CASE NO.: SA 19/2001

IN
THE SUPREME COURT

JACKSON
NDJIMBA APPELLANT

And

THE
STATE RESPONDENT

CORAM:
STRYDOM C.J., O’LINN A.J.A. et CHOMBA A.J.A.

HEARD
ON: 3 April 2002

DELIVERED: 19
June 2002

JUDGMENT

STRYDOM,
C.J.: The appellant was granted leave by the Court a quo
to appeal against his conviction on a charge of rape and against his
sentence of 20 years imprisonment. It was alleged:

“That
on or about 25 May 1997 and at or near Erf 1336, Freedomland in the
district of Windhoek the accused unlawfully and intentionally had
sexual intercourse with TN a female person under the age of consent,
namely 2 years old.

Mr.
Potgieter appeared on behalf of the appellant and Ms. Lategan on
behalf of the respondent. Neither Counsel represented any of the
parties in the Court a quo Mr. Potgieter appeared amicus
curiae and the Court wants to thank him for his assistance in
this matter.

The
mother of the complainant, Ms. NM, testified that the appellant,
together with the State witness Timo Thomas, one Dawid and one
Marcus, lived with her, her husband and children, in a house in
Freedomland. On the morning of the 25^th May, she and
Timo Thomas went to town and left the complainant in the care of the
appellant. On their return they met the complainant who was crying.
On being questioned, the complainant told them that Hambulondo beat
her and she indicated between her legs. The witness thereupon
examined the private parts of the complainant and found that there
was blood mixed with white things coming out of her vagina. These
white things looked like semen. The entrance to the vagina was also
torn. Hambulondo is the name under which the appellant was known.

Timotheus
was sent to call the appellant but he had left the house and Ms. M
testified that she neither saw him nor talked to him again up to the
date that she gave evidence in Court. The witness did not take the
complainant to the hospital nor did she lay a complaint with the
police. She explained that her husband was away and that she did
not have money to go to hospital. She tried to borrow money but was
unsuccessful. She did not go to the police because this was the
first time that something like this had happened to her and she was
shocked and afraid. When her husband returned she reported the
incident to him and he then laid a charge whereafter the complainant
was taken to hospital.

Timo
Thomas, also referred to as Timotheus, testified that the complainant
was left in the care of the appellant when he and the previous
witness went to town. On their return form town they met the
complainant who was crying and who told them that she was beaten by
the appellant on her vagina with his penis. As to the instrument
with which she was assaulted the complainant demonstrated this by
showing her arm and fist. When they came into the house the
appellant left. The witness was present when the mother examined
the complainant’s private parts. He said he saw blood and he
identified the “white things” as semen.

The
father of the complainant, Mr. SN, confirmed that he left for
Ovamboland on the 24^th May and returned on the night of
the 31^st. On his return the mother of the complainant
made a report to him as a result of which he laid a charge at the
police on the 1^st June. He said that he had asked his
wife why she had not laid a charge and she said that she had been
shocked and afraid of the appellant. From the evidence it seems
that the reference to the 31^st May, as the date on which
the witness returned, was wrong and should be the night of the 1^st
June.

The
respondent also called the complainant to testify. She was now five
years old. She said that she was assaulted between her legs and
demonstrated the size of her fist. She stated that Jackson
assaulted her but she said that this person who assaulted her was in
Ovamboland and not present in Court. She further stated that she
would know him if he was present in Court. The appellant was
pointed out to her but she said that she did not know him.

Dr.
Odumlami examined the complainant on the 2^nd June. He
observed old bruises on both thighs, in the inner aspect of the
thighs. There was also an old bruise around the vestibule and
around the fourchette and perineum. The doctor further observed a
foul smelling discharge which he ascribed to infected blood.
Because of this infection and the time lapse the doctor did not find
any remnants of the hymen although he also mentioned that there were
instances where girls were born without a hymen. The doctor was of
the opinion that the injuries had been caused by blunt force like a
penis or finger or any other blunt object. The colouring of the
bruises, found by Dr. Odumlami, showed that they were sustained about
a week before he saw the complainant.

That
was the evidence presented on behalf of the respondent.

The
defence of the appellant, who had pleaded not guilty, was an alibi.
He denied that he was at the house of the complainant on the morning
of the 25^th and denied that she was left in his care. He
stated that on the afternoon of the 24^th he went to a
house in the Ombili Township where he stayed the night. He stayed
there until 4 o’clock on the 25^th. He explained
further that, on the 25^th, he met Dawid and Marcus at a
certain cuca shop. They brought him a message from one Joseph that
a certain company was looking for employees and that appellant should
go to the Company early in the morning, together with one Lucas,
seemingly to try and find employment.

