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CASE NO.: CA 25/2008

IN THE HIGH COURT OF NAMIBIA

HELD IN OSHAKATI

In the matter between:

AMOOMO DAVID KANIME APPELLANT

and

THE STATE RESPONDENT

CORAM: LIEBENBERG, A.J. et SHIVUTE, A.J.

Heard on: 17 - 09 - 2009

Delivered on: 12 - 10 - 2009

APPEAL JUDGMENT

LIEBENBERG, A.J.: [1] The appellant was arraigned before the Ondangwa Regional Court on two charges namely, (1) Assault with intent to do grievous bodily harm and (2) Rape, in contravention of section 2 (1)(a) of the Combating of Rape Act, 2000 (Act No. 8 of 2000). At the end of a trial appellant was convicted as charged and on count 1 sentenced to 1 year imprisonment; while on count 2, he was sentenced to 20 years imprisonment. The appeal lies against both convictions.

[2] In count 1 it is alleged that appellant on the night of the 7^th of July 2001 at Elayi Village in the district of Ondangwa, assaulted HS, the complainant, by beating her with a “fresh” stick all over her body with intent to do her grievous bodily harm; while count 2 concerns what allegedly happened thereafter namely, that appellant forcefully had sexual intercourse with the complainant.

[3] Besides leading the evidence of the complainant, the State also called Joseph Kafima and Silvia Hauliajaba, the latter being a police officer testifying about the unavailability of some State witnesses and whose evidence therefore, is immaterial to the facts. After appellant had testified, the court a quo enquired from the State why people who allegedly had witnessed some of the incidents that took place that night, were not called to give evidence. The State prosecutor’s reply was that there was no specific reason why these people were not called to testify except that there were no statements taken from them by the police. The learned magistrate then expressed his dissatisfaction with the situation and thereafter called four more witnesses namely Herman Kafima; Sethson Kuumbua (Seth); Rosa Shungwa and Selma Kanime.

[4] Ms. Mainga, who appeared on behalf of the appellant, submitted that the appeal record was incomplete and thus not proper before Court because the trial magistrate’s reasons in terms of rule 67 of the Rules of the Magistrate’s Court had not been filed. However, the magistrate in the meantime has resigned from the magistracy and therefore this appeal has to be considered without the benefit of having additional reasons to the magistrate’s ex tempore judgment.

[5] The appeal is based on two grounds namely, that the appellant was not given a fair trial and, because the evidence does not sustain a conviction, the appellant’s version is reasonable and possibly true.

RIGHT TO A FAIR TRIAL

[6] Appellant appeared for the first time before the Regional Court on the 23^rd of March 2004 whereafter the case was postponed several times for reasons ranging from allowing appellant to engage the services of a legal representative; recusal of the legal representative on the date of trial (three times); absence of the appellant and the unavailability of the magistrate up to the stage where the trial commenced on the 1^st of September 2005 with Ms. Itula appearing on behalf of the appellant. The trial proceeded and reached the stage where complainant was still under cross-examination when the matter had to be postponed due to a lack of time and cross-examination to be continued on the next trial date. At this juncture Ms. Itula informed the court that she had not finished her cross-examination on the complainant and still had to put the appellant’s version to her. The case was then postponed to the 4^th of October 2005 for continuation of trial. However, from the record it appears that the matter only came before court on the 8^th November 2006, more than a year later. Ms. Itula was for medical reasons unavailable and the case once again had to be postponed. Because the presiding officer by then had taken up other employment, he was no longer readily available and it was arranged that all his partly heard cases had to be set down within the period of his availability. During three subsequent appearances appellant’s legal representative was absent while the complainant on one occasion arrived late. The record thereafter reflects that on the 3^rd of September 2007 the court was informed that Ms. Itula in the meantime had left the law firm she had worked for and Mr. Lackey, from the same firm, had taken over the file but withdrew as legal representative for the appellant due to them not being put in funds. According to a letter written to the State prosecutor dated the 3^rd of September 2007 the appellant was informed of the state of affairs. Appellant’s response in court was that he needed time to raise money in order to pay for the services of his legal representative.

[7] It is against this background that the magistrate refused any further postponement of the matter and ordered the trial to proceed without the appellant being represented. When it came to the continuation of the cross-examination of the complainant after the magistrate had explained to the appellant his right to cross-examine, appellant’s response was that he had nothing to say because he was supposed to have a legal representative and then requested the court to find him a lawyer. This did not sway the court and the trial proceeded. Appellant did not put any (further) questions to the complainant and as for the two State witnesses who testified thereafter, he did not cross-examine either of them.

