Court name
High Court
Case number
110 of 2000
Title

S v Smit (110 of 2000) [2012] NAHC 118 (16 May 2012);

Media neutral citation
[2012] NAHC 118
Coram
Mtambanengwe J
Shivute J












IN
THE HIGH COURT OF NAMIBIA



CASE NO: CA 110/2000



In the matter between:















JOHAN SMIT






APPELLANT




and














THE
STATE



RESPONDENT








Coram: Mtambanengwe,
J et Shivute, J



Heard On: 29 April
2002



Delivered On: 16 May
2012











APPEAL JUDGMENT



____________________________________________________________________







SHIVUTE, J:




  1. This is an appeal
    against conviction and sentence. The appellant was convicted on 5
    counts of indecent assault in the Windhoek Magistrate’s Court
    and sentenced to a fine of N$10 000, 00 or two (2) years
    imprisonment, plus an additional 1 year imprisonment wholly
    suspended for 5 years on the usual conditions. The appellant pleaded
    not guilty to the charges and as he was entitled to do, disclosed no
    basis of his defence.









  1. The facts of the case
    may be summarised as follows:








The complainant was a 16
year old girl who lived with her family in the appellant’s
mother’s house. The complainant’s family lived under very
difficult social conditions. They had no home of their own and were
evicted from the house they had previously occupied owing to arrear
rentals. The appellant’s mother who was living alone, allowed
the family to rent a room in her house. The appellant was married to
one LS. The marriage between the parties was at the time
disintegrating and when the wife moved out of their common home, the
appellant started visiting his mother to dine or collect his laundry.
The evidence also reveals that the complainant’s mother was
addicted to drugs and barely gave attention to the complainant and
her brother. The complainant’s father did not have time for the
family either. The appellant became a father figure to the
complainant and her brother and would assist with their homework and
school projects as well as with their basic needs. This relationship
had developed to a point where the complainant and her brother as
well as the appellant’s son would visit the appellant at his
residence from time to time. It is at this residence that the
complainant testified that she was indecently assaulted. The
complainant testified that on the first occasion in July 1997, she
and her father went to a birdcage to attend to a bird and that the
appellant followed them and placed his arm around her back. On the
second occasion, while doing her school project, she needed a map and
the appellant informed her that he had one at his house. The
appellant volunteered to drive the complainant to his house to
collect the map. On their way there, while driving, the appellant
touched the complainant on her upper leg. When they arrived at the
house, the appellant touched her again on her leg. While in the
house, the appellant closed and/or locked the door, pressed the
complainant against the door, unzipped her trousers and touched her
pubic hair. Thereupon the appellant forced the complainant to touch
his private parts. On the third occasion, the complainant was looking
for a video cassette at the appellant’s house. The appellant
took her to his bedroom, locked the door and made her watch a video
different from the one she was looking for. That day the appellant
fondled her breasts. On the fourth occasion, again at the appellant’s
house, when the appellant’s son went to the bathroom, the
appellant once again forced the complainant’s hand to his
private parts, unzipped her trousers and then touched her private
parts. On the fifth occasion when the complainant was looking for her
brother who had gone playing, the appellant gave her a lift in his
car and while in the car once again touched her legs. All this, the
complainant testified, happened without her consent and that on each
occasion she had requested the appellant to stop.







