THE
STATE versus IPINGF SHIMl

CASE
NO. CC 3/99 Silungwe.
J. 2000.05.05

CASE
NO. CC3/98

IN
THE HIGH COURT OF NAMIBIA

In
the matter between

THE
STATE

versus

IPINGF
SHIMI

CORAM:
SILUNGWE, J.

Heard
on: 1999-03-18 Delivered on: 1999-03-19

JUDGMENT:

SILUNGWE,
J.:
The accused, who is now aged 24 years, faces a rape charge, it being
alleged that on November 23, 1996, at Elim Village, in the District
of Oshakati, he unlawfully and intentionally had sexual intercourse
with Princess Vicky Shikamba, a girl under the age of consent,
namely: 5 years old. He has pleaded not guilty and denied any
knowledge of the crime.

The
State's case rests on the evidence of three witnesses, namely:
Princess Vicky Shikamba, alias Tulipo John Vicky Ndeyapo Princess
(hereafter referred to as the complainant) who is now 8 years old,
Raima Mukwiilongo, the complainant's grand­mother, and Dr
Anni-Liina Hatutale, a medical practitioner stationed at Oshakati
Regional Hospital.

On
the other hand, the case for the defence hinges on the evidence given
by the accused himself and on that of two defence witnesses, to wit:
Sam Charles, a cousin who is a 14 year old grade 7 school boy, and
Martin Utoni, also known as Shanika, a 14 years old grade 8 school
boy.

The
following evidence does not appear to be in dispute and is thus found
as a fact. The complainant lives with her grandmother in a house
belonging to the latter (hereafter conveniently referred to as the
complainant's house) which is located in Elim Village within the
District of Oshakati. The accused is a next door neighbour of
the
complainant and lives in a house belonging to his mother (hereafter
conveniently referred to as the accused's house). These two houses
are separated by a distance of
about
4 metres. The accused's mother and that of the complainant are
sisters but his mother is apparently resident in Oshakati. The
accused and the complainant are, therefore, cousins. The accused
works in Oshakati but normally returns to his house at weekends. A
sister of the accused, Nashiumbu, has a child and lives at the
accused's residence together with her child. The complainant,
apparently, sometimes looks after that child.

The
complainant attends school and is in grade 3.
She
is a baptised christian of
the Evangelical
Lutheran Church of
Namibia
who has, after examination in
terms
of
sections 192 and
193
of the Criminal Procedure Act 51 of 1977,
been
found to be
sufficiently intelligent, an effective communicator and appreciates
the nature of an oath and the duty of speaking the truth.
Accordingly, she has been declared a competent witness and so her
sworn testimony has accordingly been received. In point of fact, the
complainant is clearly an above average schoolgirl who is not only
intelligent but also sharp.

On
Friday November 22. 1996, the complainant's grandmother left home on
church business and only returned to Elim Village in the evening of
Sunday November 24.

On
the day of departure of the complainant's grandmother, the accused
returned to Elim Village in the company of Charles, the father of
Sam, one of the defence witnesses, and for one reason or another,
spent that night at the complainant's house but nothing amiss
occurred.

On
Saturday November 23, the accused and Charles went to Oshakati and
upon their return to Elim Village, they found that all, save the
complainant, had had lunch. Extra lunch was, however, prepared for,
and partaken by, the accused, Charles and the complainant. This was
followed by television watching.

Subsequently,
the complainant left her house for the purpose of visiting the
accused's sister, Nashiumbu; that was at the accused's house but
Nashiumbu was not there as she had reportedly gone for a hairdo. In
the meantime, the accused went to his house to have a bath. At some
stage thereafter, the complainant returned to her house but made no
complaint to anybody.

Later
that Saturday, the accused and Charles went back to Oshakati but the
accused returned to Elim Village again on Monday November 25.

In
the meantime, the complainant's grandmother returned home in the
evening of Sunday November 24 and apparently noticed something amiss
with the complainant whereupon she enquired what had happened to her
during her absence, but the complainant would not say; the
complainant maintained her silence until she was threatened by the
grandmother when she reported that she had been raped. Upon
inspection of the complainant's genitalia, the grandmother could not
believe what she saw inside the complainant's private part: there was
some foam. The grandmother asked who had raped the complainant
whereupon she implicated the accused as the culprit. The grandmother
immediately caused some water to be wanned but when this was applied
on the complaint, the grandmother was not satisfied with the result.
She then dispatched a young man named Velomina Kabele to take the
complainant to Oshakati Hospital. The complainant was taken to the
police, to the Woman and Child Abuse Centre and to the hospital where
Dr Hatutale examined her and compiled a medical report, exhibit B.
The complainant complained of abdominal pain. On examination, the
doctor observed that the complainant had yellowish virginal discharge
and her underwear was stained; there was also a l-2cm superficial
wound on labia majora and a swelling thereunder. There was no
bleeding but redness, which was present, was associated with the
vaginal discharge. The complainant found the examination painful. The
hymen was open but the Doctor could not assess whether it was torn.
The vagina had no membrane. The swelling could have been caused by an
external object. The Doctor took some samples, namely: a vaginal swab
and urine which were then sent to a laboratory. She later saw the
result: the vaginal swab had