[8] It was submitted on behalf of the appellant that the court’s refusal to postpone the case was prejudicial to the appellant as it was evident that he did not fully appreciate the proceedings; especially when regard is had to the prescribed minimum sentence of not less than 20 years imprisonment he was facing; and that the extent thereof is such that it warrants both the conviction and sentence to be set aside.

[9] Under the Criminal Procedure Act, 1977 (Act No. 51 of 1977) an accused person before court has always been entitled to legal representation and this position was further reinforced by Article 12 of the Namibian Constitution setting out an accused’s right to a fair trial; and more specifically, the right to “be defended by a legal practitioner of their choice” (Art. 12 (1)(e)). Appellant was well aware of his right to legal representation and had also appointed legal representatives to defend him during the trial up to the stage where they withdrew for not being put in funds. The question that arises is whether the magistrate committed an irregularity or misdirection by refusing to grant a postponement to the appellant in order to raise money so that he could pay for the continued services of his lawyer and, if so, whether such refusal of a postponement was of a sufficiently serious nature to justify the setting aside of appellant’s conviction and sentence.

[10] In considering the application the magistrate had regard to the history of the case and that six years had passed since the alleged crime was committed; that appellant failed to put his lawyer in funds; and that the magistrate himself was set to finish his partly heard cases as he would not be available thereafter. Appellant was informed by his legal representative prior to the 3^rd of September 2007 that the reason

for his withdrawal was because of financial reasons, however, appellant did not seem to do much about his situation other than asking for a postponement to obtain the necessary funds. From this it is clear that the appellant was not (in the immediate future) in a position to raise the required funds so that the trial could proceed and once that has happened, the magistrate would no longer have been available, whereafter proceedings had to start de novo. This would not have been in the best interest of the appellant. The magistrate really found himself in a difficult situation and when exercising his discretion, he decided against postponing the matter and dismissed appellant’s application.

[11] An accused person’s right to legal representation is not absolute and the justification of the magistrate’s refusal of a postponement will largely depend on the circumstances of the case. In the present case the appellant’s situation was brought about due to his own negligence by not timeously putting his lawyer in funds and with regard to the unavailability of the trial magistrate thereafter, it was, in my view, in the best interest of the appellant and in the interest of justice to proceed with the trial, despite appellant being undefended. Therefore, the magistrate’s refusal to postpone the case in those circumstances was not a misdirection or irregularity which per se vitiated the proceedings.

[12] However, it is clear from the record that the appellant did not fully appreciate the purpose and the extent of cross-examining the complainant and furthermore, barely posed any questions to the two remaining State witnesses. As for the continued cross-examination of the complainant it was not enough for the magistrate just to explain to the now undefended appellant his rights to cross-examination, but certainly had a duty to assist the appellant in presenting his case and therefore should have invited the appellant to put his defence to the complainant at that stage. He furthermore should have reminded the appellant of the incriminating evidence given against him and assisted him in putting specific questions to the witnesses. This would have avoided the situation where the State prosecutor submitted in argument, that the appellant did not dispute some aspects of the evidence presented against him; or that he failed earlier to disclose the basis of his defence i.e. an alibi, by not putting it to those witnesses who claimed to have seen him at the scene that night.

Although this failure on the part of the magistrate could be seen to be a serious misdirection, I do not, for the conclusion reached in this judgment, deem it necessary to consider whether it constitutes an infringement of appellant’s constitutional rights and as such, whether it amounts to an irregularity vitiating the proceedings.

THE EVIDENCE

[13] Complainant’s evidence is that she was at Herman’s shebeen in the company of Rosa, Herman and a certain Kathima when the appellant, known to her by the name David David, arrived there with his brother David Kanime and Seth. Later Seth entered the shebeen and told her that appellant was calling her outside. She found appellant under a tree from where he started pulling her towards a pond whereafter he told her that they should go to his place. He refused to let go of her and she then called Kathima, Rosa and Herman who escorted her from there with the appellant following them. Appellant then chased her friends away whereafter he told his brother David to bring him a “fresh” stick and when complainant refused to accompany him, he started beating her with this stick thrice on the body and twice on her thighs. He continued beating her while pulling her on her arm up to his house. Appellant then opened the door to his room and locked the complainant inside. His sister Selma thereafter entered and started paging through a photo album without speaking to one another. After she had left the room, appellant entered, undressed himself and told complainant to remove her clothes whereafter he had sexual intercourse with her. He thereafter fell asleep and because he had locked the room, she was unable to leave until in the morning when appellant requested his brother David to escort her. With her arrival back home, she made a report to her mother and grandmother whereafter charges were laid with the police at Okatope. Complainant said she went to the hospital the following day where she was examined but was not treated for the bruises she sustained on her buttocks as a result of the appellant’s assault on her.

