Court name
High Court
Case name
Kornelius v S
Media neutral citation
[2011] NAHC 110

















CASE NO.: CA103/2009



IN THE HIGH COURT OF NAMIBIA



HELD AT OSHAKATI







In the matter between:







SAKEUS KORNELIUS
…..........................................................................................APPELLANT







and







THE STATE
…..........................................................................................................RESPONDENT











CORAM: LIEBENBERG J & TOMMASI J







Heard on: 08/12/2010



Delivered on: 08/04/2011











APPEAL JUDGEMENT



TOMMASI J: [1] The appellant a 24 year old male, was
convicted in the regional court of rape in contravention of section
2(1) (a) read with sections 1, 2(2), 2(3), 3,4,5,6 and 7 of the
Combating of Rape Act, 2000 (Act 8 of 2000) and sentenced to 10 years
imprisonment. The appellant now appeals against the conviction and
sentence.







[2] The respondent, represented by Mr Shileka, raised the following
points in limine: the notice of appeal does not comply with
rule 67 of the Magistrate’s Court Rules, in that it does not
contain grounds of appeal as envisaged in rule 67 (1); and the
subsequent amendment thereto is equally of no force and effect. He
further submitted that, if the Court finds that such grounds exist,
condonation should not be granted as the appellant failed to provide
a reasonable explanation; and there are in any event no prospects of
success. He further submitted that the magistrate was left with very
little time to respond to the amended notice of appeal and given the
short period opted not to add any additional reasons.







[3] Mrs Kishi, acting on behalf of the appellant amicus curiae,
filed an application for condonation for the late noting of the
appeal and the late filing of the amended notice of appeal. She
submitted that there are prospects of success. Ms Kishi went to great
lengths in an attempt to rectify the procedural errors made by the
appellant. The Court is indebted to counsel for her efforts made.







[4] It was common cause that the appeal was noted outside the
prescribed time limits. The appellant was convicted and sentenced on
14 March 2008 and his notice of appeal is dated 6 September 2008. The
appeal was thus noted more than 5 months outside the prescribed
period. There is no indication on the record when exactly the notice
of appeal was received by the clerk of court. The statement of the
magistrate does not reflect the date on which it was drafted and
there is no indication whether the clerk of court complied with rule
67(4), which provides that the clerk of court should, upon receipt of
the judicial officer’s statement, forthwith inform the
appellant that the statement has been furnished. This makes it
virtually impossible for this Court to determine whether or not the
appellant complied with rule 67 (5). The period within which the
appellant may amend the notice of appeal is calculated seven (7) days
from the date the appellant has been so informed.







[5] A “Notice of Condonation” accompanied the
notice of appeal. This notice does not contain an explanation of the
appellant under oath. A further letter was written by the appellant
on 19 August 2010 explaining the reasons for the delay. This
explanation was also not given under oath. The only explanation given
by the appellant under oath is attached to the application for
condonation prepared with the assistance of Ms Kishi. The appellant
admitted that his right to appeal was explained to him by the court a
quo
but averred that he did not know how to note an appeal. An
additional reason was that the clerk of court delayed in furnishing
him with the record. These are common reasons advanced for non
compliance with the rules by appellants who personally prosecute
their appeals.







[6] A large number of accused appearing in the district court are not
legally represented. The protection of the unrepresented accused’s
right to a fair trial demand that he/she be informed of his/her right
to appeal. It has however become apparent that most unrepresented
appellants lack the knowledge to do so in accordance with the rules,
despite them having been informed of their right to appeal. It has
now become imperative that the issue of assistance to the
unrepresented accused after sentence and conviction, should be
addressed. The administration of justice requires this. The Court is
constantly burdened with appeals that are not in accordance with the
rules. If it is allowed to continue, the administration of justice
will “degenerate into disorder”(S v KAKOLOLO 1







[7] The noting of an appeal from the Magistrate’s Court is
governed by rule 67 of the Magistrate’s Court Rules and section
309 of the Criminal Procedure Act, 51 of 1977. It outlines the
procedures, step by step to be followed by all the parties in clear
terms. It even affords some assistance to an accused who has physical
disabilities or who is illiterate. If all the parties involved play
their part, there should be no reason why appeals cannot be dealt
with expeditiously. Regretfully, this is not the case.







