Court name
High Court
Case name
Kanime v S
Media neutral citation
[2009] NAHC 81













CASE
NO.: CA 25/2008











IN THE HIGH COURT OF NAMIBIA



HELD IN OSHAKATI







In the matter between:







AMOOMO DAVID KANIME
APPELLANT







and







THE STATE
RESPONDENT











CORAM:
LIEBENBERG, A.J.
et
SHIVUTE, A.J.







Heard on: 17 - 09 - 2009



Delivered on: 12 - 10 -
2009















APPEAL JUDGMENT











LIEBENBERG, A.J.:
[1] The appellant was arraigned
before the Ondangwa Regional Court on two charges namely, (1) Assault
with intent to do grievous bodily harm and (2) Rape, in contravention
of section 2 (1)(a) of the Combating of Rape Act, 2000 (Act No. 8 of
2000). At the end of a trial appellant was convicted as charged and
on count 1 sentenced to 1 year imprisonment; while on count 2, he was
sentenced to 20 years imprisonment. The appeal lies against both
convictions.







[2] In count 1 it is
alleged that appellant on the night of the 7
th
of July 2001 at Elayi Village in the district of Ondangwa, assaulted
HS, the complainant, by beating her with a “fresh” stick
all over her body with intent to do her grievous bodily harm; while
count 2 concerns what allegedly happened thereafter namely, that
appellant forcefully had sexual intercourse with the complainant.







[3] Besides leading the evidence of the
complainant, the State also called Joseph Kafima and Silvia
Hauliajaba, the latter being a police officer testifying about the
unavailability of some State witnesses and whose evidence therefore,
is immaterial to the facts. After appellant had testified, the court
a quo enquired
from the State why people who allegedly had witnessed some of the
incidents that took place that night, were not called to give
evidence. The State prosecutor’s reply was that there was no
specific reason why these people were not called to testify except
that there were no statements taken from them by the police. The
learned magistrate then expressed his dissatisfaction with the
situation and thereafter called four more witnesses namely Herman
Kafima; Sethson Kuumbua (Seth); Rosa Shungwa and Selma Kanime.







[4] Ms. Mainga, who
appeared on behalf of the appellant, submitted that the appeal record
was incomplete and thus not proper before Court because the trial
magistrate’s reasons in terms of rule 67 of the Rules of the
Magistrate’s Court had not been filed. However, the magistrate
in the meantime has resigned from the magistracy and therefore this
appeal has to be considered without the benefit of having additional
reasons to the magistrate’s
ex
tempore
judgment.







[5] The appeal is based on two grounds namely, that the appellant
was not given a fair trial and, because the evidence does not sustain
a conviction, the appellant’s version is reasonable and
possibly true.







RIGHT TO A FAIR TRIAL



[6] Appellant appeared
for the first time before the Regional Court on the 23
rd
of March 2004 whereafter the case
was postponed several times for reasons ranging
from allowing
appellant to engage the services of a legal representative; recusal
of the legal representative on the date of trial (three times);
absence of the appellant and the unavailability of the magistrate up
to the stage where the trial commenced on the 1
st
of September 2005 with Ms. Itula appearing on behalf of the
appellant. The trial proceeded and reached the stage where
complainant was still under cross-examination when the matter had to
be postponed due to a lack of time and cross-examination to be
continued on the next trial date. At this juncture Ms. Itula
informed the court that she had not finished her cross-examination on
the complainant and still had to put the appellant’s version to
her. The case was then postponed to the 4
th
of October 2005 for continuation of trial. However, from the record
it appears that the matter only came before court on the 8
th
November 2006, more than a year later. Ms. Itula was for medical
reasons unavailable and the case once again had to be postponed.
Because the presiding officer by then had taken up other employment,
he was no longer readily available and it was arranged that all his
partly heard cases had to be set down within the period of his
availability. During three subsequent appearances appellant’s
legal representative was absent while the complainant on one occasion
arrived late. The record thereafter reflects that on the 3
rd
of September 2007 the court was informed that Ms. Itula in the
meantime had left the law firm she had worked for and Mr. Lackey,
from the same firm, had taken over the file but withdrew as legal
representative for the appellant due to them not being put in funds.
According to a letter written to the State prosecutor dated the 3
rd
of September 2007 the appellant was informed of the state of affairs.
Appellant’s response in court was that he needed time to raise
money in order to pay for the services of his legal representative.







