S v Katamba (SA 2 of 1999) [1999] NASC 7 (07 December 1999);
S v MICHAEL KATAMBA
1999/12/07
Strydom, C.J., Silungwe, A.J.A., O'Linn, A.J.A.
EVIDENCE
Cautionary Rule in Sexual Cases
The Supreme Court further held: The rule has outlived its usefulness and there are no convincing reasons for its continuation. 2. The principles relating to a fair trial, such as the burden on the State to prove the case against an accused beyond reasonable doubt, relating to the evidence of single witnesses and youthful witness, are sufficient to ensure that an innocent accused shall not be convicted. The additional burden imposed by the cautionary rules on alleged victims, may adversely infringe on the fundamental rights and interests of victims which, include a fair trial also in regard to their rights and interests. The Courts also have a constitutional duty to protect such rights and interests. In this regard the Courts are also required to consider and give some weight to the contemporary norms, views and opinions of Namibian society. So e.g. the Courts must take into consideration that serious crime is prevalent in Namibia, if not escalating. Society is outraged by this phenomenon. It is a notorious fact that many Namibians believe that the Courts among others, overemphasise the rights of the perpetrators of crime and under-emphasise those of the victims, including those of the women and child victims in sexual crimes.
1. That the cautionary rule in sexual cases should not apply in Namibian Courts inter alia because:
The rule is difficult to apply because of its inherent vagueness.
The Court reiterated and confirmed however, the remark in SvD, that "this does not mean that the nature and circumstances of the alleged offence need not be considered carefully" and the remark in S v Jackson, that "the evidence In a particular case may call for a cautionary approach, but that Is a far cry from the application of a general cautionary rule".
The Court also adapted the rule laid down in R v Makaniuola, R v Easton and adopted its as a general guideline in the following form: The court did not find it necessary to express an opinion on whether or not the aforesaid cautionary rule is also "unconstitutional". It was a misdirection for the trial Court not to have taken into consideration the conflicting defence of the accused in the s. 119 proceedings. The Court also misdirected itself by holding it against the version of the child complainant, that she had failed to point out to the police the point where she had been raped when this alleged deficiency was never put to the complainant in cross-examination or in questions by the Courts. t
In the matter between
APPELLANT
THE STATE
And
RESPONDENT
MICHAEL KATAMBA
CORAM: Strydom, C.J.; Silungwe, A.J.A, et O'Linn, A.J.A. HEARD ON: 1999/10/04 DELIVERED ON: 1999/12/07
O'LINN, A.J.A.:
A. INTRODUCTION:
This is an appeal by the State against the judgment of Mtambanengwe, J in the High
Court of Namibia, in which the learned Judge found the accused, the Respondent in
this case, not guilty on the following charges:
"Count 1: Rape Count 2: Abduction, alternatively, kidnapping."
The charges were set out as follows in the indictment: "COUNT 1:
IN THAT on or about 1 October 1995 and at or near GROOTFONTEIN in the district of GROOTFONTEIN the accused unlawfully and intentionally had sexual intercourse with FLORIEDA NARUBES, a female person, under the age of consent, namely 11 years old. COUNT 2:
The State appeals essentially on three grounds set out as follows:
On appeal Ms. Lategan persisted in arguing the appeal on all the aforestated grounds. S v D and An will hereinafter be referred to as S v D.
The Court a quo, according to Ms. Lategan, "erred in law" because it was bound to
/;
1992(1) SACR and also in 1992(\) 5A513 (Nm) jnd 1991 (NK)37t HC
follow the decision in S v D, being a decision of two judges, unless it could be said that the judgment in S vD on this point was given per incuriam.
Then the Court analyzed the evidence in regard to accused No. 2 on the second charge and found that the complainant in the case was a truthful witness.
The Court then dealt with the cautionary rule and after setting out its nature and ambit said:
The Court consequently actually applied the cautionary rule and even took into consideration the approach in S v Balhuber, when it found that "the State did prove its case beyond reasonable doubt". It was only thereafter that Frank, J commenced his criticism of the cautionary rule.
