CASE
NO.: CA 128/05

IN THE
HIGH COURT OF NAMIBIA

In the
matter between:

FRANS
LIMBARE
APPELLANT

and

THE
STATE
RESPONDENT

CORAM: VAN
NIEKERK, J

Heard: 31
May 2006; 6 June 2006

Delivered: 16 June 2006

APPEAL
JUDGMENT

VAN
NIEKERK, J:

[1] The appellant was convicted on a charge of rape under the
Combating of Rape Act, 2000 (Act 8 of 2000) in the Regional Court,
Walvis Bay. On 14 February 2002 he was sentenced to ten years
imprisonment. The appellant initially lodged an appeal against
conviction and sentence, but personally withdrew his appeal against
the conviction when the matter was heard in this Court.

[2] Although the appellant was represented by a lawyer in the court
a quo, he lodged the appeal in person. Before me he was
assisted by Mr Stolze, who appeared amicus curiae. The
Court thanks counsel for his assistance.

[3] The facts of the matter may be summarized as follows: On 2
October 2000 the complainant was on the farm where she lived with her
husband. The appellant was also a labourer on the farm and resided
there with his wife and child. On the day in question the complainant
had lunch with her husband, who then returned to work. She lay on her
bed on her stomach and fell asleep dressed only in a pair of panties
and a petticoat. Later she awoke and found the appellant sitting on
her back. She screamed that he should leave her and struggled against
him, but he was too strong and he succeeded in putting his penis
inside her panties and raping her. Afterwards he got up and she tried
to hit him with a broom stick but he blocked the attempt and left.
She then ran to one of the other labourers, crying and reported the
incident. The appellant also arrived and acknowledged that he had
done something wrong. Then she went to report to her husband, who
confronted the appellant. The appellant then said that it was the
complainant who called him. The husband wanted them merely to discuss
the matter and forgive each other, but the complainant insisted that
the matter be reported to the police. According to the complainant
she had a pain in her stomach area because the bed was hard and she
spent three days in hospital. According to her husband she complained
of a pain in the arm as she had been pressed against the bed. He said
she only received ointment at the clinic to put on the arm and was
not admitted in hospital. No medical evidence was led. The
appellant’s evidence was to the effect that the complainant wanted
him to impregnate her as she had been married to her husband for
quite some time, but failed to fall pregnant. He had intercourse with
her with her consent and at her request. The magistrate rejected his
version and convicted the appellant.

[4] In his notice of appeal against sentence, the appellant relied
on a number of grounds, the most important of which in effect are
that the magistrate erred by imposing a sentence which is too heavy
to the point of breaking the appellant; that the magistrate erred by
failing to take into consideration that the appellant had been in
custody for thirteen months before he was sentenced; that the
sentence is so unreasonable that no other court would have imposed
it; and that the magistrate should have imposed a totally suspended
sentence.

[5] The record shows that after the appellant was convicted the
following occurred:

“COURT: We can proceed
with the sentence.

MS FOUCHE PROVES NO PREVIOUS
CONVICTIONS

COURT: Mr Olivier you are
going to address the court in mitigation of sentence or do you want
to (intervention)

MR OLIVIER: As it
pleases the court Your Worship I can ask for adjournment to get
personal circumstances instructions from my client. I don’t think
it will have too much of a bearing on the matter. My client is
residing In Karibib he is unemployed. Your Worship I don’t think
there is anything further that I can advance regarding his personal
circumstances that will have an impact on the sentence that the court
will execute. Those are my instructions Your Worship.

MS FOUCHE: I belief (sic)
the minimum sentence will be five years.

COURT: Cohesive (sic)
[“coercive”] circumstances like force yes I see.

SENTENCE

Sir yes neither your lawyer nor
the State prosecutor regards it as of any significance to address me
on the matter of sentence. The reason for that is very simple, on the
new legislation whenever a person is convicted of the crime of rape
and force was used as was the case in this matter that force was used
then the court is under an obligation to sentence you to imprisonment
for not less than TEN YEARS (10). There is apparently no very special
circumstances that can be placed before the court to compel the court
not to impose such a sentence. And so the courts will continue to
punish men until such time hopefully when it may come to their senses
that they must treat women with dignity and respect as they deserve
such dignity and respect. Your Sir, are therefore sentenced to TEN
YEARS (10) imprisonment. You may go.”

