THE HIGH COURT OF NAMIBIA
NO: CC 13/2010
the matter between:
on: 1-3 August 2011; 14 September 2011
on: 11 October 2011
The Accused faces one count of rape in contravention of s 2(1) (a),
read with secs. 1, 2 (2), 2(3), 3, 5, 6 and 7 of the Combating of
Rape Act 8 of 2000. It is alleged that upon or about 18 June 2008 ,
and at or near Hakahana Location in Katutura in the district of
Windhoek, the Accused did wrongfully, unlawfully and intentionally
commit or continue to commit a sexual act with the minor complainant
(A.G) by inserting his finger into the vagina of the complainant
under coercive circumstances in that the complainant was below the
age of 14 years , to wit 7 years of age, and the Accused was more
than 3 years older than the complainant, to wit 20 years of age.
of substantial facts
The State’s summary of substantial facts read as follows:
perpetrator was renting a room in the house of the mother of the
complainant. On 18 June 2008 the perpetrator called the complainant
to his room. The perpetrator offered to give the complainant a dollar
if she had sex with him. The perpetrator who was watching a blue
movie suggested that he and the complainant do what was on the blue
movie. The complainant ran away but the perpetrator grabbed her and
took her to his room. The perpetrator then chased the other children
who were in his room out. After they left he closed the door. The
perpetrator then pulled the complainant’s dress up and pulled
her panty down. The perpetrator pushed his finger into the vagina of
the complainant. The complainant screamed and the perpetrator covered
her mouth with his hand. The perpetrator pulled complainant close to
him and held her tightly. One of the boys who had been in the room of
the accused heard the complainant screaming and made a report to the
complainant’s grandmother. The complainant’s grandmother
then sent someone to the accused’s room to get the
The Accused pled not guilty to the charge. In the State’s
pre-trial memorandum, the Accused was asked to disclose the basis of
his defense. His answer to that question was: ‘Accused did
not realize what he was doing as he was under the influence of
After the Accused pled not guilty his counsel stated the ‘basis
of the defense’ as follows:
of his defense is that at the time that the offence was committed, he
did not realize what he was doing as he was under the influence of
The Accused made the following admissions in terms of s 220 of the
CPA, thus making the proof by the State unnecessary:
admissibility and evidential value of the J88 report by Dr Muzenda
Vengesai on the complainant.
the complainant was born on 28 August 2000. (He added however that
he thought that the complainant was 11 years old.)
the Accused was 20 years of age on 18 June 2008.
At the Court’s request for an explanation of the nature of the
drugs he allegedly used, Mr. Isaacks for the Accused, confirmed,
after taking instructions, that the drugs allegedly consumed by the
Accused were dagga and crack cocaine; the latter known by its street
name of ‘rocks’. He used those drugs for the first time
in his life starting the morning of the alleged offence and
throughout the day. He did not dispute that he was at the place named
in the indictment as the scene of the crime.
It is clear from all of the above that the Accused was ambivalent
about whether or not the physical act of inserting the finger into
the vagina of the complainant by him in fact took place. It appears
to me that, as far as he is concerned, it really mattered not if such
an act took place: he has no recollection of such a thing. The
importance about this is that no positive evidence is proffered by
him gainsaying the occurrence of such the alleged physical act of
inserting a finger into the vagina of the minor complainant.
Significantly, the Accused does not dispute that he had the
opportunity to commit the crime.
has the State proved as regards the act of insertion of the finger
into the vagina?
The first is the admitted contents of the J88. It records the
following salient evidence: That the Dr examined the complainant and
that her vestibule was ‘inflamed’. The complainant
testified that the Accused confronted her inside the house, against
her will placed her on his lap, and inserted his finger into her
vagina causing her pain and bleeding. That the Accused indeed
perpetrated that sexual assault on the complainant is corroborated by
one Maradonna Again Davids, the Accused’s brother, who
testified that he saw the Accused grab the complainant and insert his
finger into her vagina. When Maradona asked him what he was doing the
Accused said something to the effect that the former would be
answerable to the police for what he (the Accused) was doing to the
complainant. The complainant also made reports of the sexual assault
to her aunt and the grandmother after she left the room where she was
kept by the Accused against her will. I am satisfied that the
evidence establishes beyond reasonable doubt that the Accused
perpetrated the physical act of inserting his finger into the vagina
of the minor complainant.
That being the case, the only issue that falls for determination in
this case is whether the Accused acted with the requisite criminal
intent when he inserted his finger into the vagina of the
In our law, everyone is presumed to be of sound mind and to will and
desire the natural consequences of their actions. But that rule is
not absolute. For example, intoxication might, in an appropriate case
negative affect required criminal intent.
