Court name
High Court
Case name
Kapia v S
Media neutral citation
[2011] NAHC 175













CASE NO.: CA 91/2010











IN THE HIGH COURT OF NAMIBIA



HELD AT OSHAKATI







In the matter between:







NELLY SHIPIA KAPIA
….............................................................................APPELLANT







and







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











CORAM: LIEBENBERG, J et TOMMASI, J.







Heard on: 10.06.2011



Delivered on: 20.06.2011











APPEAL JUDGMENT















LIEBENBERG, J.: [1]
The appellant was arraigned in the Regional Court sitting at Outapi
on charges of contravening section 2 (1)(a) of Act 8 of 2000 –
Rape; alternatively, contravening section 14 (a) of Act 21 of 1980 –
Committing or attempting to commit a sexual act with a child under
the age of sixteen years; alternatively, contravening section 14 (b)
of Act 21 of 1980 – Committing or attempting to commit an
indecent act with a child under the age of sixteen years. Appellant
was convicted on the main count of rape, as charged, and sentenced to
fifteen (15) years’ imprisonment. The appeal lies against both
the conviction and sentence.







[2] Despite the accused (appellant) having pleaded
on all three charges, the trial court only pronounced judgment on the
main count and not the two alternative counts. Section 106 (4) of the
Criminal Procedure Act, 1977 (Act 51 of 1977), hereinafter referred
to as ‘the Act’, contains the important principle that an
accused who pleads to a charge shall be entitled to demand an
acquittal or to be convicted (see
S v
Mphetshwa
1;
S v Gwala and Others2).
Whereas the exceptions listed in s 106 (1) do not find application,
it was irregular for the trial court not to pronounce itself on the
alternative charges. This notwithstanding, I am convinced that the
appellant was not in any way prejudiced thereby. Neither was it a
point in contention in appellant’s notice of appeal.







[3] During the trial the appellant was
unrepresented, but when the matter came on appeal he was represented
by Mr.
Kamanja, while
Mr.
Shileka appeared
for the respondent.







[4] The appeal was noted outside the prescribed
period by more than one month and appellant now in terms of s 309 (2)
of the Act seeks leave from this Court to extend the period of
fourteen (14) days mentioned in the Magistrates’ Court Rules
(Rule 67 (1)) due to non-compliance on his part. The application is
supported by an affidavit by the appellant and a confirmatory
affidavit of his legal representative and meets the requirements as
set out in
S v Kashire3.
Appellant furthermore applied for condonation of the late filing of
the Amended Notice of Appeal. The respondent argued that the
explanation given by the appellant, explaining the delay, is not
reasonable and that there are no prospects of success on appeal. In
view thereof both counsel were requested to address the Court on the
application as well as the merits.







[5] Appellant attributed his delay in filing his notice out of time
to a conjuncture of circumstances namely: That his conviction came as
a shock to him and although the rights of appeal were explained to
him at the end of the trial, he did not fully comprehend what it
meant; and as he was unrepresented, there was no one who could
explain it to him. It was only after a few weeks of his incarceration
that fellow inmates explained to him that he could explore an appeal
against his conviction and sentence if he was of the view that it was
not justifiable. Appellant however remained uncertain where he had to
lodge his appeal. He had given up on access to lawyers and decided to
note an appeal in person and with the assistance of fellow inmates.







[6] Counsel for the respondent conceded that, in the light of the
appellant being unrepresented, he might not have fully understood the
import of the explanation of his right to appeal when explained to
him by the court at the end of the trial; which explanation seems
reasonable. He, however, was of the view that there were no prospects
of success on appeal.







[7] The explanation given to the appellant as per
the record of the proceedings in the court a
quo,
reflects that the appellant was
informed that, if he was dissatisfied with his conviction and
sentence, he could lodge an appeal with the Clerk of the Court within
fourteen days from that day onward. Although this explanation did not
include the procedure which the appellant should have followed or in
any particularity set out the requirements of Rule 67 of the
Magistrate’s Court Rules, it at least informed him that he
could appeal his conviction and that it must be lodged with the Clerk
of the Court within a period of fourteen days. Appellant’s
averment that he did not know where he had to lodge his appeal is
simply not true.







