Swartbooi and Another v S (CC 21/2007) [2009] NAHC 99 (01 June 2009);

Group

Full judgment

CASE NO.: CC 21/2007

IN THE HIGH COURT OF NAMIBIA


In the matter between:


BENJAMIN SWARTBOOI FIRST APPLICANT

BERNARD ROOI SECOND APPLICANT



and


THE STATE RESPONDENT


CORAM: MANYARARA, A J


Heard on: 01 June 2009

Delivered: 01 June 2009

Reasons on: 14 July 2009


REASONS

MANYARARA, AJ.: [1] The applicants were convicted by this Court on 2 counts of contravening section 2 of the Combating of Rape Act, in that on or about 9 December 2004 they raped the complainant. They were each sentenced to 15 years imprisonment on each count and the sentences were ordered to run concurrently. Their appeal against conviction and sentences was dismissed. They applied for leave to appeal to the Supreme Court and the application was dismissed. The order dismissing the application specified that the Court abides by its judgment on the conviction and sentence.


[2] The applicants seek a judgment in writing setting out the reasons for the order and these are they.


[3] At the hearing, Mr Christians who represented the applicants made no submissions on the conviction but filed written heads of argument on sentence. The applicants persisted in attacking the conviction and filed grounds supporting the application.


[4] The main thrust of the application appears to be that the Court convicted the applicants wrongly in the respects enumerated in the grounds of appeal as follows:

1. Applying the wrong test of prospects of success on appeal.

2. Ignoring the complainant’s right to withdraw the case; and

3. Failing to apply the cautionary rule on the evidence of the “single eye witness”.


[5] The principles enumerated in S v Ackerman En ‘n Ander 1973(1) SA 765 (A.D) and the other cases cited by the applicant are all to the same effect that, before refusing leave to appeal, the trial Judge must be satisfied that there are no grounds on which the Court of Appeal could draw a different inference from the facts from that which he has done. This is the principle which the Court applied in adhering to the verdict that the applicants were guilty of rape. It was on the same basis that the Court decided that the complainant’s withdrawal of the charges was ignored and the evidence of the State witnesses was accepted.


[6] The applicant’s grounds in the application for leave to appeal against sentence are similar to the grounds filed by Mr Christians that the Court over-emphasized the prevalence of the offence and failed to take into account, inter alia, the applicants’

1. Youthfulness.

2. That they spent 4 years in custody awaiting trial.

3. That the complainant did not sustain any physical or emotional harm and said she had forgiven the applicants who were well known to her.

and, in the circumstances, imposed an inappropriate sentence.


[7] The reasons for sentence addressed all the above points and I was again satisfied that a different Court would not arrive at a different result.




__________________


MANYARARA, J.



ON BEHALF OF THE APPLICANTS MR CHRISTIANS

Instructed by: W T Christians


ON BEHALF OF THE RESPONDENT MR LISULO

Instructed by: Office of the Prosecutor-General

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