Court name
Northern Local Division
Case number
HC-NLD-CRI-APP-CAL-2020/12
Case name
Hamana v S
Media neutral citation
[2020] NAHCNLD 156

Hamana v S (HC-NLD-CRI-APP-CAL-2020/12) [2020] NAHCNLD 156 (12 November 2020);

Case summary:

Criminal- Appeal- Conviction and sentence- Credibility of witness and mutually destructive versions-Evaluation of evidence-Relevance of evidence-Charge sheet must contain all the charges levelled against an accused-Cannot place facts before the Court that does not carry any evidential value-Material misdirection from the Court a quo- warranting the interference of the appeal court-Conviction and sentence set aside- Appeal succeeds.

Headnote and holding:

Appeal against conviction and sentence. The Appellant was arraigned before the Regional Court on a charge of contravening section 2(1)(a) of the Combatting of Rape Act 8 of 2000-Rape. On conviction he was sentenced to 10 years imprisonment.

The trial court decided it is satisfied as to the reliability and the credibility of the State witnesses and, for that reason, rejected the evidence of the accused and defence witnesses while gaving no reasons for rejecting the evidence of the Appellant. 

The charge sheet only alleged one sexual act allegedly committed on 2 July 2012. In the magistrate’s judgment she spoke of four incidents of sexual intercourse.

The Court held; An apparent misdirection by the Court a quo warranted interference by the appeal court. The irrelevant and highly prejudicial evidence lead, and allowed by the Court a quo, made it almost impossible for the Appellant to mount an adequately constructed defense in this matter. The evidence of the other alleged incidents prior to 2 July 2012 should have been disallowed as irrelevant and impermissible.

The Court further held; that due to shortcomings in the evidence of the single youthful witness, the lack of vital evidence regarding the elements of the crime alleged against the Appellant, that the State did not prove the preferred charge in this matter beyond a reasonable doubt.

The appeal against conviction and sentence is accordingly upheld.

ORDER

1.         The application for condonation is granted

2.         The appeal against conviction is upheld, and the conviction and sentence imposed by the Regional Court are hereby set aside.

Judge
January J
Small AJ

Introduction

[1]        This is an appeal against conviction and sentence. The Appellant was arraigned before the Regional Court on a charge of contravening section 2(1)(a) of the Combatting of Rape Act 8 of 2000-Rape. On conviction, he was sentenced to 10 years imprisonment.

[2]        The Appellant appears in person while the Respondent is represented by Ms. Soraya Petrus.

Application for Condonation

[3]        The Appellant filed his appeal on 26 July 2019, which is more than a year after his conviction and sentence on 17 July 2018. He also filed an application for condonation for non-compliance with the period prescribed by Rule 67 (1) of the Magistrate’s Court Rules. Appellant states that he did not understand how to lodge the notice of appeal; he was in shock and was waiting to recover and, due to his level of education, found it challenging to do the appeal on his own.

[4]        The Respondent opposed the application for condonation and submitted that the Appellant does not explain what happened between 17 July 2018 and him requesting the record of his trial proceedings on 8 May 2019. Respondent also points out that the Appellant's affidavit does not deal with the prospects of success on appeal, as was set out in Booysen v State[1] and submits that it should on that basis alone be struck from the roll. 

[5]        The Appellant's rights to appeal was fully explained on record in line with the guidelines as set out by Tomassi J and concurred to by Liebenberg J in Kornelius v S[2] in paragraph 10[3], which states:

‘[10]     What follows is meant to be helpful guidelines to the judicial officers when explaining the right to appeal to an unrepresented accused.  The accused should be informed of his right to appeal to this Court; and that he may do so on his own or assisted by a legal practitioner, be it one of his own choice or appointed by the Directorate of Legal Aid;  In respect of the procedure the accused should be advised that he/she:

  • should note the appeal in writing; (Rule 67 (1));
  • may approach the clerk of Court for assistance to write out the notice of appeal if unable to do so due to a physical disability or illiteracy (Rule 67(2));
  • could obtain a copy of the record from the clerk of the Court and if not able to afford payment for same then the magistrate may be approached with a request that it be provided free of charge or at a reduced fee (Rule 66(9));
  • should set out clearly and specifically the grounds, whether of fact or law or both fact and law, on which the appeal is based (Rule 67(1));
  • should stipulate in the notice of appeal whether the appeal is against the conviction or sentence or both the conviction and sentence;
  • should affix a date to the notice of appeal;
  • should lodge the notice of appeal with the clerk of Court within 14 days from date of conviction and sentence (Court days i.e Saturday, Sunday and public holidays excluded; and calculated by excluding the first day and including the last day); (Rule 67 (1) & Rule 2(2));
  • if for some reason he/she is unable to note the appeal within the prescribed time limits, he/she should apply, in writing, to this Court for extending the period by, explaining under oath, the reasons for the failing to comply with the stipulated period; (Section 309 (2) of the Criminal Procedure Act, 1977 (Act 51 of 1977); and to state  reasons why there are prospects of success on appeal;
  • should, without delay, file the application for extending the time limit with the clerk of Court.
  • may amend the notice of appeal and file such amended notice with the clerk of the Court within seven (7) days after being informed by the clerk of Court that the magistrate had furnished his statement envisaged in rule 67 (3).’