[7] It is against this background that the
magistrate refused any further postponement of the matter and ordered
the trial to proceed without the appellant being represented. When
it came to the continuation of the cross-examination of the
complainant after the magistrate had explained to the appellant his
right to cross-examine, appellant’s response was that he had
nothing to say because he was supposed to have a legal representative
and then requested the court to find him a lawyer. This did not sway
the court and the trial proceeded. Appellant did not put any
(further) questions to the
complainant and as for the two
State witnesses who testified thereafter, he did
not cross-examine either of them.







[8] It was submitted on behalf of the appellant that the court’s
refusal to postpone the case was prejudicial to the appellant as it
was evident that he did not fully appreciate the proceedings;
especially when regard is had to the prescribed minimum sentence of
not less than 20 years imprisonment he was facing; and that the
extent thereof is such that it warrants both the conviction and
sentence to be set aside.







[9] Under the Criminal Procedure Act, 1977 (Act
No. 51 of 1977) an accused person before court has always been
entitled to legal representation and this position was further
reinforced by Article 12 of the Namibian Constitution setting out an
accused’s right to a fair trial
; and
more specifically, the right to
“be
defended by a legal practitioner of their choice”

(Art. 12 (1)(e)). Appellant was well aware of his right to legal
representation and had also appointed legal representatives to defend
him during the trial up to the stage where they withdrew for not
being put in funds. The question that arises is whether the
magistrate committed an irregularity or misdirection by refusing to
grant a postponement to the appellant in order to raise money so that
he could pay for the continued services of his lawyer and, if so,
whether such refusal of a postponement was of a sufficiently serious
nature to justify the setting aside of appellant’s conviction
and sentence.







[10] In considering the application the
magistrate had regard to the history of the case and that six years
had passed since the alleged crime was committed; that appellant
failed to put his lawyer in funds; and that the magistrate himself
was set to finish his partly heard cases as he would not be available
thereafter. Appellant was informed by his legal representative prior
to the 3
rd
of September 2007 that the reason



for his withdrawal was because of financial
reasons, however, appellant did not seem to do much about his
situation other than asking for a postponement to obtain the
necessary funds. From this it is clear that the appellant was not
(in the immediate future) in a position to raise the required funds
so that the trial could proceed and once
that has
happened, the magistrate would no longer have been available,
whereafter proceedings had to start
de
novo.
This would not have been in the
best interest of the appellant. The magistrate really found himself
in a difficult situation and when exercising his discretion, he
decided against postponing the matter and dismissed appellant’s
application.







[11] An accused person’s right to legal
representation is not absolute and the justification of the
magistrate’s refusal of a postponement will largely depend on
the circumstances of the case. In the present case the appellant’s
situation was brought about due to his own negligence by not
timeously putting his lawyer in funds and with regard to the
unavailability of the trial magistrate thereafter, it was, in my
view, in the best interest of the appellant and in the interest of
justice to proceed with the trial, despite appellant being
undefended. Therefore, the magistrate’s refusal to postpone
the case in those circumstances was not a misdirection or
irregularity which
per se vitiated
the proceedings.