An accused who as a result of voluntary consumption of alcohol (or
drugs) - S
v Chretien -
is so drunk that he is not conscious of what he is doing is not
liable, because a muscular movement done in that condition is not a
criminal act - Chretien:
1104E and 1105F-G; 1106B-C. The ratio of Chretien
is that where
intention in respect of a crime for which intention is required
is lacking due to voluntary intoxication, the accused cannot be
criminally liable (Chretien at 1103B-C).
The prosecution must prove that the accused was not intoxicated at
the time of the commission of the offense if the latter claims that
he was intoxicated: R
1956 (4) SA 605(A). Although judicial frustration has been expressed
about the potential injustice of a person escaping his otherwise
criminal conduct from self-induced intoxication, the ratio in
remains the law in Namibia, being a decision of Appellate Division,
the constitutional predecessor to the Supreme Court of Namibia.
It was recognized in Chretien that the mere fact that an accused
cannot later recall what he did does not render his conduct
criminally non-responsible: Chretien
in fine 1106D; 1106G; 1108C-D. As O’Linn J (as he then was) put
S v Davids at p
‘it should be
noted that although it was stated in s v Chretien 1981 (1) SA 1097 at
1106B-H that it is a defence to a charge that a person was so drunk
that he did not know what he was doing, a court will not easily
accept that an accused was so drunk that he did not know what he was
Accused’s mental state at the time of inserting his finger into
the vagina of the minor complainant
At the s 119 plea, which was admitted in evidence, the Accused
admitted guilt and in answer to a question by the presiding
magistrate stated that he was so pleading because he ‘forcefully
inserted my finger into the child’s vagina when we were
watching an adult movie’. When asked what his intention was
for doing so he said: ‘It was just devil created by the
movie I have watched earlier. I did not intent to do anything to
her.’ The Accused has before me denied the voluntariness of
this admission in the court a quo and testified under oath
that he made that statement because one Yolande Haack, an aunt of the
minor complainant who had laid the charge with the police visited him
while detained at the police cells in Wanaheda and told him to plead
guilty so that the matter could be quickly finalized and that if he
did so she would, as the person who laid the charge, facilitate his
being granted bail. He persisted with that version and was hardly
shaken in cross-examination as regards that allegation.
At the end of the defence’s case the State applied to re-open
its case and in rebuttal called Yolande Haack who under oath denied
inducing the admission by the Accused at the s119 plea. I found
Yolande an unsatisfactory witness who even tried to mislead the
Court. She rather implausibly suggested that she could not have
induced an admission from the Accused with the promise of bail
because she did not know what bail was. She at one time strenuously
denied ever being present at the s119 hearing where the Accused made
the admission - only to state later that in fact she was present. She
on numerous occasions contradicted herself about meeting the Accused
while detained at Wanaheda or having a discussion with him about bail
but later suggested that it was he who pleaded with her to be let out
on bail but that she said that she could not. I reject Yolanda
Haack’s version of events concerning whether or not she induced
the Accused to make the s 119 admissions.
I am satisfied that the Accused’s version that he never
intended to plead guilty to the alleged rape at his s 119 plea in the
court a quo is reasonably possibly true and I will
consequently place no weight on it as proof of his guilty state of
mind at the time he inserted his finger into the vagina of the minor
Except for Maradona, to whose evidence I will revert presently, all
prosecution witnesses testified that the Accused was not abnormally
intoxicated. None could however deny his assertion that he had
consumed cannabis and cocaine on the day the alleged offence took
place. In fact, Mr Moyo for the State conceded that the State could
offer no evidence that the Accused had not used the drugs he said he
did on the 18th of June 2008 when the crime was
State witness Maradonna, brother of the accused, and at some stage
referred to by counsel for the State as an accomplice - presumably
because the minor complainant had testified that he had chased
another boy named Axalosi out of the house before the alleged rape
took place – testified about the Accused’s state of mind
which could shed some light on the matter. Maradonna testified that
the Accused acted unusually aggressively towards him, was red- eyed
and, when asked by Maradonna why he was inserting his finger into the
vagina of the minor complainant, stated that the witness would be the
one to be answerable to the police for what he (the Accused) was
doing to the minor complainant.
Mr Isaacks for the Accused maintains that this statement was so
unreasonable and nonsensical that it was explicable only on the basis
that the Accused was so intoxicated from drug use that he did not
appreciate the unlawfulness of what he did to the minor complainant.