[6]        Given the full explanation of the right to appeal and the procedure to be followed in prosecuting such appeal given in this matter and recorded on record, I am satisfied that the Appellant knew and understood what the rules prescribed and required. His explanation for the delay, therefore, cannot be reasonable.

[7]        In the absence of a reasonable explanation for the delay, the merits of the appeal, specifically the reasonable prospects of success on appeal, are significant and can tip the scales for the granting of the application for condonation and consideration of the merits of the appeal. [4]

Grounds of Appeal

[8]        The Appellant listed five grounds of appeal in his notice. Although not framed in the best English, one can see that Appellant, in layman's terms, formulated grounds for appeal alleging:

  1. That the Regional Court Magistrate convicted him without justification,
  2. The Court wrongly concluded that the medical evidence does not exclude rape,
  3. The Court ignored or did not adequately consider the medical evidence and disregarded that it showed no injuries,
  4. The Court did not correctly consider the different versions given by the state witnesses when convicting him; and
  5. He alleged that his personal circumstances were not adequately taken into account when the Court sentenced him.  

 

[9]        This Court is satisfied that the grounds summarized hereinbefore are ‘clearly and specifically’,[5] enough to inform the Magistrate, Counsel for the State, and this Court as to what the issues are that Appellant believes were not given due consideration when he was convicted and sentenced and where he believes the Court a quo misdirected itself.

[10]      Before dealing with the facts of the matter, it is necessary to point out that Ms. Petrus properly brought it to the Court's attention that the Court a quo failed to bring the provisions of section 3(2) of the Combating of Rape Act, 8 of 2000 to the attention of the undefended accused. Guidelines on how this should be done were spelled out in S v Gurirab 2005 NR 510 (HC) at 517J-518G, sub-paras 2.1-2.4.[6]

[11]      Such failure may well affect the sentence imposed by the Court a quo. As was pointed out in S v Tampart en Andere 1990 (1) SACR 282 (SWA), even a failure of justice regarding the sentence does not necessarily affect the conviction if such irregularity occurred during the sentencing part of the trial. At most, the State's concession thus means that there might be reasonable prospects of success on appeal regarding the sentence. This Court, however, should first consider the facts that were placed before the Court a quo and its judgment to decide whether there are reasonable prospects of success on appeal related to the Appellant's conviction.

The facts

[12]      The charge preferred against the Appellant in the Regional Court alleged that on or about 2 July 2012, at or near Onghala Village in the district of Eenhana the accused, hereinafter called the perpetrator, did wrongfully and unlawfully commit or continue to commit a sexual act with Lovisa Ndeuhepela Shimutiwikeni, hereinafter called the complainant, by inserting his penis into the vagina of the complainant without consent and by inserting any other part of his body into the vagina or anus of the complainant. The State further alleged that coercive circumstances were present as the perpetrator applied physical force to the complainant and that the complainant was 9 years of age while the perpetrator was 19 years old.

[13]      The Appellant pleaded not guilty and denied that he committed the alleged acts. The State thus had to prove all elements of the alleged offence.

[14]      Before any evidence was lead, the complainant's birth certificate, the accused's birth certificate, and the J88 Medical-Examination Report of the Complainant Lovisa Shimutwikeni were handed in by agreement. 

[15]     The complainant's birth certificate indicated that she was born on 15 August 2002 and thus was 9 years old when the incident occurred on 2 July 2012. The accused's birth certificate indicates that he was born on 14 November 1992 and thus was 19 years old on the alleged incident date.

[16]      The J88 Medical-Examination Report purports to have been completed on 19 July 2012 regarding one Lovisa Shimutwikeni. Under Conclusion: (Please state whether or not in your opinion, the injuries fit/do not fit with the time and circumstances of the alleged incident) the following is entered: 'Patient presented after a month of the alleged incident. No significant finding on examination.’ Under Explanatory Notes the following entry appears: ‘Late presentation. No conclusion as to whether the incident occurred could be made on examination.’

[17]      The first witness called by the State was Claudia Nadula Shalonga, the mother of the complainant. She stated that she was not at home during the alleged incident being 2 July 2012 as she went to Oshikango.

[18]      After she came back at around 17:00, the complainant reported that she was found by the Appellant at the Okamwandi tree eating eenyandi. The accused held her by the hand and mouth and laid her down. He undressed her by removing her panty. He inserted fingers in her vagina, and she started bleeding. He then took out his penis and inserted it into her vagina. The Appellant then let her go but threatened to kill her if she told her mother.

[19]      She confirmed that the complainant was nine years old at the time of the incident. During cross-examination, she added that the complainant was crying while the accused had sexual intercourse with her.

