CASE NO.: CA 23/2008

SUMMARY

SIKONGO
EINO SIWOMBE v THE STATE

MULLER, J
et
SWANEPOEL, AJ

22 September 2008

• 
  Criminal Appeal against a conviction
  of rape in terms of Combating of Rape Act, No 8 of 2000 and
  sentence of 17 years imprisonment.

  
  

• 
  Evidence led at the trial discussed.

  
  

• 
  The
  cautionary rule in respect of the evidence of a single witness
  discussed as well as the Namibian Supreme Court decision of S
  v K
  2000 (4) BCLR 405 (Nms), confirming South African decisions in which
  the cautionary rule in terms of sexual offenders was set aside. ( S
  v D
  and
  Another
  1992 (1) SA 513 (Nm); S
  v J
  1998 (2) SA 984 (SCA) (1998) (1) SACR 470 and S
  v Katomba
  1999 NR 348 (SC);

  
  

• 
  Evidence
  envisaged by the State in the opening address of the Prosecution
  against the evidence on record discussed. In the absence of a
  cogent explanation a bold assertion by the prosecutor must be deemed
  to emanate from the complainant who was the only direct State
  witness on this aspect. S
  v V
  1995 (4) SACR 173 T considered and approved.

  
  

• 
  Other conflicting evidence between
  the versions of the complainant and the appellant are discussed.

  
  

• 
  Held :
  that the State did not prove its case beyond reasonable doubt.

  
  

• 
  Appeal upheld and conviction and
  sentence set aside.

  
  

CASE NO: CA 23/2008

IN THE HIGH COURT OF NAMIBIA

In the matter between:

SIKONGO EINO SIWOMBE
APPELLANT

and

THE STATE
RESPONDENT

CORAM: MULLER J et
SWANEPOEL AJ

Heard on: 2008.09.22

Delivered on: 2008.09.22

________________________________________________________________

APPEAL JUDGMENT:

SWANEPOEL AJ

[1] On
13 November 2007 the appellant was convicted by the learned Regional
Court Magistrate for the district of Rundu of contravening section
2(1)(a) as read with section 2(2)(a) and (b) and read with section
3(1)(a)(iii)(ff) of the Combating Rape Act, Act 8/2000 and read with
section 94 of the Criminal Procedure Act, no. 51 of 1977 in that he
had raped the complainant under coercive circumstances on 2^nd
October 2005 at the Sport Fields of the Rundu Secondary School.

[2] This appeal is directed against
both the conviction and sentence.

[3] During 11 and 15 September 2008 an
amended ground of appeal together with an application for condonation
for such late filing were filed. The learned magistrate had nothing
to add to his ex tempore judgment.

In view of my decision on the appeal
(without considering the amended ground), it is not necessary to deal
with the additional ground of appeal and the application for
condonation.

[4] The amended charge sheet put to
the accused reads as follows:

"That
on or about the 2^nd
day of October 2005, at Rundu Secondary School Sport Field in the
District of Rundu, you, the accused, did wrongfully and unlawfully
and intentionally commit or continued to commit a sexual act with
Katoti Veronika Donna then aged 17 years, under coercive
circumstances by assaulting her with an open hand and threatening to
harm her with a knife, which you had and thereafter caused your penis
to be inserted into her vagina and on the second occasion, inserted
your penis into her mouth."

[5] The appellant refused to plead to
the charge and a plea of not guilty was entered by the learned
magistrate in terms of section 109 of the Criminal Procedure Act, Act
no. 51 of 1977.

[6] The state called four witnesses to
wit the complainant herself, Iitula Tertu, a chief constable in the
Special Field Force stationed at Rundu, Dr Chrisha Sume Percival, a
medical practitioner who examined the complainant on the day after
the alleged rape and Silvester Lawrence Kavindja, a detective warrant
officer stationed at the Rundu Scene of Crime Unit who took some
photographs and prepared a plan which was handed in as exhibit “B”.