[6] From a reading of the above quoted passage it would seem that
the prosecutor, defence counsel and magistrate in the court a quo
did not properly apply their minds to the issue of sentence because
Act 8 of 2000 prescribes minimum sentences for rape. When the appeal
was heard I mero moto raised the issue with counsel for both
parties and requested them to submit argument on whether the issue of
sentence was properly addressed by the trial court, especially in the
light of the provisions of section 3(2) of Act 8 of 2000 which states
that “[i]f a court is satisfied that substantial and compelling
circumstances exist which justify the imposition of a lesser sentence
than the applicable sentence prescribed ………it shall enter those
circumstances on the record of the proceedings and may thereupon
impose such lesser sentence.” I requested them to consider the
following authorities: S v Dhlamini 2000 (2) SACR 266 (T); S
v Malgas 2001 (2) SA 1222 (SCA); Rammoko v DPP 2003 (1)
SACR 200 (SCA); S v Ndlovu 2003 (1) SACR 331 (SCA). Counsel
took time to prepare submissions and the Court thanks them for their
efforts. Both counsel are in agreement that the matter was not
properly dealt with.

[7] In my view it is important to stress that the minimum sentencing
provisions contained in section 3 of Act 8 of 2000 limit, but do not
take away, the trial court’s discretion to impose a proper sentence
based on all the circumstances of the case. The Act does not require
sentencing according to a formula in which the discretion of the
sentencing officer has no role to play. In other words, it is not a
matter of placing the particular offence of rape in a certain
category according to its circumstances and then to impose the
minimum prescribed sentence as if it follows automatically and
without any further consideration of what a proper sentence would be.
In S v Lopez 2004 (4) NCLR 95 (HC) 116 this Court (per
HANNAH, J and MARITZ, J (as he then was)) adopted and applied
the interpretation of the words “substantial and compelling
circumstances” given to them by the South African Supreme Court of
Appeals in S v Malgas (supra). In my view it is useful to
quote extensively from the Malgas case in order to arrive at a
proper understanding of the matter and the approach to be followed.
In regard to the aspect of the discretion still afforded to
sentencing officers MARAIS, JA said the following in regard to
similarly worded amending legislation in South Africa (at 1230D-H):

“It was, of course, open to
the High Courts even prior to the enactment of the amending
legislation to impose life imprisonment in the free exercise of their
discretion. The very fact that this amending legislation has been
enacted indicates that Parliament was not content with that and that
it was no longer to be 'business as usual' when sentencing for the
commission of the specified crimes.

[8] In what respects was it no
longer to be business as usual? First, a court was not to be given a
clean slate on which to inscribe whatever sentence it thought fit.
Instead, it was required to approach that question conscious of the
fact that the Legislature has ordained life imprisonment or the
particular prescribed period of imprisonment as the sentence which
should ordinarily be imposed for the commission of the listed crimes
in the specified circumstances. In short, the Legislature aimed at
ensuring a severe, standardised, and consistent response from the
courts to the commission of such crimes unless there were, and could
be seen to be, truly convincing reasons for a different response.
When considering sentence the emphasis was to be shifted to the
objective gravity of the type of crime and the public's need for
effective sanctions against it. But that did not mean that all
other considerations were to be ignored. The residual discretion to
decline to pass the sentence which the commission of such an offence
would ordinarily attract plainly was given to the courts in
recognition of the easily foreseeable injustices which could result
from obliging them to pass the specified sentences come what may.”
[my emphasis]

[8] Where a court is required to sentence an accused under Act 8 of
2000, it must apply the provisions of section 3 of the Act. Firstly
it is necessary to determine on the particular facts of the case in
which of the categories provided for by section 3(1) of the Act the
conviction falls. That would provide a prima facie indication
of what the prescribed minimum sentence is under the Act. Secondly it
is necessary to consider whether any of the provisions of subsections
(2), (3) or (4) apply. For the purposes of this appeal I shall deal
only with subsection (2). It is part and parcel of the sentencing
process under section 3 in every case under the Act to consider
whether, in the light of the factual findings made with regard to the
conviction, as well as during the sentencing process, there are
substantial and compelling circumstances which justify the imposition
of a lesser sentence. (See for example the approach taken in the
Lopez case at p111-112; 117-118).

