Court name
High Court
Case number
13 of 2012
Title

S v Sitwali (13 of 2012) [2012] NAHC 301 (15 November 2012);

Media neutral citation
[2012] NAHC 301
Coram
Liebenberg J













NOT REPORTABLE



REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA NORTHERN
LOCAL DIVISION, OSHAKATI







JUDGMENT



Case no: CC 13/2012







In the matter between:







THE STATE







and







REAGAN MBAIMBAI SITWALI
................................................................ACCUSED











Neutral citation: The State
v Sitwali
(CC 13/2012) [2012] NAHCNLD 08 (15 November 2012)







Coram: LIEBENBERG J



Heard: 30 – 31 October; 01 –
02; 05 – 07 November 2012



Delivered: 15 November 2012







Flynote: Criminal Procedure
Evidence – Evaluation of evidence of single witness –
Cautionary rule applicable – Complainant’s evidence
self-contradicting with marked discrepancies on crucial aspects
between her evidence and other State witnesses – Accused
charged with abduction, alternatively kidnapping and three charges of
rape, read with the provisions of the Combating of Rape Act 8 of
2000, alternatively, committing or attempting to commit sexual acts
with a person under the age of sixteen years – Accused’s
explanation reasonably possibly true.







Summary: The accused pleaded
not guilty on charges of abduction, alternatively kidnapping (count
1); and three charges of rape (c/s 2 (1)(a) of the Combating
of Rape Act 8 of 2000), alternatively, committing a sexual act with a
child under the age of 16 years (c/s 14 (a) of the Combating of
Immoral Practices Act 21 of 1980 (counts 2-4). Complainant gave
single evidence in respect of all the charges and whereas her
evidence was supported on certain aspects not considered to be
material, her evidence was also self-contradicting, while material
discrepancies exist between her evidence and that of other State
witnesses. The version of the complainant is irreconcilable with that
of the other witnesses on crucial aspects of her evidence. Such
evidence, sufficient to cast doubt on the veracity of the complainant
who gave single evidence. The accused’s explanation, when
considered together with the rest of the evidence, seems probable and
is accordingly found to be reasonable and possibly true. The accused
acquitted on all charges.











ORDER







Count 1: Main and Alternative
counts – Accused found not guilty and discharged.



Counts 2–4: Main and
Alternative counts – Accused found not guilty and discharged.















JUDGMENT



______________________________________________________________







LIEBENBERG J:







[1] The accused is
26 years of age and stands charged with the crimes of abduction,
alternatively kidnapping, and three counts of rape, read with the
provisions of the Combating of Rape Act 8 of 2000. In the alternative
to the rape charges, he is charged with contravening s 14 (a) of Act
21 of 1980
1
(as amended) for
committing or attempting to commit a sexual act with a child under
the age of 16 years. He pleaded not guilty on all charges and his
defence during the trial that followed was conducted by Mr
Bondai.
Mr
Matota
appeared
for the State.







[2] The crimes for which the accused
is on trial were allegedly committed on 31 October 2006 at Katima
Mulilo, and involves only one complainant, then 14 years of age. The
accused at the time was 20 years old. In order to protect the
complainant’s identity (being a minor at the time) I shall
refer to her in my published judgment as KB. Abbreviations will
equally be used when dealing with the testimony of other minor
witnesses or where reference is made to them in the published
judgment. However, as for now I shall refer to them by name.







[3] It is common cause that at the
relevant time the complainant, KB, had been living with her mother in
their house situated in a residential area of Katima Mulilo, known as
Lyambai location. Also that her mother IS had gone to the village a
few days prior to the alleged incidents when KB was allegedly raped.
A person by the name of Nico rented a room from Irene’s house,
but in my view, the presence or absence of this person during the
relevant period plays no significant role in the outcome of the
trial; neither was he called as a witness. Complainant was thus alone
at home for the period 28 October to 01 November 2006 and had to care
for herself in the absence of her mother who were only to return on
the 31st, but was unable to do so due to illness. It is
further not in dispute that complainant was friends with NM, then
aged 15 years, and whose house was close to that of KB. She visited
that house often and was also friends with NM’s siblings called
NS and MM. Accused was a neighbour to the complainant and was living
with his aunt.