[7] Briefly
stated, the complainant testified that she and her friend Patricia
were together on the day of the 2^nd
of October 2005. On their way home at about 20h00 they came up to a
place called Peace Garden where her friend was supposed to buy some
drinks for them. The complainant stood outside when a boy that
turned out to be the appellant got hold of her arm and pushed her to
a nearby pavilion of the Rundu Secondary School’s sport
grounds. There the appellant started to undress. She testified that
“by that time he was armed with a knife”. Appellant
instructed her to also undress. He asked her whether he must put on
a condom to which the complainant replied that it was up to him who
should know what to do. He started to have sex with her and “after
that” he then told the complainant that she must “come on
top” which she did. “After coming on top for just a few
minutes then he told me to leave him and to stand up. I stood up and
after I stood up he then took off his condom and then he instructed
me to open my mouth. I said: ‘Why should I open my mouth?’
Then he simply said: ‘Just open your mouth’. After I
opened my mouth, he inserted his penis into my mouth and then later
on he ejaculated in my mouth.”

[8] The complainant testified that the
appellant again had sex with her for a second time without a condom.
She continued her evidence as follows:

“Then some other people
passed by next to the place where we were. Then when he saw these
people, he picked up his clothes and then we started walking now to
that person’s house direction, Your Worship” … On
our arrival there we found that all the people were asleep. Your
Worship, even our clothes, we were putting on whilst we were walking
on our way from the sports field to the house. We entered in this
person’s sleeping room or the bedroom. He again started having
sex with me and then this time I told him that: ‘I am feeling
pain now.’ On the question by the Public Prosecutor at what
time she left that house she replied as follows: “Your
Worship, it was 09:00 in the morning. What happened was that I asked
him to show me where the private room was, the toilet. Then he just
opened, directed me and showed me the toilet side. Then he entered,
he went back into the room. In that process I ran away Your Worship.
I went straight to my friend’s house, I told her everything
and requested her to accompany me to the police station to report the
matter. “

[9] The complainant testified that she
did not give any consent to the appellant to have had intercourse
with her, neither has she known (or seen) the appellant before that
date.

[10] The appellant testified in his
defence and said that the complainant was his girlfriend and that he
had a relationship with her. According to his evidence he was in
Peace Garden when complainant’s friend came in and told him
that he was needed outside by his girlfriend, the complainant. He
testified that he and the complainant went to the Rundu Secondary
School’s playing fields where he had sex with her. Thereafter
they walked away and parted ways, each to his or her respective
places of residence or stay.

[11] The learned magistrate correctly
found that the complainant was a single witness and was furthermore
cognisant of the fact that the “double cautionary rule”
in evaluating the complainant’s evidence pertaining to a sexual
offence no longer forms part of our law.

Compare
in this regard S
v D and Another 1992
(1) SA 513 (Nm) which

“decision received the
imprimatur of the South African Supreme Court of Appeal in S v J 1998
(2) SA 984 (SCA) (1998) (1) SACR 470). In the course of a well
reasoned judgment Olivier JA, with the concurrence of Mahomed CJ and
three other Judges of Appeal, said at 1009 F – G (SA) and
476(e-f) (SACR):

‘In my view, the cautionary
rule in sexual assault cases is based on an irrational and outdated
perception. It unjustly stereotypes complainants in sexual assault
cases (overwhelmingly women) as particularly unreliable. In our
system of law, the burden is on the State to prove the guilt of an
accused beyond reasonable doubt – no more and no less. The
evidence in a particular case may call for a cautionary approach, but
this is a far cry from the application of a general cautionary rule.’

In S
v K 2000 (4) BCLR 405 (NmS) our
own Supreme Court followed the decision in S
v J (supra).
It held that the cautionary rule had outlived its usefulness. There
were no convincing reasons for its continued application. It
exemplified a rule of practice that placed an additional burden on
victims in sexual cases which could lead to grave injustice to the
victims involved (see at 418 H – 419 D.) Compare also S
v Katamba 1999 NR 348 (SC).

[12] It
is trite law that the powers of a court on appeal against factual
findings are limited. There must be demonstrable and material
misdirections by the trial court before a court of appeal will
interfere. Compare S
v Hadebe and Others 1997 (2) SCA 645 F.

[13] The learned magistrate was also
aware of some discrepancies between the complainant’s version
or testimony in court and that of other witnesses in some respects.
There were also discrepancies between her evidence in court and her
police statement. The magistrate found however that those
discrepancies were immaterial, considering the defence pleaded by the
accused person, which by its very nature narrows down issues to
consent. The learned magistrate furthermore rejected the appellant’s
evidence that he had a relationship with the complainant.

