross-examination, the
complainant dismisses any suggestion of mistaken identity and
maintains that she has known the accused for a long time and that she
is sure he is the one who sexually molested her.
complainant, like her mother, says that the accused was working at
Ongava, which means Farm Rente. She concedes that she does not know
what rape means but she is able to explain what she alleges the
accused did to her, not once, but on several occasions.
confirms having caught the accused red-handed when she shone a torch
at him and the complainant. She was shocked to see the accused on top
of the complainant. The accused jumped up and put on his pants.
their entry into the house, the accused took a walking stick and
attempted to assault Paulina when she asked him why he had done that
to the complainant. She asked him what he would do if she laid a
charge against him. When she asked him why he was having sexual
intercourse with the child, he made no reply. Thereafer, they slept.
following morning, after the accused had left for work, Paulina
called the complainant and asked her if the accused had been having
sex with her and she answered in the affirmative. The complainant
told her mother that the accused had been doing that often.
then went to Muvatere's house, which was separated from hers by
another house, and reported the matter to her. Paulina was in need of
some money to enable her to take the complainant to the clinic which
money was supplied by the complainant's father.
the accused had threatened to kill Paulina, the latter left Farm
Rente, taking the complainant with her, and proceeded to another farm
where her brother lived. Since the telephone there was out of order,
she sent a message to the complainant's father to alert the police.
Subsequently, the police arrived and conveyed Paulina and the
complainant to Gobabis Hospital.
cross-examined, Pauline testifies that the accused was employed at
Farm Rente for four years. This is in line with the testimony given
by Johannes who is adamant that the accused was his employee for the
period of time aforesaid. She states that if the accused says that he
does not know her and that they have no child together, he would be
Matuka supports Paulina's evidence. She testifies that the man she
lives with is the complainant's biological father and that when his
relationship with Paulina ended, the later became the accused's girl
friend; that the couple lived together in the same township with her
at Farm Rente; that the couple had a son; that the couple resided
with the complainant; that the complainant did not often visit her
biological father; and that the accused, whom she knows as Frans, was
employed at Farm Rente.
a report received from Paulina, Muvatere examined the complainant and
noticed that her panties were blood-stained. Later on, Muvatere
confronted the accused with Paulina's report to the effect that he
had been found on top of the complainant. The accused dismissed the
report saying: "It was only a lie." The accused then told
Muvatere that his wife, Paulina, had gone away without telling him.
Muvatere was present when the accused was subsequently arrested at
cross-examination, Muvatere categorically states that she knows the
accused very well; that he lived at Farm Rente for about 4 years; and
that she witnessed his arrest there. Johannes testifies that the
accused lived on the farm during the 4 year period of employment, and
that when the police visited Farm Rente on November 8, 1997, he was
at the farm and witnessed the accused's arrest near his (ie.
Johannes') homestead. During cross-examination, Johannes is resolute
that he knows the accused; and that the latter was employed by him on
a full time basis for about 4 years. The accused's last payment was
made on October 14, 1998, when he visited the farm, and he signed for
it. Johannes maintained record books, exhibits 2 and 3, which his
employees, including the accused,
to sign individually each time any of them received a payment from
him. Johannes identifies the accused's signature in both record
books. He showed these books to the police but the books never left
his custody. He is, after all, the one who has brought both books to
Court and produced them as exhibits.
Andries Quim has served in the Namibian Police Force for 6 years and
he is the investigating officer in this case. He arrested the
accused at Farm Rente but the latter claimed alibi. The accused did
not tell him that he was employed at another farm. Constable Quim
did not receive any books from Johannes; he merely got a statement
from him (ie. Johannes).
accused told Constable Quim that he could not write and so he was
allowed to make a thumb impression.
cross-examination, the constable maintains that he arrested the
accused at Farm Rente; that before effecting the accused's arrest,
he approached Johannes; and that the latter showed him two books -
exhibits 2 and 3 - but he (Constable Quim) did not take these books
into his custody.