[4] Whereas the State case is entirely
based on the single evidence of the complainant, it seems necessary
to deal with her testimony in some detail. Complainant testified
about three individual incidents during which she was raped; two of
which taking place on the night of the 31st of October,
while the third was on the morning of the 1st of November.
The first incident of rape took place in some nearby bushes whilst
the last two were at the complainant’s room at home.







[5] Complainant said it all started at
around noon on the 31st when she was about to leave home
for the afternoon studies when the accused arrived and started
accusing her of being the reason why his girlfriend, NM, broke up
with him. He slapped her once on both cheeks and then left. I pause
here to observe that the accused was not charged for this alleged
assault on the complainant.







[6] It is common cause that
complainant visited NM at home that evening and told her about the
incident during which she got slapped by the accused. After
complainant returned home she again later went to watch TV at NM’s
place. At some point she, NS, then aged 13 years, and MM (the younger
brother), went to sit outside while NM and her mother retired for the
night. Accused shortly thereafter turned up at the house enquiring
‘with whom the next fight would be’. At this stage NS
stood up and went inside the house whereafter the accused left.
Complainant said that NM then came outside enquiring as to who was
looking for her, but as the accused by then had already left, she
returned inside the house, leaving complainant outside only with MM.
When accused shortly thereafter returned, she and MM stood up to also
go inside the house and it was then that accused grabbed her on the
arm and started pulling her away. She shouted that he must let go of
her but no one from the house came to her rescue. She was pulled on
her arm down the road into nearby bushes where the accused told her
to undress. When she refused he threatened to beat her. She did not
resist him when he started undressing her. He thereafter ordered her
to lie down and had sexual intercourse with her. She said this was
her first sexual encounter and she experienced it as painful. When he
had finished he decided that they should next go to her mother’s
house which was nearby (approximately 30 m away) and when she
refused, he insisted and pulled her on her arm from there up to the
house.







[7] Up to this point it has been the
complainant’s testimony that she was unwilling to accompany the
accused and had put up resistance when dragged away from NM’s
house until they reached the spot in the bushes where she was raped
for the first time. When he told her to undress, he was no longer
holding her. In view of the earlier assault on her when accused
slapped her, she was afraid that he might carry out his threat to
beat or even kill her. She then allowed him to undress her.







[8] On the way to the house they did
not meet with anyone. When she refused to open the door of her room
the accused again threatened to assault and kill her. Once inside,
the accused locked the door but left the key in the lock. After she
undressed herself on his instructions, he pushed her down onto the
bed and had sexual intercourse with her for a second time. When he
had finished he said that he would spend the night in her room and
they remained together on the bed until the morning. Complainant said
she was unable to sleep and could not tell whether or not the accused
had fallen asleep during the night and therefore she was too afraid
to try and sneak out. She however had to wake the accused in the
morning when she informed him that she wanted to attend school.







[9] Complainant said that the accused
then insisted on another bout of sexual intercourse and it was only
after he had finished that he got dressed and left. Before leaving he
said that if he ever were to hear about her telling anyone what had
happened between them, he would hurt or kill her. It is against this
background that accused, according to the complainant, had sexual
intercourse with her against her will.







[10] NS arrived at complainant’s
room soon thereafter and found the complainant crying; however,
complainant said that because of her being in pain and the accused’s
earlier threats, she did not want to explain to NS the reason why she
had been crying. They decided to go together to NM’s house as
the latter’s mother was also at home. There the complainant
merely informed them that she had been raped by the accused. NM
thereafter accompanied her to her grandmother, Cecilia Silimwe’s,
house to whom the rape incident was reported. She in turn proposed
that the accused’s grandmother should be informed, but as
nothing came from that, it was decided that complainant should make a
report to the police.