[8] The court a quo, after conviction and sentence advised the
appellant that he may note an appeal with the clerk of the court
within 14 days from the date he has been so convicted and sentenced.
Rule 67 (1) requires that the appeal should be noted in writing and
that the appellant should:



set
out clearly and specifically the grounds, whether of fact
or
law
or
both fact and law, on which the appeal is based”
(my
emphasis)











[9] Many unrepresented accused have little or no formal education. It
would be difficult for those individuals to understand the import of
Rule 67 (1). This rule presupposes that the person noting the appeal
would be able to discern when an error in law was made. Many
qualified legal practitioners have difficulty drafting a notice of
appeal with the particularity that is required. In S v
KAKOLOLO(supra)
and S v WELLINGTON 2legal
practitioners were responsible for failing to draft proper grounds of
appeal. Given the rate of appeals by unrepresented accused, it is
evident that it is simply not enough to inform the accused of his
right to appeal but that the procedure should also be explained. This
would to some extent level the playing fields between represented and
unrepresented accused.







[10] What follows is meant to be helpful guidelines to the judicial
officers when explaining the right to appeal to an unrepresented
accused. The accused should be informed of his right to appeal to
this Court; and that he may do so on his own or assisted by a legal
practitioner, be it one of his own choice or appointed by the
Directorate of Legal Aid; In respect of the procedure the accused
should be advised that he/she:




  • should note the appeal in writing; (Rule 67 (1));



  • may approach the clerk of court for assistance to write out the
    notice of appeal if unable to do so due to a physical disability or
    illiteracy (Rule 67(2));



  • could obtain a copy of the record from the clerk of the court and if
    not able to afford payment for same then the magistrate may be
    approached with a request that it be provided free of charge or at a
    reduced fee (Rule 66(9));



  • should set out clearly and specifically the
    grounds, whether of fact or law or both fact and law, on which the
    appeal is based (Rule 67(1));



  • should stipulate in the notice of appeal whether the appeal is
    against the conviction or sentence or both the conviction and
    sentence;



  • should affix a date to the notice of appeal;



  • should lodge the notice of appeal with the clerk of court within 14
    days from date of conviction and sentence (Court days i.e Saturday,
    Sunday and public holidays excluded; and calculated by excluding the
    first day and including the last day); (Rule 67 (1) & Rule
    2(2));



  • if for some reason he/she is unable to note the appeal within the
    prescribed time limits, he/she should apply, in writing, to this
    Court for extending the period by, explaining under oath, the
    reasons for the failing to comply with the stipulated period;
    (Section 309 (2) of the Criminal Procedure Act, 1977 (Act 51 of
    1977); and to state reasons why there are prospects of success on
    appeal;



  • should, without delay, file the application for extending the time
    limit with the clerk of court.



  • may amend the notice of appeal and file such amended notice with the
    clerk of the court within seven (7) days after being informed by the
    clerk of court that the magistrate had furnished his statement
    envisaged in rule 67 (3)








[11] Once it is apparent from the record that the accused has been
informed, not only of his right to appeal, but also how to note the
appeal; and that this information has been received by the accused
(this can be achieved by including confirmation that a copy of a
document setting out the procedure to be followed, has been handed to
the accused
), a stricter approach, which is required for the
efficient administration of justice, will be taken by this Court. If
it is expected of an appellant to adhere to the rules of court then
the Court must be satisfied that he/she knows and understands what
the provisions of those rules are.







[12] Given the fact that this appellant was informed of his right to
appeal but did not know how to note the appeal, the Court should
determine whether non compliance of the rules should be condoned
based on whether or not there are reasonable prospects of success.







[13] The facts are briefly as follow: A school teacher noted that the
complainant, a learner in her class, was menstruating heavily. She
sent the complainant home to go tell her parents. The teacher
resorted to a written note to the mother of the complainant when the
complainant came to school the next day without washing her soiled
dress. The teacher discussed this issue with the mother when she
visited the school. The mother considered the complainant too young
to start menstruation and mentioned the possibility that her daughter
may have had sexual intercourse with the domestic worker in whose
care she left the children. The mother indicated that she would talk
to the complainant.