After some time the
complainant had gained the confidence of the appellant’s
estranged wife, LS, and told her of the incidents of alleged indecent
assault. LS in turn told her brother, LL, a former police officer. LL
devised a plan to obtain independent evidence, and as he put it, to
test the complaint’s credibility in relation to the allegations
she had made against the appellant. With the help of DJB, an owner of
a private investigations company and a security expert, as well as
JJK who had worked for DJB, they set up a private operation in terms
of which a remote radio microphone listening device was concealed in
the complainant’s shoe. The microphone was supposed to feed
another device attached to a tape recorder which was in turn supposed
to record the appellant and the complainant’s voices while the
acts of alleged indecent assault were being perpetrated on the
complainant. The audio cassette used in the operation was given to Dr
Ludik, the Director of the National Forensic Science Institute, with
the request to analyse the auditory input that had been captured on
the cassette and to provide the court with the content of the audio
data. Dr Ludik testified that he had determined that the recording
involved a teenage girl and an adult male; that the recording was
poorly done, and the only portion thereof that was audible was the
voice of a girl repeatedly saying in Afrikaans “Nee, nee Johan”
or “No, no Johan”. He refuted the suggestion by counsel
for the appellant at the trial that the recording on the tape could
have been inserted by third parties. Dr Ludik gave a satisfactory
explanation for his opinion that it was impossible for the recording
to have been inserted by third parties.







It is apparent from the
record that the identity of the person who had allegedly indecently
assaulted the complainant was not in issue at the trial. What was in
issue was whether the alleged assaults occurred at all. The appellant
had to a certain extent corroborated the evidence of the complainant
with regard to the occasions on which the complainant says the
indecent acts were perpetrated on her. For example, the appellant
does not deny that he had driven with the complainant in his car,
suggesting that he might have innocently touched her leg in the
process of changing gears; that he had once or twice helped the
complainant with her school projects; that he had helped her find the
map; that the complainant was once looking for a specific video at
his house, and that on the day of the recording the complainant
uttered the words “No Johan”. The appellant’s take
on this aspect of the complainant’s evidence was that the
complainant started, for no apparent reason, to repeatedly shout “No,
no Johan”. The central issues for decision in the court below
were whether the appellant had perpetrated the alleged indecent acts
on the complainant and whether all the elements of the crime had been
proved. The appellant denied having touched the complainant’s
breasts, leg or having assaulted her indecently in any manner.







The thrust of the
appellant’s defence was that the complainant was influenced by
LS, the appellant’s estranged wife, to ruin his reputation so
that custody and control of their minor children in the then pending
divorce matter would instead be awarded to LS.







Submissions on appeal




  1. It was submitted on
    behalf of the appellant that the State had not proved all the
    elements of the crime of indecent assault. In the premise, the
    appellant relies on the case of R v M 1946 AD 1023 at 1027
    where the Court pointed out that the version of an accused on an
    incident should stand and a court may not convict unless it was
    convinced that the explanation was improbable and that beyond any
    reasonable doubt was false. Reliance on circumstantial evidence
    should be consistent with the proven facts which should exclude
    every reasonable inference otherwise. It was further argued on
    behalf of the appellant that the evidence of the complainant, who
    was a minor and a single witness, should be treated with caution and
    that the trial court had failed to take into consideration the fact
    that in sexual offences, minors who are single witnesses should be
    treated with special caution.









  1. The appellant pointed
    out inconsistencies in the complainant’s evidence which he
    says cast doubt on her credibility as a single witness. The
    complainant allegedly contradicted herself with regard to the number
    of events during which she was allegedly indecently assaulted. The
    complainant additionally contradicted herself, so the argument went,
    with regard to what she testified in court in comparison with what
    was contained in the statements given to the police, as to the
    aspect of how the information was communicated to LS. The appellant
    submitted that no other evidence apart from the statement “No
    Johan” was presented before court to prove that the
    complainant was indeed indecently assaulted and that it had not been
    established that the words “No Johan, no Johan” were
    uttered by the complainant and in response to being indecently
    assaulted by the appellant. It was furthermore submitted that the
    complainant was influenced by LS to lay false charges against the
    appellant for reasons related to a pending divorce action, as
    previously mentioned.









