IN THE HIGH COURT OF NAMIBIA
NO.: CA 123/2007
THE HIGH COURT OF NAMIBIA
the matter between:
DAMASEB, JP et SWANEPOEL,
Heard on: 19
Delivered on: 16
The appellant whom I shall refer to as the ‘Accused’, was
charged with rape of a 10-year-old girl, while he was 32-years-old at
the time. It is therefore alleged that he had sexual intercourse with
a minor under coercive circumstances.
On 17 May
2006, he was sentenced in the Regional Court of Katutura to 17 Years
imprisonment. He filed his notice of appeal in 2007, well outside the
14 day period for the filing of an appeal. The State took the view
when the matter was first called, that he failed to bring an
application for condonation for the late filing of the appeal. The
appeal was for that reason struck from the roll on the 27 February
2009. The Accused had since filed what purports to be an application
for condonation for the late filing of the appeal and the State still
takes the view that in such application he does not provide a
satisfactory explanation for the delay in noting his appeal late and
that the present appeal stands to be struck too. The appellant’s
explanation in the present application for condonation is that he is
a layman who was legally unrepresented at this trial, and that he was
not aware of the fact that he had to file his appeal within 14 days
after sentencing. Ms Nyoni, for the State correctly states that the
Accused was properly advised of his right of appeal by the sentencing
magistrate. I will revert to the State’s point in
I have discussed the merits which, in my view, are determinative of
the outcome of this appeal.
Only two witnesses testified on behalf of the State, being the
complainant herself and her father. According to the minor
complainant, the evidence is that on the date named in the
indictment, she had gone to a party with her parents and her
to a township
known as Kilimanjaro at the home of the friends of the parents.
Whilst the family were visiting there, she left while her parents
were asleep to watch a soccer match. Whilst at the stadium, she
testified, the Accused approached her and asked her to accompany him.
He then held her and pulled her by her arm and on the way placed a
bracelet on her arm. When they got to the home of the Accused, he
pulled her inside the house, locked the door, pushed her down on the
bed, undressed himself and then forcibly had sexual intercourse with
her. Whilst the Accused was having sexual intercourse with her, she
testfied, her father came and called out her name and knocked on the
door to the Accused's house. The Accused allegedly refused to open.
Sometime thereafter, the complainant stated, she got the key from the
Accused and opened the door. The father then entered and demanded to
know what was going on, upon which she told him that she had been
raped by the Accused. The father then demanded that they go to the
police station and whilst they were on the way to the police station
the Accused ran away and it was only 2 years later that he was found
and charged with the crime.
 The father of
the minor complainant also testified. His evidence was that he
realised whilst they were visiting at the friend’s place that
the daughter, the complainant, was not present and he went to check
for her at the soccer field. When he reached there he found another
girl who informed him of the complainant’s whereabouts. It
appears from the tenor of this evidence that this girl told him that
the complainant had gone to the home of the Accused. He went to the
home of the Accused, and upon arriving, knocked on the door after
having called out for the complainant. The door was not opened
immediately but when it was, he entered and found that the
complainant’s panties were around her knees. The Accused was
then on the bed with a knife next to him. He confronted the Accused
and the complainant about what had happened, and from his evidence,
it appears the complainant did not tell him what had happened. He
however concluded that the complainant had been raped. This subject
was raised with him by the trial court as follows:
Did your child, the girl, tell you what happened to her?
So what happened is, Your Worship, the child said he did that and I
asked her, what did he do? And this is when the child informed me
that he threw her on the bed and twisted her arm Your Worship, and
took off her panty.
And did she say anything else that he did to her?
(Afrikaans for ‘no’) (Intervention)
Just twisted her arm and took off her panty?
Yes Your Worship, because at that stage I was confused and I didn’t
want to listen to anything ...’
The father testified
that he demanded that the Accused accompany them to the police
station for him to report the crime but the Accused begged him not to
do so and when he did not budge, the Accused ran away and had only
been found two years later when he was charged with this crime.
