CASE NO.: CA154/2008

IN THE HIGH COURT OF NAMIBIA

HELD AT OSHAKATI

In the matter between:

DAVID MENGELA APPELLANT

and

THE STATE RESPONDENT

CORAM: LIEBENBERG J & TOMMASI J

Heard on: 14 June 2010

Delivered on: 14 June 2010

Reasons released: 21 July 2010

REASONS FOR APPEAL JUDGEMENT

TOMMASI J: [1] This is an appeal against the
judgment of the Regional Court sitting at Oshakati. The submissions
of Ms Natanael-Koch, counsel for the appellant and instructed by the
Directorate of Legal Aid as well as Mr Lisulu for the respondent were
heard on 14 June 2010. On this date condonation was granted for the
late filing of the notice of appeal; the appeal against conviction
was upheld with reasons for the judgement to follow. These are the
reasons for the judgment.

[2] CONDONATION: The Appellant was charged with two counts
of contravening section (2) (1) (a) read with section 1, 2(2), 2(3),
3, 4, 5, 6. & 7 of the Combating of Rape Act 2000 (Act 8 of
2000). On 7 March 2008, the appellant was found guilty on one count
and sentenced to ten (10) years imprisonment. The Appellant was
represented in the court a quo by Mr Nambili instructed by the
Directorate of Legal Aid.

[3] A handwritten Notice of Appeal in terms whereof the Appellant was
appealing against the conviction and sentence, as well as a letter
titled “Application for Condonation” were lodged with the
Clerk of Court. It appeared to have been drafted by the appellant
and without the assistance of an admitted Legal Practitioner.

[4] Counsel for Respondent argued that the appeal should be struck
from the roll as it did not comply with Rule 67 of the Magistrate’s
Court in that: (1) it was lodged out of time and (2) the Notice of
Appeal did not clearly and specifically reflect the grounds on which
the appeal was based. It was further argued that the Appellant,
having failed to lodge the Notice of Appeal in time, failed to bring
a proper application for condonation to extending the time provided
for in Rule 67.

[5] In determining the issue of condonation, this Court has to take
cognisance of the fact that the Appellant is a lay person who is not
fully conversant with the legal provisions and it has to balance the
need for efficiency and the interest of justice.

[6] Both parties submitted that the Appellant filed his Notice of
Appeal and Application for Condonation on 31 March 2008 but no
evidence hereof could be found on the record. It is common cause that
the documents were received by the Clerk of the Court. The original
documents however do not bear any official stamp of the Clerk of the
Court. This is an unacceptable practice that should be guarded
against. It is imperative that the Clerk of Court should record the
date on which the Notice of Appeal is lodged.

[7] However it is not disputed that the Appellant filed his Notice of
Appeal on 31 March 2008 i.e one day out of time. The delay is
negligible if one takes into consideration that the presiding
magistrate only furnished his reasons on 1 October 2008 and the
copies of the record were made by the Clerk of the Court on 26 June
2009.

[8] There is no evidence on record that the Appellant was informed of
his rights to appeal and the time frame within which to do so after
conviction and sentence in the court a quo. The Appellant
indicated in his letter titled “Application for Condonation”
that he was only informed of time frames for lodging an appeal by
someone at Oluno Prison. The underlying allegation was that he was
not informed by his Legal Representative. This fact was not placed
under oath and not much value can be attached to the allegation.

[9] The Respondent referred us to S v KASHIRE 1978 SACR 25 (NM).
This matter does not entirely support the respondent’s
argument. LICHTENBERG AJ when considering the failure of the
appellant to explain under oath why the application in terms of s 316
(1) of Act 51 of 1977 was brought out of time, stated the following:

The proper procedure for the obtaining of condonation of the late
filing of a notice of appeal is by way of an application, supported
by an affidavit made by the accused (the present applicant), and
since he would in all probability be unaware of the time limit
prescribed in s 316 he would have to rely upon a
supporting affidavit by his counsel in which the latter explains how
the late filing of the notice of appeal came about. I have considered
postponing this application so that this procedure can be followed
but, as the applicant is under sentence of death, I deem it highly
undesirable that he should be kept under such sentence any longer
than is absolutely necessary and that justice should
be done as expeditiously as possible. (my emphasis)

[10] Having considered the already long delay occasioned by the
Magistrate and the Clerk of Court who failed to comply with the
provisions of Rule 67, the short period of delay in filing the Notice
of Appeal and for reasons mentioned hereunder, condonation was
granted for the late filing of the Notice of Appeal.