[14] Under cross-examination complainant gave a different account of what had happened between her and the appellant that night and said that she was assaulted by the appellant on the 9^th of September 2001 (not the 7^th of July as per the charge); that appellant had never let go of her except when she returned to the shebeen to finish a letter she was busy writing; that she then solicited the help of Herman, Ruusa and Kathima; that her friends were about to come and escort her but that the appellant chased them away; that she was assaulted in the presence of her friends; that she was screaming all the time up to the appellant’s house; that she resisted the appellant when he undressed her; that appellant for a second time had sexual intercourse with her in the morning; and lastly, that during the medical examination sperm was detected and taken from her vagina (she later said she was not sure what it was).

[15] From the medical report handed in by agreement it is evident that the complainant was only examined at the Onandjokwe Lutheran hospital on 19 July 2001 and, besides a whitish vaginal discharge – which upon microscopic examination turned out to be “negative”- nothing was found that could be supportive of a rape perpetrated on the complainant; neither was there anything indicative of an assault on the complainant’s body and buttocks during to the examination.

[16] Complainant furthermore said that despite her screams for help from the time the appellant started pulling her away from the shebeen until they entered his room, no one came to her rescue. Although there were other shebeens nearby and the appellant’s parents also being home at the time, nobody approached them. When asked why she did not tell Selma when she entered the room what the appellant planned on doing to her, she replied that he had told her not to tell anyone; and when asked why she did not leave the time when Selma was in the room with the door open, she replied that she couldn’t because Selma was present. Bearing in mind that the appellant in no uncertain terms indicated to the complainant what he had in mind for her and he not being present at the time Selma entered, I respectfully find it difficult to comprehend the complainant’s response in the situation she found herself in at the time. She was furthermore unable to explain in cross-examination why she failed to mention in chief – possibly also to the police – that she had been raped for a second time in the next morning.

[17] Complainant gave single evidence regarding what the appellant allegedly had done to her from the time she went to him under the tree that night, until the following morning when she went home and made a report to her mother. It is a well established judicial principle that the evidence of a single witness should be approached with caution. The correct approach to the application of the so-called ‘cautionary rule’ was set out in the well known case of S v Sauls and Others 1981 (3) SA 172 at 180E-G. It requires from the trier of fact to weigh the single evidence; consider its merits and demerits; to consider whether there are shortcomings or defects or contradictions in the testimony, and whether he is satisfied that the truth has been told. In evaluating the evidence of a single witness, it seems obvious that a final evaluation can rarely be made without considering whether the single evidence is consistent with the probabilities. Furthermore, in S v Artman and Another 1968 (3) SA 339 (SCA) Holmes JA said that it is required that the testimony of the single witness should be clear and satisfactory in all material repects, but that the exercise of caution should not displace the exercise of common sense.

[18] The evidence of a single witness therefore, need not be perfect, but the court at the end must be satisfied beyond reasonable doubt, that despite the shortcomings and contradictions in the evidence, that such evidence is true.

[19] I now turn to the evidence of the other witnesses which in some respects support, but also contradict the complainant’s version.

[20] Joseph was at the shebeen when complainant and his brother Herman arrived, and shortly thereafter, Seth and one Lukeleni entered and called the complainant outside. He left when the shebeen closed and then saw a person standing in the dark near another shebeen. He went on to say that “we left them and these people were still holding Helena. Helena was shouting, ‘Leave me out, leave me out’ ”. They continued walking and after having covered about one kilometre, they heard the screams of someone coming from the direction where the complainant had been. They however proceeded home and he only came to hear the next morning about what had happened to the complainant. He said she narrated the incident to him, but failed to mention by whom she had been beaten and raped. Joseph disputed the evidence of the complainant that he and the others had seen her near the pond; that they saw the assault on the complainant or that they had been chased away by anybody. When asked why they did not intervene when this person was screaming, he replied that they did not know what the relationship was between them. Besides them not knowing who this person was who had been screaming and they being a distance away, it does not appear to me that they regarded the screaming to be serious. Joseph further testified that he did not see the appellant that night and did not know who the persons were standing with the complainant.