 The complainant
said she was pulled by force from the soccer field. From the father’s
evidence it becomes clear that a girl at the soccer field knew that
the complainant was at the appellant’s house. How she so became
aware was not canvassed by the state. One thing is clear: the father
does not say that that girl saw the complainant being taken
forcefully or against her will and it is improbable that the
complainant was taken by force without anybody noticing. In any event
that girl was not called at the trial. If the Accused's version is to
be accepted - and I find no reason why it should not be - that he was
at home when the complainant came, it raises the inference that the
complainant came there and had told others she was going there. The
state did not disproof such an inference.
 The complainant
testified that she was dressed when she opened the door for her
father at the Accused’s house and that the accused was still
busy dressing when the father demanded for an explanation as to what
happened. However, the father said he found her panties half-way
around her knees and that the Accused was lying on the bed.
The record shows
that the complainant deviated from her statement to the police (and
earlier discussions with the prosecutor when being precognized) when
she testified in-chief as follows:
Did Accused put anything in your body, anywhere?
Are you sure?
She also testified
that the Accused ‘took off his trousers and his underwear and
he took a blanked and he covered us both with it ... and I was about
to push him off, then my father knocked at the door’. (There is
no suggestion here of rape).
She was then asked a
leading question contrary to her evidence as follows:
he put his finger into your vagina – correct to which she
answered in the affirmative.
prosecutor then put to her:
Remember you gave a statement to police and I also spoke to you this
The time when you and the accused person were in the room, were there
anything like a knife in that room.
No [This of course contradicts the father who says there was a
 As regards the
reddishness on the opening of the complainant’s vagina, the
evidence does not state that it was only consistent with sexual
intercourse and nothing really turns on that report.
 It is common
cause that the complainant was found in the Accused's home. The door
was closed. Nothing can turn on this as he said the door was made in
such a way that it closed on its own. Besides, from the evidence it
appears to have been a bed-sit in which he slept, cooked and used as
a living room. There was accordingly, as I understand the evidence,
only one door and one would expect that in such circumstances such a
door would always remain closed.
 The father said
he knocked for several times ON the door of the Accused's home and
got no answer and called out his daughter’s name. It raises the
question as to why she did not raise the alarm when she heard her
father call out her name. The complainant further testified that she
answered her father as he was calling out for her, whilst the father
testified that the Accused answered him by saying: ‘What is the
old man looking for again’?
inconsistency is that the complainant in her evidence-in-chief stated
that she was at no stage threatened with a knife nor did she see any
knife in the room of the accused. However, the father testified that
he saw a knife in the room of the Accused when he entered. The
complainant had further not pointed out at any stage that she was
crying, while the father testified that the complainant was crying
and that it is why she was unable to tell him what had actually
happened. It is the complainant’s version that she told the
father that she was raped by the Accused, but the father testified
that the complainant only told him that the Accused ‘threw her
on the bed, twisted her arm and took off her panty’ without any
reference to her being raped.
 It has to be
borne in mind that the complainant had quite obviously left the
company of her parents without telling them where she was going. The
parents had been drinking for quite a considerable period of time and
it is not far-fetched to conclude they became inebriated from drink.
The complainant actually testified that they were sleeping at the
place where they had gone to drink. Would the father not have felt
some guilty conscience when he woke up and did not find his daughter
around? In respect of her sibling who was also taken along by the
parents to this drinking place in Kilimanjaro, the complainant had
this to say:
I came back and then when I came back, I saw my sister’s baby
that she was thrown around. And then I took the baby to the room ...
and my sister left with her friends, I don’t know whereto. And
my sister’s friend came back and she came to fetch the baby”.
The father looked
around for her and found her and obviously seemed upset in finding
her in the Accused’s presence. It is not an unreasonable
inference that she might have had a guilty feeling about having left
the company of her parents without telling them where she was going.
