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REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

APPEAL JUDGMENT

CASE NO: CA 109/2015

DATE: 21 APRIL 2016

NOT REPORTABLE

In the matter between:

ESAU GAMKAIROB........................................................................................................APPELLANT

vs

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

Neutral citation: Gamkairob v State (CA 109/2015) [2016] NAHCMD 125 (21 April 2016)

Coram: SIBOLEKA J and USIKU J

Heard on: 15 February 2016

Delivered on: 21 April 2016

Flynote: Criminal law: Rape – proof – evidence of the first report identified the appellant – medical examination confirmed the sexual assault.

Summary: The complainant was sexually assaulted by the appellant an elderly male person at the farm but did not tell her mother for fear of being beaten.

Held: The first report the complainant furnished as to how she was sexually assaulted is satisfactory in all material respects.

Held: The appeal against conviction and sentence is dismissed.

ORDER

The appeal against conviction and sentence is dismissed.

APPEAL JUDGMENT

SIBOLEKA J (USIKU J concurring):

[1] This is an appeal against both conviction and sentence.

[2] At the hearing of the matter the appellant was represented by Mr Wessels while Mr Alexander appeared for the respondent. The court appreciates both counsel’s arguments in this regard. From the appellant’s own handwritten notice of appeal, his dissatisfaction on conviction and sentence briefly appears to be the following:

‘The trial Magistrate imposed an unjust conviction and sentence without considering the facts of what happened. There was no eye witness proving the rape against him beyond reasonable doubt. He overemphasized the seriousness of the offence’.

[3] In his arguments during the hearing Mr Wessels argued that the evidence placed before the trial Court did not establish beyond reasonable doubt that it was the appellant who sexually assaulted the complainant.

[4] In the light of the above contention I will look at the prosecution evidence.

[5] At the trial in the Magistrate’s Court the appellant was legally represented. He pleaded not guilty to the charge, denying all the allegations levelled against him.

[6] The complainant was nine years of age at the time of the incident and twelve years during the trial of the matter.

[7] Bernard Gaebeb testified that he resides at the farm. The complainant is his brother-in-law’s daughter. On the day, month and year he cannot recall he was in Otjiwarongo when the complainant came to her house from her mother’s residence in DRC in the same town, Otjiwarongo. She stayed a bit, and went to fetch water. He noticed that the complainant kept her legs apart when she was walking and this he found strange and informed Ursula and Nelao. He asked them to find out why she walked that way, which they did. The two found that sexual violation has taken place. Thereafter they took the complainant to her mother’s house, and told her about their findings. They later went to the police.

[8] Martha Uibes testified, the first witness is her father. In December 2012, date and month she cannot recall, the complainant came to visit their house. She asked her when they came from the farm and she told her it was the previous day. She was playing and they were sent to the shop. Uibes’s father asked whether she observed how the complainant was walking which she confirmed. When the complainant came back she asked her “!Udi what happened to you, why are you walking like that”. Then !Udi said that “no, nothing happened to me, I am just walking like that”. She then told the complainant “you are not walking like that normally, what happened to you, come and tell me”. This witness and her sister Ursula took the complainant inside the house. She again asked her “what happened to you, why are you walking like that”. Then the complainant told her “… that someone fucked her”. When asked: “… was it a young boy or is it an elder man” she told her “it is an elder man staying at the farm”.

[8.1] The complainant furnished Martha with the name of the person who sexually assaulted her, but she forgot it. She personally does not know the person. She also conceded she does not know the farm where the complainant and her parents are residing.

[8.2] I checked the word ‘fuck’ in the “Oxford Advanced Learners Dictionary of Current English: A S Hornby Fifth Edition” Editor Johathan Crowther: at page 478: The word: “fuck” – to have sex with somebody – used as an interjection expressing extreme anger, annoyance or disgust.