[14] The teacher, after the discussion she had with the mother,
called the complainant to the staff room and encouraged her to talk.
Initially the complainant was reluctant to speak and just started
crying. The teacher asked her if it was somebody at the house and she
replied that “it is Madala”(the alias of the
accused). She asked her where it happened and she said that it took
place at home. When the teacher wanted to know where her mother was
at the relevant time, she informed the teacher that her mother was in
hospital.







[15] The mother was summoned to school again and the complainant in
her presence, confirmed that she was raped by “Madala”.
The principal then instructed the mother of the complainant to take
her daughter to the hospital. The complainant was taken to hospital
and examined by a medical doctor who compiled a medical report.







[16] The complainant testified that she was in the cooking room
(kitchen) with her younger brother Leonard and her cousin. Her father
went to the field with the accused. After some time the accused
returned to the homestead. He lifted her from the kitchen and took
her to his room. The complainant testified that her brother and
cousin were present in the room when he took off her panties and had
inserted his penis into her vagina. He told the other children to
take the calves to the camp. After the appellant had sexual
intercourse with her, she returned to the kitchen. The appellant
threatened all the children to beat them if they should tell anyone
about it. She did not tell anyone out of fear that she would be
beaten by appellant until she was confronted by the teacher at
school. When cross-examined she testified that this happened on 6
June 2006 at 07H00 am. Complainant’s mother confirmed that she
was in hospital since June 2006 and was away from home for a period
of 3 months. On her return she found a note from the school
requesting her to come to school which she did. She confirmed the
teacher’s account of the first and second visit to the school.







[17] Leonard, a ten (10) year old brother of the complainant
testified that he was present when the appellant took the complainant
from the kitchen to his room. He testified further that he was in the
room and he observed that the appellant took off the panty of the
complainant. According to him they covered themselves with a blanket.
He testified that complainant was complaining and the appellant
ordered them to leave the room to attend to the calves. They met the
appellant when they returned from the field and he threatened to beat
them if they would tell anyone about the incident. This witness was 8
years old when he witnessed the incident.







[18] The appellant pleaded not guilty and although the record is not
very clear, it appears that he, in his plea explanation, indicated
that the mother of the complainant had a personal grudge against him
and that he has been falsely accused of raping the complainant. He
denied that he had sexual intercourse with the complainant and during
cross examination put it to the complainant that he was not in the
village during the time the offence was committed. He called one
witness to confirm that he was not in the village at the time. This
witness could not recall the dates when the appellant left the
village.







[19] The appellant objected to the handing
in of the medical report in the court
a quo
and raised it as a ground of appeal in his
Notice of Appeal”. The
court
a quo ruled that
it was admissible. In terms of s212 (7A)(a) of the Criminal Procedure
Act, 1977 (Act 51 of 1977) as amended
3
the medical record prepared by a medical practitioner
who treated a victim of an offence with which the accused is charged,
is admissible at that
proceeding and
prima
facie
proof that
the victim concerned suffered the
injuries
recorded in that document. The court
a
quo
therefore
correctly admitted the medical report into evidence.

The appellant objected to the handing in of the report
of the doctor but the court ruled it to be admissible. The medical
report reflects that the complainant’s hymen was “
broken
and that there was evidence of an old penetration in the
vagina. Save to mention that the mother testified that she discovered
the complainant was sexually molested when examined; the court
a
quo
did not refer to the contents of the
report. It cannot therefore be said that this fact played a
significant role when the court
a quo weighed
the evidence. The court
a quo was
in any event entitled to accept as
prima facie
proof that the complainant suffered the injuries
mentioned therein. The findings of the doctor as contained in this
report is consistent with the allegation made by the complainant that
sexual intercourse took place. There is therefore no merit in this
ground of appeal.







[20] A further ground of appeal mentioned in the amended notice of
appeal was that the Court a quo failed to apply the cautionary
rule to the evidence of the complainant who was a single witness and
a child witness, susceptible to suggestions from adults. Factually,
the submission that the complainant was a single witness is not
entirely correct. Leonard was present when the complainant was taken
from the kitchen; and witnessed how the appellant removed the
complainant’s panty in his room. It is only the sexual act
itself he did not observe as he testified that they covered
themselves with a blanket.