The
message was that they should also tell Lucas about this opportunity.
They went to the home of Lucas but did not find him and left a
message that he should come early the next morning to the house of
the appellant. Because they did not know where the premises of this
company were they went to Joseph in Havana to get directions from
him. He told them where to go but also informed them that the next
day, which was Monday, was Africa Day, which was a public holiday,
and that they should go to the Company on the Tuesday morning. They
then returned to their home in Freedomland. Lucas, who was not
aware that it was a holiday, turned up early the next morning and the
two of them spent the day together and visited various places.
Appellant returned to Freedomland late that afternoon where he found
the mother of the complainant alone at home. She invited him twice
to have sex with her but he declined every time.

On
the Wednesday, that was the 28^th, appellant said that he
was at the house in Freedomland when Ms. M and Timotheus, together
with the children, left him at home and told him that they were going
to sell cooking oil. Appellant later also left the house but again
slept there that night. In each instance the appellant described in
detail his coming and goings in regard to the week following on the
25^th May.

From
the 30^th May till the 2^nd of June appellant
said that he stayed at the house of his uncle in Ombili. Early the
morning of the 2^nd he returned to the house in Freedomland
to get ready to go to Klein Windhoek where he was employed on a
casual basis. When he arrived at the house he knocked and Dawid
opened the door for him. Although he did not see them he found that
Mr. N, the owner of the house, was back from Owamboland and he
greeted him as well as his wife, Ms. M. That afternoon he returned
to Ombili where the police later arrested him.

The
appellant called two witnesses to substantiate his alibi. The first
was Dawid Hamukwaya, who lived with him in the house at Freedomland.
The witness started off by saying that the appellant had not been at
the house on Saturday and that he had slept at Ombili. That was the
Saturday before the Sunday on which it was alleged that the appellant
raped the complainant. The witness further stated that the
appellant had stayed at the Freedomland house from Monday through to
Wednesday. Dawid could not remember where the appellant was during
the rest of that week but stated that he again saw the appellant very
early on the morning of the 2^nd June On this occasion
the appellant greeted them all and that included Mr. N and his wife,
Ms. M. The witness further stated that he had left the house early
on the Sunday morning, the 25^th of May, and could
therefore not say what might have happened later that Sunday and
whether the appellant had returned to the house or not.

The
second alibi witness, called by the appellant, was Mbery Thomas.
This witness testified that he lived in Ombili. He said that on the
25^th or 24^th of May the appellant arrived at
their house and slept there that evening. It was a Saturday.
Appellant stayed the next day at the house until 2 p.m. and then went
to Havana. When he left he said that he was going to visit one
Joseph. The witness again saw the appellant on Friday the 30^th
of May. He then stayed there until Monday morning when he left
early that morning to go to work. The witness did not see the
appellant again and only later heard that he was arrested on a charge
of rape. This witness also testified that the house where the
appellant periodically stayed in Ombili was a house belonging to an
uncle of the appellant.

That
concluded the evidence on behalf of the defence.

The
learned Judge in the Court a quo accepted the evidence of Ms.
M and Timo Thomas, as further corroborated by the medical evidence,
and rejected the evidence of the appellant and his witnesses. In
the latter instance the Court referred to certain improbabilities in
the evidence of the appellant and further stated that it was his
impression that there was collusion between the appellant and more
particularly the witness Dawid to mislead the Court. The Court
consequently convicted the appellant as charged.

Mr.
Potgieter strongly criticized the evidence of the two main State’s
witnesses and further pointed out that the complainant was, in
certain respects, a single witness whose evidence should have been
approached with caution which, so Counsel submitted, was not done by
the Court a quo. He also submitted that the Court did not
apply the cautionary rule in regard to children although the
complainant was still a child of tender years. Counsel further
submitted that the State did not prove beyond reasonable doubt that
the crime of rape was committed and submitted that the evidence fell
short of proving penetration by the male genital organ into that of
the complainant.

Ms.
Lategan submitted that the State proved beyond reasonable doubt that
penetration per penis took place. She also submitted that it
was proved beyond reasonable doubt that the appellant was the
perpetrator of the crime. Counsel criticized the evidence of the
appellant and his witnesses and submitted that the trial Court had
certain advantages by seeing and hearing the witnesses which a Court
of Appeal does not have. Consequently this Court would only
interfere with the factual and credibility findings of that Court if
there were cogent reasons for doing so.