2)
Namunjepo And Ors v Commanding Officer, Windhoek Prison ? Ors, Namibia High Court, unreported, p 30 - 31.
State v Vries, 1996(2) SACR, 638 (Nm) the judgment of 0"Linn, A.), at 654 d - h and the authorities therein referred to.
See also authorities referred to by State counsel in this case:
Hahlo and Kahn, The SA Legal System, 1968, Juta, page 251 ? 252
Kahn, SALJ, 1967, Vol LXXXIV, page 310
Van Zyl en Van der Vyver, Inleiding tot die Regswetenskap, 2ftd edition, 1982, page 307 - 308.
B. THE CAUTIONARY RULE IN SEXUAL CASES:
It is apposite consequently to set out at this stage the relevant critique of the cautionary rule as it appears in the aforesaid report of the decision in S v D4: 10.
1998(1) SACR, 470 (SCA) Jt 474, footnote, and 476 b
11.
SvD,supn,pp 1451- I46g
13 This notwithstanding, the criminal procedure is ¡ especially in Afrikaans.) "As in the case of an accomplice, the participant (deelnemer) in an alleged sexual crime is of course also exceptionally capable of bending the truth without it being possible to detect such bending of the truth". (My free translation from Afrikaans) Kriegler sets out the gist of the rule as follows: "the adjudicator of the facts must throughout be cautious of the special problems in this type of case and that it must be clear from the Courts evaluation of the facts that the evidence was approached and considered in this manner". (My free translation and emphasis.) 15 In S v D it was accepted as a fact that: 16
practice - not wholly to be exonerated from aloofness and even
prejudice against women complainants in sexual offences. The
cautionary rule is no pretext and not a license for discrimination
or for personal views on gender roles ." s
There is much to be said for the views of Kriegler. The logic behind the rule and the special factors involved in sexual cases are set out in a manner which
5) Hiemstn, Suid-Afrikunse Strafprose$, Sde Ukgiwe, J Kriegler, at 506 ? 507, under heading "sekstundelinge".
are understandable and which contradict the argument that the rule is aimed at discriminating against women because they are women.
In S v lackson - Olivier, JA said:
6~) 19 12. the existence of some safeguard reducing the risk of wrong conviction, such as corroboration of the complainant in a respect implicating the accused, or the absence of gainsaying evidence from him, or his mendacity as a witness... 20 21 In comparable modern systems, the cautionary rule and its variations have been abolished. 22 At 732f-733a Lord Taylor C] stated: 23 It follows that the magistrate was not oblighed to apply such a rule."
See e.g. Schmidt, Bewysreg, 2* Ed p 432 ? 436. Sduth Afr/an Lnv Evidence, 4th Ed, 97 ¡ 104
7)
Sure v F, 1989(3) SA 847 (A) it 8S3 et seq.
