NO: CA 83/2008
THE HIGH COURT OF NAMIBIA
the matter between:
HOFF, J et SWANEPOEL, J
on: 23 January 2009
on: 23 January 2009 (Ex tempore)
on: 20 March 2012
J:  The appellant was convicted in Regional Court
sitting in Gobabis of contravening section 2 of the Combating of Rape
Act, 8 of 2000 in that he raped the victim under coercive
circumstances at Grobelaars post, Otjimbinde in the district of
Gobabis. He was sentenced to 15 years imprisonment.
The appellant appealed against his conviction and sentence. This
Court on 23 January 2009 upheld the appeal and set aside the
conviction and sentence. These are the reasons.
The victim according to the charge sheet was 9 years old when the
incident occurred and I shall refer to her as the victim.
State called five witnesses.
The first witness, Ella Kawami testified that she is the biological
mother of the victim who was born on 4 May 1995. During the school
holidays of December 2003 to January 2004 she was sent to visit her
father who resided at farm Grobelaars post also known as post
Oshurushanja, Otjimbinde communal area in the district of Gobabis.
When the schools opened in January 2004 she was informed by her
eldest daughter, Nancy Kawani that the victim had reported to Nancy
that she had been raped. This report was made to her (i.e. the
biological mother) on 23 February 2004. When confronted, the victim
confirmed this, stating that it was the appellant who had raped her
behind her father’s homestead. She subsequently took the victim
to a clinic and to a gynaecologist.
During cross-examination this witness testified that the appellant
had admitted to her and her husband that he had raped the victim and
that he would make amends but later reneged stating that he would not
do what they requested and that they could proceed to inform the
police should they wish to do so. The appellant denied that he
admitted that he raped the victim.
The second witness was the victim who was eleven years old when she
testified and was admonished by the Court to tell the truth.
testified that on the day of the incident she was alone at her
father’s house when the appellant arrived there. He pulled her
on her arm to the back of the house where he pulled off her panty and
removed his trouser. He had her mouth covered with his hand. The
appellant pushed her to the ground, was on top of her and inserted
his penis into her vagina. Afterwards she could not walk properly and
staggered. Her leg and bladder pained. She was alone at home because
her father and others went to a horse racing event at Tallismanus.
She did not tell her father and stepmother because she was shy. After
the holidays on their way back to school she told her elder sister in
Tallismanus that she had been raped by the appellant . The incident
had occurred during midday.
cross-examination the appellant denied that he had visited her
father’s homestead and denied raping her.
The third State witness was Nancy Kawami, the elder sister, who
testified that she came to know about the rape when she was called by
her stepmother, at Post Oshurushandja, and was instructed to have a
look at the victim’s private parts because the stepmother had
detected a bad smell. She observed lacerations on the victim’s
private parts. She asked her what had happened but the victim refused
to tell them. The victim was crying. Her stepmother took the victim
to the clinic at Tallismanus. Later during the holidays on their way
back to school the victim told her that she had been raped by the
Flora Makari the fourth witness, testified that she is married to the
victim’s father. The appellant is known to her as the uncle of
her husband. The appellant resided at the same post. During the
school holidays she and her husband attended a horse racing event in
Tallismanus and sent the children including the victim to their
grandmother’s house. The grandmother had to look after the
children in their absence. They returned from Tallismanus on the same
day i.e. the Saturday and the next day she detected a bad smell
coming from the victim. She observed that the victim was limping. She
enquired from the victim why she was limping and was informed by the
victim that there was a thorn in her foot. She informed her husband
about the bad smell and the limping, and the husband instructed her
to call Nancy to have a look at the victim. The victim first refused
to pull off her panty when instructed to do so by her elder sister.
When she was confronted about why she was refusing to pull off her
panty she decided to pull off her panty. She inspected the private
parts and observed that it was reddish inside. She informed her
husband about this observation who confronted the victim. The victim
was crying. The victim was then taken to Tallismanus where a nurse
examined her. The nurse informed them that the victim had an
infection and treated the victim.
During cross-examination she testified that the horse-racing event
was on 3 January 2004.
The last State witness was Godfried Hoveka, the father of the victim.
He confirmed that during the school holidays he went to a horse
racing event and left the children at home. After they had returned
from Tallismanus his wife informed him about a bad smell emanating
from the private parts of the victim and that the victim was limping.