[20]      The complainant told this witness that this incident was the fourth time the accused had sexual intercourse with her. It happened before on different occasions on different days and at different locations. The complainant reported none of the previous incidents to this witness.

[21]      She inspected the complainant and saw that her vagina seemed 'bigger'. The witness stated that this means the complainant was raped. At the Engela Hospital, they told her that too many days have passed and that they could not determine whether somebody raped the complainant or not.'

[22]      The second state witness was Paulina Nekongo. This witness was with the complainant's mother in July 2012 when the complainant reported the alleged rape.

[23]      According to this witness, the complaint told her she was tired of the accused. The complainant said that the accused found her in the Okamwandi tree and told her she must get off the tree. He promised to give her a phone and N$10. When the complainant got down, the accused inserted his finger into her vagina. Afterwards, the accused laid or slept on her.

[24]      The witness further alleged that the accused, according to the complainant, had sexual intercourse with her. After the sexual intercourse, she was bleeding between the legs from her vagina.  She put the blood from this bleeding in a hole. The Appellant then told the complainant that if she would tell anyone, he will kill her.

[25]      The witness then related to another incident where the complainant was at an Omuve tree. Accused threw her with palm fruits, [Eendunga] saying she should come down, and he will give her N$1.  After the complainant came from the tree, the accused put on a condom and had sexual intercourse with her. The complainant showed her the N$1. The complainant only told the witness of these two times.

[26]      Under cross-examination, the witness stated that the complainant only mentioned two incidents to her. The first happened at an Okamwandi tree and the second incident at an Omuve tree. She does not know why the mother did not say anything about the N$1 and ventured the explanation that she must have forgotten to mention it.

[27]     The final witness for the State was the complainant Lovisa Shimutwikeni who gave evidence on 26 April 2018.

[28]      When asked by the State whether she knew why she was before Court, she stated: 'The fact that he laid on me.' Then she said: 'He laid on me with his penis.' She later said that the Appellant poked her with a finger, and she bled as a result. The witness later added that the accused had sexual intercourse with her and that his penis was inside her vagina.

[29]      The complainant then referred to "another day" when the Appellant found her at the Omuve tree and undressed her. Then she referred to an incident when the Appellant found her in an Omuwandi tree. When she is taken back to what happened under the Omuve tree after the Appellant undressed her, she says: "He undressed me and laid on me." When asked what she meant by that, she said: "He laid on me on my vagina or at my vagina." Then she adds that he put his penis into her vagina.

[30]      She then continued in her evidence to an incident where the accused found her in the Omwandi tree. According to her, the Appellant had a broken bottle.  He gave her his phone and told her not to report this to her parents. She gave the phone back whereafter the Appellant left. She then said the accused took her by the arms. When asked when she just said he went after she gave the phone back, she stated that he came back the next morning and found her in the Omuve tree. No sexual acts were committed on this during this meeting. 

[31]      She described what happened under the Omuve tree. She said the accused held her hand and laid on her. The Appellant then had sexual intercourse with her. When asked what she meant by sexual intercourse, she said, "He was doing me with his penis." She added that the Appellant whipped her with sticks.  She told her parents later that day.  The complainant said that this incident was the fourth time the Appellant had sexual intercourse with her.

[32]      The Appellant then gave evidence denying the allegations against him. In essence, he denied having committed any sexual act with the complainant and having done so under coercive circumstances.

 

Approach on Appeal

[33]      The general principles of the appeal court's approach are well known. The departure point thereof is that an appellant is entitled to a re-hearing as of right. This right is a matter of law and must not be made illusory. The right has limitations, however. In the absence of an apparent and material misdirection by the trial court, its findings are presumed correct. The appeal court can only disregard them if the recorded evidence shows them as wrong. However, this approach does not relieve an appeal court from its obligation to carefully consider the evidence because it has other advantages that the trial court does not have. A Court of Appeal is better positioned to consider the secondary facts from the evidence as the case is, as it were, laid out thoroughly before them.[7]

[34]      If a trial court commits a serious misdirection, this Court is at large to disregard the findings of fact, even those based on credibility, and must then come to its own conclusion based on all the evidence. [8]

Misdirection by the Court a quo

[35]      From a reading of the evidence and judgment of the Court a quo, it is apparent that it faced two mutually destructive versions from the complainant and the accused. The approach prescribed for a trial court faced with mutually destructive versions is well known and settled. A trial court cannot because it is satisfied with the reliability and the credibility of the State witnesses and, for that reason, reject the evidence of an accused.  It also gave no reasons for rejecting the evidence of the Appellant. [9]

[36]      The proper approach is to apply one's mind to the merits and the demerits of the State and the defence witnesses and the case's probabilities. Only then can a court justifiably conclude that an accused's guilt was established beyond a reasonable doubt.

[37]      That a court has correctly applied its mind in this regard must be apparent in its judgment, indicating amongst other things why he disbelieved some witnesses and accepted the evidence of others.