November 11, 1997, Dr Johan Garoeb examined the complainant and
observed that her vagina could allow one finger. The examination was
painful to the complainant. Dr Garoeb observed that the complainant
had a yellowish discharge caused by bacteria whose incubation takes
42-72 hours. Although the discharge was not normal, it was not
serious and was treatable. The complainant's hymen was torn and
there were blood clots. The injury she suffered had been caused by a
blunt object. She must have come into direct contact with a blunt
object for the hymen to be torn in that manner. Both labia majora
and labia minora are reached before the hymen. Dr Garoeb could not
exclude the possibility that the complainant had been a victim of a
number of sexual harassments. In
might have been no ejaculation. In any event, bleeding might have
reduced the presence of spermatozoa, so testifies the Doctor.
his defence, the accused testifies that he was arrested at Nooipan
Farm where he had been employed for 7 years during the period
denies knowledge of Farm Rente; of Amanda Kativa and of Paulina
Samcao. He further denies having had any relationship with Paulina
Samcao or having ever been with her. He had his girl friend who
does not know Muvatere Matuka neither did he know Mr Johannes Du
Plessis whom he claims to have seen for the last time when he (the
accused) visited his farm but as this was at night, he could not see
him properly. The second time he saw Johannes was on October 19,
1999, when the latter testified as a state witness.
accused states that he attended school up to Grade 1 but that he
neither can read nor write.
examined the record book, exhibit 3, the accused recognises his
signature and he identifies therein other signatures too as his. He
explains that during his stint in police cells for H/2
Constable Quim used to tell him to go and sign exhibit 3. He was
handed a pen and he signed the book.
accused asserts that he knows nothing about the rape perpetrated
upon Amanda Kativa. When cross-examined, he explains that when
constable Quim brought the record books for him to sign, he
initially thumb-printed them but that he subsequently signed both
books. He had told the constable that he could not read or write.
The accused was allegedly forced to sign; he was beaten by the
constable which led to him to open a case against the said constable
but this was withdrawn by the Station Commander. As the accused
could not hold the pen properly, he was slapped by the constable
several times until he finished signing. During his period in the
cells, Constable Quim called him 15 times to sign.
accused concedes that Constable Quim has not been cross-examined
about the alleged assaults on him or about having been forced to
sign the record books as these things have not been brought to his
legal representative's attention.
accused reiterates that he has never been an employee of Johannes Du
Plessis and that he has not worked at his farm. He further
reiterates that he was not found by Paulina on top of the
complainant; that he has no child with Paulina; that he has not met
her; that he has never met or told Muvetere anything; and that these
know him as Frans when they travelled together in a Police vehicle
from Gobabis to Windhoek to attend Court.
sentence in respect of which an objection has been raised as regards
the section 119 proceedings reads:
I know is that I am employed at that farm, Farm Rente."
onus of proving any disputed point of the section 119 proceedings
rests upon the State. The state may discharge this onus by calling
the presiding magistrate and, where necessary, the court interpreter
as well. Although this has not been done in casu,
will reserve my comments on the matter for the time being.
main issue that clearly arises in this case is one of credibility:
if the defence case is accepted or found to be reasonably possibly
true, or if there is a reasonable doubt in my mind on the totality
of the evidence, the accused must inevitably be acquitted of the
crime charged; if, on the other hand, the State's version is
accepted and the defence version is
found to be reasonably possibly true and is thus rejected as false,
then the accused
be found guilty and convicted as charged.
is common cause that the complainant is a child of tender years and,
for this reason, it is necessary to invoke the cautionary rule with
regard to the evidence of such a witness. It was observed in R
SA 158(A) 163 that the imaginativeness and suggestibility of
children are only two of a number of reasons why the evidence of
children should be "scrutinized with care amounting, perhaps to
suspicion". See also S
v S 1995(1)
SACR 50(ZS) where Ebrahim J felt that a "new and more specific
approach to cases involving children" was necessary.