The victim was taken to the clinic and he was informed by his wife
that the victim had an infection in her private parts which could
have been due to environmental factors since it had rained and the
bushes were wet. The victim was treated in accordance with a
prescription they received at the clinic. The victim subsequently
returned to school in Windhoek. Afterwards he was informed by the
mother of the victim that the victim had been raped by the appellant.
He confronted the appellant about this allegation. The appellant
denied that he had raped the victim but offered to assist regarding
the medical treatment because they were relatives. According to him
the appellant was prepared to travel to Windhoek to give money to the
mother of the victim. He however did not keep this promise.
During cross-examination the appellant put it that they were not on
speaking terms since November 2003 because the appellant had loaned
money to the witness for the purchase of goats and the witness
subsequently refused to repay him. This was denied by the witness.
was also put to the witness that he had informed the appellant that
he would put the appellant in trouble from which he would be unable
to escape. This was denied by the witness. The appellant also
questioned the period of time (i.e. eight months) it took for the
charge of rape to be laid against him.
The State then closed its case. This was on 26 October 2006. The
presiding magistrate then questioned the prosecutor about the
availability of the medical doctor who had examined the victim. The
prosecutor informed the magistrate that the victim was examined in
Windhoek by a doctor and the case was then postponed until 21
On 21 November 2006 the prosecutor informed the Court that the State
would call no further witnesses but wished to hand up two health
passports which related to the victim in this case. These documents
were handed up in terms of the provisions of section 4 of the
Criminal Procedure Amendment Act, Act 24 of 2003 which reads as
Section 212 of the principal Act is amended by the insertion of the
following subsection after subsection (7):
7(A) (a) Any document
purporting to be a medical record prepared by a medical practitioner
who treated or observed a person who is a victim of an offence with
which the accused in criminal proceedings is charged, is admissible
at that proceedings and prima facie proof that the victim
concerned suffered the injuries recorded in that document.”
The Court marked those two documents as exhibits whereafter the
prosecutor for a second time indicated that the State was closing its
case. The matter was then postponed until 27 March 2007.
appellant testified and denied that he had raped the victim. He
stated that the victim’s father owed him money regarding goats
purchased by the victim’s father. On the day of the incident he
was accompanied by one Issie Kamutwetwe on their way to attend a
horse racing event in Tallismanus. They returned the next day around
10h00. He repeated that the victim’s father had informed him
that he would get him into trouble and that is why he thought that
the charge of rape was laid against him. He testified that he was
confronted in Windhoek where they (i.e. the biological mother and
father) demanded payment of seven head of cattle in order not to
report the matter to the police. According to him he informed them
that he would not pay seven head of cattle for something which he
knew nothing about.
Issie Kamutwetwe confirmed that he accompanied the appellant on
horseback to Tallismanus where they attended the horse racing event,
that they overnight there, and that they returned the next morning.
The magistrate in her judgment summarised the evidence of the State
witnesses and that of the appellant and his witness. The magistrate
referred to the conflicting evidence between the appellant and his
witness. She pointed out that they could not provide the date when
they so travelled to Tallismanus for the horse racing event and that
their versions differed as to where they had spent the night. She
recounted that the victim was able to explain in detail how and where
she was raped. The magistrate referred to the uncontested evidence
about the bad smell emanating from the victim and that at some stage
the victim had difficulty walking.
The magistrate remarked that the appellant’s version that the
charges were laid because of a misunderstanding between the father of
the victim and the appellant didn’t make sense because the
father only heard about the allegations of rape after the victim and
her sister had left for Windhoek. The magistrate further found that
the victim could not have been mistaken regarding the identity of the
appellant who was well known to her. She remarked that it was not the
victim’s father who had indeed laid a charge of rape but the
victim’s mother. She found that there was enough evidence that
the complainant had been sexually molested and referred to the health
passports of the victim. The health passports contain information
regarding observations during the various occasions the victim had
been examined by the same medical practitioner over a period of some
months, including the fact that her hymen was not intact. The
magistrare rejected as unreasonable the appellant’s explanation
that a misunderstanding could have been the reason why a charge of
rape was laid against him.