[38]      It is abundantly clear from a reading of the judgment that the Court a quo did not apply the principles described above when evaluating the evidence placed before it. The Court a quo found that State witnesses gave reliable and credible evidence and, for that reason, rejected the evidence of the accused. It gave no reasons for rejecting the evidence of the Appellant.

[39]      The Court a quo also in its judgement, when dealing with the absence of injuries or signs of injuries on the complainant on the J88, said: ‘However, although the medical examination did not make a finding on rape, it did not say the victim was not raped. It therefore follows that, it is a general knowledge of our laws that medical examinations evidence are not conclusive and need to be considered together with the total evidence in the matter.’ In argument, Ms. Petrus conceded this finding was made without any evidence on record substantiating such a finding. The J88 completed seventeen days after the alleged incident is at most neutral. In essence, it said no more than that the complainant had no apparent injuries at that time of the examination.

[40]      While the Appellant was cross-examining the complainant, the Court a quo correctly informed the Appellant: “She spoke of four incidents of sexual intercourse, however you are only charged with one count which happened on 2 July 2012.” In the judgment, however, the Court considers the matter as if sexual acts were committed with the complainant under coercive circumstances on four diverse occasions.

[41]      Due to the misdirections above, this Court is now at large to disregard the Court a quo's findings of fact, even those based on credibility, and re-evaluate the facts and reach its conclusion regarding the evidence presented.

 

The applicable law and the evaluation of the evidence

[42]      It is trite law that the State carries the onus of proving an accused's guilt beyond a reasonable doubt. There is no onus on an accused to prove his innocence.

[43]      The charge sheet is a good departure point in this appeal.  The first sexual act alleged in the charge is: ‘inserting his penis into the vagina of the complainant without consent.'  The definition of 'sexual act' defined in section 1 of the Combating of Rape Act 8 of 2000, only requires ‘the insertion (to even the slightest degree) of the penis of a person into the vagina or anus or mouth of another person.'  It does not require the additional element that this should happen 'without consent.'

[44]      The second sexual act marked in the charge sheet alleges inserting (any other part of the body of a person) into the vagina or anus of the complainant. However, it is silent as to what other part of his body the Appellant allegedly inserted into the vagina and anus of the complainant.  Nothing was filled into the allotted space on the charge sheet. 

[45]      Two other possible sexual acts were also not marked but also not deleted, as one would expect. In respect of the alleged coercive circumstances, two were marked and filled in while seven were not marked, but also not deleted as one would expect. Completing a charge sheet in this lackadaisical manner should not be tolerated. Especially as such a charge had to inform the Appellant what the State intended to prove against him. [10]

[46]     Section 83 of the Criminal Procedure Act 51 of 1977 provides as follows: ‘If by reason of any uncertainty as to the facts which can be proved or for any other reason it is doubtful which of several offences is constituted by the facts which can be proved, the accused may be charged with the commission of all or any of such offences, and any of such charges may be tried at once, or the accused may be charged in the alternative with the commission of any number of such offences.’

[47]      Section 94 of the Criminal Procedure Act 51 of 1977 provides: ‘Where it is alleged that an accused on divers occasions during any period committed an offence in respect of any particular person, the accused may be charged in one charge with the commission of that offence on divers occasions during a stated period.’

[48]     If a complainant states in her statement to the police that she was raped on different occasions, locations, and the same accused, the State would be entitled to charge such an accused with three separate charges of rape depending on the available evidence. Depending on the circumstances, the State can also elect to charge the accused in one charge with the commission of rape on diverse occasions during a stated period. 

[49]     The State did none of those mentioned above. Although the State incorporated a reference to Section 94 in its argument before judgement, this is either an afterthought or due to a misunderstanding of what section 94 entails. He elected to, and charged, the accused with one count of rape as set out hereinbefore. This decision had definite consequences for the prosecution of the matter. This aspect is dealt with later when this Court deals with the irrelevant and inadmissible evidence presented in this matter.

[50]      The birth certificate of the complainant indicated that she nine years old at the time of the incident. The accused's birth certificate indicates that he 19 years old on the date of the alleged incident being 2 July 2012. These facts, being part of the coercive circumstances alleged against the Appellant, and by implication also denied by his plea explanation, were never formally admitted by the accused as required by section 220 of the Criminal Procedure Act, 51 of 1977.

[51]      When an accused person proposes to admit a fact, but he lacks legal representation, the judicial officer trying him must satisfy himself, before accepting the admission in evidence, that the accused's decision to make it has been taken with a full understanding of its meaning and effect.  The Court must ensure that the accused is under no misapprehension that he is obliged or expected to supply the State or the Court with it and that such admission appears to be genuinely voluntarily in all other respects. The precise extent of the admissions he is prepared to make should be recorded [11] as the documents were never admitted as part of a section 220 admission, this explanation was never given.

[52]      In terms of section 161 of the Criminal Procedure Act 51 of 1977 any evidence placed before Court in criminal proceedings must, unless the Criminal Procedure Act itself or only other law provides otherwise, be done by a witness giving viva voce evidence. None of the exceptions to the viva voce requirement found in sections 212, 213, 221, 235 or 236 of the Criminal Procedure Act allows the procedure followed by the Court a quo for admitting the birth certificates into evidence.

