Court name
High Court
Case number
CA 74 of 2009
Case name
S v Kukuri
Media neutral citation
[2011] NAHC 363
Judge
Miller J
Unengu AJ














CASE NO.: CA74/2009



IN
THE HIGH COURT OF NAMIBIA



In
the matter between:







BRIAN
KUKURI







and







THE
STATE







CORAM:
MILLER, AJ



UNENGU,
AJ







Heard
on:
2011.10.24



Delivered
on:
2011.10.24 (Ex tempore)







JUDGMENT:



MILLER,
AJ
: The Applicant in this matter was convicted and
sentenced in the Regional Court on the 2nd of February
2009 of the crime of rape as defined in the Combating of Rape
Act,
Act 8 of 2000. An Appeal directed to this Court against the
conviction and Sentence was disposed on the 12th of
November, 2010. The Applicant now applies for leave to Appeal to the
Supreme Court of Namibia against the dismissal of his Appeal.







Before
us, the Applicant appeared in person and the State was represented by
Ms Nyoni. Ms Nyoni took the point in limine that the
Application for leave to appeal was filed out of time and that there
was no application for condonation. I am not prepared to entertain
that point.







The
Applicant was at all times unrepresented, and I do not expect him to
be familiar with the provisions of the Criminal Procedure Act
relating to time periods within which applications of this nature
should be filed. Moreover, he had applied for legal assistance,
through the Legal Assistance Centre and that was declined. In the
circumstances, I will condone the late filing of the application.







In
order for an Applicant who applies for leave to appeal to the Supreme
Court against the dismissal of his appeal to succeed, it is incumbent
on the Applicant to satisfy us that a different Court, in this case
the Supreme Court on Appeal, will as a likelihood come to a different
conclusion. I am satisfied that another Court will not come to a
different conclusion.







The
case against the Appellant was overwhelming so to speak. The evidence
of the Complainant that she was raped by two persons on the evening
in question is to a large extent corroborated by the fact that she
was able to point out to the police the spot where the alleged crime
was committed, being in the veld. At the point she pointed out the
police officer, who accompanied her observed drag and wrestling
marks. It is also evident that upon the Complainant being examined,
it was observed that there was grass in her hair and that she had
sustained scratches and bruises to her legs. This is entirely
inconsistent with any allegation the that the Applicant made at the
trial that there was consensual sex between them at his house.







It
flies even further in the face of the contention of the Applicant, if
that was his contention, that no intercourse took place at all.



As
far as sentence is concerned, it is apparent that both the Learned
Magistrate who sentenced the Applicant as well as the Judges
presiding at the Appeal, which was dismissed, did not in any respect
commit any irregularity. The sentence strikes me in any event as
being a proper sentence given the circumstances of the crime and the
circumstances under which it was committed.







In
view thereof, the Application for Leave to Appeal is dismissed, in my
opinion.



UNENGU,
AJ
: I concur.







___________







MILLER,
AJ






























































































ON
BEHALF OF THE APPELLANT

IN PERSON






















ON
BEHALF OF THE RESPONDENT

MS NYONI


Instructed
by: OFFICE OF THE PROSECUTOR GENERAL