[9] To discredit the evidence of the complainant just because of her initial denials and reluctance to quickly come up with the story that resulted in her sudden unusual way of walking would in my view be unfair. The reason being that it is very unusual that a rape victim would easily there and then just open herself up and start talking about how she was sexually violated in the same way a person who is slapped in the face would do. The reason being that rape is a violation that creates a permanent scar on the particular person’s dignity and sanctity of life.

[10] In the context in which Martha Uibes was interviewing the complainant, it is safe for me to conclude that when the complainant said she has been ‘fucked’ by an elderly man married to two wives who resides at a farm she was referring to ‘sexual intercourse’. The complainant told Martha that she has not told her mother about it. Martha and her sister examined her and found that: “her vagina was reddish and she was scratched and a discharge similar to the semen of a man was coming out … and it was smelly”. Martha further asked the complainant “were you fucked by your age-mate or by an elder man”, the complainant told her it was an elder man. According to Martha she was sitting at the time she was asking questions to the complainant, she did not threaten her in any way. Martha and Ursula took the complainant to her mother and later to the police station.

[10.1] During cross-examination Martha testified that after they had examined the complainant, she told her that as it usually happens, on the day of the incident the elders went to work and only children remained at home. The other kids who were with her were taken away in a tractor. Her assailant told her to remain behind as he will give her biscuits and she complied. She did not ask the complainant where the incident took place.

[10.2] At this point, I must mention that the report the complainant gave to Martha saying an elderly man married to two wives who resides at the farm had sexual intercourse with her, is a proper account of what happened to her.

[11] Ashley Gaeses is the complainant on this matter. She testified that she was in Grade 1 at the time of the incident. She knew it was bad to tell lies. On the morning of that day she was playing with other children. Her assailant told her to go and charge the cellphone, which she did. When she came back the other children had already been taken away by a vehicle. She had a dress on without any thing underneath. Her assailant took her and he fucked her. He told her not to cry, he will buy her biscuits. When asked to explain what she meant by “fuck” she said “he did me” pointing to her vagina. She said he used his penis to fuck her. In the process, she was not feeling anything. She was crying, because she was being fucked. Thereafter her assailant told her not to tell her mother, he will buy her biscuits. When asked about the circumstances that lead to her telling Martha what happened, she said Martha asked her and said “tell me while it is early for me to take you to the hospital”.

[11.1] The complainant testified that the person who raped her is Esau pointing at the accused before Court. When asked how she came to know that it was the accused who raped her, she said they were all staying at the same farm. The complainant testified that Martha did not force, threaten, beat or do anything to her in order to tell her what happened. She only asked her what happened, she told her that it was Esau who raped her. She said she resided with her mother when the incident happened. She did not tell her mother because the accused told her not to do so. The accused promised to buy her biscuits which he did not do. The presiding Magistrate asked the complainant to repeat and explain what she meant when she said: “… accused person did her on her vagina”. The complainant made her four fingers round and started pushing the other one in and out. I find the above illustration by the complainant to be a reference to the up and down movements performed by a male person during sexual intercourse. According to her the accused only stopped when she started crying.

[11.2] During cross-examination the complainant testified that on the day of the incident the accused was not at work. She had a dress and a panty on. The accused came, took her to his house, closed the door and had sex with her. She also said the accused used to work on Friday and would stay at home on Saturday. When asked why in chief she testified she only had a dress on, she said she understood the question to be referring to a tight. She could not remember what the accused was wearing that day. Although the accused did not buy her biscuits as he promised, she did not tell her mother for fear that she will be beaten.

[12] Johanna Gaeses testified that she is the mother of the complainant. She knows the accused, he works together with her boyfriend at Farm Otjikoto. While they were still at the farm, she asked the complainant why she was limping and was told she was pricked by a thorn. She removed it from her feet and she started walking and playing normal again. She came to Otjiwarongo with the complainant on Saturday. On Sunday the complainant went to her grandfather, Bernard Gaebeb in Blekkies Location, Otjiwarongo. That same day Martha Uibes brought the complainant to her saying she has been violated. She took the complainant to the doctor where she was examined and from there to Woman and Child abuse. She asked the complainant who violated her and she said it was Esau, the appellant. In the beginning the complainant was denying that she has been violated. She told her it was her husband who did it. Eventually the complainant told her that she was only afraid. According to her as a mother, she knows that she does not have a husband.