[53]      Section 222 of the Criminal Procedure Act provides that sections 33 to 38 of the Civil Proceedings Evidence Act, Act 25 of 1965 relating to documentary evidence, applies in criminal proceedings. These provisions also did not allow the Court a quo to admit the birth certificates into evidence in the manner it did.

[54]      It is not clear on what legal basis the prosecutor handed in the two birth certificates and on what basis the Court a quo allowed it to be admitted into evidence. The unrepresented Appellant’s indication that he has no objection to the handing in, of inter alia the birth certificates, does not authorize the prosecution to place evidence before Court in an improper and impermissible manner.  Nor does it authorize the Court from accepting evidence presented in such an improper and impermissible manner.

[55]     The Criminal Procedure Act 51 of 1977 does not provide for handing in documents like birth certificates by merely calling or labelling its contents common cause.  Such documents must be appropriately incorporated in admissions in terms of section 220 of the Criminal Procedure Act 51 of 1977 or handed in by someone who can authenticate it properly when giving viva voce evidence.

[56]     In cases like the one under consideration, the State carried the burden of proving all the alleged crime elements beyond reasonable doubt. Although certain aspects of the State's case might not be disputed, seem not to be disputed, and part of the evidence might even seem to be common cause, the onus of proof in criminal cases requires that admissible and relevant evidence vital for a conviction is presented to Court by the State in the appropriate manner if such evidence is not formally admitted.

[57]      The age of the complainant was however, proved by the undisputed evidence in this regard of her mother the first State witness. Although this witness said the complainant was 9 years old at the time of the incident, the Court a quo for some reason found that the victim was 10 years old. Nothing, however, turns on this. The accused's age was not admitted in terms of section 220 of the Criminal Procedure Act, nor was it proved by any admissible evidence. The fact that the Appellant said in argument that he expected injuries if a 19-year-old had sexual intercourse with a 9-year-old, this does not prove the age of the Appellant at the time of the incident. Not proving Appellant's age in an admissible manner is fatal for one of the coercive circumstances alleged against him.

[58]      The J88 Medical-Examination Report of complainant completed on 19 July 2012 was handed in under an affidavit in terms of Section 212 (4)(a) of the Criminal Procedure Act, 51 of 1977. 

[59]      The J88 was thus properly before Court[12] and provided prima facie evidence of its contents. This report was completed after an examination that was done seventeen days after the alleged incident. As said before, this report is neutral and does not assist either the prosecution or the Appellant.

[60]      The evidence by this first state witness that the vagina of the complainant seemed "bigger" and her conclusion that this meant complainant was raped was clearly an opinion elicited by the prosecutor during her evidence in chief. The Court a quo had to decide whether the complainant was raped, not the witness. "Any opinion, whether expert or non-expert on an issue which the court can decide without receiving such opinion is in principle inadmissible because of its irrelevance.”[13]

[61]      The learned authors P J Schwikkard and S E Van der Merwe correctly point out that:

‘[i]t is customary to approach the admission of opinion evidence on the basis that one has to distinguish between lay opinion and expert opinion. Once it is realized that admissibility does not depend on this distinction, but on the question whether the opinion of the particular witness in the particular circumstances of the case can assist the Court in determining the issues, it becomes clear that the distinction between lay person and experts does not govern admissibility.’[14]

[62] The accused challenged this evidence of this witness. He specifically cross-examined the witness on what signs the witness observed when examining the complainant to conclude that the complainant was subjected to the alleged sexual acts. The witness only answered: “The child is the one who came to tell us herself." The witness, therefore, advanced no reasons to support her conclusion in her examination in chief or under cross-examination.

[63]      As was said in S v Januarie and Another 1980 (2) SA 598 (C) at 600B-C: ‘[A]s to the value of an opinion expressed by a witness, there should be sufficient enquiry not only into the reasons for the opinion, but also into the ability of the witness to express an informed and sound opinion.' The witness's repetition of her conclusion, when re-examined by the prosecutor, did nothing to remedy this.

[64]      The opinion expressed by this witness cannot assist the Court in its decision and is thus and, for that reason, irrelevant and inadmissible. There is thus no objective physical evidence corroborating the complainant that the sexual acts alleged were committed.

[65]      The complaint was only nine years old when the alleged incident set out in the charge occurred. It is also clear that in respect of the incident, she was a single witness and that the two other State witnesses just repeated what the complainant told them. Their evidence only proved that the complainant made a report with specific content to them. Their evidence cannot prove the veracity of the individual reports made to them. Nor can their evidence in respect of the reports prove the allegations against the Appellant.