essence
of the allegation but she is also a young child who is susceptible to
suggestions by adults and she is thus liable to embellish what
allegedly transpired. In such circumstances, her evidence must be
treated with the utmost caution. See:
R
v W 1949

3. 
   SA
   772 (A);
   R v Monda 1951
   (3) SA 163;
   R vj 1958
   (3) SA 699; and
   R v S 1984

   
   

4. SA419(GW).

   
   

In
such circumstances there is need to look for corroboration which I
do. Having thus warned myself, I am firmly of the opinion that the
complainant, as Ms Nakanyala has correctly submitted, gave her
testimony in a forthright and sincere manner and without hesitation.
As previously stated, she is well above average. I am very impressed
with her demeanour; her testimony, her candidness and I believe her
to be a credible witness, notwithstanding her youthful age.

In
regard to corroboration with reference to emotional stress, the
injury suffered by the victim of a sexual crime may furnish
corroboration of his or her testimony. See:

R v Trigg (1963)
1 All ER 490. And so, emotional stress shortly after the incident may
also provide corroboration: R
v
Redpath
1962
46 Cr. App. R 319;
Rv Knight (1966)
1 WLR 230. But much depends on the facts of each case and the nature
of the defence advanced by the accused. The facts in issue may
require the Court to consider certain risks, for instance, were the
injuries self-inflicted? was the emotional stress genuine or
simulated. Even if the emotional state be genuine, the court must
nevertheless be satisfied that the emotional stress was indeed the
result of the fact that the witness was the victim.

In
the instant case, the condition of stress relates to the pain that
the complainant experienced and expressed to her grandmother and to
the doctor. The injuries observed by the doctor are corroborative of
her story. The complainant could not confide her traumatic experience
to anyone else but her grandmother, whom she trusted.

Mr
Potgieter strongly submits that the complaint, which was induced by
the grandmother's threats, is in any advent inadmissible on the
ground that it is trite law that a complainant induced by
intimidation is inadmissible:
SvT 1963
(1) SA 484(A).

It
seems to me that in the light of the rampant cases of sexual abuse
and the necessity to safeguard the interests of society in curbing of
such abuse, where the victim is a child or any other complainant who
has been subjected to threats either by the accused or by a third
party, an induced complaint which, for instance, is devoid of
physical violence, may be treated as an exception to the general
rule. It would be idle to expect that such a complainant in such
circumstances would readily be volunteer the complaint in the face of
the threat dangling over her head, as the present case demonstrates.

The
case of S
v
T
(supra)
is distinguishable from the present one on the basis that here the
complainant was threatened not to tell her story to anyone.

In
any event, even if the complaint were excluded, there is sufficient
corroborative evidence of the grandmother's observations and the
doctor's findings in material respects.

What
the complainant's grandmother and the doctor observed confirmed the
complainant's allegation of having been raped.

As
regards penetration, this is amply covered by the doctor's evidence
which I accept. In any case, even the slightest penetration suffices.
See R
v V 1960(1)
SA 117 (T); R
v E 1960
(2) SA 691 at 692; and S
v F 1990
(1) SACR 239 (A). The complainant maintains that she was raped. The
hymen was open and there was abrasion on the labia majora coupled
with swelling thereunder. I am satisfied beyond a reasonable doubt
that penetration has been established.

I
have given careful consideration to the evidence adduced by the
accused and his witnesses. He does not get much support from the
evidence of his witnesses which, if anything, goes to support the
prosecution case. I do not believe the accused's evidence as I find
it to be false and as such, cannot possibly be reasonably true.
Accordingly the accused's defence is rejected.

I
am satisfied that the crime of rape has been proved beyond a
reasonable doubt and I convict the accused as charged.

ON
BEHALF OF THE STATE ADV
NAKANYALA

Instructed
by: Office
of the Prosecutor-General

ON
BEHALF OF THE DEFENCE ADV
K POTGIETER

Instructed
by: Directorate
of Legal Aid