I
must agree with Ms. Lategan that the evidence proved beyond
reasonable doubt that the complainant was raped. The evidence of
Ms. M and Timo Thomas on what they saw when they inspected the
private parts of the complainant stand uncontested and is furthermore
corroborated by the medical evidence. Ms. M testified that she saw
blood and a white matter, which looked like semen, coming out of the
vagina and the vagina was torn. Timo Thomas had no hesitation in
identifying this white matter as being semen. Dr. Odulami stated
that when he saw the complainant, after about a week, he could not
find any remnants of the hymen. He said that this could be due to
the lapse of time and also because he found that there was infection.
It is so that he also testified that there are rare instances where
a girl is born without a hymen and Mr. Potgieter latched on to this
evidence to submit that this might be such an instance and that there
was therefore nothing significant in the fact that the doctor found
that the hymen was absent. However, in the light of all the
evidence I am satisfied that such a possibility can be ruled out as
so remote that it can be left out of consideration.

The
only question that remains is whether the State proved beyond
reasonable doubt that it was the appellant who raped the complainant.
When considering the evidence it is clear that there is no onus
on an accused to establish his alibi, and if there is a
reasonable possibility that it might be true the accused should be
acquitted. (See R v Biya, 1952 (4) SA 514 (AD) at 521 B –
D and S v Mhlongo, 1991 (2) SACR 207 (A) at 210 d – g.)
Furthermore it was stated in R v Hlongwane, 1959 (3) SA 337
(AD) that a Court’s approach to alibi evidence is not to consider
it in isolation but to consider it in the totality of all the
evidence and the impressions made by the witnesses. ( p 341 A).

Another
aspect of which I am mindful, and which was pointed out by Ms.
Lategan, is the fact that the Court a quo had the advantage of
seeing and hearing the witnesses and being steeped in the atmosphere
of the case. (See R v Dhlumayo, 1948 (2) SA 677 (AD) at 705
and 706 and R v Nxumalo and Others, 1960 (2) SA 442 (TPD) at
446 A – B.) Consequently a Court of Appeal would be reluctant
to upset the findings of the trial Court. However, on a reading of
the trial Judge’s reasons for rejecting the evidence of the two
alibi witnesses, Dawid and Mbery, it is, in my opinion clear that he
did so solely on the basis of their demeanour in Court. The only
reason for the rejection of this evidence appears in the judgment, on
page 144 of the record, and reads as follows:

“In
order to convince the Court that on the day in question and at all
relevant time, 25 May 1997, he was not present the accused called the
witnesses here-in-before mentioned. The accused did not make a good
impression on me and the same applies to his witnesses. It is clear
from the way in which they testified especially, in the case of the
accused’s first witness, Davey Hamukwaya, that there was some sort
of collusion between the two in trying to mislead the Court.”

The
Court went on to state that Timo Thomas was adamant that the
appellant was present on that day and that there was no reason, and
none was advanced, why he would falsely incriminate the appellant.
The excerpt, cited above, contained the only reason for the rejection
of this evidence and the Court seemingly did not give any
consideration to the fact that these witnesses, not only corroborated
the evidence of the appellant, but that there were indications in the
evidence of the State witness, Timo Thomas, which support important
parts of their evidence. I am mindful of the fact that a judgment
cannot be all embracing but as was stated in S v Singh, 1975
(1) SA 227 (N) at 228 F – H, the best indication that a Court has
applied its mind to the evidence in the proper manner is to be found
in its reasons for judgment including its reasons for the acceptance
and the rejection of the respective witnesses.

It
was pointed out in many cases that, although important, a witness’s
evidence should not be rejected solely on the basis of demeanour.
In S v Dladla, 1974 (2) SA 689 (N), the following was stated
in this regard on p.690H – 691A, namely –

“The
demeanour of a witness, although always a relevant and sometimes a
very important factor in the final determination of disputes of fact,
is notoriously fallible as a decisive ground of decision. As
Wessels, J.A., observed in Estate Kaluza v. Braeuer, 1926 A.D.
243 at p. 266, a crafty witness “may simulate an honest demeanour”.
It is always the court’s function and duty to test the apparent
sincerity of such a witness by such means as are available to it and
the most important of such means is almost invariably a close
examination of the content of the evidence given and the degree of
its harmony with the inherent improbabilities.”

In
S v Civa, 1974 (3) SA 844 (T), Margo, J. approached demeanour
evidence as follows:

“The
effect of demeanour in assessing credibility is a matter of judgment
and common sense, but it must be remembered that the truthfulness or
untruthfulness of a witness can rarely be determined by demeanour
alone without regard to other factors…The evidence must be weighed
as a whole, taking account of the probabilities, the reliability and
opportunity for observation of the respective witnesses, the absence
of interest or bias, the intrinsic merits or demerits of the
testimony itself, any inconsistencies or contradictions,
corroboration, and all other relevant factors.”

See
also S v Van As, 1991 SACR 74 (W) at p. 101 a – f.