[66]      How the evidence of a single witness should be evaluated is also settled law in Namibia. The cautionary approach should not displace common sense when evaluating the evidence. The evidence of the single witness need not be satisfactory in every respect. A Court may still accept and rely on such evidence, although it was not perfect in all aspects, if it concludes that the evidence is materially true. [15]

[67]      Damaseb JP in S v Koch 2018 (4) NR 1006 (HC) said the following: ‘[12] There is no requirement that a child's evidence must be corroborated. It is settled law that the trier of fact must approach such evidence with caution and be alert to the dangers inherent therein. [16]  He then referred to the inherent dangers as it was spelled out by the Supreme Court in Minister of Basic Education, Sport and Culture v Vivier NO and Another[17] at 623F – 624B:[18]

[68]     In considering the complainant's evidence, the two other state witnesses and the accused, it is important to remember that their evidence was given almost six years after the alleged incident on 2 July 2012.

[69]      The Court will deal with the evidence of the complainant first.  The witness at the time of the incident was nine years old. When giving her evidence, she was 15 years old. The record is unfortunately silent as to her mental and physical development between the incident and her giving evidence before the Court a quo. Such evidence is important as it can provide some assistance to a Court evaluating and understanding her evidence.

[70]      The complainant gave evidence in respect of four occasions that she met up with the Appellant.  The first and third meeting took place under an Omwandi tree, and the second and fourth meetings under an Omuve tree. Although mentioning four incidents, the complainant clearly describes only three incidents in which ‘sexual acts’ were allegedly committed to her.

[71]      The complainant never alleged that the Appellant inserted a finger or anything else into her anus, as was also alleged in the charge preferred against the Appellant. If it was not deleted due to an oversight, such an allegation on a charge sheet could result in a complainant being confronted with such averment and subjected to lengthy and unwarranted cross-examination.

[72]      When evaluating the complainant's evidence in respect of the first incident under the Omwandi tree, it is important to consider how the complainant’s evidence was presented. [19]  The complainant was firstly never asked to explain what she meant when she talked about a 'penis’ or what she meant by ‘vagina’.

[73]      A court dealing with a juvenile witness cannot, and should not, accept that such witness has the knowledge of an adult when using these terms. At the very least, a court should attempt to establish what such a juvenile witness considers a penis and vagina and where such knowledge originates. As was said in Minister of Basic Education, Sport and Culture v Vivier NO and Another supra, a Court should realize that juvenile witnesses sometimes have an incomplete comprehension of the often-complex matters they are required to testify about. If a court interpreter is used, a Court should also establish whether the juvenile witness used the words as translated to the Court and whether the real term used by such witness was not lost in translation.  

[74]      At a time when the complainant had said nothing about penetration, the following leading question by the prosecutor is recorded: 'How did it happen for him to sleep with you with his penis in your vagina?” She does not answer this leading question and apparently does not fully understand it. When prompted a bit further on as to what the accused did in addition to laying her on her stomach, she states: 'Then he poked me with the finger’. She was asked where the accused poked her, to which she answered: 'On my vagina and then I started bleeding then I bled.’ Once again, we then see the following leading question by the prosecutor: ‘After he poked you with the finger in the vagina then you bled and then what happened?” Only after these extremely leading questions, that in essence laid the two disputed ‘sexual acts’ averred in the charge against the Appellant, in the mouth of the juvenile complainant, does the witness start saying that there was a penetration of her vagina. 

[75]      Leading questions are generally prohibited because it suggests the answer or assumes the existence of a fact which might be in issue. In this case, the sexual acts were in dispute. The leading questions were posed to a juvenile witness when there are evidential risks such as suggestibility and imaginativeness associated with a young witness like her. Once again, Ms. Petrus correctly conceded that these leading questions posed seriously affect the value and weight of this evidence by the complainant.

[76]      One should also add that complainant was never asked to explain or indicate what she considered to be penetration into the vagina or when using the words 'in' or 'inside' concerning her vagina. Such evidence is vital in the absence of medical evidence.

[77]      Another aspect that warrants mentioning is that the complainant at one stage started using surprisingly vulgar words and terms that she did not use before.[20]  When asked to explain what she meant by this term, she used another term she has not used before, explaining it as meaning: ‘Is to have sex with someone.' Neither the prosecutor nor the Court attempted to establish where these words and terms came from and to establish whether this child ascribes the same meaning to these terms as what an adult would do.

[78]      She was asked ‘What was he doing the time the penis was in your vagina like this, what was he doing?’ Her answer is recorded as follows: ‘He was doing like this, in and out (Witness making an in and out movement of the hand or of the finger with the mouth).’ Once again, a Court cannot just accept, in the absence of an explanation, that the movement with the finger in the mouth attempts to explain sexual intercourse as adults would understand and refer to it.

[79]      The complainant gave no evidence of the alleged coercive circumstances of 'applying physical force to the complainant’ on the part of the Appellant in respect of this incident.

[80]      The complainant then refers to ‘another day’ when the accused found her at the Omuve tree and undressed her.[21] She just states that the Appellant undressed her and says nothing about the alleged coercive circumstances of 'applying physical force to the complainant' alleged in the charge.