I will now proceed to consider the totality of the evidence as
relates to the use and alleged effect of drugs (cannabis and cocaine)
on the Accused on 18 June 2008.
The Accused testified that he had never in his life before the 18th,
used either cannabis or cocaine. It was for the first time that he
did so on the 18th when a friend of his, Chris, came to
invite him to go and clean someone’s yard. It was on the way to
performing that chore that, at Chris’s invitation, he smoked
one wrapping of cannabis which was mixed with cigarette.
The following exchange took place between the Accused and his
Now what does cannabis do to you? When you smoke it how do you feel?
Accused: When I
smoke it, My Lord, I am no longer normal. Like I am not as I am
But what does it do to you? How do you feel?
You feel high, very high, My Lord.
When you say high what does it mean? Is it possible to describe what
you feel after you smoke the cannabis?
No, I cannot explain it or describe it in detail, my Lord.
Now Maradonna says that cannabis calms you down. Would that have the
same effect on you?
No, it does not have the same effect on me , My Lord.
Now what kind of effect does it have on you?
My lord, what I have noticed was that after I have used it I am wild
64 – 65 of the record.)
I pause here to remind myself that it is the case of the Accused that
he had never before the 18th June used either cannabis or
cocaine, yet this evidence, although the contrary is stated, is
couched in terms that suggest that he had previous experience with
these substances. How he could, after just one off experience, so
clearly remember what effect these substances had on him is, not to
put too fine a phrase on it, not clear from the evidence. I had asked
counsel during argument to refer me to any aspect of the evidence
showing any explanation why this man, who had on his version no
previous experience with a dependence-producing substance, chose on
this particular day to use these drugs. Counsel conceded that no such
evidence appears on the record. I make this point to show that there
is very strong circumstantial evidence that the Accused is lying when
he states to Court that he had never before used these drugs and that
the day the alleged offence was committed was the first time he did
so and that he has never since that day used these drugs again. I
make specific reference to this circumstance to highlight that the
Court has to be very careful in considering the Accused’s
assertion that he was too intoxicated to know what he was doing and
that, considering that the matters bearing on his intoxication are
peculiarly within his knowledge and are not capable of easy
contradiction by the State, affords him the opportunity to present
events in a manner most favorable to his case.
In chief, the Accused’s case can be summed up as follows: In
the morning of 18th June 2008 a friend called Chris came
to fetch him so they could go and clean someone’s yard. On the
way they smoked cannabis. At the place where they cleaned the yard
they partook of rocks- the street name of a cocktail of cocaine. He
testified that, altogether, he and Chris smoked 5 rocks at the place
they cleaned the yard. He distinctly remembers getting to the place
they cleaned the yard after smoking the cannabis. He also remembers
that there they used 5 rocks. He described the effect the 5 rocks had
on him as follows:
‘My Lord, with
me, the more I smoke the more I want to smoke it…the more I
want to have more.
that they were paid N$70 for the effort and then they ‘returned
home or walked to our house’.
left the place where they cleaned the yard, the Accused and Chris
parted ways resolving to look for more money to buy more rocks. He
went home but later went to Chris’s house.
When asked what he did at his house when he parted with Chris the
Accused testified that he could not ‘precisely say what I ,
at that moment did at the house…’ He testified that
he could also not remember what time it was when he got home after
cleaning the yard but was emphatic that he did not find anyone at
home. When he rejoined Chris at the latter’s home, the two of
them then moved on to the house of another friend called Eric. The
three of them put money together and bought more rocks and used it.
He said they used ‘many’ rocks but he could not remember
just how many.
After that, and in his own words,
There after my Lord
, I cannot recall very much, whether I returned home alone or
whatever the case may be. My Lord, I cannot remember much
by his counsel why he could not remember, the Accused stated :‘I
was very high …due to the drugs we used’. He has no
recollection of coming home, having any conversation with Maradonna,
meeting with the complainant and violating her; or any other detail
for that matter. It was only the following morning that he was told
by Maradonna what he had done to the minor complainant.
The following version emerged in cross-examination and I refer only
to such of it as is at variance with the version given in-chief. He
and Chris had left the place where they cleaned the yard between 11
and 12. He was able to go home after smoking the 5 rocks at the
place they cleaned the yard because they did ‘not use all five
(rocks) at the same time’. They smoked them ‘one after
each other, of time in between’. He suggested they smoked them
after intervals of 30 minutes. He then testified under further cross
examination that by midday he was ‘already too high into the
drugs’ and could not recollect how many drugs he took.