Mr P Kauta who appeared on behalf of the appellant, submitted that
the presiding magistrate rejected the appellant’s evidence for
two reasons namely because of the contradictions between his evidence
and the evidence of his witness and secondly because the appellant
and his witness were related. He further submitted that despite the
fact that the victim was a single witness there is no indication on
record, that the magistrate had applied the cautionary rule, in
assessing her evidence especially in the light of the fact that the
victim initially was reluctant to tell that she had been raped. It
was further submitted that the reasons for judgment contained no
findings regarding the credibility of witnesses, their demeanour,
trustworthiness and the probabilities. It was further submitted that
even if the magistrate found the State witnesses to be truthful it
does not mean that the appellant should have been convicted. It was
further submitted that the contradictions between the evidence of the
appellant and that of his witness related to the colour of the horses
which they rode to Tallismanus and the place where they had slept,
but that the magistrate in her reasons for judgment never rejected as
false that the appellant had on the day of the incident rode to
Tallismanus and returned the next day. It was also submitted that the
magistrate misunderstood the appellant’s defence in the sense
that the defence was an alibi and not that the victim’s father
framed the appellant as this was at best an explanation regarding the
motive or reason why the appellant was charged.
There is much merit in these submissions.
S v Singh 1975 (1) SA 227 (N) at 228 F – H the following
it would perhaps be wise to repeat once again how a court ought to
approach a criminal case on fact where there is a conflict of fact
between the evidence of the State witness and that of the accused. It
is quite impermissible to approach such a case thus: because the
court is satisfied as to the reliability and the credibility of the
State witnesses, that, therefore, the defence witnesses, including
the accused, must be rejected.
The proper approach in a
case such as this is for the court to apply its mind not only to the
merits and demerits of the State and defence witnesses but also to
the probabilities of the case. It is only after so applying its mind
that a court would be justified in reaching a conclusion as to
whether the guilt of an accused has been established beyond all
reasonable doubt. The best indication that a court has applied its
mind in the proper manner in the above-mentioned example is to be
found in its reasons for judgment including its reasons for the
acceptance and the rejection of the respective witnesses.”
Except for referring to the contradictions referred to (supra)
the magistrate made no finding regarding the alibi of the appellant.
It was never rejected as false. Instead the magistrate rejected the
appellant’s “defence” of having been framed by the
appellant as unreasonable and untruthful. This in my view is a
misdirection by the magistrate to which I shall revert again.
There is no indication in her reasons for judgment that the
magistrate applied the cautionary rule in respect of the testimony of
the victim who was a single witness regarding the incident of rape.
This rule is still part of our law.
In S v Monday 2002 NR 167 (SC) at 192 E – F, O’Linn
AJA remarked as follows in this regard:
is no indication in the record that the Court, in assessing their
evidence, applied the cautionary rule relating to witnesses of their
age in considering their testimony.
This Court has ruled in a
recent decision that the cautionary rule in regard to complainants in
sexual offences is outdated and should no longer be applied in
However, it pointed out
that the cautionary rule in regard to single witnesses and in regard
to very young witnesses remained.”
S v Katamba 1999 NR 348 (SC) at 359).
Regarding the defence of an alibi the following was said in R v
Biya 1952 (4) SA 514 (AD) at 521 C – D:
there is evidence of an accused person’s presence at a place
and at a time which makes it impossible for him to have committed the
crime charged, then if on all the evidence there is a reasonable
possibility that this alibi evidence is true it means that there is
the same possibility that he has not committed the crime.”
I have indicated (supra) that the magistrate had made no
finding regarding the alibi defence of the appellant in the sense of
rejecting it and her reasons for so rejecting that defence. Regarding
her rejection of the explanation by the appellant regarding a
possible motive for the laying of the charge of rape, which was
emphasised by the magistrate, and one of the reasons for rejecting
this testimony as untruthful the following must be highlighted.
The appellant proffered the issue of the loan and the non-payment
thereof as a possible reason why the father of the victim had
informed him that he would get the appellant into trouble and why a
charge of rape was laid against him.
S v Lesito 1996 (2) SACR 682 (O) the accused said that the
dagga found in his house had been planted by the police. He did not
see the police planting the dagga but he inferred the planting from
other facts. The magistrate found that it was inherently improbable
that a police officer would falsely incriminate a member of the
public and rejected the defence of the accused that he was not a
dealer in dagga. On review the court held as follows (as per
it could be accepted that it was generally unlikely that a police
officer would falsely incriminate someone, more than a general
improbability was needed before the accused’s version could be
rejected. The Court held further that even if the accused’s
allegation that the dagga had been planted could be rejected as being
false, this did not mean that his denial of knowledge of the dagga
was also false. In
the accused’s allegation that the dagga had been planted had
been an inference
he had drawn. It would have been another matter altogether if he had
testified that he had in fact seen the dagga being planted and the
court had specifically rejected that allegation. In such a case it
could justifiably be concluded that the rest of his evidence was also
false. However, if the court rejected an inference
made by the accused, that did not justify the conclusion that all his
evidence was false.”