[11] At the Woman and Child Protection
Unit (WCPU) complainant for the first time narrated to Detective
Warrant Officer (D/W/O) Tuli the complete version of the events that
took place the previous night. After making the report she was taken
for a medical examination conducted by Dr Sanjobo at Katima Mulilo
State hospital and who completed a medical report that was handed
into evidence by agreement. Whilst at the hospital, her mother
arrived and although she made a report to her about the rapes, she
did not do so in any detail.







[12] The gist of the medical
examination report handed in as evidence is that the left labia
minora of the complainant’s genitalia was bruised; the hymen
was absent; and complainant experienced the examination as painful.
Pertaining to the broken hymen, it is not reported that it was a
fresh injury or that any sign of bleeding was present. In the absence
of medical evidence explaining whether or not the broken hymen and
the absence of blood are features consistent with complainant’s
evidence about her having had no previous sexual intercourse, I do
not intend speculating as to the meaning and interpretation of what
is noted in the report. It seems to me that the probative value of
the medical report was correctly placed in context when Mr Matota
submitted that the injuries mentioned in the report are not
inconsistent with a consensual sexual act and does not per se
prove an act of rape. Thus, the injury to the complainant’s
genitalia is neutral, and is neither here nor there.







[13] It is common cause that
complainant was fetched by the police the following day for the
pointing out of the respective crime scenes. According to the
complainant there were marks on the ground at the scene in the bush
denotative of a struggle that took place there. She was unable to
recall whether footprints were equally visible.







[14] The complainant in
cross-examination contradicted herself by first stating that she did
not give NM and her mother the details of the rape as she was too
traumatised, but later changed this to having told them that she had
been raped in the bushes. However, she thereafter changed her version
back to not having informed them where the rape took place. Though
noteworthy, I do not consider the discrepancy to be material.
However, when complainant’s evidence is considered with that of
some of the other witnesses where their evidence overlap, there are
indeed material contradictions which deserve further scrutiny. I
intend dealing next with the supporting and contradicting evidence
given by the respective witnesses all in one, and thereafter consider
the probabilities of the case.







[15] The complainant’s evidence
describing the circumstances immediately prior to her being forcibly
pulled away from NM’s house differs markedly from what NS and
NM testified. It furthermore differs from what she narrated to the
investigating officer about what happened on this point. NS and NM
confirm the complainant’s visit at their house that evening and
that complainant, NS and MM after watching TV, went to sit outside
the house while NM went to bed. NS also confirms the accused’s
arrival thereafter and that he made remarks about a fight which
prompted her to go inside the house as she became scared of him. She
also disputed allegations that the accused was called there by
anyone. She said that although she tried to wake NM, this was not the
reason why she had entered the house. Opposed thereto stands the
complainant’s evidence that NS, before entering the house,
specifically said that she was going to call NM. This discrepancy in
their evidence does not appear to me to be material. However, both NS
and NM deny that NM, after she had gone to sleep, had left the house
that night; further, there is no reasonable explanation for
complainant’s version that NM came outside to check on the
accused. Of equal importance is what followed thereafter, as this
describes the circumstances under which the complainant left with the
accused, forming the basis of the alleged subsequent incidents of
rape.







[16] Complainant said the accused came
to that house twice that evening, whilst it is clear from NS’s
evidence that it could only have been once; for when she returned
outside after 2 – 3 minutes, the accused and complainant were
no longer present. Unlike complainant who said that she was grabbed
by the accused the moment she and MM were entering the house,
NS upon her return, still found MM sitting outside where she
had left him and the complainant.