  1. Counsel for the
    respondent submitted on the other hand that the appellant was
    correctly convicted. The respondent submitted further that an appeal
    court should not interfere with the decision of a trial court which
    had the opportunity to observe witnesses and make credibility
    findings based on the evidence presented before it and which
    opportunity the court on appeal lacks. The respondent relied on S
    v Sligger
    1994 NR 9 (HC) wherein this Court stated that where no
    irregularities or misdirections were proved or apparent from the
    record, the court on appeal will normally not reject findings of
    credibility by the trial court and will usually proceed on the
    factual basis as found by the trial court. It was furthermore
    counsel for the respondent’s contention that the State had
    proved the five counts of indecent assault beyond reasonable doubt.
    That it had been established that there had been an intentional and
    unjustified touching on the complainant which had the effect of
    outraging the normal sense of what is decent and proper. It was
    submitted further on behalf of the respondent that the statements by
    the appellant that he did not touch the complainant’s upper
    leg when he was driving and that he may have bumped against her knee
    when he was changing gears are mere fabrications intended to mislead
    the court.



  2. As already mentioned,
    the State had led the evidence of LS who testified that she was told
    by the complainant of the indecent acts allegedly perpetrated upon
    her by the appellant and the court a quo rejected the
    appellant’s defence that his estranged wife unduly influenced
    the complainant to make false allegations so as to enable LS to
    obtain an unfair advantage during the pending divorce action. The
    magistrate accepted the version of the complainant on the basis that
    although she was subjected to a rigorous cross-examination, she
    proved to be a reliable, credible and trustworthy witness; that she
    could clearly remember how, when and where the indecent acts were
    perpetrated on her, and concluded that the complainant did not
    fabricate the evidence.








Whether all the
elements of the crime were proved beyond reasonable doubt




  1. The crime of indecent
    assault consists in an assault which by nature or design is of an
    indecent character. The State must therefore prove that such
    indecent assault was unlawful in that no consent was given.
    1
    The complainant
    testified that on the first occasion in July when the appellant
    touched her back near the birdcage, she gave no permission thereto.
    The complainant also did not give permission for the appellant to
    touch her upper part of the leg when they were driving on the way to
    the appellant’s house. The complainant repeatedly testified
    that she gave no permission for the indecent acts perpetrated. The
    second element of the crime requires that there should be an assault
    which usually involves the touching of the part of the body that
    becomes sexually aroused – sometimes euphemistically referred
    to as “private parts”. The complainant testified in this
    regard as follows:








When I
then took the book, he then pushed me against his son’s bedroom
door. He then zipped my trouser’s zip off. He then zip his zip
off and then
forced
my hand on to his penis…”



(Added emphasis)








  1. There is clear evidence
    that there had been touching of private parts without the
    complainant’s consent. Such act is clearly indecent in nature
    in that it involves some sort of sexual activity falling short of
    sexual intercourse, thus satisfying the third element of the crime.
    The intentional aspect can be drawn from the fact that the appellant
    knew that there will not be anybody at home and upon arrival, closed
    and or locked the door of the house to keep any third party out. The
    repeated indecent assaults on the complainant over a period of time
    also indicate such intention. The appellant was the only witness for
    the defence case and testified that the first occasion when he
    touched the complainant near the birdcage was to comfort her as she
    was crying after being scolded by her father. With regard to the
    second occasion, the appellant testified as follows:








Sometimes I
sort of when she stands up when we sit and watch TV, then I sort of
pinched her on the side, and say: ‘A cup of coffee would be
nice.’”







The appellant denied ever
touching the complainant’s upper part of the leg or pushing her
against the door or unzipping his or her trousers. As to the
allegation that he had forced her to touch his penis, the appellant’s
evidence was simply that he was not aware of the incident.