[9] It is further not required that the circumstances must be
“special” or “exceptional”. It also does not mean that the
“normal” circumstances which are usually considered by the
sentencing court as part of the process of arriving at an appropriate
sentence, such as the personal circumstances of the offender, e.g.
his age, education, employment and family circumstances, must be
excluded or ignored because they are the “usual” circumstances
that one encounters in most cases. They are relevant and must be
taken in to consideration to be weighed cumulatively with all the
other factors in order to decide whether there are substantial and
compelling circumstances or not. In Malgas it was put this way
(at 1230I-1231H):

“[9] Secondly, a court was
required to spell out and enter on the record the circumstances which
it considered justified a refusal to impose the specified sentence.
As was observed in Flannery v Halifax Estate Agencies Ltd
[2000] 1 WLR 377 at 381H by the Court of Appeal, 'a requirement to
give reasons concentrates the mind, if it is fulfilled the resulting
decision is much more likely to be soundly based - than if it is
not'. Moreover, those circumstances had to be substantial and
compelling. Whatever nuances of meaning may lurk in those words,
their central thrust seems obvious. The specified sentences were not
to be departed from lightly and for flimsy reasons which could not
withstand scrutiny. Speculative hypotheses favourable to the
offender, maudlin sympathy, aversion to imprisoning first offenders,
personal doubts as to the efficacy of the policy implicit in the
amending legislation, and like considerations were equally obviously
not intended to qualify as substantial and compelling circumstances.
Nor were marginal differences in the personal circumstances or
degrees of participation of co-offenders which, but for the
provisions, might have justified differentiating between them. But
for the rest I can see no warrant for deducing that the Legislature
intended a court to exclude from consideration, ante omnia as
it were, any or all of the many factors traditionally and rightly
taken into account by courts when sentencing offenders. The use of
the epithets 'substantial' and 'compelling' cannot be interpreted as
excluding even from consideration any of those factors. They
are neither notionally nor linguistically appropriate to achieve
that. What they are apt to convey is that the ultimate cumulative
impact of those circumstances must be such as to justify
a departure. It is axiomatic in the normal process of sentencing
that, while each of a number of mitigating factors when viewed in
isolation may have little persuasive force, their combined impact may
be considerable. Parliament cannot have been ignorant of that. There
is no indication in the language it has employed that it intended the
enquiry into the possible existence of substantial and compelling
circumstances justifying a departure, to proceed in a radically
different way, namely by eliminating at the very threshold of the
enquiry one or more factors traditionally and rightly taken into
consideration when assessing sentence. None of those factors have
been singled out either expressly or impliedly for exclusion from
consideration.

[10] To the extent therefore
that there are dicta in the previously decided cases that
suggest that there are such factors which fall to be eliminated
entirely either at the outset of the enquiry or at any subsequent
stage (for example, age or the absence of previous convictions), I
consider them to be erroneous. Equally erroneous, so it seems to me,
are dicta which suggest that for circumstances to qualify as
substantial and compelling they must be 'exceptional' in the sense of
seldom encountered or rare. The frequency or infrequency of the
existence of a set of circumstances is logically irrelevant to the
question of whether or not they are substantial and compelling.”
[my underlining]

(For a useful summary of MARAIS, AJ’s conclusions see 1235F and
further).

[10] In the appeal before me the magistrate in my view erred by
taking the stance that the circumstances which should be placed
before him were required to be “very special” before he could
take notice of them in assessing whether there were substantial and
compelling circumstances.