[14] Before turning to the evidence of
the other state witnesses and the defence, I deem it necessary to
refer to the Public Prosecutor’s opening address in terms of
Section 150 of the Criminal Procedure Act, Act 51 of 1977 before any
evidence was led. I do not intend to recite each and every peace of
evidence that the Public Prosecutor intended to lead, but only point
to the following which was never related to the Court by the
complainant when she testified, alternatively was in direct conflict
with what the Public Prosecutor had addressed the Court on:

14.1 The appellant allegedly dragged
the complainant into the playing fields of the Rundu Secondary School
while the complainant testified that he pushed her in front of him.

14.2 When the complainant resisted and
wanted to go away from the accused, the accused slapped the
complainant and produced a knife – the complainant at no stage
testified that she was slapped by the appellant (as is also alleged
in the charge sheet) and she gave different versions of when exactly
and where the appellant produced the knife. Incidentally, she never
mentioned the presence or placing of a knife on the pavilion by the
appellant to the policeman Kavindja who took photographs of the
alleged scene of the crime and who also compiled a plan with
particulars pointed out by the complainant.

14.3 According to the Public
Prosecutor evidence would be led that appellant forced the
complainant to swallow his semen after he had ejaculated into her
mouth while complainant never testified of any force exerted upon her
nor that he had said that she should swallow same.

14.4 When appellant heard the voices
of people coming towards the pavilion, he picked up his clothes, held
the complainant in one hand and ran away towards the dark side of the
stadium, while complainant testified that when appellant saw these
people he picked up his clothes and they started “walking now
to that person’s (appellant’s) house”. I pause
here to note that the complainant did not testify about what happened
to the knife which was placed on the ‘stoep’ (pavilion)
when they left and that it is significant that she testified that
they were walking to appellant’s house while testifying earlier
that she did not know the appellant before that date. How would she
then know where his house was?

14.5 The complainant allegedly shouted
for help when the incident took place during the time when she heard
voices nearby, while the complainant never testified of any shouting
by her. In fact during re-examination by the Public Prosecutor she
testified that she did not shout because she was afraid of the
warning appellant had given to her friend earlier that evening at the
drinking place called Peace Garden.

14.6 The complainant made a plan
during the course of the evening (while she and appellant were at the
latter’s house) to escape in which she succeeded and ran
straight to her parents where she reported the rape, while the
complainant testified that she only left the house at ± 09h00
on the following morning and first went and reported the incident to
her friend with whom she had been prior to the alleged rape. During
cross-examination she testified that her mother had passed away and
her father was in South Africa and she actually said that she was
staying with her brothers and sisters.

[15] The
aforesaid contradictions are apparent, if not glaring, and I am in
respectful agreement with the following dictum by Moseneke AJ (as he
then was) in S
v V 1995 (1) SACR 173 (T) at 179 D – G:

“I
am of the view that in casu the learned magistrate should have had
regard to the discrepancies between the opening address of the state
prosecutor and the evidence of the complainant. In casu the
creditworthiness of the complainant was under severe scrutiny. Such
a discrepancy is one that should have been given due weight and
considered cumulatively to the rest of the other evidential pitfalls
which were so abundant in this case. In the absence of any cogent
explanation, the bold assertion by the prosecutor that the
complainant ‘herhaaldelik gesodomiseer is … en dat dit
die beskuldigde is wat hierdie handeling uitgevoer het (freely
translated continuously sodomized … and that it was the
accused who perpetrated the act’), must be deemed to emanate
from the complainant, who was the only direct witness on this aspect
of the State’s case.”

[16] There are similar examples in the
evidence of the second state witness, one Iitula Tertu, a chief
constable in the Special Field Force who testified about what the
complainant had said at the police station of what had happened that
night which was never testified by the complainant during her
evidence or which tends to corroborate the appellant’s evidence
in material aspects. So for instance Tertu testified that

16.1 Upon her asking the complainant
whether she knew the person who had raped her the complainant said:
“Yes I know that boy.”

16.2 Complainant said that after
appellant had raped her “then he started to rape her again,
whilst he on (sic) the other hand, was holding a knife. At no stage
did the complainant testify that the appellant was holding a knife in
his hand while he had sex with her.