[81]      The witness then relates an incident where the accused found her in the Omwandi tree.[22] The Appellant apparently had a broken bottle and gave her his phone, saying she should not tell her parents. The record remained silent as to whether the Appellant did anything with the broken bottle or not.  None of the alleged sexual acts in the charge sheet took place during the third meeting.

[82]      She describes what happened under the Omuve tree the next day when the accused returned.[23] This incident was the one that allegedly happened on 2 July 2012.

[83]      She told her parents afterwards. She alleges that the accused only threatened her after the last or fourth incident. Importantly this allegedly happened after the alleged sexual act. Such a treat afterwards is insufficient to constitute coercive circumstances at the time of the sexual act.

[84]      She gave no evidence regarding the alleged coercive circumstances of ‘applying physical force to the complainant’ alleged in the charge against the Appellant. The alleged assault with sticks was never properly canvassed in evidence. Suffice to say that physical assault or a threat in this regard was not alleged under the alleged coercive circumstances in the charge against the Appellant.

[85]      If the State witnesses' evidence is considered together with the complainant's evidence, the following picture appears. According to the first State witness, the complainant only described the last [or alleged fourth] incident of 2 July 2020[24] The complainant also apparently told this witness that she was crying during this incident. [25] This description is completely different from the evidence the complainant and the other State witness gave in respect of the last incident on 2 July 2012. This description seems to be more in line with what the complainant alleged happened on the first occasion.

[86]      The second State witness, who at the time of giving evidence on 25 April 2018 was 19 years old, must have between 11 and 12 years old on the date of the alleged incident. This witness said she was told of two incidents between the complainant and the Appellant. What complainant told her about the first incident in broad strokes seems to be like what complainant described as the first incident and complainant’s mother described as the fourth incident on 2 July 2012. 

[87]      Her evidence mentions that the complainant told her of a promise made to her about a phone and N$10. The complainant did not mention this during her evidence. Nor was the complainant asked to comment on such evidence.

[88]      The second witness evidence differed substantially what the complaint said happened on 2 July 2012.  The complainant mentioned nothing about the palm fruits' throwing, being in the Omuve tree, the N1.00, or the condom.  

[89]      The State elected to charge the Appellant with the incident that allegedly occurred on 2 July 2012. The State is bound to this charge sheet and cannot ask a court to convict the accused on allegations that allegedly happened on different previous occasions. The only facts in issue and dispute on the preferred charge are what happened between the complainant and the Appellant on 2 July 2012.

[90]      Section 210 of the Criminal Procedure Act 51 of 1977 provides: ‘No evidence as to any fact, matter or thing shall be admissible which is irrelevant or immaterial and which cannot conduce to prove or disprove any point or fact at issue in criminal proceedings. This section is a summary of the common law position that only relevant evidence is admissible.

[91]      From the evidence on record, it is apparent that evidence of previous incidents between the complainant and the Appellant was presented to and allowed into evidence by the Court a quo in criminal proceedings on a charge alleging a rape occurring on 2 July 2012. The evidence could only have been admitted under the common law as relevant if the admission of similar fact evidence (of the kind now in question) was exceptional and had a substantial degree of probative force. [26]

[92]      No reason in logic exists why an allegation by a single youthful witness, made of what the same witness alleges happened on a previous disputed occasion, has enough probative force to be relevant to decide whether a second incident occurred or what happened during such second incident. Common sense dictates such a bare allegation by the same single witness of previous similar conduct by the same suspect has no evidential value proving the latter incident.

[93]      Although section 211A of the Criminal Procedure Act, 1977 seem to allow for the admission of such evidence on an application if such evidence had a significantly probative value not substantially outweighed by its potential for unfair prejudice to the accused. As no such application was brought or ruled upon by the Court a quo, this is academic for the appeal's purposes.

[94]      The way this irrelevant and highly prejudicial evidence was lead and allowed by the Court a quo made it almost impossible for the Appellant to mount an adequately constructed defence in this matter. The evidence of the other alleged incidents before 2 July 2012 is disallowed as irrelevant and impermissible.

[95]      For the aforesaid reasons, he State thus failed to prove the preferred charge beyond a reasonable doubt against the Appellant.

 

Final remarks

[96]      Before concluding, this Court needs to deal with an extremely worrying fact that became glaringly apparent when it perused this case's appeal record.

[97]      The maxim ‘Justice delayed is justice denied' is regularly echoed by our Courts. The maxim is especially apposite when one deals with criminal cases. Even more so when one deals with cases involving young children. Our courts' primary aim in criminal cases is to ensure substantial justice. Substantial justice ensures that '…an innocent person is not punished and that a guilty person does not escape punishment.’ [27]

[98]      In S v Miguel and Others 2016 (3) NR 732 (HC) in paragraphs 14 and 15, the High Court stated that protracted investigations and lower courts which allow unnecessarily long periods for the investigation of simple and uncomplicated matters demoralizes the accused and causes victims, witnesses and interested parties losing faith in the criminal justice system.

[99]      The same principles must apply to the time it takes the criminal justice system to process a case from its commencement to its finalization. From the evidence presented in this matter, the evidence of the three witnesses from the same area and the medical examination of the complainant must have been available by the latest in late July 2012.

