CASE
NO. CA 48/2009

REPORTABLE

IN THE HIGH COURT OF
NAMIBIA

In the matter between:

FRANCOIS
VAN ZYL
..............................................................................................APPELLANT

vs

THE
STATE
..........................................................................................................RESPONDENT

Neutral citation: van Zyl v
The State (CA 48/2009) [2012] NAHCMD 4 (19 September 2012)

CORAM:
MILLER AJ et PARKER J

Heard
on: 18 June 2012

Delivered
on: 19 September 2012

APPEAL
JUDGMENT

MILLER, AJ: [1] The
appellant, who was represented before us by Mr. Botes, was convicted
by the Regional Magistrate in Windhoek on a charge of having
contravened section 2(1)(a) of the Combating of Rape Act, Act 8 of
2000 (the Act). In substance the allegation is that the appellant had
sexual intercourse with the complainant under coercive circumstances
as defined in this Act. The State alleges as a coercive circumstance
that when the sexual intercourse took place the complainant was under
the age of 14 years and the appellant was more than three years older
than the complainant.

[2] The regional magistrate sentenced
the appellant to ten (10) years imprisonment.

[3] During the course of argument
before us Mr. Botes conceded, properly and correctly in my view, that
the appellant on his own version of the events is guilty of an
attempt to contravene Section 2(1)(a) of the Act.

[4] It is apparent from the facts that
the appellant for periods of time lived in the same house with his
brother, his sister-in-law and the latter’s daughter who is the
complainant. It was during these periods that a relationship, sexual
in nature, developed and continued between the appellant and the
complainant. This relationship spanned several years.

[5] The only real dispute between the
State and the appellant is whether or not the appellant succeeded in
penetrating the vagina of the complainant with his penis. The
appellant admits to having attempted to do so, but mentioned
throughout, from the time the matter came to light, that he did not
succeed.

[6] Although the complainant
repeatedly stated that the appellant had sex with her, it must be
borne in mind that the word “sex” is not necessarily
synonymous with vaginal intercourse. S v Katuta 2006 (1) NR 61
(HC).

[7] There is but a single, terse and
vague reference in the evidence of the complainant that vaginal
intercourse took place. The complainant could not say when, where and
on how many occasions this happened. The learned magistrate concludes
that the evidence of the

complainant is corroborated by a
written statement which the appellant made to a fellow employee and
which was handed in at the trial as an exhibit. A reading of that
document does not support the version of the complainant. To the
contrary it is consistent with the version of the appellant.

[8] Apart from that finding, which was
wrong, the magistrate’s judgment contains nothing as to why she
found the evidence of the appellant to be false beyond reasonable
doubt. A reading of the record of the proceedings does not in my view
support such a conclusion.

[9] It follows that the conviction
must be set aside and substituted with a conviction on a charge of
attempting to contravene Section 2(1)(a) of the Act.

[10] That finding necessitates that
the sentence should in my view be set aside as well.

[11] Having considered that aspect I
am of the view that a sentence of six (6) years imprisonment will
meet the justice of the case.

[12] I consequently make the following
orders:

The conviction and sentence are set
aside and substituted with the following:

1. 
   Guilty of an attempt to contravene
   Section 2(1)(a) of the Combating of Rape Act, Act 8 of 2000.

   
   

2. 
   The appellant is sentenced to six (6)
   years imprisonment.

   
   

3. 
   The sentence is back dated to 30
   March 2009, which is the date upon which the appellant was sentenced
   in the Regional Court.

   
   

_____________________

MILLER, AJ

I agree

________________________

PARKER, J

ON BEHALF OF THE APPELLANT MR.
BOTES

INSTRUCTED BY DR. WEDER, KAUTA &
HOVEKA INC.

ON BEHALF OF THE RESPONDENT MS.
NDLOVU

INSTRUCTED BY OFFICE OF THE
PROSECUTOR-GENERAL