Court name
High Court
Case number
CC 10 of 2007
Title

S v Joseph (1) (CC 10 of 2007) [2007] NAHC 32 (20 April 2007);

Media neutral citation
[2007] NAHC 32

MULLER, J.:

[1]  The accused was charged with rape of a young girl in terms of s2(1) of the Combating of Rape Act, No 8 of 2000 and the alternative of committing a sexual act with a girl under the age of 16 in terms of s14(a) of that Act 21 of 1980, as amended by the Act 7 of 2000. When the charges were put to the accused in this Court, he pleaded not guilty to the main charge and guilty to the alternative charge on the basis that he only attempted to have sexual intercourse with the complainant.

[2]  The State did not accept the plea of the accused and contended to lead evidence in respect of the main charge. Ms Kishi represented the accused and Ms Nyoni acted for the State.

[3]  The first witness to be called by the State was Dr O. A. Ogundiran presently employed as a forensic medical officer at the Oshakati State Hospital. Dr Ogundiran who is a Nigerian, also performd the medical examination on the complainant and completed the J88 form handed in respect of his main finding of the state of the genitalia of the complainant is described as:

“only painful intra-vaginally and introitus”

He described the vagina of the complainant, an 8 year old girl at the time of the examination that was performed, a day after the alleged incident as follows:

          “Labia majora:                normal

          Labia minora:                  normal

          Vestibule:                       tender

          Hymen:                          present

          Vagina:                           tip of a finger

          Fourchette:                     normal

          Perineum:                       intact

          Discharge:                      little

          Haemorrhage:                 none

          Examination:                  painful

          Uterus:                           normal”

The doctors opinion was:

Rape difficult to confirm on clinical examination or findings only.”

In respect of a possible assault he said:

Not easy to confirm.

[4]  In evidence the doctor confirmed his report and findings. He said the complainant’s hymen was intact and there were no injuries. He further said that if the accused’s penis passed the hymen, it would have been ruptured. According to the form J88 the doctor performed this examination without the aid of an interpreter, an issue that will be dealt with later herein. He could not deny that there may have been penetration and that the tenderness may have been the result of friction of a penis on, that not inside the vagina.

[5]  Mr Nakale Paavo, a neighbour testified that he found the accused with his zip open and his penis out and in an erect position, lying on top of the complainant. The complainant’s skirt was lifted and her panties down. She was lying on her back on the bed with the accused on top of her. He slapped the accused when he found him.

[6]  Because the complainant is a child, the Court took certain precautions in obtaining her evidence. The accused was in Court, but behind a one-way minor, so that the complainant could not see him and to avoid that she becomes scared and would not testify. I sat downstairs close by the complainant, dressed  in a suit. The accused could hear and follow the proceedings. Ms Kishi expressed her satisfaction with the arrangements.

[7]  The Court determined from the complainant, who testified through an interpreter, with the aid of questions, that she understands what the truth is and was satisfied that she did. She was not sworn in. Ms Nyoni then lead her evidence and Ms Kishi examined her. The complainant related what happened. She knows the accused who looks after cattle of somebody she knows. The accused asked her for a pair scissors and wanted her to put it on the bed. She did it. The accused then lifted her onto the bed and removed her clothes. She said she had a t-shirt, a skirt and panties on. The accused only had along long shirt on. He then took out his penis, which she described as “the thing with which he urinates”. He put his “thing” on her “thing” with which she urinates. The accused moved his buttocks. She said she cried because she felt pain in her “thing”. The neighbour then came. During her evidence she testified that the “thing” of the accused was only “on” her “thing”. Ms Kishi discussed the complainant’s statement made to the police the next day, 10 September 2002, with her, and pointed it out to her that she said in the statement she cried because the accused beat her with his open hand and not because of what he did. She admitted that what she said to the police was correct.

[8]  The accused did not testify.