 The learned
magistrate took the view that the case against the appellant was
strengthened by the fact that he was unable to demonstrate why the
very people the accused considered as being close to him fabricated
the rape charge against him. It is important to guard against putting
the onus on an Accused to explain why a state witness should lie. In
this regard see the following cases: S v Makobe 1991 (2) SACR
456: S v Radebe 1992(2)SACR 166(3]; S v Motloba 1992(2)
SACR 634(BA). The criminal onus has been stated as follows in R v
M 1946 AD 1023 at 1027:
Court does not have to believe the defence story; still less does it
have to believe it in all its details; it is sufficient if it thinks
that there is a reasonable possibility that it may be substantially
 In R v
Difford 1937 AD 370 at 272 it was held:
onus rests on the Accused to convince the Court of the truth of any
explanation he gives. If he gives an explanation, even if that
explanation be improbable, the Court is not entitled to convict
unless it is satisfied, not only that the explanation is improbable,
but that beyond any reasonable doubt it is false. If there is any
reasonable possibility of his explanation being true, then he is
entitled to an acquittal”.
 The accused in
his evidence under oath stated that the father of the minor
complainant was drunk when he came to his house and found the minor
complainant there. That the father of the minor complainant and
possibly his wife had been on some drinking binge on the date named
in the indictment, is apparent from the evidence of the minor
complainant. She refers to them first drinking at a place of an uncle
and then moving to another place where they drank some more and even
fell asleep. Her reference to a child of a sibling being thrown
around and evidently being left unattended is even more troubling.
That the conduct of the adults with whom the minor complainant was on
that day was less than exemplary and bordered on debauchery leaves
one with the sense that the minor complainant, not being looked after
by her partying -parents may very well, as suggested by the Accused,
have come to his house to look for water and ended up also asking for
sugar to mix with the water to drink. After all, the Accused suggests
that the child had been to his home previously and that he treated
her as his own child.
 In order to
find an Accused person guilty beyond reasonable doubt, the State must
prove beyond reasonable doubt that the version deposed to by the
Accused is false.
 Counsel for the
appellant who had previously acted for the Accused had submitted in
written heads of argument filed then that there were important
misdirections on the part of the trial court in that it did not
properly approach the issue of the Accused’s right to legal
representation by, without more, merely contending itself with
confirming from the Accused’s previous attitude that he wished
to defend himself: The various options open to the criminal
defendant, including applying for legal aid counsel if he could not
afford to hire the services of a lawyer not being clearly explained,
including the seriousness of the offence he was facing. In this
regard see S v Shikunga 1997(9) BCLR 1321 (NM) and S v
Kandovazu 1998(9) BCLR 1148 (NM).
 A further
complaint in those heads of argument on behalf of the Accused, is the
fact that counsel for the State improperly led the complainant to the
point where counsel actually suggested answers to the complainant.
Both these complaints have merit. I do not find it necessary to deal
with them because on the conspectus of the evidence, I am satisfied
that there exists reasonable doubt as to the guilt of the Accused as
there are irreconcilable contradictions in the evidence of the state
witnesses. In the premises the appeal must succeed.
In Nakale v The State, Case NO. SA 04/2010 (unreported)
delivered on 20 April 2011, Shivute CJ held (vide paragraphs 8 and 15
of the cyclostyled judgment) that, in considering whether or not to
grant condonation for the late filing of an appeal – even if
the explanation for the delay be suspect - the fact that the
appellant has reasonably good prospects of success on the merits may
well tip the balance in favor of granting leave to appeal. For the
reasons that I have set out, the present appellant enjoys very good
prospects of success on the merits and he ought to have been given
the benefit of the doubt as the State failed to prove beyond
reasonable doubt that he was guilty of the offence charged.
Accordingly, his application for condonation for the late filing of
the notice of appeal is allowed, and both the
conviction and sentence are set aside.
 I therefore
make the following order:
1. The appeal
2. The conviction
and sentence are set aside.
ON BEHALF OF THE
APPELLANT: In person
ON BEHALF OF THE
RESPONDENT: Ms. Nyoni
OFFICE OF THE PROSECUTOR-GENERAL