[12.1] During cross-examination Johanna said she removed the thorn at the farm and a week thereafter that was when they came to Otjiwarongo. In Otjiwarongo, the complainant was limping again. When she was asked why, seeing that the thorn has already been removed, she said she was still paining. She checked the area where she removed the thorn and she only found pass. It also surfaced during cross-examination that the appellant worked as a driver at the farm. The complainant was the eldest child at the farm.

[12.2] The appellant’s house is at a short distance, but she is still able to see it from her house. The appellant’s wife and children were staying in Omaruru, they just came in December. Johanna and the complainant left the farm for Otjiwarongo, while the appellant’s wife and children were at his house. He was at work. That is the Friday the complainant alleges the appellant violated her. Also denied is the complainant’s version that they came to Otjiwarongo for a funeral. They came for December holidays which is part of her boyfriend’s leave period. When the accused’s denial to have had sex with the complainant was put to her, she testified that the complainant herself said it was the accused who violated her.

[13] Esau Gamkairob is the appellant on this matter. He resides at Otjikoto Game Ranch where his job is to fix broken cars, cutting bushes in the trees and working on fences. He sometimes goes out with work, sometimes he stays in. He stays with his wife and children at his house. Monday to Friday he works from 07h00 to 12h00, they rest for the remainder of the day. Saturdays they work from 07h00 to 12h00 only. The time schedule is for all farm workers. His wife would remain at home like other women, while all men would go to work and come back for lunch. He knows the complainant but not her name. Her father is also working at the farm. The complainant and other children used to come to his house to watch TV when his wife was at Omaruru during December school holidays. There are times during December when he used to stay alone, and sometimes his wife would come to stay with him.

[13.1] According to the appellant the incident took place on Friday when his wife and children were not there. Complainant and her mother left the farm the following day, Saturday. That is the time his wife was also at home. From Monday to Friday he works from 07h00 to 12h00 and then start again at 15h00. On the day of the incident he did not see the complainant, she and other children were playing behind another house. He chased them when they came to him saying ‘uncle, uncle’. They wanted to play near his house because they were noising and he wanted to rest, he chased them away. The trial Court in my view correctly found that the above evidence logically meant that the accused did in fact see the complainant among the children that he chased away in order to rest on the day of the incident. There was no bad blood between him and the complainant’s mother, that is why he used to reside by her.

[14] Theresia Khomas has been called by the appellant as a witness. She testified she is the girlfriend to the owner of the farm, she knows the appellant as her sister’s son. The complainant and her mother also stay there. The Friday when the incident happened, she was at the farm. Everybody at the farm calls the appellant “Uncle”. That Friday there were two hunters who came from Hobhouse in Europe. One of the appellant’s duties was to skin animals shot and killed by the trophy hunter. That day the appellant was doing skinning work from the morning till lunch inside the yard of this witness. They all went for lunch and came back at 15h00. This time the appellant started cleaning the witness’s yard as well as the rooms where the skins are kept. The arrangement of houses at the farm are that Ms Khomos keeps all gates and car keys. She originally stayed in her house with her five children. Her house is facing the residence of the owner of the place. She left her house the time she started to live together with the owner of the place as boy and girlfriend. All other houses are behind the employer’s house. It is for that reason she was unable to see children playing at any of the houses behind her residence. She only learnt about the incident on 12 December 2007 when the police, the complainant and her mother arrived at the farm from Otjiwarongo.