16.3 She also testified that when she
called the appellant at the police station he never refused to come,
while the complainant testified that he wanted to run away.

16.4 She confirmed that the appellant,
when confronted, told the police that he did not rape the complainant
as she was his girlfriend.

[17] Direct
conflicting evidence also exists in the evidence of D.W.O. Kavindja
who testified that complainant had inter
alia pointed
out the house of the appellant as the place where she had been taken
by the appellant after the rape at the sport stadium, while
complainant testified that the police never went there because “they
forgot.”

[18] Dr
Chrisha Sume Percival a medical practitioner also testified to the
effect that he/she examined the complainant on the day after the
alleged rape. He/she compiled a medical examination report (J88)
which was handed in as Exhibit "A". The doctor found
bruises at
“introitus of
the vagina and tears at 5, 6 and 7 o’clock-positions which fit
with an alleged rape.” However, the doctor conceded during
cross-examination that the injuries could also have been occasioned
as a result of the complainant not having been “ready”
for the sexual act. What is of further importance in the evidence
and in the report is that the complainant was in a good state of
health and calm when the examination was done on her, but more
importantly, the inscription on form J88 next to the paragraph
dealing with “Information regarding the incident’ he/she
wrote the following:

“RAPED BY KNOWN PERSON”

[19] There are other material
deficiencies in the State’s case:

19.1 The complainant’s friend,
Patricia who allegedly told the appellant “to leave the child
we want to go” was allegedly warned by the appellant that if
she wanted “to die also then you must continue telling me like
that” never testified in the case. It is inherently improbable
and unthinkable that a friend in such circumstances would not have
alerted people at Peace Garden of what was taking place and would
have come to the assistance of the complainant. Nothing of this
happened.

19.2 No statement was apparently taken
from the people of the appellant’s house and nobody testified
about the presence of the complainant during the night and her
departure only the following morning at 09h00.

[20] There
is of course criticism against the evidence of the appellant inter
alia about

1. 
   the duration of the alleged
   relationship between him and the complainant;

   
   

2. 
   the conflict between appellant’s
   evidence and that of his brother as to when complainant had
   previously been at their house; and

   
   

3. 
   the
   fact that the appellant testified that the complainant asked money
   from him after he had sex with her which fact was never put to the
   complainant during cross-examination.
   I
   have serious reservations about this part of appellant’s
   evidence. It may however be explained by the following dictum cited
   from Maharaj v Parandaya,
   1939 NPD 139 at p. 143 per Feetham J P in S v Ivanisevic and
   Another 1967 (4) SA 572(A) at 576 G – H:

   
   

“Some
innocent people meet accusations by simply telling the truth. Others
who may be equally innocent of the accusation, take refuge in some
invented story, because they are not satisfied that the truth alone
would be sufficient to carry conviction.”

[21] Despite the discrepancy in the
evidence of the appellant and his brother concerning the time when
the complainant visited the appellant, Gideon Siwombe testified that
the complainant was the appellant’s girlfriend, that the two
brothers shared a bedroom, that there was a visitor, Mr Veiko, in the
appellant’s house that evening and that the appellant was alone
there that evening, sharing a bedroom with his brother. This
evidence of Gideon substantially supports the version of his brother,
the appellant.

[22] 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.

[23] In view of the examples set out
above, I am satisfied that this court can interfere with the findings
of the learned magistrate on the basis of material misdirections on
the facts. The version of the accused is in my view reasonably
possibly true. Particularly so in view of the corroboration by
witnesses Tertu and Percival referred to above. The complainant
furthermore admitted during cross examination to a statement put on
appellant’s behalf that she had a brother working at Parcel
Force. How would the appellant have known that if he had never seen
or known the complainant before the date of the alleged crime? The
learned magistrate should have found that the appellant’s
version was reasonably possibly true.

[24] In the result the conviction and
sentence are set aside.

_______________

SWANEPOEL AJ

I concur.

___________

MULLER J

ON BEHALF OF THE APPELLANT: MR S.
NAMANDJE

Instructed by: Sisa
Namandje & Co.

ON BEHALF OF THE RESPONDENT:
MS I NYONI

Instructed by: Office of
the Prosecutor-General