In an unreported judgment of this Court recently
delivered in
Sakeus Kornelius v The
State
4
the Court raised its concern over the manner in
which prospective appellants are required to comply with the rules in
circumstances where they are unrepresented and unfamiliar with the
import of the rules as these were not fully explained to them by the
trial court. In paragraph [6] of the judgment (page 3) it was said
that it has now become imperative that the issue of assistance to the
unrepresented accused as to how an appeal should be lodged after
conviction and sentence, should be addressed. The Court in paragraph
[10] gave clear and helpful guidelines on the nature of the
assistance to be provided to the unrepresented accused by the
presiding judicial officer at the end of the trial. There is no need
to restate in this judgment the guidelines listed therein and it will
suffice to say that, not only does the administration of justice
require that prospective appellants are properly informed of their
rights to appeal, but also that such practice would simultaneously
relieve the burden on this Court to deal with a large number of
appeal cases in which the applications for condonation and the
appeals itself, are not in order and not in compliance with the
rules, due to ignorance on the part of the appellants. More so where
this Court firmly holds the view that the rules equally apply to
represented and unrepresented appellants and must, as a matter of
principle, be adhered to by all litigants.
5
Presiding officers in the lower courts are
accordingly encouraged to give serious attention to these guidelines
and to take it into account when explaining the right of appeal to
unrepresented accused.







[8] Whereas the explanation given in the present instance falls short
from what the court ought to have informed the appellant about his
right to appeal and the respondent’s concession made in this
regard, I am satisfied in the circumstances of this case, that the
explanation is reasonable.







[9] However, the prospects of success, being part of the application
for condonation, will be considered on the merits.







[10] In the original Notice of Appeal (dated 27 August 2008)
appellant listed twelve grounds on which the appeal against
conviction and sentence is based. Not all of these grounds meet the
requirements set by Rule 67 (1) of the Magistrate’s Court
Rules, as it lack particularity. The ‘grounds’ falling in
this category are those generally dealing with the court’s
finding that the State proved its case beyond reasonable doubt (1st
ground); that appellant was convicted without any ‘technical
evidence’ such as a blood sample of the appellant (3rd and
10th ground); that the court failed to consider the
possibility of false incrimination of the appellant (4th
and 9th grounds); and, that the magistrate was bias (7th
ground). Grounds 11 and 12 are nonsensical and can safely be ignored.
These so-called grounds are accordingly not considered for purposes
of the appeal.







[11] The remaining grounds are the following: That there was no
evidence before the court which linked the appellant to the
commission of the offence of rape; that the trial court misdirected
itself by giving insufficient weight to the medical examination
report adduced as evidence during the trial; that the trial court
erred by failing to assist the appellant (during cross-examination of
the State witnesses); and, that the court relied on hearsay evidence
in order to convict the appellant.







Additional eight grounds were raised in appellant’s Amended
Notice of Appeal (dated 20 January 2011) of which the seventh and
eighth grounds will not be considered due to its generality, clearly
not satisfying the requirements set in the rules. Whereas the amended
grounds of appeal largely incorporate those (valid) grounds raised in
the original notice, the Court will focus on these grounds as dealt
with by the appellant’s counsel in the heads of argument, as
amplified in his submissions.







[12] Additional reasons were furnished by the presiding magistrate in
respect of the original, as well as amended notices of appeal, and
form part of the record.



[13] The State case was based on the evidence of the complainant and
four other witnesses, whose evidence was circumstantial. The evidence
before the court a quo and on which the appellant was
convicted, can be summarised as follows:







[14] Complainant was seven years old when she gave evidence, but at
the time of the alleged rape, she was merely four years old. It is
common cause that at that stage she was temporarily staying with her
grandparents at Ongozi village while her mother attended a workshop
elsewhere. Although the appellant was not related to the
complainant’s grandparents, he was staying with them, from
where he attended school. He had his own room standing separately but
which was part of the homestead where, according to the complainant,
the appellant had sexual intercourse with her. She said she was at
home with her grandparents when the appellant took her to his room
and after he removed her clothes, he laid her on her back and
inserted his penis into her vagina and anus. During this she
experienced pain and started crying whereafter the appellant handed
her a book with pictures. When asked by the prosecutor whether this
was all that happened to her inside the room, she answered in the
affirmative. From the complainant’s evidence it would appear
that after she stood up “two grannies” examined her
private parts. She furthermore denied that she used to enter the
appellants room with the other children – as he claims. Her
evidence on this point is not supported by that of her grandmother,
Selma Palema.