[9]  The main issue of dispute between the State and the defence is whether there was penetration in the vagina of the complainant in terms of the definition of “sexual act” as defined in the Combating of Rape Act, or not. Ms Nyoni strongly argued that that definition as well as the definition of “vagina”, as well as the conduct of the accused by lying on top of the complainant with his “thing” on her “thing” is enough to constitute penetration. She relied on the doctor’s finding that the examination was painful and the vestibule of the complainant’s vagina was tender. She also referred me to the description of penetration by Milton in South African Criminal Law and Procedure, Volume II, where the learned writer indicates on page 448 that even the slightest penetration is enough and that rupture of the hymen is not required. She also referred me to the Namibian Supreme Court decision of The State v Godfried Vries, delivered on 7 December 2001, in respect of what constitutes penetration for the purpose of rape.

[10]  Ms Kishi argued as strongly that there no penetration was proved on the evidence before me. The only direct evidence was that the complainant who said that the accused’s “thing” was on her “thing”. She argued that the tenderness that the doctor found, may have been as a result of friction, but that the penis of the accused was never, not even in the slightest degree, “into” the vagina of the complainant, or any part thereof. She also emphasized that the complainant told the police the very next day that she did not cry because of what the accused did while on top of her, but because he slapped her.

[11]  I regard the doctor’s observation of what only the complainant could have told him as very dubious. In the first place the complainant is a young child, 8 at the time of the incident, who testified in this Court through an interpreter.  The doctor is not a Namibian and comes from Nigeria. There is no indication that he used an interpreter during the examination. This raises the question of how reliable his findings as far as the complainant’s responses are. His two main findings of any abnormality are directly related to responses by the complainant. If she did not, or could not, speak English, he could only have made these observations if she pulled away or shied away and he made certain deductions from this conduct. He did elaborate of on that. All other parts of the vagina was normal. I cannot rely on his observation that she experienced pain and that the vestibule was tender alone and can certainly not regard it as corroboration of penetration.

[12]  Secondly the doctor’s opinion as referred to earlier, indicates that he could not find any indication of rape. Certainly the doctor must know what penetration constitutes.

[13]  The only evidence of the act that the accused allegedly performed is what the complainant related to the Court, which was corroborated to an extent by the evidence of Mr Paavo. He could, however, not contribute to the question of whether there was penetration, or not. There is a discrepancy between the complainant and Paavo’s evidence regarding the clothing that the accused removed from her and himself. However, I regard this not as serious and ascribe it to the nearly 5 years that have passed since. Her statement to the police the next day is more in line with the evidence of Mr Paavo. There is only her evidence before me of the “sexual act”. She said the accused’s “thing” was on top of her “thing” and he moved his buttocks. There is no evidence to indicate that her legs were open. If it is to be believed that he slapped her, the reason may be that she did not want to comply and open her legs. Why else would he slap her? Mr Paavo only found them partly unclothed with the accused upon her.

[14]  There must at least be some or slight penetration “into” the vagina of the complainant. There is no evidence that there was any penetration into any part of the vagina on the evidence before me.

[15]  The accused indicated that he wanted to have sexual intercourse with the complainant, but that this was interrupted by the arrival of Mr Paavo. If Paavo did not arrive, there would certainly have been penetration and rape would have been constituted.

[16]  On all the evidence before me, I am convinced that the State has not proved that the main offence, namely rape in terms s2(1) of the Combating of Rape Act was committed. However, the State did succeed to prove beyond reasonable doubt that the accused attempted to commit an offence, by contravening s14(a) of Act 21 of 1980 as amended by Act 7 of 2000, namely an attempt to commit a sexual act with a person under 14, while he himself was 3 years older than her, namely 16 at the time.

[17]  Consequently, the accused is convicted of the alternative count.

 

 

 

___________

MULLER, J

 

 

 

 

 

On behalf of the State:                  Ms I. Nyoni

Instructed by:                                Office of the Prosecutor-General

 

On behalf of the Defence:             Ms F. Kishi

Instructed by:                                Directorate of Legal Aid