[21] The second submission that caution should be applied when
considering the evidence of a child, is also not correct. Section 164
of Act No. 51 of 1977 as amended
4,
provides as follow:



A court shall not regard the evidence of
a child as inherently unreliable and shall therefore not treat such
evidence with special caution only because that witness is a child.”







[22] Ironically, the mother suggested to the teacher that perhaps the
child was having a heavy menstruation because she had sexual
intercourse with the domestic worker who she had left at home when
she was hospitalised. The teacher did not even think of this
possibility until it was suggested by the mother of the complainant.
Nowhere on the record does it indicate that anybody suggested it to
the complainant that she was raped by the appellant. The teacher, on
the strength of what she was told by the mother, confronted the
complainant by asking probing questions. The complainant of her own
accord mentioned that it was the appellant. The teacher did not know
the appellant and could not have suggested this to the complainant.
Although the mother indicated that she would talk to the complainant,
the record reflects that the complainant’s mother only learnt
that the complainant was raped when she was summoned to the school
the second time. The mother of complainant testified that she was not
the one implicating the appellant and that she bore him no ill will.
There is therefore no evidence on record that any suggestion was made
to the complainant. This ground of appeal, equally, is without merit.







[23] The remaining grounds of appeal as contained in the Amended
Notice of Appeal are that: the court a quo disregarded the
discrepancies in the evidence of Leonard Hatutale Gabriel and the
complainant; the court a quo totally ignored the defence of
the appellant and did not assist him to establish his alibi. The
criticism levelled against the evaluation of the evidence by the
court a quo is to some extend justified and it is perhaps
prudent to repeat what has been said in this regard before in S v
ENGELBRECHT 2001 NR 224 (HC) at p 226 E-G



On a situation like the one this case
presents Leon J's remarks in S v Singh 1975 (1) SA 227 (N) at 228F-H
are apposite.



'Because this is not the first time that one has been faced on
appeal with this kind of situation, it would perhaps be wise to
repeat once again how a court ought to approach a criminal case on
fact where there is a conflict of fact between the evidence of the
State witnesses and that of an accused. It is quite impermissible to
approach such a case thus: because the court is satisfied as to the
reliability and the credibility of the State witnesses that,
therefore, the defence witnesses, including the accused, must be
rejected. The proper approach in a case such as this is for the court
to apply its mind not only to the merits and the demerits of the
State and the defence witnesses but also to the probabilities of the
case. It is only after so applying its mind that a court would be
justified in reaching a conclusion as to whether the guilt of an
accused has been established beyond all reasonable doubt. The best
indication that a court has applied its mind in the proper manner in
the abovementioned example is to be found in its reasons for judgment
including its reasons for the acceptance and the rejection of the
respective witnesses'.”







[24] The court a quo in his judgment concludes: “It
must be borne in mind that these are young children that cannot make
up such serious stories of intercourse.
” From the judgment
it is apparent that the court a quo to some degree relied on
this conclusion to determine that the two child witnesses were
reliable.







[25] The premise on which this conclusion is based is the inverse of
the provision contained in section 164 of the Criminal Procedure Act
i.e that the evidence is reliable because it is a child. The
credibility of young witnesses should be determined in the same
manner as all other witnesses and it would therefore not be correct
to conclude that the evidence is reliable merely because it was given
by young children.







[26] Given this misdirection by the court in evaluating the evidence
and the valid criticism that the court did not consider the
discrepancies in the evidence of the complainant and Leonard; this
Court should evaluate the evidence of the two child witnesses to
ascertain whether they were in fact credible witnesses. There were
some discrepancies between the evidence of the complainant and that
of Leonard. One would be that the complainant failed to mention that
the blanket was pulled over them. Another would be the place where
the appellant threatened them. These discrepancies are minor
discrepancies that does not detract from the material allegations i.e
that the appellant took the complainant from the kitchen into the
room, he had taken off her panty; that he sent the other children out
of the room to attend to the calves and that he threatened to beat
them. These minor discrepancies are hardly surprising given the
lengthy period that passed between the date that the incident took
place i.e 6 June 2006 and the date the trial commenced on 26 February
2008. Having considered the evidence of these two witnesses the Court
arrives at the same conclusion as that of the court a quo i.e
that Leonard’s testimony substantially corroborates the
complainant’s version of the events that took place.