  1. The magistrate relied on
    the case
    of
    S v D and Another
    (NmHC)
    1992 (1) SA 513 at 514F
    which recites the well-known principle that the burden of proof is
    on the State and no onus rests on the accused to convince the Court
    of the truth of any explanation he or she gives. If he or she gives
    an explanation, even if that explanation be improbable, the Court is
    not entitled to convict unless it is satisfied, not only that the
    explanation is improbable, but that beyond any reasonable doubt it
    is false.
    2
    The learned magistrate
    rejected the appellant’s version as not being reasonably
    possibly true and, as previously mentioned, accepted the version of
    the complainant. It is also apparent from the appellant’s
    evidence-in-chief that he merely gave answers to his counsel’s
    questions and in many instances his response to the allegations made
    in the complainant’s evidence were bare denials. It is not
    therefore surprising that the trial Court preferred the respondent’s
    version to that of the appellant.








Cautionary rule in
sexual offences




  1. The appellant further
    contends that the magistrate erred in law in not considering the
    inconsistencies within the complainant’s evidence and that the
    cautionary rule was not correctly applied. The cautionary rule
    relating to sexual cases as espoused in the case law can briefly be
    stated as follows:








In rape
cases for instance, the established and proper practice is not to
require that the complainant's evidence be corroborated before a
conviction is competent. But what is required is that the trier of
fact should have clearly in mind that those cases of sexual assault
require special treatment, that charges of this kind are generally
difficult to disprove, and that various considerations may lead to
their being falsely laid…”
3








  1. The respondent submitted
    that the learned magistrate was fully aware of the cautionary rule
    regarding minors and this is evident from the judgment when it
    pointed out that the evidence of the child was reliable and based on
    the reasons advanced for accepting the complainant’s version.
    It is further evident from the complainant’s evidence-in-chief
    that she was able to know what is right and wrong and had testified
    that she thought the touching of her leg and breasts by the
    appellant was wrong. The complainant could clearly remember what had
    happened and where and although she was uncertain about the precise
    dates, she could give a reasonable and acceptable estimate of the
    time period. The learned magistrate pointed out that if the
    complainant was a person of bad morals, as the appellant’s
    mother had testified, she would not have laid charges against the
    appellant or against another person (reference to a previous case
    wherein someone else was convicted of indecently assaulting the same
    complainant).









  1. This Court in S v
    Engelbrecht
    1993 NR 154 HC at 163G-H laid down the principle
    that in evaluating evidence given by children, the court must be
    aware of the risk inherent in such evidence. If the court does not
    take cognisance of these risks, a court of appeal would be at
    liberty to alter a conviction. The cautionary rules concerning the
    evidence of children must be even more carefully applied where such
    witness is a single witness. In S v Monday 2002 NR 167 (SC),
    the Supreme Court at 192F observed that although the Supreme Court
    in S v Katamba 1999 NR 348 (SC) held that the cautionary
    rules relating to complainants in sexual offences was outdated and
    should no longer be applied, the cautionary rule with regard to the
    evidence of single witnesses and evidence of very young children
    still applied. It should be observed in this regard that although
    the complainant in this matter was evidently a single witness, at
    the age of 16 she could obviously not be said to be a very young
    child. In S v Monday (supra) the children whose
    evidence was in issue were aged between 7 and 9.









  1. In S v Esterhuizen
    1990 NR 283G-H (HC), Frank J applied the well-known dictum
    in S v Sauls and Others 1981 (3) SA 172 (A) at 180E-G with
    regard to the approach to evidence of a single witness where it was
    stated as follows:








There is no
rule of thumb test or formula to apply when it comes to a
consideration of the credibility of a single witness. The trial Judge
will weigh his evidence, will consider its merits and demerits and,
having done so, will decide whether it is trustworthy and whether,
despite the fact that there are shortcomings or defects or
contradictions in the testimony, he is satisfied that the truth has
been told. … [I]t does not mean 'that the appeal must succeed
if any criticism, however slender, of the witnesses' evidence were
well founded'. … It has been said more than once that the
exercise of caution must not be allowed to displace the exercise of
common sense
.”