[15] In her reasons for conviction the trial Magistrate found that there were instances in the complainant’s evidence where she contradicted herself, but she ruled them to be of a minor respect. The incident happened three years ago before the complainant came to testify about it in Court. This the trial Court found to be the reason why she experienced problems to remember the time and date of the incident. On one occasion the complainant said they were in Otjiwarongo for two weeks after the incident that was when she went to her grandfather’s house. This piece of evidence was corrected by her mother, who testified that they left the farm on Saturday. The trial Court in my view correctly ruled the mistakes in the complainant’s evidence as human error for which it did not find necessary to reject it as lies.

[15.1] Regarding the date when the incident actually happened, the trial Court found that the appellant himself confirmed the alleged rape was on Friday 08 December 2007. The next day, Saturday was also confirmed by the appellant as the day the complainant and her mother left the farm. The complainant was medically examined on 12 December 2007, four days after the incident. On the basis of all the evidence placed before it, the trial Court found that the incident had occurred between 08 to 12 December 2007.

[15.2] According to the Court a quo; the complainant was at first shy and uncomfortable. She later became stable and gave a convincing account of what happened to her. The trial Court stated in its reasons that the complainant showed a strong recollection of what happened, her violation was also confirmed by medical evidence. The appellant conceded in his evidence that his wife and children were not there on the day of the incident. He was alone when he chased away the children who were playing near his house. The trial Court described the appellant’s version as a mere denial and rejected it as false.

[16] The trial Court found that the complainant credibly stated that it was the accused who had sexual intercourse with her on the day of the incident.

[17] The appellant is also not satisfied with the sentence of 18 years’, three years’ suspended for five years’ on the condition of good behavior. In its reasons for sentence the trial Court found that rape was a serious violation of the bodily integrity of another human being. The nine year old victim was a vulnerable child. Although she was the oldest among the group, she was still a child. The appellant was ± 50 years old at the time, with children of his own aged 27 and 29 years. He probably had grandchildren of more or less the age of the complainant. The appellant was therefore in a position of trust. The victim knew the appellant to be an elderly person, that is why she and other children always played at his house.

[17.1] Everybody at the farm was calling him ‘Uncle, Uncle’. The trial Court did not see any reason why the appellant was still interested in a nine year old child. For the above reasons, the trial Court in my view correctly found the appellant to be a danger to society and the community. The private parts of the victim were red and swollen such that she could not walk properly. He had to be deterred from committing the same offence. His age, wife and children were taken into account, but the trial Court was not persuaded to move away from the mandatory sentence.

[18] Section 3 of the Combating of Rape Act 8 of 2000 reads:

“Penalties

3.

(i) Any person who is convicted of rape under this act shall, subject to the provisions of subsection (2), (3) and (4), be liable –

(a) in the case of a first conviction –

(i) …

(ii) …

(iii) where -

(aa) the complainant has suffered grievous bodily … harm as a result of the rape;

(bb) the complainant (A) is under the age of thirteen years to imprisonment for a period of not less than fifteen years;”

[18.1] On the point that eighteen (18) years’ imprisonment is in excess of the minimum sentence of fifteen (15) years’, section 3(4) states that:

“(4) If a minimum sentence prescribed in subsection (1) is applicable in respect of a convicted person, the convicted person shall, notwithstanding anything to the contrary in any other law contained not be dealt with under section 297(a) of Act 51 of 1977: Provided that if the sentence imposed upon the convicted person exceeds such minimum sentence, the convicted person may be so dealt with in regard to that part of the sentence that is in excess of such minimum sentence.”

[19] In the light of the above evidence placed before the trial Court as well as the penalty provision of the Rape Act, I don’t find any reason why the conviction and sentence should be interfered with.

[20] In the result the appeal against conviction and sentence is dismissed.

A M SIBOLEKA

Judge

D N USIKU

Judge

APPEARANCES

APPELLANT : Mr J. Wessels

Directorate of Legal Aid

RESPONDENT : Mr V. Alexander

Office of the Prosecutor-General, Windhoek

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