[11] The only remaining objection by the Respondent was that the
grounds of appeal are vague and it does not comply with the
provisions of Rule 67 that requires that the Appellant should in his
Notice of Appeal set out clearly and specifically the grounds,
whether of fact or law or both fact and law on which the appeal is
based. Although this submission by the Respondent has some merit
this Court opted not to adopt an over fastidious approach especially
in view of a clear misdirection by the court a quo in its
approach to the evaluation of the evidence of a single witness which
entitles this Court to interfere with its judgment. Both counsel
were asked to address the court on the apparent misdirection and
counsel for Respondent conceded that the court a quo
misdirected itself in the evaluation of the evidence of the
complainant who was a single witness.

FACTS OF THE CASE

[12] The appellant, a 45 year old male, was charged in the Regional
Court with two counts contravening section (2) (1) (a) read with
sections 1, 2 (2), 2 (3) 3 4 5, 6 and 7 of the Combating of Rape Act,
2000 (Act 8 of 2000) in that he on 4 February 2006 (Count 1) and on
11 February 2006 (Count 2) wrongfully and intentionally committed a
sexual act with the complainant.

[13] The Appellant pleaded not guilty to both counts and gave a plea
explanation in terms of section 115 of the Criminal Procedure Act,
1977 (Act 51 of 1977) in terms whereof he admitted the complainant’s
presence at his house as a domestic worker on the material dates but
denied having had sexual intercourse with the complainant.

[14] The State called only one witness, the complainant and handed
in a Medical Examination Report.

[15] The evidence of the complainant can be summarised as follow: On
4 February 2006 she was looking for employment and met with the
Appellant at a place where people are informally recruited for
employment. The Appellant took the complainant home and showed her
the two bed roomed house where he lives with his wife and three
children aged seven, four and two years respectively. The
complainant was to start her employment immediately. In the main
bedroom the Appellant asked her how old she was. She produced her
birth certificate to prove that that she was 19 years old. The
Appellant placed it on the bed.

[16] The complainant was standing close to him. The Appellant got
hold of her on both her arms and let her sit on the bed. He removed
her trousers completely and placed it on the bed. He removed her
panty and also placed it on the bed. He got hold of her and laid her
down on the bed. He removed his trouser and had sexual intercourse
with her without her consent. He kissed her and thereafter wanted to
know if she loved him. She replied that she loved him. He
thereafter cautioned her not to tell his wife and threatened to kill
her if she would. She noticed that the Appellant had a pistol on
top of the drawer or a wardrobe in the main bedroom, although the
Appellant did not make reference to the pistol during this incident.

[17] Under cross examination, when asked why she did not push the
Appellant away when he was removing his trousers, the complainant
explained that she tried to leave the room but that the Appellant
pulled her back and locked the room.

[18] This happened minutes after the complainant arrived at the
Appellant’s house. The children of the Appellant were present
but the Appellant sent them to the shop. The Appellant’s wife
was at work and the complainant had not yet met her. The wife arrived
later the day and the complainant made no mention of the incident
that occurred earlier that day.

[19] Two days after this incident on 6 February 2006, the Appellant
called the complainant into the main room to fold a shirt and to find
out whether she knew how to iron. When she finished folding it the
Appellant said “Oh I can see that you know how to iron”.
He again got hold of her, held her hands and then placed her on the
bed. The Appellant tried to have sexual intercourse with her but
discovered that she was menstruating and he left her.

[20] The same day, after the second incident, the complainant wrote a
letter to the wife of the Appellant informing her that the Appellant
wanted to have sexual intercourse with her. She did not mention the
first incident in the letter for fear that the Appellant would kill
her.

[21] On 10 February 2006 a meeting took place between the Appellant,
the complainant and the Appellant’s wife. The Appellant was
confronted by his wife about the allegations. His response,
according to the complainant, was that he did it purposely to see if
the would mention it or not. The appellant apologised to his wife.
The Appellant apologised to the complainant but she did not accept
it. She did not inform the wife at the meeting of the first
encounter on 4 February 2006 due to the fact that she was scared of
the Appellant. She did not say anything at the meeting.

[22] On 11 February 2006 after the Appellant’s wife left for
work, the complainant went to the toilet and she was confronted by
the Appellant who was wearing only a towel around his waist. The
Appellant slapped her twice in her face wanting to know why she told
his wife. He again got hold of her arms then he let her fall on the
floor. He removed her trouser and her panty and had sexual
intercourse with her without her consent. The children were present
at the time but the door to the toilet was closed but not locked. The
Appellant left the house afterwards. The complainant went to the
neighbour and reported the incident to the neighbour.