[12] However, it is clear from the record that the appellant did
not fully appreciate the purpose and the extent of cross-examining
the complainant and furthermore, barely posed any questions to the
two remaining State witnesses. As for the continued
cross-examination of the complainant it was not enough for the
magistrate just to explain to the now undefended appellant his rights
to cross-examination, but certainly had a duty to assist the
appellant in presenting his case and therefore should have invited
the appellant to put his defence to the complainant at that stage.
He furthermore should have reminded the appellant of the
incriminating evidence given against him and assisted him in putting
specific questions to the witnesses. This would have avoided the
situation where the State prosecutor submitted in argument, that the
appellant did not dispute some aspects of the evidence presented
against him; or that he failed earlier to disclose the basis of his
defence i.e. an alibi, by not putting it to those witnesses who
claimed to have seen him at the scene that night.



Although this failure on
the part of the magistrate could be seen to be a serious
misdirection, I do not, for the conclusion reached in this judgment,
deem it necessary
to consider whether it constitutes
an infringement of appellant’s constitutional rights and as
such, whether it amounts to an irregularity vitiating the
proceedings.







THE EVIDENCE



[13] Complainant’s
evidence is that she was at Herman’s shebeen in the company of
Rosa, Herman and a certain Kathima when the appellant, known to her
by the name David David, arrived there with his brother David Kanime
and Seth. Later Seth entered the shebeen and told her that appellant
was calling her outside. She found appellant under a tree from where
he started pulling her towards a pond whereafter he told her that
they should go to his place. He refused to let go of her and she
then called Kathima, Rosa and Herman who escorted her from there with
the appellant following them. Appellant then chased her friends away
whereafter he told his brother David to bring him a “fresh”
stick and when complainant refused to accompany him, he started
beating her with this stick thrice on the body and twice on her
thighs. He continued beating her while pulling her on her arm up to
his house. Appellant then opened the door to his room and locked the
complainant inside. His sister Selma thereafter entered and started
paging through a photo album without speaking to one another. After
she had left the room, appellant entered, undressed himself and told
complainant to remove her clothes whereafter he had sexual
intercourse with her. He thereafter fell asleep and because he had
locked the room, she was unable to leave until in the morning when
appellant requested his brother David to escort her. With her
arrival back home, she made a report to her mother and grandmother
whereafter charges were laid with the police at Okatope. Complainant
said she went to the hospital the following day where she was
examined but was not treated for the bruises she sustained on her
buttocks as a result of the appellant’s assault on her.







[14] Under
cross-examination complainant gave a different account of what had
happened between her and the appellant that night and said that she
was assaulted by the appellant on the 9
th
of September 2001 (not the 7
th
of July as per the charge); that appellant had never let go of her
except when she returned to the shebeen to finish a
letter she
was busy writing; that she then solicited the help
of Herman, Ruusa and Kathima; that her friends were about to come and
escort her but that the appellant chased them away; that she was
assaulted in the presence of her friends; that she was screaming all
the time up to the appellant’s house; that she resisted the
appellant when he undressed her; that appellant for a second time had
sexual intercourse with her in the morning; and lastly, that during
the medical examination sperm was detected and taken from her vagina
(she later said she was not sure what it was).







[15] From the medical report handed in by agreement it is evident
that the complainant was only examined at the Onandjokwe Lutheran
hospital on 19 July 2001 and, besides a whitish vaginal discharge –
which upon microscopic examination turned out to be “negative”-
nothing was found that could be supportive of a rape perpetrated on
the complainant; neither was there anything indicative of an assault
on the complainant’s body and buttocks during to the
examination.







[16] Complainant furthermore said that despite her screams for help
from the time the appellant started pulling her away from the shebeen
until they entered his room, no one came to her rescue. Although
there were other shebeens nearby and the appellant’s parents
also being home at the time, nobody approached them. When asked why
she did not tell Selma when she entered the room what the appellant
planned on doing to her, she replied that he had told her not to tell
anyone; and when asked why she did not leave the time when Selma was
in the room with the door open, she replied that she couldn’t
because Selma was present. Bearing in mind that the appellant in no
uncertain terms indicated to the complainant what he had in mind for
her and he not being present at the time Selma entered, I
respectfully find it difficult to comprehend the complainant’s
response in the situation she found herself in at the time. She was
furthermore unable to explain in cross-examination why she failed to
mention in chief – possibly also to the police – that she
had been raped for a second time in the next morning.