[11] In casu a further question which arises is what the
trial court’s role should be where an accused is legally
represented at the sentencing stage. In such a case it is normally so
that a court relies to a great extent on what is placed before it by
counsel on behalf of the accused and would, in appropriate cases
generally be entitled to accept that if there were more mitigating
factors than those already apparent from the evidence itself or those
placed on record, counsel for the accused would probably see to it
that these are brought to the court’s attention. However, it
remains the ultimate duty of the sentencing officer to consider
whether there are substantial and compelling circumstances. If the
accused’s counsel labours under a misconception regarding the
provisions of the Act and therefore makes no or a half hearted effort
to address the court in mitigation or to place facts before the
court, the sentencing court is, to my mind under a duty to point that
out to the legal representative, who could then rectify the matter,
and/or investigate the issue itself. In any event, if there are
circumstances which, to the mind of the sentencing officer have a
bearing on the matter, he is duty bound to consider them mero
moto. I agree, with respect, with the stance taken by VAN DER
WALT, J in the Dlamini case (supra) where he said (at
268d-e):

“Die hof wat vonnis oplê
in 'n strafsaak neem 'n aktiewe rol in die verhoor en sit nie net
passief by waar getuienis gelei word nie. Inderdaad bepaal art 186
van die Strafproseswet 51 van 1977 dat die hof kan op enige stadium
van strafregtelike verrigtinge iemand as 'n getuie by daardie
verrigtinge dagvaar of laat dagvaar en die hof moet 'n getuie aldus
dagvaar of aldus laat dagvaar indien die getuienis van so 'n getuie
vir die hof blyk noodsaaklik te wees vir die regverdige beregtiging
van die saak. Kragtens art 167 van die Strafproseswet kan die hof ook
enige getuie terug roep en weer ondervra.”

[my translation follows]:

“The court which imposes
sentence in a criminal case takes an active role in the trial and
does not just sit passively where evidence is led. Indeed sec 186 of
the Criminal Procedure Act 51 of 1977 provides that the court may at
any stage of criminal proceedings subpoena or cause to be subpoenaed
any person and the court shall so subpoena a witness or so cause a
witness to be subpoenaed if the evidence of such a witness appears to
the court essential to the just decision of the case. In terms of sec
167 of the Criminal Procedure Act a court may also recall and
re-examine any witness.”

[12] This dictum was applied in the Ndlovu case (supra
at 337f-g) and in the Rammoko case (supra
at 205g-h). The same active approach to
adjudication in criminal trials is taken by the courts in Namibia
(See S v Van den Berg 1995 NR 33 (HC) at 70 and the cases
cited there). In Dlamini the court went further and said (at
269a-b):

“Na my mening is daar ‘n
verpligting op die landdros, al is die appellant verteenwoordig by
die verhoor, om self vrae te stel, ondersoek in te stel, en getuies
te roep om daardie dwingende omstandighede vas te stel indien
enigsins moontlik.”

[my translation follows:]

“In my opinion there is an
obligation on the magistrate, even if the appellant is represented at
the trial, to ask questions himself, to investigate, and to call
witnesses to determine those compelling circumstances if at all
possible.”

[13] I respectfully agree with this approach and note that before me
both counsel were in agreement that this approach should be followed
in our courts. Obviously the extent to which the sentencing
magistrate should do the things mentioned in the passage quoted will
depend on the facts and circumstances of each case. It may be that in
a given case the matter is so fully and thoroughly dealt with by
counsel for the accused that the court merely has to apply its mind
to the matter and to satisfy itself of the existence or not of
substantial and compelling circumstances without having to ask
questions, investigate or call witnesses.

[14] I point out that in the Dlamini case the Court of Appeal
made a very specific and detailed order when it remitted the matter
to the magistrate to consider and impose sentence afresh. In the
order it was required that a full explanation be given to the
accused, whether he is represented or not. The court further
recommended that this procedure and explanation be followed in all
cases where the provisions relating to substantial and compelling
circumstances are applicable. Although I intend on the specific facts
of the appeal before me to make a similarly detailed order, I do not
go so far as to say that this should be done in every case where
sentence is passed under Act 8 of 2000 even if the accused is
represented by counsel. The matter was not argued before me to this
extent and I prefer to leave this aspect open. This Court, consisting
of two judges, has in any event already set out guidelines to be
followed in the case of an unrepresented accused. (See Levi
Gurirab v The State - Case No CA 190/2004: unreported judgment
delivered on 12 July 2005)).