[23] The complainant thereafter went to the Police Station and
reported the matter. She was taken to the hospital where they did
some tests to see whether she was pregnant, for HIV/AIDS and to find
out whether it was true that she has been sexually abused or not.

[24] The state requested to hand in the Medical Examination Report
and counsel for the Appellant offered no objection. The Medical
Examination Report discloses that a medical examination was done on
the same day and the observations of the Medical Officer indicated
nothing abnormal. It stipulates that the date of last menstruation
was 5 February 2006. A vaginal swab was taken and blood samples were
taken to test for the presence of HIV. The Medical Report does not
reflect any information to indicate whether a rape kit was taken or
not. In short the medical report tendered in evidence does not
contain any conclusion consistent with sexual assault or any other
assault.

[25] The Appellant testified in his own defence. He confirmed that
he employed the complainant on 4 February 2006 as a domestic worker
and that he showed her the rooms. He confirms that he sent the
children to the shop and that he asked for her birth certificate but
avers that this was in the sitting room and not in the bedroom as
indicated by the complainant. He denied the rape incident. He does
not dispute that he possessed a firearm, that it was placed on top of
the cupboard and that it was possible for the complainant to have
seen it.

[26] He confirmed that he called the complainant into the main
bedroom on 6 February 2006. According to the Appellant, he was in a
hurry and he asked the complainant to fold his shirt and place it in
his bag as he was leaving for the village. He denied attempting to
have sexual intercourse with her on that day.

[27] The Appellant confirmed that on 10 February 2006 he called a
meeting with the complainant and his wife. He confronted her with
the allegation but she did not answer or say a single word. He
confirms that his wife was angry and he apologised to her as he could
see she was angry. He tried to convince her that she was angry for
nothing and that it was a “small thing’. He denied that
he apologised to the complainant.

[28] On 11 February, the Appellant left the house early in the
morning whilst the complainant was outside plaiting the hair of his
daughter. He denied that he raped the complainant. When he was
arrested he asked whether the complainant had a bath. It was
confirmed that the complainant did not take a bath. He requested the
police to take him, his wife and the complainant to be tested to
ascertain whether he had sexual intercourse with the complainant.

THE JUDGEMENT OF THE COURT A QUO

[29] The court a quo rejected the complainant’s version
of the first incident on 4 February 2006 as follows:

“. From the way the
complainant testified as to how the Accused had sexual intercourse
with her on the 4^th
of February 2006 that is the alleged first occasion, and the events
that followed thereafter, particularly the following:

1. 
   her continued residence at
   the Accused person’s house after the alleged events of the 4^th
   of February 2006.

   
   

Her writing a letter to
Accused person’s wife and excluding the events of the 4^th
of February 2006 in that letter and above all, her testimony that
during or immediately after the alleged rape she told the accused
person she loved him casting strong doubt whether the alleged sexual
act was rape as defined .....

The court found the
complainant’s explanation of how the first alleged rape took
place, that is her graphic and detailed explanation as to how the
Accused held her, how the Accused undressed her and how the Accused
undressed himself and her explanation as to why she did not include
the events of the 4^th
of February 2006 in her letter to the Accused’s wife, not
credible enough and alive to the dangers inherent in single witness
evidence.....
The court further finds the sexual intercourse of 4^th
of February 2006 was consensual
between the parties and was not under any coercive circumstances ”
(My emphasis)

[30] The court a quo found the complainant’s version of
the events that occurred on 6 February 2006 and 11 February to be
credible relying on corroboration of her testimony in the Medical
Report that indicated that the date of last menstruation to be 5
February 2006; the fact that the complainant did not falsely
implicate the Appellant of rape on 6 February 2006 when she had her
menstruation and the fact that the Appellant apologised to his wife
The court a quo found “beyond reasonable doubt that
the sexual intercourse of 11^th of February
2006 was under coercive circumstances as alleged.”

[31] The Court a quo found that the complainant’s
explanation, “particularly the explanation of the events
after the alleged first occasion” to be reliable and
rejected the Appellant’s version as false. In essence the
court a quo, although he stated that he was alive to the
inherent dangers of single witness evidence, found that the
complainant lied in respect of one event and told the
truth in respect of the other. This clearly was a misdirection. The
fact that the court a quo found that the witness was not
credible in respect of the one event should have alerted the court to
approach her entire testimony with caution.