[17] Complainant gave single evidence regarding
what the appellant allegedly had done to her from the time she went
to him under the tree that night, until the following morning when
she went home and made a report to her mother.
It
is a well established judicial principle that the evidence of a
single witness should be approached with caution. The correct
approach to the application of the so-called ‘cautionary rule’
was set out in the well known case of
S
v Sauls and Others
1981 (3) SA 172 at
180E-G. It requires from the trier of fact to weigh the single
evidence; consider its merits and demerits; to consider whether there
are shortcomings or defects or contradictions in the testimony, and
whether he is satisfied that the truth has been told. In evaluating
the evidence of a single witness, it seems obvious that a final
evaluation can rarely be made without considering whether the single
evidence is consistent with the probabilities. Furthermore, in
S
v Artman and Another
1968 (3) SA 339
(SCA) Holmes JA said that it is required that the testimony of the
single witness should be clear and satisfactory in all material
repects, but that the exercise of caution should not displace the
exercise of common sense.







[18] The evidence of a single witness therefore, need not be perfect,
but the court at the end must be satisfied beyond reasonable doubt,
that despite the shortcomings and contradictions in the evidence,
that such evidence is true.







[19] I now turn to the
evidence of the other witnesses which in some respects support, but
also contradict the complainant’s version.







[20] Joseph was at the
shebeen when complainant and his brother Herman arrived, and shortly
thereafter, Seth and one Lukeleni entered and called the complainant
outside. He left when the shebeen closed and then saw a person
standing in the dark near another shebeen. He went on to say that
“we
left them and these people were still holding Helena. Helena was
shouting, ‘Leave me out, leave me out’ ”.
They
continued walking and after having covered about one kilometre, they
heard the screams of someone coming from the direction where the
complainant had been. They however proceeded home and he only came
to hear the next morning about what
had happened to the
complainant. He said she narrated the incident to
him, but failed to mention by whom she had been beaten and raped.
Joseph disputed the evidence of the
complainant that he and the others had seen her near the pond; that
they saw the assault on the complainant or that they had been chased
away by anybody. When asked why they did not intervene when this
person was screaming, he replied that they did not know what the
relationship was between them. Besides them not knowing who this
person was who had been screaming and they being a distance away, it
does not appear to me that they regarded the screaming to be serious.
Joseph further testified that he did not see the appellant that night
and did not know who the persons were standing with the complainant.







[21] The only corroboration of the complainant’s version to
be found in Joseph’s evidence is that complainant was called
outside the shebeen and that he later on heard cries coming from that
direction. There seems to be no reasonable explanation for the
contradictions between his evidence and that of the complainant.







[22] Herman Kafima is the brother of Joseph and owns the shebeen
where complainant and the others were that night. According to him
he closed his shebeen whereafter he, complainant, Rosa and Joseph
walked home together. He noticed that they were being followed by
the appellant who then held the complainant on her arm. They
continued walking and later on he heard “the girl” crying
but he said they could not turn back as he did not know whether they
were involved in a relationship. Herman said he saw the appellant
outside the shebeen that night, as well as Seth.







[23] Herman’s evidence only corroborates the complainant’s
version in as far as the appellant was holding her hand and the cries
he heard later on. It contradicts her evidence where he said they
had left the shebeen together while, according to her (and Joseph),
they did not. It is further not clear why he was able to make the
observations he testified about while those in his company were
unable to do so and in fact gave different accounts of what happened
outside the shebeen.







[24] Seth testified that he had not been at the
shebeen on that particular day and was adamant that he neither met
with the complainant nor the appellant, as the complainant and Joseph
testified. His evidence therefore does not support their versions in
that respect.