am mindful of the cautionary rule and, as previously indicated, the
complainant is simply outstanding as witness, notwithstanding the
fact that she is a child of tender years. She has been steadfast,
unwavering, sincere, intelligent, atriculate and credible. One does
not usually come across such a witness of a comparable age. It is
true that the complainant, does not appreciate the term "rape"
although she has freely used it in her testimony. Her saving grace,
however, is that she has explained in detail what she claims the
accused did to her, namely, that he had sex with her on several
occasions before he was caught red-handed by Paulina. I would,
therefore, not hold the complainant's reference to "rape"
against her in the light of her elucidation of what transpired on
such occasions. Otherwise her evidence may fairly be described as
cogent and credit-worthy.
so far as the cautionary rule in sexual offences is concerned, I
would abide by the guidance given by the full bench of this Court in
of Another 1992
(1) SACR 143 (Nm) 146(b) where it was stated (per Frank, J.) at 146
f-g) that the rule is discriminatory against females.
is trite law that, in sexual cases, evidence may be given of a
complaint made by the victim within a reasonable time after the
commission of the alleged sexual offence. The complaint must have
been made voluntarily, not induced by threats. Leading or
intimidating questions should not have been asked. See S
v T 1963
(1) SA 484 (A).
there is no evidence in the present case of threats or intimidation
against the accused, I accept that he stopped the complainant from
visiting her biological father possibly because of the relationship
between him and the complainant and fear that she might spill the
beans. As what she told her mother was neither induced by threats
nor intimidation, I would not hold against her any answers to
believe the supporting evidence of Paulina when she testifies that
she saw blood and white mucous - like substance on the complainants
private parts in consequence of which she took her for medical
examinations; that she thereafter kept the accused under
surveillance, and that she later caught him red-handed, lying on top
of the complainant. I further accept the evidence that when Paulina
confronted him with a sexual abuse allegation, he attempted to
assault her with a stick and thereafter threatened to kill her. As
the matrimonial home had obviously became unsafe not only for the
complainant, but also for Paulina, the latter, together with the
complainant, decamped to a place of safety, and Paulina was
instrumental in causing the accused's arrest.
accept the State's evidence to the effect that the accused lived
with Paulina and the complainant in a single-roomed house at Farm
Rente; that he and Paulina have a son from their relationship; that
he was employed at Farm Rente by Johannes for about 4 years as a
general farm labourer; and that he was very well known by Paulina,
the complainant, Muvetere and Johannes.
Garoeb's evidence that the complainant's vagina admitted one finger
and that her hymen was raptured is consistent with the evidence of
the complainant and of Paulina. Furthermore, the medical evidence
shows that penetration had taken place because of the rapture of the
credible is the evidence of Johannes who asserts, inter
he never parted with the custody of the two exhibited record books
and, in this, he is amply supported by Constable Quim, whose
evidence I find credible, too. In the light of this evidence by
Johannes and Constable Quim, I am satisfied that the accused's claim
that Constable Quim compelled him to append his signature in the
record books is no more and no less that a figment of his own
imagination. As such, the accused's claim cannot reasonably possibly
be true. In fact, it is entirely false and it is rejected as such.
to the section 119 proceedings, it is evident that the sentence:
I know is that I am employed at that farm, farm Rente."
a ring of truth and it is consistent with the State's case which I
believe as true. There are a few discrepancies here and there in the
State's version but these are minor and immaterial.
case is a classic example not only of a betrayal of trust but also
of sexual abuse involving a small and very young defenceless girl.
Although the period alleged in the indictment has fallen short of
proof by the State to the requisite standard, this does not detract
from the fact that the accused had sexual intercourse with the
complainant several times before he was found out.
to the preceding paragraph, the State has discharged its burden of
proof against the accused beyond a reasonable doubt.
therefore, the accused is found guilty of the crime of rape as read
with section 94 of the Act and he is convicted accordingly.
BEHALF OF THE STATE
BEHALF OF THE ACCUSED
of the Prosecutor-General
of Legal Aid