[32] The court is entitled to convict on the evidence of a single
witness in terms of section 208 of the Criminal Procedure Act, 1977
(Act 51 of 1977) provided that the court treats the evidence with
caution when evaluating the evidence of a single witness. The
required standard for a single witness’ evidence has been
discussed in S v NOBLE 2002 NR 67 (HC) where it was held that a
single witness should be credible and the evidence should be of such
a nature that it constitutes proof of the guilt of the accused beyond
reasonable doubt.

[33] The court a quo assessed the evidence and correctly found
elements thereof that are not satisfactory.

[34] The complainant on 11 February 2006 reported the incident to the
neighbour whereas she failed to do so on 4 February 2006 when she had
the same opportunity to do so. On 4 February, as well as on 11
February the Appellant left after the alleged incidents. On 11
February 2006 the same threat by the Appellant existed and yet the
complainant reported the incident. Essentially the same conditions
were present on both occasions. The only difference is that the
Appellant kissed her and asked whether she loves him on 4 February
2006 and slapped her on 11 February 2006.

[35] The complainant reported the incident of 6 February 2006 to the
wife of the Appellant in a letter but fails to mention the incident
of 4 February 2006 in the letter or at the meeting that took place on
10 February 2006. The report was made of the attempt in the face of
the same threat but the event of 4 February 2006 was not made,
according to the complainant, for fear that the Appellant would kill
her. The complainant clearly was aware that she was entitled to
report sexual abuse to the Police.

[36] The complainant testified that on 4 February 2006 the Appellant
kissed her and asked her whether she loves him. The complainant
response to this was “I answered that I love him” When
the State Prosecutor asked her why she answered in this manner she
responded “I answered to the question because he asked me
whether I love him.” Later she testified when pressed by
the State Prosecutor to explain why she said this, she indicated that
she was afraid as the Appellant threatened to kill her and had a
pistol. According to her testimony the Appellant only threatened her
after she told him that she loves him. She does not mention when she
noticed the pistol and confirms that the Appellant did not make any
reference thereto. This is an unusual conversation to have under the
circumstances described by the complainant.

[37] The complainant failed to indicate in her evidence in chief that
she tried to escape on 4 February 2006 and that the appellant locked
the door but only mentioned it under cross examination.

[38] Having found that there are unsatisfactory elements in the
evidence it should have alerted the court a quo to apply
caution and to look at some corroboration; especially in view of the
fact that the Appellant not only denied sexual intercourse with the
complainant but also volunteered to be subjected to a medical
examination when he was arrested. (See S v JACKSON 1998 (1) SACR 470
(SCA).

[39] The uncontested evidence before the court a quo was that
the Appellant did not use a condom, the complainant did not take a
bath, she immediately reported the matter to the Police and on the
same day was taken to the hospital where tests were done to see if
sexual intercourse took place. The court a quo completely
disregarded the fact that the Medical Report did not contain any
conclusion consistent with sexual assault or, for that matter, any
indication of an assault on the complainant.

[40] Reference was made by the court a quo in its judgment to
the comment on the Medical Report which state “Date of last
menstruation – 5 February 2006” in the following
manner:

“In a way the J88 corroborates complainant in this regard by
saying the last menstruation date by the
complainant was on 5 February 2006”(My emphasis)

[41] This conclusion is incorrect. Firstly that was not a correct
version of what was written in the Medical Report. Secondly if it is
interpreted in the manner that appears from the court judgment, then
it does not corroborate what the complainant said. The complainant
testified that Appellant desisted from having sexual intercourse with
her on 6 February 2006 when he noticed that she was menstruating i.e
a day after the last day of menstruation. Lastly the Medical Report
does not indicate whether that was the last or first date of
menstruation; thus, it could not have assisted the court a quo
without the evidence of the Medical Doctor who completed the Medical
Report.

[42] No evidence was produced by the state to indicate the results of
the vaginal swab that was taken by the Medical Officer. Although the
Appellant offered what the trial court termed “a bare denial”
the failure to produce this evidence leaves room for doubt.

[43] Having considered the above this Court is not convinced that the
body of evidence presented by the State was of such a nature that it
constituted proof of the guilt of the Appellant beyond reasonable
doubt.

[44] For the reasons given the Court made the following order:

1. 
   That condonation of the late filing of the notice of appeal be
   granted

   
   

2. 
   The appeal against conviction and sentence is upheld.

   
   

___________________________

TOMMASI J

I agree

___________________________

LIEBENBERG J