[25] Rosa confirmed having been at the shebeen with the
complainant, Herman and Joseph, but did not see Seth there. Although
she saw the complainant go outside after being called, she was unable
to see by whom. She did not see the complainant outside after they
had closed the shebeen and walked home; only some figures standing in
the dark at a distance. Unlike Herman, she did not see the
complainant being held on her hand by the appellant, despite them
being together all the time. She also heard a person scream as they
reached the tarred road.







[26] The last witness called by the court is Selma, the appellant’s
sister and according to her she did not see the complainant with the
appellant at their home. Her evidence contradicts that of
complainant as regards them being together on that day.







[27] Appellant denied having committed either of the two crimes and
said that the evidence against him was a fabrication; also that he
was not at the shebeen or in the company of the complainant on that
day. According to him the complainant made a mistake with his
identity because he is not known by the name David David.







[28] The magistrate in his ex
tempore
judgment summarised the
evidence given by the respective witnesses whereafter he found that
the appellant was well known to the complainant and that there was no
reason why she would among all those present at the shebeen, pick the
appellant to falsely accuse him for having raped her. He also found
that there was a real possibility that Selma could have entered the
appellant’s room and because he was her brother, she had reason
to lie to the court. The learned magistrate found that the
complainant “exaggerated” her evidence by saying that
Herman and the others were chased away by the appellant. He then
rejected the
appellant’s evidence and found that
appellant was present at the shebeen; that he assaulted the
complainant; and that he had raped her. Unfortunately the magistrate
failed to give reasons how he came to these conclusions and on what
evidence he relied. Neither did he assess the
contradictions in the evidence between that of the complainant and
the other witnesses, and seems to have simply brushed it aside by
finding that the complainant “exaggerated” her evidence.







[29] At the close of the State case the
magistrate made the following remark:
“I
find it very interesting that the State really feels that the
evidence of the complainant could be sufficient and enough when other
people who could either corroborate that evidence or deny what has
been by the complainant could testify ….”

From this it is obvious that at the close of the State case, the
magistrate was not convinced that the evidence of the complainant was
enough for a conviction and he then called four more witnesses.
However, the extent of their evidence did not corroborate the
complainant’s evidence – except for that of Herman –
and rather contradicted the complainant’s version in material
respects.







[30] When the court is faced with two
irreconcilable versions, the court, in order to come to a conclusion
on the disputed issues, must make findings on (a) the credibility of
the various factual witnesses; (b) their reliability; and (c) the
probabilities (
Stellenbosch Farmers’
Winery Group Ltd & Another v Martell ET Cie and Others

2003 (1) SA 11 (SCA) ). In the present case the court did not assess
the credibility of the respective witnesses, nor their reliability,
as it was supposed to do, especially when the State case relies
solely on the evidence of a single witness i.e. the complainant.







[31] The contradictions between the evidence of
the complainant and the other witnesses, in my view, are material and
could not be overlooked or simply brushed aside by accepting
complainant’s evidence on the basis that she knew the appellant
and that she had no reason to falsely incriminate him; therefore the
appellant’s version had to be false. The trial court in this
regard clearly misdirected itself in its
assessment of the
evidence and undoubtedly would have come to a different conclusion
had it properly assessed the credibility of each witness
and the reliability of such evidence.







[32] The powers of a Court of appeal to interfere with the findings
of fact of a trial court are limited and in the absence of any
misdirection, the trial court’s conclusions, including its
acceptance or rejection of a witness’ evidence are presumed to
be correct. However, for the reasons set out in this judgment, we
are convinced that the trial court was wrong in accepting the
evidence of the complainant while rejecting that of the appellant and
that this Court is entitled to interfere and assess the evidence
afresh.