[15] After the magistrate duly explained to the appellant his right
to cross-examine the State witnesses, he questioned the complainant
about an allegation earlier made of him having licked the
complainant’s genitals; which allegation is contained in the
rape charge set out in the indictment but was not testified on by the
complainant in her evidence in chief. In re-examination she testified
that the sequence of events was that the appellant first inserted his
penis into her vagina and anus and thereafter he licked her vagina.







[16] The evidence of the remaining State witnesses is as follows:
Penny Jonas is also a minor of the same household and she said that
the complainant related to her one afternoon that she was “done”
and licked by the appellant between her legs in his room; and that
she thereafter was paining when urinating. This was said in the
presence of the appellant who reacted by threatening to beat and kill
them if they were to report it to the elders. Because of these
threats she did not make a report to anyone.







[17] Selma Pelema is the grandmother to the complainant and she
testified that she and her husband were sitting together outside
under a tree when they heard the complainant crying. She later on
noticed that the complainant was having a book with pictures which
complainant said was given to her by the appellant. The following
morning the complainant reported to her that the appellant had “done”
her and pointed at her genitals. Complainant, on the witness’
questioning, confirmed that the appellant had undressed her. She
examined the child’s genitals and observed that it was reddish.
She then summoned her neighbour, Selma Ananias, to come and look and
after she narrated the story to her, she also examined the
complainant. They decided to clean the complainant by wiping her with
a cloth, soaked in warm water.



She went on to say that she and her husband then called the appellant
and asked him what he had done to the complainant the previous day,
but that he denied having done anything wrong. When asked why the
complainant was crying the previous day the appellant explained that
it was because he had put her outside through the window.
Complainant’s explanation to them however, was that she cried
because the appellant was “doing” her. When the
complainant’s mother returned (one week after she had left)
they made a report to her and after she examined the complainant
herself, she called the appellant and inquired from him what he had
done to her child. Appellant replied by saying that he wanted to tell
them the truth which is that he had only “licked the victim”
but denied having inserted his penis into her vagina.







[18] Selma Ananias confirmed having been called by her neighbour and
told to examine the complainant’s genitals. She observed that
on the inside of the labia it was reddish and “some white
things like sperms” between the legs. At that stage the
grandmother remarked that the child had been raped. She was the only
one who mentioned about the “white things” observed on
the complainant.







[19] The testimony of Josephine Kanadunge, complainant’s
biological mother, confirmed the complainant’s age as being
four-and-a-half years old at the time of the alleged rape incident.
She is a teacher by profession and had left the complainant with her
parents when she had to attend a workshop. Upon her return one week
later she was informed that her daughter was raped by the appellant.
She examined the complainant and noticed that the labia minora was
swollen and reddish. When she questioned the complainant she told her
that the appellant had licked her “between her vagina and then
he put his penis and he was moving”; that she was crying and
was given a book with pictures inside by the appellant. Josephine
then called the appellant and asked him whether he was responsible
for what has been reported to her, to which he replied that he had
only removed the complainant’s panty and licked her on her
vagina. In cross-examination appellant put it to the witness that he
did not make such admission but she was adamant that he did. What he
denied is that he had sexual intercourse with her. Josephine
proceeded to the police and from there she went to Okahao hospital
that same day.