[21] The only corroboration of the complainant’s version to be found in Joseph’s evidence is that complainant was called outside the shebeen and that he later on heard cries coming from that direction. There seems to be no reasonable explanation for the contradictions between his evidence and that of the complainant.

[22] Herman Kafima is the brother of Joseph and owns the shebeen where complainant and the others were that night. According to him he closed his shebeen whereafter he, complainant, Rosa and Joseph walked home together. He noticed that they were being followed by the appellant who then held the complainant on her arm. They continued walking and later on he heard “the girl” crying but he said they could not turn back as he did not know whether they were involved in a relationship. Herman said he saw the appellant outside the shebeen that night, as well as Seth.

[23] Herman’s evidence only corroborates the complainant’s version in as far as the appellant was holding her hand and the cries he heard later on. It contradicts her evidence where he said they had left the shebeen together while, according to her (and Joseph), they did not. It is further not clear why he was able to make the observations he testified about while those in his company were unable to do so and in fact gave different accounts of what happened outside the shebeen.

[24] Seth testified that he had not been at the shebeen on that particular day and was adamant that he neither met with the complainant nor the appellant, as the complainant and Joseph testified. His evidence therefore does not support their versions in that respect.

[25] Rosa confirmed having been at the shebeen with the complainant, Herman and Joseph, but did not see Seth there. Although she saw the complainant go outside after being called, she was unable to see by whom. She did not see the complainant outside after they had closed the shebeen and walked home; only some figures standing in the dark at a distance. Unlike Herman, she did not see the complainant being held on her hand by the appellant, despite them being together all the time. She also heard a person scream as they reached the tarred road.

[26] The last witness called by the court is Selma, the appellant’s sister and according to her she did not see the complainant with the appellant at their home. Her evidence contradicts that of complainant as regards them being together on that day.

[27] Appellant denied having committed either of the two crimes and said that the evidence against him was a fabrication; also that he was not at the shebeen or in the company of the complainant on that day. According to him the complainant made a mistake with his identity because he is not known by the name David David.

[28] The magistrate in his ex tempore judgment summarised the evidence given by the respective witnesses whereafter he found that the appellant was well known to the complainant and that there was no reason why she would among all those present at the shebeen, pick the appellant to falsely accuse him for having raped her. He also found that there was a real possibility that Selma could have entered the appellant’s room and because he was her brother, she had reason to lie to the court. The learned magistrate found that the complainant “exaggerated” her evidence by saying that Herman and the others were chased away by the appellant. He then rejected the appellant’s evidence and found that appellant was present at the shebeen; that he assaulted the complainant; and that he had raped her. Unfortunately the magistrate failed to give reasons how he came to these conclusions and on what evidence he relied. Neither did he assess the contradictions in the evidence between that of the complainant and the other witnesses, and seems to have simply brushed it aside by finding that the complainant “exaggerated” her evidence.

[29] At the close of the State case the magistrate made the following remark: “I find it very interesting that the State really feels that the evidence of the complainant could be sufficient and enough when other people who could either corroborate that evidence or deny what has been by the complainant could testify ….” From this it is obvious that at the close of the State case, the magistrate was not convinced that the evidence of the complainant was enough for a conviction and he then called four more witnesses. However, the extent of their evidence did not corroborate the complainant’s evidence – except for that of Herman – and rather contradicted the complainant’s version in material respects.

[30] When the court is faced with two irreconcilable versions, the court, in order to come to a conclusion on the disputed issues, must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities (Stellenbosch Farmers’ Winery Group Ltd & Another v Martell ET Cie and Others 2003 (1) SA 11 (SCA) ). In the present case the court did not assess the credibility of the respective witnesses, nor their reliability, as it was supposed to do, especially when the State case relies solely on the evidence of a single witness i.e. the complainant.

[31] The contradictions between the evidence of the complainant and the other witnesses, in my view, are material and could not be overlooked or simply brushed aside by accepting complainant’s evidence on the basis that she knew the appellant and that she had no reason to falsely incriminate him; therefore the appellant’s version had to be false. The trial court in this regard clearly misdirected itself in its assessment of the evidence and undoubtedly would have come to a different conclusion had it properly assessed the credibility of each witness and the reliability of such evidence.

