CASE NO.: CC 21/2007
IN THE HIGH COURT OF NAMIBIA
In the matter between:
Heard on: 01 June 2009
Delivered: 01 June 2009
Reasons on: 14 July 2009
MANYARARA, AJ.:  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.
 The applicants seek a
judgment in writing setting out the reasons for the order and these
 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.
 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
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”.
 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.
 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,
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.
 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.
ON BEHALF OF THE APPLICANTS
W T Christians
ON BEHALF OF THE RESPONDENT
Office of the Prosecutor-General