[20] From the testimony of Josephine Kanadunge it would appear that
the complainant was examined by a doctor on the 24th of
October at Okahao hospital but no medical report to that effect was
introduced as evidence during the trial. The medical report (Exh.
‘B’) which was handed in by agreement reflects that the
complainant was examined at Oshakati State hospital on the 31st
of October 2005, (and not Okahao) one week after her
being examined at Okahao. The prosecution did not lead evidence
explaining why there is no medical report pertaining to the
examination done on the complainant at Okahao on the 24th;
neither what circumstances gave rise to a second examination
conducted at Oshakati one week later. In fact, this discrepancy was
never addressed during the trial.







[21] The medical report reflects the following: There were no visible
injuries on the complainant; the labia (majora/minora) were normal;
the hymen was intact; there was no haemorrhage detected; and the anus
and perineum were normal. In conclusion the doctor remarked that the
gynaecological examination was normal and that no injury was found.







[22] The appellant elected not to testify in his defence and had no
witness to call. In an elaborated plea explanation given at the
commencement of proceedings, he denied having had sexual intercourse
with the complainant as alleged and said he was lying in his room
when she entered. When he wanted to study he put her outside through
the window, causing her to start crying. He let her back in and gave
her a book with pictures inside and she left when he told her to go.
The following day he was asked by the elders whether he had slept
with the complainant and why she had been crying the previous day.
When the neighbour came she observed “white sperms between the
legs”. When asked by the complainant’s mother what he had
done to her child he replied that he had not done anything to her. He
was subsequently arrested.







[23] A reading of the trial court’s ex tempore judgment
shows that the court in its evaluation of the evidence found that the
complainant was “very consistent in her evidence even when
she was cross-examined by the Accused person”
; that her
evidence was corroborated by Penny Jonas, to whom the first report
was made and whom the court also considered to be consistent in her
evidence; and that there was evidence of the complainant’s
vagina being reddish, testified on by the two witnesses who examined
her. Despite finding that the mother was not present during the
commission of the alleged offence, the court a quo found that
her evidence confirmed the date on which the incident occurred
i.e. the 17th of October 2005. This is clearly wrong and
is not borne out by the evidence, as Josephine’s evidence,
pertaining to dates, was that she had brought the complainant to her
grandparent’s home on the 17th and again came to
fetch her on the 24th of October. There was no evidence
before the trial court that the alleged incident took place on the
same day the complainant was dropped off at her grandparents’
place either. Her evidence therefore cannot be seen as confirmation
or corroboration of an alleged incident which took place in her
absence and which she had no independent knowledge of.







[24] The court had regard to the appellant’s plea explanation
and found that he had put himself on the scene; and his admission of
having handed a magazine to the complainant, “is consistent”
with the complainant’s evidence. It then concluded that in view
of the complainant’s testimony, she could not have fantasised
something beyond her imagination as to what happened to her; and in
the absence of rebutting evidence the court had no reason to reject
the evidence of the State witnesses.







[25] In the first ground in the Amended Notice of
Appeal, the appellant addresses, what are referred to as cautionary
rules and which, it is submitted, the court
a
quo
failed to invoke when evaluating
the evidence of the complainant (victim) namely, the cautionary rules
applicable to the evidence of a minor child and the single witness.
Regarding the first mentioned, it was said that, due to the inherent
possibility that a minor child is susceptible to suggestions, the
trial court ought to have treated the evidence of the complainant
with due caution.







[26] The magistrate’s response to this ground of appeal was the
following:







It
is indeed so that a court must be cautious when it comes to child
witnesses as well as in cases of single witnesses. However the
cautionary rule has been abolished by the Combating of Rape Act.”







(It should be noted that the magistrate has incorrectly cited the
Combating of Rape Act instead of the Criminal Procedure Amendment
Act, 2003.)







[27] I do not fully comprehend the magistrate’s
explanation because on the one hand he seems to say that the court
must be
cautious when considering the evidence of child witnesses, but on the
other hand states that “the cautionary rule” has been
abolished by legislation. Furthermore, to which one of the rules was
reference made as being abolished?







[28] The correct position is that s 164 of the Act (CPA) was amended
by the Criminal Procedure Amendment Act, 2003 (Act 24 of 2003) by the
insertion of subsection (4) which reads:







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.”