[15] To my mind there were at least three circumstances which
warranted serious consideration by the learned magistrate and which
he should have considered mero moto as part of a judicial
exercise of discretion in sentencing the appellant. The first is that
the degree of force used by the appellant during the rape was little.
The second is that there were no injuries apart from pain in either
the stomach or the arm from pressing on the bed. Coupled with this is
the unsatisfactory and contradictory evidence by the complainant and
her husband on the matter of whether she stayed in hospital. The
magistrate made no finding on this and it seems to me that the
appellant should receive the benefit of the doubt leading to the
conclusion that the complainant did not spend time in hospital. The
third factor is also relied on as a ground of appeal and that is the
time the appellant spent in custody awaiting trial. The record shows
that the appellant was arrested on 6 October 2000 and that bail was
initially fixed at N$3000-00, but that the appellant did not pay it.
On 14 May 2001 the trial magistrate reduced the bail to N$700 and
still appellant did not pay. Eventually on 12 September 2001 the
trial magistrate reduced that bail to N$200-00. On 18 September 2001
the appellant deposited the bail. He was therefore in custody for 11
months. It is trite that the period an accused spends in custody,
especially if it is lengthy, is a factor which normally leads to a
reduction in sentence. (See S v Sikweza 1974 (4) SA 732 (a)
737; S v Mnguni 1977 (3) SA 63 (N) 65; S v Mgijima 1982
(1) SA 86 (E) 893; S v Bacela 1988 (2) SA 665 (e) 676; S v
Banda and Others 1991 (2) SA 352 (BG) 365; S v Gqamana
2001 (2) SACR 28 (C); S v Matwa 2002 (2) SACR 350 (E) 359; S
v Njikelana 2003 (2) SACR 166 (c) 171; 174-175; Abiud Kauzuu v
The State – Case No. CA 19/04 (HC): unreported judgment dated 2
November 2005 at p.14).

[16] Having mentioned these three circumstances, I refer the learned
magistrate to the approach taken in the Lopez matter, where
this Court considered the cumulative effect of all the relevant
circumstances in that case and came to the conclusion that to impose
the prescribed sentence of ten years in that case, would have been
unjust. (See p.117). The approach to be taken is the following:

“If the sentencing court on
consideration of the circumstances of the particular case is
satisfied that they render the prescribed sentence unjust in that it
would be disproportionate to the crime, the criminal and the needs of
society, so that an injustice would be done by imposing that
sentence, it is entitled to impose a lesser sentence.” (S
v Malgas (supra) at 1236D)

[17] It is clear from the aforegoing that the sentence must be set
aside. I therefore make the following order:

1. 
   The appeal against the conviction having been withdrawn, the
   conviction is hereby confirmed.

   
   

2. 
   The appeal against sentence succeeds and the sentence is set aside.

   
   

3. 
   The matter is remitted to the Magistrate to consider and impose
   sentence afresh along the lines of this judgment, after having
   complied with the following:

   
   

1. 
   Irrespective of whether the appellant is legally represented or not
   the following must be explained to him:

   
   

1. 
   That as a result of his conviction he is liable to a mandatory
   minimum sentence of 10 years imprisonment in terms of section
   3(1)(a)(ii) of Act 8 of 2003;

   
   

2. 
   That if the court is satisfied that there are substantial and
   compelling circumstances which justify the imposition of a lesser
   sentence than 10 years imprisonment, the court will enter those
   circumstances on the record and may impose a lesser sentence.

   
   

3. 
   That in order to enable the court to determine whether there are
   substantial and compelling circumstances the appellant is at
   liberty to testify in person or to call witnesses to show the
   existence of such circumstances.

   
   

4. 
   That the court, if necessary, may itself ask questions or call
   witnesses to determine if there are such circumstances.

   
   

4. 
   In whatever sentence is imposed the Magistrate shall take into
   consideration the period of the sentence which the appellant has
   already served.

   
   

5. 
   The appellant remains in custody pending finalization of the matter
   in the court a quo.

   
   

____________________

VAN
NIEKERK, J

ON
BEHALF OF THE APPELLANT: Mr Stolze

INSTRUCTED
BY: Chris Brandt Attorneys

ON
BEHALF OF THE RESPONDENT: Ms Herunga

INSTRUCTED BY: Office of the Prosecutor-General