[17] I pause here to remark that MM
was not called as a witness as it would appear from a psychiatric
evaluation report prepared by a certain Dr Simbi from the Katima
Mulilo State hospital on the 5th of November 2012, and
handed into evidence by agreement, that he is at this stage not fit
to testify in court. However, NS confirmed that MM was (already)
mentally challenged back then, but was of the view that he
communicated very well with his relatives and those persons near to
him. NS was one such person and in the circumstances prevailing that
night one might have expected from MM to have made a report to NS
about the strange circumstances under which the complainant had been
forced to leave with the accused. Nothing was mentioned of that sort
and even from NS’s evidence one does not get the impression
that something sinister happened in her absence.







[18] A third version as to the events
taking place at NM’s house came from D/W/O Tuli who testified
that complainant on this point said to her that the accused came into
the yard from the street, walked directly to her and grabbed her on
her arm and started pulling her away from there. This all happened in
the presence of Ntuli and MM
. Closely related thereto is the
complainant’s evidence that when she was grabbed by the
accused, she screamed for help. NS did not hear anything and there
seems to be no reason why she should not have heard, because by then
the TV (according to NM) had been switched off. D/W/O Tuli, on the
contrary, said that she specifically asked the complainant whether
she had screamed for help when the accused pulled her away and she
replied that she did not scream but only cried, quite the
opposite from what she testified in court.







[19] There is also no evidence
pertaining to possible marks made on the ground inside the yard when
complainant was forcibly pulled away. According to NM the reason for
this is because there was a rain shower during the night. One has to
accept her evidence on this score because she had been cleaning
(sweeping/raking) the yard in the morning and was in an excellent
position to have made observations as regards drag marks made in the
sand. Her evidence about the rain that could have destroyed imprints
made in the sand is consistent with that of some witnesses who had
come to the same conclusion pertaining to imprints found at the first
scene of rape, which was just nearby. I will return to the alleged
prints observed at the scene in the bushes later.







[20] Regarding the events taking place
at the house of NM and which include the circumstances under which
the complainant had left the scene together with the accused, it must
from the aforementioned be clear that there are irreconcilable
differences in the State’s case which remains unexplained. Not
only does the complainant’s evidence on this aspect differ
markedly from other witnesses, it is also self-contradicting when
regard is had to what she told the investigating officer, one day
after the alleged incidents, opposed to her testimony in court. Mr
Matota submitted that the complainant’s young age and
time lapse of six years between the occurrence of the incidents of
rape and the complainant giving evidence, might have a bearing on the
quality of her evidence. I agree that it may indeed be reasonably
possible and the argument should equally apply to the other
witnesses; however, one would not expect that it would bring about
such divergent versions as has been shown in this case. It appears to
me inescapable to conclude that the complainant, at least as far as
it concerns the circumstances leading up to her leaving NM’s
house in the company of the accused, did not speak the truth.







[21] Another factor that might equally
have impacted on the veracity of the witnesses is the fact that
complainant had afterwards narrated to NM and NS what had happened to
her. It appears to me to be reasonably possible that these minor
witnesses, over the years that followed, have become familiar with
each other’s versions and have adopted facts making it part of
their own evidence which they did not witness or experience
themselves. It is well known that young children are susceptible to
influence and often find it difficult to distinguish between fact and
fiction.



[22] Turning now to the first rape
incident that took place in the nearby bushes, there appears to be
even more contradictions pertaining to the existence or otherwise, of
marks found at the scene during a pointing out made to the police by
the complainant two days later. According to the complainant the
accused let go of her once they had reached the spot in the bushes
and when she refused to undress herself, he took off her clothes. She
co-operated because she was afraid of the accused and when he told
her to lie down, she obliged. Against this background I find the
evidence of the complainant and those witnesses who observed
‘struggle marks’ on the scene questionable. When
complainant was asked what exactly she had pointed out at the scene
she replied that she only showed the police where the incident took
place and no specific marks.