In The State v Moses
Vapuleni Nghitewa
6
I occasioned to say at p. 14 para [28]:







The
earlier view held by the courts that there are inherent dangers in
the acceptance of the evidence given by children (Manda (supra)) and
that “the liberal rules governing the acceptance of children’s
evidence imposed a duty on the court to be cognisant of potential
objections to the evidence of children” no longer finds
application since the amendment of s 164 of the Criminal Procedure
Act ……. The effect of the amendment is that as regards
the acceptance of children’s evidence, the trial court is no
longer under a duty to adopt a cautious approach when evaluating the
evidence of children merely because of youthfulness; but must
approach such evidence in the same way as that of other (adult)
witnesses.”







[29] Although the application of a general
cautionary rule has been abolished by s 164 (4) of the Act, the
evidence in a particular case may still call for a cautionary
approach to be followed when considering the evidence of a witness –
irrespective whether or not that witness is a child. To adopt this
approach will largely be determined by the facts and circumstances of
a particular case. The need for the trial court to approach such
evidence with caution (in the light of the evidence adduced at the
trial) might increase where the accused faces mandatory custodial
sentences. This approach is a far cry from the application of the
general cautionary rule that used to exist in respect of the evidence
of child witnesses and which are no longer applicable. The approach
is the same as that followed in
S v
Katamba
7
where it was stated that the cautionary rule in
sexual offences, as it had been traditionally applied, should be
abolished, however, that the evidence of any witness, especially a
single witness,
should be regarded with
caution
. In my view, the need for, and
the extent of, such caution, will largely depend on the evidence
adduced during the trial.







[30] However, the cautionary rule applicable to
the evidence of a single witness has not been affected by the
amendment of the Act; so, when the court has to evaluate the evidence
of a single witness it must approach such evidence with caution (see
S v Noble8).
What is required by the courts for the acceptability of single
evidence is that it must be credible.







[31] I have alluded to the fact that the magistrate in his additional
reasons stated that the court must follow a cautious approach when
assessing single evidence and that of a child witness; however, there
is nothing in the analysis of the evidence as reflected in the
judgment, that a cautious approach was indeed adopted. As earlier
stated the magistrate’s additional reasons do not clarify the
ambiguity created therein and which approach the court actually
followed when assessing the single evidence of the complainant.







[32] Complainant gave single evidence as regards
the alleged sexual act committed with her and it is trite that the
evidence of a single uncorroborated witness must be treated with
caution and should only be relied upon when credible. The trier of
fact will decide whether the single evidence, despite the fact that
there are shortcomings or defects or contradictions in the testimony,
is satisfied that the truth has been told.
9
In the present case the complainant’s
evidence is uncorroborated and the trial court had to follow a
cautious approach when evaluating her evidence. In addition thereto,
the court had to give consideration to the nature and circumstances
of the charge against the appellant and decide whether it called for
a cautious approach to be adopted when evaluating the evidence given
by the complainant – not as a general cautionary approach, but
whether the circumstances of the case required that a cautious
approach be adopted. For the reasons set out hereinafter, I believe
that the circumstances of this case did call for a cautious approach
to be followed by the trial court when evaluating the complainant’s
evidence. From a reading of the court’s judgment there is
nothing showing that this was the approach the trial court followed
when assessing the evidence.







[33] The court was alive to the fact that the complainant was a mere
four years old when the incident occurred and seven when she
testified. It was furthermore satisfied that her testimony was
consistent – the only finding the court made pertaining to the
evidence of the complainant. The same finding was made regarding the
evidence of the witness Penny, to whom the first report was made.
These findings formed the basis of a further ground of appeal in
which it is said that the magistrate erred in his findings, as none
of the State witnesses gave direct evidence, and that the complainant
was a single witness.







