Court name
High Court
Case number
APPEAL 18 of 1995
Title

DTA of Namibia v Prime Minister of the Republic of Namibia and Others (APPEAL 18 of 1995) [1995] NAHC 2 (13 March 1995);

Media neutral citation
[1995] NAHC 2















CASE
NO. CA 17/96


IN
THE HIGH COURT OF NAMIBIA









In
the matter between









DANIeL
HEITA



versus
THE
STATE








CORAM: FRANK,
J. et MTAMBANENGWE, J.









Heard
on:
1996.08.12


Delivered
on: 1996.08.12






JUDGMENT



FRANK,
J.

:
In
this matter there is an appeal against the


conviction
and sentence. The appellant was convicted of rape and sentenced to 7
years imprisonment. The attack upon the conviction was three-fold.
Firstly it was based on certain alleged irregularities namely the
adequateness or otherwise of the magistrate's explanation to the
accused that he was entitled to legal representation and secondly the
adequateness or otherwise of his explanation to the accused as to his
rights of cross-examination and as to the way in which he did or did
not assist the accused in exercising these rights to
cross-examination. These two points based on irregularities were not
contained in the grounds of appeal and as a result the Court will not
entertain these two grounds. Thirdly, as far as the merits are
concerned the attack was based mainly on the credibility of the
complainant and the way the magistrate approached the

evidence of the complainant. Much was made of the fact that the
complainant was a single witness and the cautionary-rules
relating to single witnesses. I must, at the outset, say I am not
sure that in the particular circumstances of this case the
complainant was actually a single witness.






It
was a question of a group of people forming a community watch doing a
certain patrol when they saw four persons under suspicious conditions
and when they went to investigate they found the complainant there
naked and the four persons ran away. Eventually they apprehended two
of these four persons, one of which turned out to be the current
appellant. It is clear that the complainant was a single witness with
regard to the fact as to whether she was raped or not, but as to who
her assailants were, the other witnesses can be of some and indeed
were of some assistance.






The
magistrate, in my view, approached the matter correctly. In fact he
very carefully sets out some of the criticisms that are now also
levelled against the evidence of the complainant and he very properly
also indicated that he was not prepared to accept her evidence in
those regards. Especially with regard to the identification of the
assailants, he did not accept it, nor the identification parade. He
also took into account that she admitted that she had "consumed
considerable liquor" and that she "was under the influence
of liquor at the time." He also warned himself that her
condition led to a reasonable possibility of error on her side when
it came to the identification of her assailants. He however
made use of the other two

witnesses who apprehended the two persons including the appellant and
from the corroboration they gave to her evidence he concluded that
she was indeed raped. I can find no fault in the approach that the
magistrate followed and I am also in agreement with him that on the
evidence in
toto
the
only conclusion he could come to was that she was raped in the
circumstances she was found and in view of the surrounding
circumstances.






In
my view there is no merit in the submissions on behalf of the
appellant that the appellant was wrongly convicted and the appeal
against the conviction must therefore be dismissed.






As
I have already mentioned, the appellant was sentenced to
7
years
imprisonment. The main thrust on behalf of the appellant against this
sentence was that it was shockingly inappropriate. I cannot agree
with this at all. In a recent judgment by this Court, in fact in two
full-bench judgments sentences were increased where gang rapes were
involved and in this case a weapon was also involved in this gang
rape. The age of the appellant was taken into account by the
magistrate and in my view a sentence of
7
years
is not inappropriate nor is it shockingly excessive but it is in line
with the sentences which this Court has imposed on appeal and I
therefore cannot see any reason to interfere with the magistrate's
sentence.






In
the result the appeal both against the conviction and the sentence
are dismissed.






I
agree




MTAMBANENGWE,
JUDGE





ON
BEHALF OF THE APPELLANT:
ADV
G H OOSTHUIZEN


Instructed
by:
De
Jager & Van Rooyen,


Walvis
Bay




ON
BEHALF OF THE STATE: Instructed by:



ADV
H GARBERS Attorney-General