[23] Complainant’s mother
described the scene as one where ‘struggle marks’ and the
footprints of two persons – one male and the other female –
were clearly visible beween a mixture of sand and grass. How the
witness was able to distinguish between the prints, as she did,
remains a mystery. It rather appears to me that she reached this
conclusion purely on what she had learned from the complainant and
not from her own observations.







[24] As for D/W/O Tuli, she testified
about ‘physical drag marks’ and the marks made by someone
who had been lying on his back. She confirmed that despite it having
rained in the mean time, the drag marks were clearly visible. When
confronted in cross-examination with the complainant’s evidence
that there was no struggle between her and the accused at the
scene, she said that complainant told her that ‘after she
(complainant) refused to undress, the accused grabbed her and put her
down on the ground’
and that they ‘struggled’.
This report made by the complainant to the investigating officer
stands in sharp contrast with her viva voce evidence namely,
that she lay down when told to do so and that the accused thereafter
positioned him on top of her. These two versions, once again, are
irreconcilable, for there should not have been any so-called ‘drag
marks’ on the scene if there was no struggle or force used
between the accused and the complainant.







[25] It certainly begs the question
what marks were then observed by D/W/O Tuli two days after the
alleged incident, in circumstances where it had been raining. Due to
the rain shower on the night of the 31st of October NM was
unable to observe any drag marks inside their yard. What then would
the chances have been of making observations about drag marks at a
different scene in close proximity of the first, after two days,
and why is it that one witness observes footprints on the scene and
the rest making no mention thereof in their evidence? As for
the witness Tuli, the events of the 2nd of November during
the pointing out do not form part of her witness statement, as she
had already prepared her statement on the 1st and did not
file a supplementary statement pertaining to subsequent events. She
had merely refreshed her memory from the police docket and thus had
access to the witness statements of all the other witnesses. That
alone, in my view, should be sufficient reason to approach her
evidence, where uncorroborated, with the necessary caution. I do not
consider complainant’s or Cecilia’s evidence on this
point to be corroboration, but rather contradictory.







[26] According to D/W/O Tuli the scene
was such that Detective Sergeant Coetzee from the Scene of Crime
Unit, who accompanied her, could photograph it. However, these
photographs, after six years, were never printed and
thereafter incorporated into a photo plan. According to Tuli, these
photos ‘are still out somewhere in the system’ (whatever
that may mean). The production of photos taken at the scene would
undoubtedly have clarified any uncertainty that might have existed
about the presence of any marks or footprints on the scene; however,
this is not to be and no satisfactory explanation was proffered as to
why it was not made available as evidence. I find the excuse that
Sergeant Coetzee was transferred in the interim implausible.







[27] Thus, when deciding the veracity
of the respective witnesses who testified on the marks or prints
found at the first rape scene, it must be said that there is not one
that can be considered trustworthy and whose evidence inspires trust
and confidence in the court’s mind. Hence, the totality of the
evidence of the State witnesses on that aspect of the evidence does
not necessarily support the complainant’s version, but rather
raises more questions than providing answers as to what really
happened between the accused and complainant on that night.







[28] The complainant’s evidence,
pertaining to the second and third incidents of rape that took place
inside her room during the course of the night and the following
morning, is uncorroborated in all respects. She said that although
the key remained in the lock of the door, she was too afraid to even
attempt to flee or find help as she was not certain whether or not
the accused was awake. This notwithstanding, she had to wake
the accused the following morning when she told him that she wanted
to go to school.







[29] The complainant’s behaviour
towards the accused after they had reached her room, must not be
viewed in isolation, but must be considered together with the rest of
the evidence. It would thus mean that, if the complainant was
forcibly taken into the bushes where she was raped and from there to
her room where she was again raped and kept hostage, then one could
have expected from her that she subjected herself to the whims of the
accused. On the contrary, had she accompanied him willingly and
agreed to have sexual intercourse, as the accused claims she did,
then, obviously, she would have reacted differently.