[34] Consistency in a witness’ version
should not be equated with corroboration, for corroboration must come
from an independent source. A previous consistent statement generally
has insufficient probative value.
10
The evidence of a complainant’s complaint to
another witness, therefore, cannot be regarded as corroboration and
such evidence is only admissible as an exception to the general
common law rule against self-corroboration. The self corroborative
statement will be allowed to show consistency in the complaint and to
rebut a suggestion of recent fabrication. The exception applies where
the
bona fides of
the witness is attacked when it is suggested that the evidence is not
what the witness had seen, but something he or she was told, or
something that was made up at a later stage. General
cross-examination which is aimed at showing that the witness is
unreliable or untruthful will however, not open the door for a
previous consistent statement to be admitted in evidence. Appellant
in this instance did not suggest that the complainant’s
evidence is a recent fabrication and the issue of consistency did not
arise during the trial. Hence, it would appear that by referring to
“consistency” in the judgment, corroboration was actually
meant.







[35] As stated, evidence of previous consistent
statements made by the witness is not to be regarded as corroboration
as it is not independent testimony showing that the crime charged has
been committed, but is rather aimed at showing the truthfulness of
the complainant and to repel any suggestion that the evidence was a
recent fabrication.
11
Therefore, by relying on the complainant’s
previous statements when assessing her credibility, the court
a
quo
clearly misdirected itself. The
same applies as far as it relied on the evidence of the complainant
having cried at a specific time and that she was seen with a
magazine, handed to her by the appellant. Firstly, the evidence does
not support the inference drawn by the court that the time the
complainant was heard crying was the same time the alleged rape took
place. Secondly, by corroboration is meant other evidence which
supports the complainant’s evidence and which renders the
evidence of the appellant less probable,
on
those issues in dispute.
12
The Court in S v
Gentle
13
at 431a-c said the following:







If
the evidence of the complainant differs in significant detail from
the evidence of other State witnesses, the Court must critically
examine the differences with a view to establishing whether the
complainant’s evidence is reliable
But
the fact that the complainant’s evidence accords with the
evidence of other State witnesses on issues not in dispute does not
provide corroboration
.”
(Emphasise provided)







[36] Counsel for the appellant particularly took issue with what he
described as “suggestibility” and argued that what the
complainant, being a young child, eventually testified about in
court, could largely have been influenced by what she was told; and
that the trial court should have warned itself against such
possibility. This was based on the evidence that Selma Pelema asked
the complainant whether the appellant undressed her and that she, in
the complainant’s presence said to her neighbour that the child
was raped.



I do not believe that this in itself could have had any influence on
the complainant’s testimony. A more worrying aspect of the
complainant’s evidence is what she had said at different stages
about what had happened to her. To the witness Penny she mentioned
that she was “done” and licked; to her grandmother only
that she was “done”, while pointing at her genitals; and
to her mother, that she was licked and that the appellant had “put
[his] penis and he was moving”. What the witnesses Penny and
Selma (the grandmother) understood by the word “done” was
not clarified with them; while the use of this word by the
complainant was neither clarified. To none of these witnesses was
anything mentioned about anal penetration; which obviously explains
why she was not examined there by any of the witnesses. Whereas the
licking of her genitals featured from the outset, it seems surprising
that it only came out in cross-examination after the appellant had
put it in issue.







[37] In my view these discrepancies might have been brought about due
to the young age of the complainant and the time lapse; factors the
trial court ought to have considered when analysing the evidence and
the effect thereof on the complainant’s credibility. It however
should not be necessary for this Court to speculate on possible
reasons for any uncertainty should have been clarified during the
trial, and not thereafter. In the absence of these discrepancies
having been satisfactorily explained, the trial court should have
adopted a more cautious approach in its assessment of the single
evidence given by the complainant, instead of simply accepting that
she could not have fantasized these events in all its detail. It is
not suggested that the complainant fabricated her evidence. The test
is whether her single evidence is reliable to the point that it can
be said that the truth has been told.







[38] The trial court found the evidence of Penny Jonas to be
corroboration that the appellant threatened the two girls. Penny’s
evidence was that when the complainant narrated the alleged rape
incident to her in the presence of the appellant he became “annoyed
saying that if you mention that I will beat you and kill you. If you
mention that to the elder people.”
The magistrate did not
indicate in his judgment or reasons the value given to this evidence
and whether or not it was seen to be an admission of guilt by the
appellant. Although such reaction might be indicative of an incident
which had to be kept under covers, it does not have the effect of an
admission by the appellant to committing the offence. The reliability
of that evidence will obviously depend on the totality of the
evidence and the credibility of the witnesses.