In this appeal the magistrate misdirected herself in this regard as
is apparent from the following passage from her judgment (at p. 157
of the record):
the accused person’s defence of having been framed by the
complainant’s father is so unreasonably and cannot be seen as
the truth. And as a result the Accused is found guilty of rape ...”
The appellant during his cross-examination of the victim’s
father clearly stated that he recognised the fact that it was not the
victim’s father who had laid the charge of rape against him.
During cross-examination of the father of the victim by the appellant
the magistrate stopped the appellant from exploring the issue of the
loan and directed him to concentrate on the charge of rape. However
during cross-examination of the appellant by the prosecutor, the
magistrate allowed the prosecutor a free reign on this very issue and
eventually rejected the appellant’s version on this issue on
the answers he gave during cross-examination.
In S v Appelgrein 1995 NR 118 one of the grounds of appeal was
that the magistrate refused to allow the appellant to conduct
relevant cross-examination. Mtambanengwe J at p. 122 D – E
remarked as follows:
in his application for leave to appeal the appellant stated as one of
his grounds that the trial magistrate was biased. He seems quite
justified in that belief when one finds that the magistrate stopped
him to ask questions as indicated above, yet, later on when the
appellant gave evidence the prosecutor cross-examined him extensively
on the very aspect that the magistrate said was not important or
This was a irregularity which prejudiced the appellant.
Mr Kauta further submitted that the medical evidence on which the
magistrate finally relied on was admitted in “controversial
circumstances”. I have indicated (supra) that after the
State has closed its case the matter was postponed ostensibly to lead
the evidence of the medical doctor who had examined the victim on
various occasions. A court may in terms of the provisions of section
186 of the Criminal Procedure Act, 51 of 1977 at any stage of
criminal proceeding subpoena any person as a witness at such
proceedings and in certain circumstances has a duty to subpoena such
appears from the record that the medical doctor was not called to
testify, but instead the prosecutor was allowed to hand in two health
passports containing information relating to the examination of the
victim by a medical doctor. The magistrate must have been aware of
the fact that the State had previously closed its case. The State
could not in these circumstances without further ado just hand in
these health passports without laying a basis why these passports
could not have been handed in prior to the closure of the State’s
magistrate in her reasons for convicting the appellant relied on the
information contained in these passports inter alia that the
hymen of the victim was not intact during one of the examinations.
general rule (with a few exceptions) is that in the interests of
finality a party who has closed its case cannot afterwards claim the
right to lead any further evidence.
sought to be led out of time may only be received once the court has
exercised its discretion in favour of hearing such evidence. Such
evidence would ordinarily only be received where a party can show
that the evidence could not, by the exercise of due diligence, have
been led at the appropriate time. Normally a court would allow such
evidence to be led where for example after the closure of the State’s
case and in the course of the defence case a new matter is introduced
which the prosecution could not have expected to foresee. The State
would then be permitted to lead evidence in rebuttal after the
closure of the defence case.
Hoffmann and Zeffert, The South African Law of Evidence, 4th
Ed. p. 475).
In the circumstances of this case the State was allowed to present
additional evidence after the closure of the State’s case but
before the appellant could present his case. The prosecutor provided
no motivation for such unusual course of events and the magistrate
demanded no such motivation.
The accused was not legally represented and it is common cause that
he is an illiterate person. The acceptance of the two health
passports as evidence in this case gravely prejudiced the appellant
since the magistrate relied on the contents of those health passports
in order to convict the appellant. This was an irregularity which
vitiated the proceedings and in particular the conviction of the
Mr Kauta referred to further shortcomings in the State case which was
not considered by the trial magistrate. I am of the view that in the
light of the reasons provided aforementioned that it is not necessary
to examine those shortcomings.
The irregularities and misdirections referred to (supra) were
sufficiently grave in my view and affected the fairness of the trial
in the court a quo. The conviction in respect of the crime of
rape therefor cannot be allowed to stand.
These are the reasons why the conviction and sentence were set aside
by this Court on 23 January 2009.
BEHALF OF THE APPELLANT: MR P KAUTA
by; DR WEDER, KAUTA & HOVEKA INC.
BEHALF OF THE RESPONDENT: ADV. LISULO
by: OFFICE OF THE PROSECUTOR GENERAL