18
the recognition by the Court of the inherent danger aforesaid; and
Further to the comments made earlier in this judgment on the issue whether or
not certain facts accepted by the court in both S v D and S v lackson were
properly put before those Courts, the following additional observations need be
made:
It seems that the Court in S v D suggested two possible bases for the
abolition of the rule - namely:
(i) the rule has no rational basis for its existence and should the law regardless of sex. In S v Jackson, the Court appears not to have based its decision on the "unconstitutionality" of the rule. The ratio for not applying the rule is expressed in the following words: 8)
therefore not form part of our law;
and/or (ii) It is contrary to the provisions of Art. 10 of the Namibian
The Court in S v lackson in my view also correctly summed up some of
the hardships that complainants in rape cases have to endure in criminal
trials. Olivier JA, referred to this ordeal in the following terms:
Sv Jackson, p 476 e
9) And as stated by Olivier, ]A, in S v lackson, supra, "the evidence in a particular case may call for a cautionary approach, but that is a far cry from the application of a general cautionary rule." to) THE FACTS: 29 The complainant was examined by a medical practitioner 4 days after the alleged rape. At that stage it was found that complainant had suffered the following injuries set out in the report: "Breasts - abrasion right breast; 1.5 31 Maria noticed that the complainant was injured. The child appeared to Maria Katamba as unhappy and frightened, and did not appear to want to be with the accused. The accused told her when asked, that the girl was his girlfriend and her sister in law. Maria Katamba informed the farm foreman of the presence of the girl on the farm. The investigating officer Van Niekerk arrived on the farm at Berg Aukas on Wednesday, 4th October 1995, after having received information of the suspicious presence on the farm of an adult male in the company of a young girl and found the complainant. He immediately saw that she had been assaulted "because her face was swollen up and blue". He further testified: "I asked her what had happened and she then told me that a certain man, Michael Katamba, the accused before Court, had assaulted her and had sexual intercourse with her without her consent". The complainant was afraid and appeared tense and nervous. 32 The aforesaid section 119 proceedings was handed in at the hearing of the accused in the Court a quo without any objection from the defence. 33 34 2. The Probabilities: One of the "circumstances" was of course the application of the cautionary rule and this rule obviously affected and tainted the Courts finding on all the facts, including the abovestated finding on the probabilities. The only dispute in regard to the rape charge was whether the complainant was raped by the accused as alleged by the complainant, or by some other persons, prior to her meeting with the accused as suggested by the accused. 35 This was however, not a defence of "mistaken" identity, but a defence necessitating a finding that the complainant, although badly assaulted and violently raped by four thugs, deliberately and falsely alleges that her benefactor, the accused, had abducted, assaulted and raped her. 36 The Court consequently also misdirected itself on this issue. 37 (i) He had proposed the complainant and 38 4. The corroboration of the complainant's testimony: The complainant was in fact assaulted and raped. That is common cause. When the police arrived at Berg Aukas she immediately complained that the accused had assaulted and raped her. She was in the company of the accused for a few days and she could consequently not have made a mistake in identifying the accused as the rapist. 39 (i) The accused admitted to her that the complainant was his girlfriend and she was complainant's sister in law. 40
SvVdBerg / 995(4) BCLR 479 Nm at 495 F ¡ I also reported in
I196(I)SACR l9Nmat490B-49l B S v Strowitsky 6f An NmHC, 15/7/96 unreported, section G of judgment. 5 v Vries 1996(2) SACR 639 Nmat66if- 662 c 5 v Namunjebo, High Court, Namibia unreported and the Supreme Court decision dated 1999/07/09.,
27
1995(3) All ’R 730 CA
As a consequence this Court is not bound by the credibility findings of the Court a quo and is at large in considering the evidence on record.
1. The facts which were common cause or not in dispute:
1.1
The complainant was a female child aged 11 at the time of the alleged
crimes and consequently under the age of consent.
14.
The accused is a male person 36 years of age.
15.
The complainant was in fact raped.
Labia majora - bruising;
Vestibule - bruising;
Hvmen - completely torn;
Fourchette - abrasions, anterior and post-fourchette;
Perineum - bleeding abrasions;
30
Discharge - bioody;
Haemorrhage - moderate bleeding;
Examination - painful; ti
The complainant was taken by accused from Grootfontein, where he
Neither the father of the complainant or the Superintendent of the
hostel nor any other person gave consent to the accused to take the
child from Grootfontein to Berg Aukas.
When the accused and the child arrived at Berg Aukas on foot, they
were met by the sister of the accused, one Maria Katamba.
At the section 119 proceedings before the magistrate the accused
pleaded not guilty to al the charges and gave the following explanation
of plea:
1.12 The accused's defence in the Court a quo was in brief according to the trial judge:
This evidence was of course contradicted by the complainant.
3. The conflicting defences:
(ii) After she agreed - with her consent they went together.
There was strong corroboration for the complainant's evidence in all important respects, inter alia:
(ii) The accused had admitted to her that he had assaulted the complainant.
(iii) The complainant was nervous and appeared to be afraid during her stay at Berg Aukas.