[39] The court a quo found corroboration for the complainant’s
version in the evidence of the witnesses Selma Pelema and Selma
Ananias as regards their observations made on the complainant’s
genitals i.e. that it was reddish. It was reasoned that this was due
to an injury inflicted to the complainant’s body and the court
then raised the question as to how the complainant sustained this
injury (other than being raped). What was not dealt with in the
judgment is the value the court attached to the conclusions reached
by the two witnesses on their observations (that the complainant’s
vagina was reddish); but, more importantly, nothing was said about
Josephine’s evidence, who claimed to have also observed one
week later
that the complainant’s vagina was reddish and
the labia minora swollen. Furthermore, why these findings were not
noted in a medical report if the complainant was taken to Okahao
hospital that same day where she was medically examined by a doctor.







[40] The court in its judgment also did not refer to the medical
report handed into evidence – possibly because it does not
support the State case and as such is neutral. The complainant
testified that penetration of the vagina and anus took place and
although penetration to the slightest degree would constitute a
sexual act, the medical report as such does not support that
evidence. If the State intended to prove that the complainant was not
deeply penetrated (as the hymen remained intact), then this should
have been clarified through the testimony of the complainant –
whose testimony was that the accused’s penis was inside
her vagina and anus.







[41] The contradictions in the evidence of the
State witnesses could not simply have been brushed aside and ignored
when considering the credibility of the complainant. In this regard
the court
a quo clearly
misdirected itself in its evaluation of the evidence by concluding
that, in the absence of evidence rebutting the State case, the
evidence of the State witnesses could not be rejected; therefore, the
State has proved its case beyond reasonable doubt. Despite the
appellant electing not to give evidence, the court must still decide
whether the State has proved the commission of the offence
beyond
reasonable doubt.
In S
v Miles
14
it has been stated that an accused’s failure
to testify can be used as a factor against him
if
the State has
prima facie
discharged the onus that rests on it.
The
prima facie case
must also be sufficient in itself to justify, in the absence of an
explanation or answer by the accused, the inference of guilt. When
regard is had to the discrepancies in the evidence of the witnesses
and the shortcomings in the State case, I am convinced that the
circumstances of this case are not such that, when left
uncontradicted, it becomes proof beyond reasonable doubt.
15







[42] Besides those grounds on which the conviction has been attacked,
there is also a further ground and that is that the trial court
failed to render assistance to the unrepresented appellant which, in
my view, is not without merit. The result of such failure, so it was
argued, is that (i) the appellant failed to meaningful cross-examine
the State witnesses; and (ii) the appellant failed to controvert the
evidence of the State by not putting his version of the events to the
witnesses (which was before the court in the appellant’s
comprehensive plea explanation). The magistrate’s response to
this ground was in the following terms:







There
is a duty on a court to assist an undefended accused. This is what I
have done, by explaining the rights to cross-examination to the
accused, which he understood. I therefore assisted the accused with
the proceedings in court.
There
is no duty upon a court to help the accused in cross-examining a
state witness
.”



(Emphasis provided)







[43] That the appellant’s right to
cross-examine was duly explained to him – inclusive of the duty
to dispute all issues with which he disagrees and to put to the
witnesses what his version is – is borne out by the record
(p.19). Besides reminding the appellant throughout that he should put
questions to the respective witnesses, there was no other assistance
given to the unrepresented appellant as to how he should present his
case. This Court in
S v Soabeb and
Others
16
as per Hannah,
J at 287C-D said the following regarding the explanation of rights to
an unrepresented accused:







It
must also be emphasised that the judicial officer must not pay mere
lip-service to the duty to explain. He must do his best to ensure
that the explanation is understood and if it should appear during the
trial that the accused has not understood he should come to his
assistance. (See
S
v Sebatana
1983
(1) SA 809 (O).)”







And at 287E-F:







The
magistrate should have reminded him of the sergeant’s evidence
…. and asked him if he was challenging it.”