[30] Mr Bondai strongly
submitted that one peripheral issue, namely, the confrontation of the
complainant by the accused in the afternoon during which he allegedly
slapped her, forms the basis of the complainant’s alleged
demeanour during the subsequent incidents of rape that night and the
next morning. This, so it was argued, is unconvincing and is not
borne out by the facts.







[31] Although the accused admits that
he went to see the complainant during the afternoon when he blamed
her of being the cause of his breakup with NM, he disputes having
assaulted her. Complainant said that since that incident earlier in
the day, she was fearful and mindful during the period thereafter
when forced to be with him, that he had already assaulted her and
might execute his threats to beat her again or even kill her. Despite
having reported the incident of assault to the police, it is common
cause that the accused was never charged with this offence. I
enquired from Mr Matota why the accused was never charged for
assault, and whether the decision not to prosecute was taken by the
State because the complainant, on this aspect of her evidence, was
disbelieved. He submitted that it was merely an oversight on the side
of his office when the charges against the accused were formulated.
The omission is unfortunate and to a certain extent compromises the
credibility of the complainant; particularly where the complainant
said that she ‘knew her rights’.







[32] Mr Bondai submitted that
complainant sought to exaggerate the incident between her and the
accused earlier in the day (and by fabricating evidence about an
assault perpetrated on her), as it does not appear from her actions
thereafter that she was terrified to the point that she wanted to
stay indoors in order to avoid contact with the accused. On her own
evidence, she went to NM’s house twice in the evening
without fearing to again meet with him; whilst she was the last
person to remain seated outside when he turned up at NM’s
house; this despite a second warning he had given a few minutes
earlier about an impending fight. Visibility outside was sufficient
for her to have noticed the accused already when entering the yard
the second time around, and this would have given her sufficient time
to go inside the house. She however remained seated and explained
this behaviour by saying that she was now with others. If NS
appreciated the seriousness of the threat made the first time, why
not the complainant; more so, if she had already been assaulted by
the very same person earlier in the day?







[33] I tend to agree with counsel that
the complainant’s behaviour in the circumstances appears to be
inconsistent with that of a person who claims to have been fearful of
the accused. On the contrary, it would rather be consistent with the
accused’s version that the complainant accompanied him
willingly when they left NM’s house together. It would also be
consistent with the accused’s evidence that he and complainant
spent the night together in her room by mutual agreement and that she
was not detained against her will. A worrying aspect of the
complainant’s evidence is that she had been lying awake the
whole evening, without attempted to escape. Firstly, in the
circumstances portrayed by the complainant one would not expect the
accused to have left the key on the door lock if he intended holding
her hostage; secondly, least when he decided to sleep over. That he
indeed slept through the night was confirmed by the complainant who
had to wake the accused the following morning. Whereas she had
been lying awake with him on the same bed through the night, there
must have been some indication from his side that he had fallen
asleep. Although still at a very young age, the evidence shows that
complainant was not completely helpless and dependent on others. She,
on her mother’s evidence, was used to be at home alone over
weekends and had to look after herself. From this it seems reasonable
to infer that she had learned during these (regular) periods of her
mother’s absence to fend for herself. I thus find her excuse
for not even attempting to run away doubtful.







[34] It was further argued that, on
the complainant’s version, she had been screaming when forcibly
pulled away from NM’s house; yet, this went unnoticed in
circumstances where not only the people of that house must have heard
her screams, but most probably also persons living in a boarding
house just across the street; as well as other persons in
neighbouring houses where they had passed. It is common cause that
there are street lights which light up the area along the way the
complainant was allegedly pulled. It was shortly after 21h00 in the
evening and the chances of people moving around on the streets do not
appear to be remote. In these circumstances I find it peculiar that
the complainant’s protestations and screams went unnoticed.
Neither do the probabilities of the case on this point favour the
complainant’s evidence.