When reminded that he had previously stated that he recollected going
home by midday and that that did not reconcile with the version that
by midday he was very high on drugs and could not recollect, he
recall My Lord, it was the evening that I was at my house.’
He further testified
that he and Chris arrived at Eric’s place about 12h30.
asked where he went from Eric’s place he testified:
‘I cannot say
with certainty My Lord, where I went exactly , whether I went
directly home or whether I went somewhere else ..’
also does not remember just how many rocks he had at Eric’s
place but suggested it was between 8 to 10.
When referred back to the subject of the first rock he took on the
18th, the Accused stated that its effect was to make him
‘more alive and lively’. He does not remember what
effect the second had on him. In fact he stated:
‘I cannot say
the effect the second one had on me, because I was already high on
also could not say what effect the third had on him. He remembers
taking the fourth and the fifth and, in his own words:
‘After the 5th
one My Lord, I no longer remember what happened, or what was
happening around me...’
was then asked: ‘Yes, how do you know you could not remember
after the 5th one? He answered: ‘Because up till
today, up to today, I am still questioning myself what exactly
happened on that day My Lord’. The following exchange took
place between Mr. Moyo, for the state and the accused:
…after taking the 5th do you remember taking the
5th smoke, do you remember that?
Accused: yes, my
Mr.Moyo: but you do
not remember the effects of the 3rd and the 4th
and the 5th on you?
Accused: my lord, by
the time that I took the 2nd and the 3rd rock,
I was already into the rocks, because I had already used blocked by
Mr.Moyo: by then
meaning that day?
Accused: yes my
Mr.Moyo: Now, but
after the 5th which by now we know it was by mid-day you
had taken the 5th one right?
Accused: My Lord I
am not certain whether it was by mid-day that we had taken the 5th
one or whether it was earlier than that my Lord.
than the mid-day?
Accused: I am not
certain my Lord.
Mr.Moyo: okay, but
after taking the 5th one, you were able to go home, to
Accused: yes my
Mr.Moyo: and from
your house, you went to Chris’s house do you remember that?
Accused: yes my Lord
Mr.Moyo: and from
Chris’s house, you went to Erick’s house?
Accused: yes, my
Mr.Moyo: At Erick’s
house, you smoked some more cocaine?
Accused: yes my
remember smoking some cocaine at Erick’s house?
Accused: Yes, my
Mr. Moyo: and at
Erick’s house you said you took about ten to, about 8
Accused: I cannot
remember how many we took at Erick’s house but we did take many
at Erick’s house, my Lord’
following curious exchange then took place. Curious because on the
accused’s own version he does not remember what happened after
he partook of rocks at the residence of Eric:
Mr.Moyo: okay, from
Ericks place, where did you go?
Accused: I cannot
remember whether I went straight home or where I went to my Lord.
Mr. Moyo:yes, when
did you arrive home?
When did you arrive
Accused: I cannot
remember when I arrived home.
Mr. Moyo: you cannot
remember, yes on the 18th did you sleep at home?
Accused: yes, that
is precisely right, that specific evening, I slept at home.
Mr. Moyo: yes, what
time did you go to sleep?
Accused: I cannot
say the time, but it was at night that I went to sleep my Lord.
As must be apparent, the Accused is here able to remember events
beyond a point that he initially testified that he was so intoxicated
that he did not remember what had happened. From his evidence there
is a clear and irreconcilable contradiction. In his evidence in
–chief he remembers nothing that happened only after he partook
of rocks at the residence of Eric; yet when matters were put in a
different order during cross- examination, he was unable to recollect
events as early as the occasion where they cleaned the yard, only to
again remember events after he partook of rocks at the residence of
Eric. This is inconsistent with innocence.
Counsel for the State succeeded in skillfully diverting the Accused
from his rehearsed sequence of events by moving him from one subject
to another and then back by so doing exposed the accused’s
version for what it really was: an afterthought designed to escape
criminal liability for his actions towards the minor complainant.
That the Accused’s defense is an afterthought is corroborated
by the fact that he had failed to put through his counsel to
Maradonna that it was Maradonna who had for the first time in the
morning of 19 June informed him of the events of the previous night
and that before that he had no recollection whatsoever of those
I am satisfied that it was proved beyond reasonable doubt that the
Accused was not so intoxicated by reason of consumption of cannabis
or cocaine that he did not know what he was doing when he inserted
his finger into the vagina of the minor complainant on 18 June 2008.
I accordingly convict him as charged.
behalf of the state:
by: Office of the Prosecutor –General
behalf of the accused:
by: Issacks And Benz Inc.