[27] The appellant’s defence was essentially that the
complainant’s mother influenced the complainant to implicate
him because he refused to do household chores and that he was not
present in the village at the time. The court a quo rejected
the appellant’s submission that the allegations were fabricated
for the reason advanced by the appellant. This Court found that there
was no evidence to support the contention that the complainant was
influenced by anyone to implicate the appellant. The mother of the
complainant further denied that she had a personal grudge against the
appellant in the following words:



How could I hate Madala that way,
because when he was brought from Ndabe from Okalidi to our village,
he was just broke, and was sleeping from (sic) my house.
.”



In my view the court a quo correctly rejected the appellant’s
submission that the complainant implicated him because her mother had
a dispute with the him.







[28] The court a quo afforded the appellant the opportunity to
call a witness to confirm that he was not present during the month
the complainant alleges he had sexual intercourse with her. The
appellant wanted to know if this witness could recall the month that
he had taken a boy by the name of Matheus to a cattle post. This
witness was however not able to recall the month this took place. The
court a quo correctly concluded that this witness’
evidence did not assist the appellant. The mother confirmed during
cross-examination that she left the appellant at the village when she
went to the hospital during June 2006. The appellant confronted the
complainant with the fact that he was not around in the village at
the time of the rape. The complainant responded as follow: “When
he was having sex with me, Leonard was around. He was around also.”

The complainant provided the appellant under cross-examination with
the date and time it took place. The appellant, although he raised
the fact that he was not present when cross-examining the
complainant, does not give the details of his whereabouts when he
testified.







[29] In S V VAN DER MEYDEN 1999 (2) SA 79 (W) (1999 (1) SACR 447)
Nugent J at p 449 H-E remarked as follow:



A court does not base its conclusion,
whether it be to convict or to acquit, on only part of the evidence.
The conclusion which it arrives at must account for all the
evidence.. “







[30] The appellant was well known to the complainant and Leonard.
This reduces the risk of them being mistaken about the appellant’s
identity. The independent report made to the school teacher by the
complainant in respect of the identity of the person who had sexual
intercourse with her further strengthens the evidence of the
complainant. The medical evidence is further consistent with the
complainant’s averment that sexual intercourse took place. The
material aspects of the complainant’s evidence are corroborated
by an eyewitness. The appellant on the other hand relied heavily on
the fact that the mother and daughter implicated him falsely. The
proven facts do not support such a finding. Furthermore, although no
onus rests on the appellant to prove his alibi, there is no cogent
evidence upon which the Court can consider whether it is reasonably
possibly true that he appellant was not present at the time. The
State provided clear evidence that the appellant was present at the
time. The appellant opted not to elaborate on this defence and to
place the facts thereof before the court a quo.







[31] The Court finds that the State had proven, by way of direct
credible evidence, that it was the appellant who had sexual
intercourse with the complainant against her will and that he used
threats to stop the complainant and Leonard from reporting it to
their parents. In the final analysis, this Court when evaluated the
body of evidence including the version of the accused, cannot come to
a different conclusion than that of the court a quo. There are
no meritorious grounds found upon which this Court can conclude that
the appellant has reasonable prospects to succeed in his appeal
against conviction.







[32] No ground was raised and no argument presented by counsel for
the appellant in respect of the sentence. The court a quo, found
that there are no substantial and compelling circumstances present
and imposed the minimum sentence. This Court, having regard to the
evidence presented in mitigation and the reasons for sentence by the
court a quo, in any event is of the opinion that there are no
reasonable prospects of success in the appeal against the sentence.







[33] In the result:



1. the application for condonation is refused and the matter is
accordingly struck from the roll



2. this judgment must be brought to the attention of the Chairperson
of the Magistrate’s Commission



















































____________________



TOMMASI J



















I concur



























____________________



LIEBENBERG J




12004
NR 7 (HC)




21990
NR 20 (HC
)





3Criminal
Procedure Amendment Act 24 of 2003




4(Supra)





15