[35] When one looks
at the circumstances leading up to the accused and the complainant
going to her room, it appears from the complainant’s evidence
that the accused decided to do so on his own volition. It is against
this background that Mr
Bondai
argued that the
accused could not have known that the complainant’s mother
would not be at home, unless she had told him so herself. It was not
the complainant’s testimony that she was ever asked by the
accused as to her mother’s whereabouts. On the contrary,
according to what the complainant had told her grandmother Cecilia,
the reason why they had moved from the bushes to her room was
because
they were bitten by mosquitoes
.
This is something the complainant had not mentioned to anyone else
and neither did she advance that as a reason why the accused decided
that they should go to her room. It certainly begs the question why
the accused in the first place would have decided to take the
complainant into the bushes if he well knew that the complainant was
alone at home?







[36] Be that as it
may, it is the accused’s evidence that after he and the
complainant left NM’s place together on their way home, he
offered to buy her a soft drink at the shops and it was whilst on
their way back that she invited him over to her place where they then
once had consensual sexual intercourse that night. He disputes the
complainant’s evidence about her being forced into submission
before being raped in the bushes or on the morning of the 1
st
of November. It was
submitted by Mr
Matota
that
the accused’s claim to the benefit of doubt must not be derived
from speculation, but ‘must rest upon a reasonable and solid
foundation created either by positive evidence or gathered from
reasonable inferences which are not in conflict with, or outweighed
by, the proved facts of the case’ (
S
v Van Wyk
).2
I respectfully
agree.







[37] The only
contradiction between the accused’s evidence and that of
another State witness (besides the complainant) is where NS confirmed
the complainant’s evidence about the accused upon his arrival
at NM’s house asked who is the next to fight. Also, in respect
of her finding the complainant in tears the next morning. What
followed thereafter is the complainant’s narrative to the other
witnesses about the events taking place the previous day. Their
confirmation of complainant’s narrative during their testimony
is not considered corroboration, as it emanates from the same source
ie the complainant. It is an established principle that corroboration
should emanate from an independent source, and that the mere
repetition of a story does not constitute corroboration, though it
may prove consistency. In the latter instance the previous consistent
statement of the witness is usually admitted in order to rebut an
allegation of recent fabrication. See Schwikkard and Van der Merwe
Principles
of Evidence
2
ed at 497 and the cases cited. In
De
Beer v Rex
3
at 34 it was said:







The
evidence of the complainant made to the mother is not corroboration;
it merely tends to show consistency of conduct on her part and so
affects credibility . . .’







[38] Mr Matota
urged
the court to reject the accused’s version as false in that his
evidence about the accused and complainant first proceeding to the
shops where he bought her a soft drink, was not put to the witness
under cross-examination. However, this proposition is incorrect as
the accused’s defence on this point was indeed put to the
complainant, which she disputed. What was not put to her is that she
apparently made reference about the accused having money and that he
could buy her a soft drink. I do not consider this to be material in
any way and of significance when deciding the veracity of the
accused. Although the purpose of accused going to NM’s house
that night may seem questionable, it does not in my view mean that he
is therefore guilty of the crimes he stands accused of. It is not the
accused’s duty to prove his innocence and even if the court
does not believe his story in all its detail, the test is whether his
version, considered together with the rest of the evidence, is
reasonably possibly true. Once the court finds that there is a
reasonable possibility of the explanation being true, then the
accused is entitled to his or her acquittal.
4







[39] The proper approach in a case as
the present where the court is faced with two conflicting versions,
is for the court to apply its mind not only to the merits and the
demerits of the State and the defence witnesses respectively, but
also to consider the probabilities of the case.







[40] With reference
to the contradicting evidence given by the complainant and other
State witnesses, Mr
Matota
relied
as authority on
S
v Teek
5
where Brand AJA at
para 20 said:







It
follows that a list of contradictions between witnesses in itself
leads nowhere as far as dishonesty is concerned. It is only when it
has been established on other grounds that the one witness is
reliable and the other one not that the evidence of the latter can be
rejected.’