[100]   It is a given that a criminal trial takes time to finalize. A lapse in time between the commission of a crime and the resultant trial's finalization is inevitable. However, all Courts must ensure in any given case that delays do not become unproportionate and unreasonable. The concept of a fair trial within a reasonable time is a flexible one. It involves the interests of the accused and those of victims and the interests of the public at large. Balancing those interests with the accused's rights has attained a prominent role in the criminal justice system of late. It has thus become part of the social milieu intrinsic in the notion of a fair trial.[28]

[101]   There is no justification for the criminal justice system and its different role players for taking up to 24 April 2018, a period of almost six years, for the trial based on these simple and uncomplicated facts, to commence in the Regional Court. 

[102]   The Regional Court, which is essentially a trial court, on its own took almost two and a half years to commence with the trial.

[103]   If this is the norm, it requires a severe relook at how our lower courts abide by the constitutional imperative of trying accused within a reasonable time. A trial within a reasonable time further instills public confidence in the criminal justice system. In this sense, the public would include the complainant, family, witnesses, those distressed by the seriousness of the crime committed, and those close to the accused.[29] No doubt, many of the problems experienced in this case and pointed out by this Court, was aggravated by the time it took to bring this matter to some finality.

[104]   In the premises, the following order is made:

 

1.         The application for condonation is granted.

2.         The appeal against conviction is upheld, and the conviction and sentence imposed by the regional Court are hereby set aside.

 

 

________________

D F SMALL

ACTING JUDGE

 

 

  ________________

H C JANUARY

JUDGE

 

                               In person

 

 

RESPONDENT:                                           Ms. S. Petrus

Office of the Prosecutor General Office,

Oshakati

 

[1] (CA 107/2014) [2015] NAHCMD 44 (6 March 2015).

[2] (CA 103/2009) [2011] NAHC 110 (8 April 2011) at para 10.

 

[4] S v Nakale 2011 (2) NR 599 (SC) paragraphs 7 and 8. See also S v Ngombe 1990 NR 165 (HC) at 166 (1991 (1) SACR 351 (Nm) at 352B – C); Pietersen-Diergaardt v Fischer 2008 (1) NR 307 (HC). 

[5] S v Horne 1971 (1) SA 630 (C) at 631H-632A.

[6] See also Awarab v S [2019] NAHCNLD 43 (23 April 2019) paragraphs 12-13 and Moses v S NAHCNLD 111 (20 August 2020).

 

[7] R v Dhlumayo and Another 1948 (2) SA 677 (A).

[8] S v Shikongo and Others 1999 NR 375 (SC) (2000 (1) SACR 190) at 387F – G (SACR at 201d – e).

[9] S v Engelbrecht 2001 NR 224 (HC) at 226E-H; Applied in S v Kandowa 2013 (3) NR 729 (HC) at paragraph [27].

 

[10] See Section 84 of the Criminal Procedure Act, 51 of 1977 and S v Nghixulifwa 2018 (4) NR 1027 (HC) in paragraph 11.

[11] S v Mavundla 1976 (4) SA 731 (N) at 732E-F; S v D 1967 (2) SA 537 (N) and S v Langa 1969 (3) SA 40 (N).

[12] Kornelius v S (CA 103/2009) [2011] NAHC 110 (8 April 2011) paragraph 19.

[13] P J Schwikkard and S E Van der Merwe Principles of Evidence Fourth Edition paragraph 8.3 pages 92-93 and S v H 1981 (2) SA 586 (SWA).

[14] PJ Schwikkard and SE Van der Merwe paragraph 8 4 96.

[15] S v Unengu 2015 (3) NR 777 (HC) paragraph 5 and 11.

[16] R v Manda 1951 (3) SA 158 (A) at 163 and Woji v Santam Insurance Co Ltd 1981 (1) SA 1020 (A) at 1027H – 1028A.

[17] 2012 (2) NR 613 (SC).  See also S v Teek 2019 (1) NR 215 (SC) paragraph [54].

 

[19] See Paragraph [28] supra.

[20] 'He was fucking me.'

[21] See also paragraph [29] supra.

[22] See also paragraph [30] supra.

[23] See also paragraph [31] above.

[24]See paragraph 18 supra.

[25] See paragraph 19 supra.

[26] Makin v Attorney-General for New South Wales [1894] AC 57 at 65.

[27] S v Van den Berg 1995 NR 23 (HC) at p 32 to 33.

[28] Attorney-General of Namibia v Minister of Justice and Others 2013 (3) NR 806 (SC) paragraph 31.

[29] See Zanner v Director of Public Prosecutions, Johannesburg 2006 (2) SACR 45 (SCA) paragraph 21 and S v Jaipal 2005 (1) SACR 215 (CC) paragraph 29 See also S v Koch 2018 (4) NR 1006 (HC) in paragraph 11 quoting with approval from R v Horncastle and Others [2009] UKSC 14.paragraph 18