[32] The powers of a Court of appeal to interfere with the findings of fact of a trial court are limited and in the absence of any misdirection, the trial court’s conclusions, including its acceptance or rejection of a witness’ evidence are presumed to be correct. However, for the reasons set out in this judgment, we are convinced that the trial court was wrong in accepting the evidence of the complainant while rejecting that of the appellant and that this Court is entitled to interfere and assess the evidence afresh.

[33] The contradictions in the evidence are, respectfully, much more than a mere exaggeration of the facts on the part of the complainant. These differences are material and in the absence of a reasonable explanation, it must have an effect on the credibility of the complainant. The complainant’s evidence that she returned to the shebeen to finish a letter she was busy writing and her being assaulted in the presence of the others, is irreconcilable with the evidence of the other witnesses who did not see any of this or who did not perceive the situation to be one where the complainant was in any danger. Furthermore, it was only during cross-examination that the complainant made mention of a second incident where she had been raped by the appellant in the morning and had that been the case, I find it incomprehensible why this was not mentioned earlier in her evidence in chief. Also, had that formed part of her statement to the police then the State undoubtedly would have preferred a second charge of rape against the appellant. This appears to me to have the making of an after thought. Complainant furthermore contradicted herself by saying that she had been medically examined by a doctor two days after she had been raped; while she only visited the hospital on the 19^th of July 2009, twelve days after the incident.

[34] Despite the witnesses Joseph, Herman and Rosa leaving the shebeen together, they gave contradictory accounts of what they observed on their way and there is no reasonable explanation for their different accounts. It seems impossible to determine with certainty which of the witnesses were telling the truth and what evidence the court relied on when assessing the evidence as a whole. Suffice it to say that it cannot per se be regarded as corroboration for the complainant’s version as it simultaneously corroborates the appellant’s version.

[35] The probabilities in my view do not favour the complainant’s version as regards her screaming from where she was pulled up to the appellant’s place without anyone coming to her rescue as there were other shebeens nearby and also, the appellant’s family being at home when complainant and the appellant arrived; that Selma entered the room without the complainant seeking help from her; or complainant not using the opportunity of running away.

[36] The question that needs to be answered is whether the evidence of the four witnesses called by the court sufficiently cleared the cloud of uncertainty surrounding the evidence of the complainant or not. I believe the answer is in the negative. The duty lies with the State to prove the appellant’s guilt beyond reasonable doubt and I find it difficult to see how this could be achieved on the evidence before court. When regard is had to the self-contradictions in the evidence of the complainant; the contradictions between her evidence and that of the other witnesses on material aspects; as well as the probabilities, I am unable to find beyond reasonable doubt that the complainant was a reliable witness and the evidence that she gave, being truthful.

[37] Although the witness Herman claimed to have seen the appellant that night in the company of the complainant, his evidence is so contradictory to what Joseph and Rosa had testified, that it requires that the court should follow a cautious approach where it is unsupported by other evidence.

[38] For the above stated reasons this Court is not convinced beyond reasonable doubt that the crimes preferred against the appellant had been proved beyond reasonable doubt. The appellant’s alibi then seems reasonable and possibly true.

See: Sikongo Eino Siwombe v The State (unreported) Case No. CA 23/2008 delivered on 22^nd September 2008 where it was said that:

“It is a trite principle in criminal proceedings that the prosecution must prove its case beyond reasonable doubt and that the mere preponderance of probabilities is not enough. Equally trite is the observation that, in view of this standard of proof in a criminal case, a court does not have to be convinced that every detail of an accused’s version is true. If the accused’s version is reasonably possibly true in substance the court must decide the matter on the acceptance of that version. Of course it is permissible to test the accused’s version against the inherent probabilities. It cannot be rejected merely because it is improbable; it can only be rejected on the basis of inherent probabilities if it can be said to be so improbable that it cannot reasonably possibly be true.”

[39] Whereas this Court has come to the conclusion that the appellant’s alibi was not shown to be false, it means that none of the two charges were proved against the appellant.

[40] In the result, the following order is made:

The appeal is upheld on both counts 1 and 2 and the convictions and

sentences imposed, are set aside.

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LIEBENBERG, A.J.

I agree.

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SHIVUTE, A.J.

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