[44] In S v Rudman; S
v Johnson; S v Xaso; Xaso v Van Wyk NO and Another
17
at 378B-E Cooper J had the following to say:







During
the State case a presiding judicial officer is at times obliged to
assist a floundering undefended accused in his defence. Where an
undefended accused experiences difficulty in cross-examination the
presiding judicial officer is required to assist him in (a)
formulating his question, (b) clarifying issues and (c) properly
putting his defence to the State witnesses.



Where, through ignorance or
incompetence, an undefended accused fails to cross-examine a State
witness on a material issue, the presiding judicial officer should
question – not cross-examine – the witness on the issue
so as to reduce the risk of a possible failure of justice.”







This passage was cited with approval by the
Appellate Division in
S v Rudman and
Another; S v Mthwana
18
and I fully endorse the sentiments expressed
therein.







[45] The right to a fair trial is guaranteed in the Constitution and
what is required is that criminal trials be conducted in accordance
with notions of basic fairness and justice; and that content be given
thereto by the courts. In the case before us the record indicates
that the trial court did not comply with the obligation to assist the
appellant. For example, the complainant’s evidence that the
appellant had penetrated her twice was left unchallenged by the
appellant despite his denial of the charge; the evidence about an
alleged licking of the complainant’s vagina was first raised by
the appellant in cross-examination and the court should have
clarified the uncertainty pertaining thereto in light of her evidence
given in chief. Furthermore, the appellant’s alleged admission
made to the witness Selma Pelema about him having licked the
complainant testified on by Selma, was left unchallenged; an
admission which was fatal to his defence and which the witness should
thoroughly have been cross-examined on. The same was required during
the cross-examination of the witness Josephine Kanandunge who also
testified about the same alleged admission made for the second time.







[46] In the circumstances the magistrate was not required to
cross-examine the witnesses on the appellant’s behalf, but
where it was clear that the appellant was not capable of properly
formulating the questions or failed to clarify or address crucial
issues; or simply failed to put his defence to the State witnesses at
relevant stages of the proceedings, assistance ought to have been
given to him by the presiding magistrate. Where such assistance in
the present case is lacking, in my view, it impacted on the ensuing
result where the appellant was convicted. This is an irregularity
which vitiates the entire proceedings; as it cannot be said that the
appellant was given a fair trial.







[47] In view of the conclusion reached herein, the application for
condonation must be granted as there are indeed prospects of success.
In the light thereof there is no need to consider the appeal against
sentence which, in any event, does not meet the requirements set by
Rule 67 (1) of the Magistrate’s Court Rules.







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








  1. The application for condonation is granted.



  2. The appeal against conviction and sentence is upheld.
















______________________________



LIEBENBERG, J











I concur.











______________________________



TOMMASI, J



























































































































ON BEHALF OF THE APPELLANT Mr. A. Kamanja







Instructed by: Sisa Namandje & Company







ON BEHALF OF THE RESPONDENT Mr. R. Shileka







Instructed by: Office of the Prosecutor-General







11979
(1) SA 925 (Tk SC).




21969
(2) SA 227 (N).




31978
(4) SA 166 (SWA) at p.167.




4Case
No. CA 103/2009 delivered on 08.04.2011.




5S
v Mantsha,
2006 (2) SACR 4 (CPD); Kalenga Iyambo v The State,
(unreported) Case No. CA 165/2008.




6Unreported
Case No. CC 24/2010 delivered on 09.06.2011.




71999
NR 348 (SC)




82002
NR 67 (HC) at 71G-I.




9S
v Sauls and Others,
1981 (3) SA172 (A) at 180D-E




10S
v Mkohle,
1990 (1) SACR 95 (A) at 99d.




11De
Beer v Rex,
1933 NPD 30 at 34; R v Bell, 1929 CPD 478.




12R
v W,
1949 (3) SA 772 (A) at 778 – 9.




132005
(1) SACR 420 (SCA).




141978
(3) SA 407 (N) at 424A-B.




15S
v Boesak,
2001 (1) SACR 1 (CC) at [24].




161992
NR 280 (HC).




171989
(3) SA 368 (E).




181992
(1) SA 343 (A) at 381E-382C.