After due consideration of all the
evidence adduced, whilst mindful of the provisions of s 208 of the
Criminal Procedure Act 51 of 1977, and having followed a cautious
approach in the assessment of the complainant’s single
evidence, I am not persuaded that the complainant’s evidence is
trustworthy in material respects, and that the truth has been told.
Not only was she self-contradicting, her evidence is also
contradicted by other witnesses who in turn corroborate one another,
albeit on peripheral issues which indirectly impacts on the
credibility of the witnesses. Consequently, it has not been shown
beyond reasonable doubt that the complainant was taken away from NM’s
house against her will; neither that she had been raped by the
accused on three occasions thereafter. In view thereof, the accused’s
explanation is probable and thus found to be reasonably possibly
true.







[41] Regarding the main charge on
count 1, namely abduction, Mr Matota conceded that this
offence was not proved against the accused. However, he strongly
contends that the accused should be convicted on the alternative
charge of kidnapping. The elements of the crime of kidnapping are (a)
the deprivation of (b) a person’s freedom of movement (or the
parental control in the case of a child) which takes place (c)
unlawfully and (d) intentionally. See C.R. Snyman Criminal Law 5
ed at 479.







[42] In view of the court’s
finding that the complainant was not deprived of her freedom and
movement by the accused during the period in question, it is clear
that the offence of kidnapping, equally, was not proved.







[43] As regards the alternative
charges to the three counts of rape, Mr Matota conceded that
these were not proved against the accused and that the State only
sought convictions on the three charges of rape, set out in the main
counts. In order to secure a conviction on s 14 (a) of the Combating
of Immoral Practices Act 21 of 1980, the prosecution has to prove
beyond reasonable doubt that the accused committed a sexual act with
a child under the age of 16 years, whilst the accused is more than
three years older than such child. In addition mens rea is
required in that the accused must have appreciated the wrongfulness
of his act, accompanied by the required intent.







[44] On the present
facts the accused admitted having had consensual sexual intercourse
with the complainant and whereas she was 14 years and he 20 years of
age at the time, it satisfies the requirements of the unlawfulness of
his actions, as required by s 14 of the Act. What has not been
admitted by the accused, or proved by means of evidence, is that the
accused knew the complainant was under the age of 16 years and
therefore appreciated the wrongfulness of his act when committing a
sexual act with her. The State did not attempt to prove these
elements of the offence by leading evidence on point or through
cross-examination of the accused. There is also nothing turning on
the evidence itself that the accused must have realised from the
complainant’s general appearances and conduct that she was
under the age of 16 years.
6
Neither is the fact
that she was still attending school indicative of her young (and
exact) age. This court finds itself in the same position in that it
would be impossible, six years later, to draw certain inferences from
the complainant’s general appearances now, when attempting to
determine whether or not she appeared to be under the age of 16 years
when the offence was committed. Accordingly, the concession made by
the prosecution that the accused should be acquitted on the
alternative charges is properly made.







[45] Consequently, the court finds as
follows:







Count 1:
Main and Alternative counts – Accused found not guilty and
discharged.



Counts 2–4:
Main and Alternative counts – Accused found not guilty and
discharged.



















__________________



JC LIEBENBERG



JUDGE



















































APPEARANCES







STATE L Matota



Of the Office of the
Prosecutor-General, Oshakati.







ACCUSED G F Bondai



Instructed by the Directorate: Legal
Aid, Ondangwa.



1Combating
of Immoral Practices Act 21 of 1980.




2S
v Van Wyk,
1993 NR 426 (HC) at 438J-439A.




3De
Beer v Rex,
1933 (NPD) 30.




4S
v Haileka,
2007 (1) NR 55 (HC).




5S
v Teek
, 2009 (1) NR 127 (SC).




6S
v F and Others
, 1967 (4) SA 639 (WLD)