[33] The
contradictions in the evidence are, respectfully, much more than a
mere exaggeration of the facts on the part of the complainant. These
differences are material and in the absence of a reasonable
explanation, it must have an effect on the credibility of the
complainant. The complainant’s evidence that she returned to
the shebeen to finish a letter she was busy writing and her being
assaulted in the presence of the others, is irreconcilable with the
evidence of the other witnesses who did not see any of this or who
did not perceive the situation to be one where the complainant was in
any danger. Furthermore, it was only during cross-examination that
the complainant made mention of a second incident where she had been
raped by the appellant in the morning and had that been the case, I
find it incomprehensible why this was not mentioned earlier in her
evidence in chief. Also, had that formed part of her statement to
the police then the State undoubtedly would have preferred a second
charge of rape against the appellant. This appears to me to have the
making of an after thought. Complainant furthermore contradicted
herself by saying that she had been medically examined by a doctor
two days after she had been raped; while she only visited the
hospital on the 19
th
of July 2009, twelve days after the incident.







[34] Despite the
witnesses Joseph, Herman and Rosa leaving the shebeen together, they
gave contradictory accounts of what they observed on their way and
there is no
reasonable explanation for their
different accounts. It seems impossible to determine with certainty
which of the witnesses were telling the truth and what evidence the
court relied on when assessing the evidence as a whole. Suffice it
to say that it cannot
per se be
regarded as corroboration for the complainant’s version as it
simultaneously corroborates the appellant’s version.







[35] The probabilities
in my view do not favour the complainant’s version as regards
her screaming from where she was pulled up to the appellant’s
place without anyone coming to her rescue as there were other
shebeens nearby and also, the appellant’s family being at home
when complainant and the appellant arrived; that Selma entered the
room without the complainant seeking help from her; or complainant
not using the opportunity of running away.







[36] The question that
needs to be answered is whether the evidence of the four witnesses
called by the court sufficiently cleared the cloud of uncertainty
surrounding the evidence of the complainant or not. I believe the
answer is in the negative. The duty lies with the State to prove the
appellant’s guilt beyond reasonable doubt and I find it
difficult to see how this could be achieved on the evidence before
court. When regard is had to the self-contradictions in the evidence
of the complainant; the contradictions between her evidence and that
of the other witnesses on material aspects; as well as the
probabilities, I am unable to find beyond reasonable doubt that the
complainant was a reliable witness and the evidence that she gave,
being truthful.







[37] Although the
witness Herman claimed to have seen the appellant that night in the
company of the complainant, his evidence is so contradictory to what
Joseph and Rosa had testified, that it requires that the court should
follow a cautious approach where it is unsupported by other evidence.







[38] For the above
stated reasons this Court is not convinced beyond reasonable doubt
that the crimes preferred against the appellant had been proved
beyond reasonable doubt. The appellant’s alibi then seems
reasonable and possibly true.







See: Sikongo
Eino Siwombe v The State
(unreported)
Case No. CA 23/2008 delivered on 22
nd
September 2008 where it was said that:







It
is a trite principle in criminal proceedings that the prosecution
must prove its case beyond reasonable doubt and that the mere
preponderance of probabilities is not enough. Equally trite is the
observation that, in view of this standard of proof in a criminal
case, a court does not have to be convinced that every detail of an
accused’s version is true. If the accused’s version is
reasonably possibly true in substance the court must decide the
matter on the acceptance of that version. Of course it is permissible
to test the accused’s version against the inherent
probabilities. It cannot be rejected merely because it is
improbable; it can only be rejected on the basis of inherent
probabilities if it can be said to be so improbable that it cannot
reasonably possibly be true.”







[39] Whereas this
Court has come to the conclusion that the appellant’s alibi was
not shown to be false, it means that none of the two charges were
proved against the appellant.







[40] In the result,
the following order is made:







The appeal is upheld on
both counts 1 and 2 and the convictions and



sentences imposed, are set aside.



















__________________________



LIEBENBERG, A.J.























I agree.











___________________________



SHIVUTE, A.J.