  1. Although a summary of
    the evidence has already been given, it is necessary to refer to
    specific evidence of some of the witnesses to make it clear that it
    is not only on the basis of the statement “No Johan”
    that the appellant was convicted and that even though the
    complainant was a single witness, the trial court was entirely
    justified in accepting her evidence. State witness LL confirmed that
    he had initiated the idea to set up the device that was used to
    listen in and record the conversation between the appellant and the
    complainant. After the operation, the device was given back to him
    and having listened to the recording on the tape, he came to the
    conclusion that the complainant was in an uncomfortable position
    with the appellant when she uttered the words “No, no, Johan”
    The security expert, DJB, told the court that the recording was poor
    due to the fact that the listening device was placed in a shoe. The
    ideal place for optimum recording output would have been the area
    around the complainant’s chest. This area was, however, ruled
    out for fear that the device would have been detected since the
    appellant was allegedly in the habit of touching the complainant
    “all over the body”. Both DJB and Dr Ludick corroborated
    LL’s evidence that the complainant sounded anxious when she
    uttered the words “No Johan”. LS testified that the
    complainant had informed her that her estranged husband was
    molesting her and that she felt scared every time she drove with the
    appellant; hence she always took her brother along. All these
    aspects have been confirmed by the complainant. Although the
    appellant’s mother testified that the complainant was
    allegedly a child of bad character, the trial court found the
    complainant, as already stated, to be an honest and credible
    witness. The trial court rejected the appellant’s defence of a
    plot between his wife on the one hand and the complainant on the
    other.









  1. The complainant was a
    single witness with regard to the aspects of indecent assault but
    the learned magistrate accepted her evidence and relied on
    circumstantial evidence presented in court, such as the recording
    wherein the words “No Johan” were uttered, the report
    she had made to LS and the appellant’s evidence corroborating
    the evidence of the complainant with regard to occasions she said
    she was assaulted. The advantage and benefit enjoyed by the trial
    court to come to these findings based on the evidence is one not
    available to the appeal court and in the absence of an irregularity
    or a misdirection, there can be no basis for interfering with
    credibility findings made by the trial court. The findings of fact
    and the reasoning of the court below as well as the conclusion it
    had arrived at are sound and cannot be faulted. I am satisfied that
    the appellant was properly convicted.









  1. As regards the sentence,
    considering the fact that the appellant was a first time offender
    and that he had lost his job in the wake of the serious allegations
    against him and furthermore because the complainant did not sustain
    injuries as a consequence of the assault, the learned magistrate
    sentenced the appellant as mentioned already. In aggravation, the
    nature of the offences, the minority of the complainant, the
    fatherly figure and the trust misused by the appellant are all the
    factors that had invited the sentences imposed. The respondent
    therefore submitted that the learned magistrate did not err in law
    and/or in fact and that the appeal court should not interfere with
    the sentences imposed.









  1. It seems to me that the
    sentences imposed are appropriate. The appellant misused the trust
    and his position to take advantage of the complainant’s
    vulnerability. The complainant testified that although she felt
    violated by the appellant’s shenanigans, she could not tell
    anyone immediately at the first incident because she was afraid that
    if the appellant’s mother had heard about the allegations, she
    could have chased the complainant’s family from her house,
    thus leaving the family homeless. It is my considered opinion that
    there can be no basis for interfering with either the conviction or
    sentence. The appeal against conviction and sentence should
    therefore be dismissed. In the result, the following order is made:








The appeal against
conviction and sentenced is dismissed.



















_________________



SHIVUTE, J











I agree.



















_________________



MTAMBANENGWE, J



























COUNSEL ON BEHALF
OF THE APPELLANT:



Instructed by:







Mr CJ Mouton


Roets,
Theron & Associates




COUNSEL FOR THE
RESPONDENT:


Instructed
by:




Ms Uukelo


Office
of the Prosecutor General









1Burchell
J & Milton J .1997. General Principles of Criminal Law.
Western Cape: Juta & Co, p 502-505.





2See
also R v Difford 1937 AD 370 at 373.





3R
v W
1949 (3) SA 772 (A) at 780 and 783G.