Court name
High Court
Case number
44 of 2011
Title

S v Kapindi (44 of 2011) [2012] NAHC 173 (28 June 2012);

Media neutral citation
[2012] NAHC 173
Coram
Hoff J
Miller AJ













CASE NO. CA 44/2011



IN THE HIGH COURT OF
NAMIBIA







In the matter between:







WIGBERTH KAPINDI
….............................................................................APPELLANT



vs



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







CORAM: HOFF J et
MILLER AJ







Heard on: 21 May 2011



Delivered on: 28 June 2012











CRIMINAL APPEAL JUDGMENT:



MILLER, AJ: [1] The
appellant, who is represented before us by Mr. Tjituri, was convicted
in the Regional Court on a charge of rape in contravention of Section
2 (1) of the Combating of Rape Act, Act 8 of 2006. He was sentenced
to 10 years imprisonment of which 3 years imprisonment were
conditionally suspended.







[2] The appeal lies against both the
conviction and the sentence imposed.







[3] In support of the allegations made
in the charge sheet, the state called several witnesses.







[4] The complainant, Annatjie
Wasserfal testified that she, her sister and the appellant went to a
shebeen on the day in question and returned to the home where the
complainant, her sister and the complainant’s brother-in-law
lived.







[5] After they had spent some time
together, her brother-in-law pushed the appellant out of the room and
closed the door. The occupants of the house then returned to bed.







[6] Some time later the appellant
returned to where she was sleeping. His intention according to her
was to have sexual intercourse with her, an act she was not prepared
to give consent to. The appellant pinched her thighs in order that
she may open them and partially pulled down her trousers. He then
inserted his finger into her vagina. The complainant raised the alarm
and eventually some help arrived. The appellant then hurriedly
dressed himself and left wearing his clothes inside out.







[7] Her version as to the
circumstances in which the appellant was found was corroborated by
the witnesses who found him there. In addition a medical report
confirmed that there were bruises on her thighs.







[8] The appellant in his testimony
admitted to having been in the company of the complainant earlier in
the evening. He denies having returned later. He denied







having been found in the room by the
witnesses who testified to having found him there.







[9] According to the appellant he had
consensual intercourse with the complainant on previous occasions.
The allegations leveled against him are false and because he refused
to give the complainant money when she asked for it.







[10] The complainant’s evidence
in regard to what occurred between her and the appellant is that of a
single witness. The approach adopted by Liebenberg J in Joel
Kambala v The State CA 74/2010
is appropriate in considering
this issue. I refer to the following passage:







“”Because
of the inherent danger of relying exclusively on the sincerity of the
single witness, this has evoked the judicial practice that such
evidence should be approached with caution and only be relied upon
where such evidence is clear and satisfactory in material respects.
Thus, although the court in terms of s 208 of the Act may convict the
accused on any offence on the single evidence of any competent
witness, such evidence should be treated with utmost care and may
only safely be relied upon where it is supported by some satisfactory
indications that is trustworthy. However it need not be satisfactory
in every respect and it may safely be acted upon even where it has
some imperfections – provided that the court at the end is
satisfied that the truth has been told.”



















[11] The learned magistrate found in
favour of the appellant that at some stage there may have existed a
relationship between himself and the complainant despite the fact
that the complainant denied it. The learned magistrate came to the
conclusion however that on the totality of the evidence the State had
succeeded in establishing the commission of the offence beyond
reasonable doubt.







[12] In my view that finding cannot be
faulted. The bare denial by the accused that he had touched the
complainant coupled with his further denial that he was not found at
the scene flies in the face of persuasive and acceptable evidence to
the contrary.







[13] He was also at a loss to account
for the fact that the complainant suffered bruises to her thighs.







[14] In my view the magistrate’s
finding that the evidence of the appellant is false beyond reasonable
doubt cannot be faulted.







[15] It follows that the appeal
against the conviction must fail.







[16] I turn to the appeal against the
sentence imposed.







[17] The learned magistrate found that
there were no “compelling and substantial circumstances”
as defined in Act 8 of 2007. I agree with that











finding. Such a finding prohibited the
magistrate from suspending any portion of the sentence imposed.







[18] Mr. Tjituri who appeared for the
appellant submitted that in the absence of an appeal by the State,
this Court is not entitled to address the issue. The



submission is not well founded. I
agree with Parker J who stated the following in William Kaluma
v The State CA 6/2010
:







The
fact that the State did not appeal against the sentence does not
ipso
facto
mean
that the Court is prohibited from considering it, and in considering
it, close its eyes to patent irregularity or misdirection committed
by the trial court in the interpretation and application of the
relevant provision of the Act.”








[19] In the result I make the
following order:








  1. The appeal against the conviction is
    dismissed.



  2. The sentence imposed is set aside and
    substituted with a sentence of ten (10) years imprisonment.








_________



MILLER AJ







I agree







_______



HOFF J















ON
BEHALF OF THE APPELLANT:
Mr.
Tjituri



INSTRUCTED
BY:
The Directorate
of Legal Aid



ON
BEHALF OF THE RESPONDENT:
Mr.
Nyambe



INSTRUCTED
BY
: Office Of The Prosecutor General