The
danger lies therein that just as a crafty witness can simulate
honesty, factors such as anxiety or fear may create the impression of
uncertainty or hesitancy and may reflect poorly on the demeanour of
an honest witness. As was laid down in the cases of Dladla,
supra, and Civa, supra, rather than to rely on
demeanour alone, the Court should also consider the evidence of a
witness in relation to various other factors and should closely
examine the content of the evidence given and the probabilities or
improbabilities inherent in such evidence. As a result of the Court
a quo’s failure to deal properly with the alibi evidence,
this Court is at large and is under the circumstances obliged to
undertake this task as best it can and to make its own findings in
that respect.

Dawid’s
evidence as to whether the appellant was at the Freedomland house on
the 24^th and 25^th May is somewhat confusing and
Ms. Lategan strongly criticized his evidence in this regard. It is
correct that he sometimes said that the appellant was there on the
Saturday and that he slept there that night. He may also have been
confused with the dates when he spoke of July instead of June as the
date on which the appellant was arrested. He testified however that
the appellant slept at the Freedomland house on the Monday, Tuesday
and Wednesday nights. The witness knew about the cooking oil
incident and also testified that the appellant came to the house
early on the morning of the 2^nd of June and spoke with Mr.
N and his wife. He said that the appellant, during this period,
also stayed at the house during the daytime. He mentioned that he
together with Timo Thomas visited the appellant in prison and that on
that occasion Timo said that he was influenced by Ms. M to
incriminate the appellant. Timo, when he was recalled by the Court,
confirmed that he visited the appellant in prison, but he denied that
he said that he was influenced by Ms. M to incriminate the appellant
in the crime.

Mbery
Thomas did not stay with the appellant and Dawid at the Freedomland
house. He lived in Ombili, seemingly at the house where appellant
periodically slept when he was in Ombili. He testified that the
appellant was there on the Saturday, the 24^th, till 2 p.m.
on the Sunday afternoon when he left for Havana and he informed them
that he was on his way to one Joseph. Thereafter he only saw the
appellant again on the 30^th of May, that was the Friday,
and on this occasion he stayed there until early Monday morning.
The only criticism leveled at the evidence of this witness by Ms.
Lategan was that he could not explain why he remembered the dates of
the 24^th and 25^th of May. This is not
entirely correct because under cross-examination the witness said
that he remembered those dates because he and the appellant were
together and because of the fact that it was later alleged that the
appellant committed the crime during that period.

The
evidence of the two State witnesses, Ms. M and Timo Thomas, was also
not satisfactory in all respects. When evaluating the merits or
demerits of a witness’s evidence it should not only be measured
against how far that evidence co-incides, or does not, with that of
other witnesses. It is just as important to consider probabilities
or improbabilities flowing from that evidence judged against the
conspectus of all the evidence. Ms. M testified that after she had
examined the complainant on their return from town, Timotheus was
sent to call the appellant but that he could not find him. If one
accepts for the moment that this was so and, although she did not say
why she wanted to see the appellant, I think there could only have
been one purpose namely to confront him with the evidence. Under
the circumstances her later explanation that she did not go to the
police because she was afraid of the appellant does not make sense.
Why, if she was afraid of the appellant, was she willing to confront
him directly instead of laying a charge and leaving it to the police
to deal further with the appellant? By laying a charge she would
also have solved her problem of getting the complainant to a doctor.
Another aspect, which is in my opinion important, particularly in
the light of the alibi evidence, is the statement by this witness
that she did not see the appellant again until she gave evidence in
Court. I will later deal more fully with this aspect. This
witness also said that as a result of the assault upon her the
complainant is now lame in the left leg. The father of the child,
Mr. N, did not know anything about this.

Timo
Thomas testified that the complainant, who was then two or three
years old, informed him that the appellant assaulted her with his
penis. It only later became clear that that was a conclusion
drawn by him after a demonstration by the complainant. Timo had
great difficulty in explaining the whereabouts of the appellant when
they arrived home from town. This is an important aspect because it
turns on the dispute in this matter, namely whether the appellant was
present at the Freedomland House on the morning of the 25^th
May. He first of all said that when they got into the house the
appellant was leaving the house. By then they had already received
the report from the complainant as a result of which he concluded
that the appellant had assaulted her with his penis. Seemingly
nothing was done to stop the appellant from leaving. The witness
was again asked to state where the appellant was at the time the
complainant told them of what had happened. His answer was that the
appellant was not at home. The learned Judge found these answers
conflicting and questioned the witness. He confirmed the answer
previously given by him but said that when he went to call the
appellant he was not there. The Court further questioned the
witness and he then said that when they came to the house the
appellant had already left. Still later he said that when they came
to the house the appellant was going out. On this evidence it is
impossible to come to any conclusion as to whether the appellant was
still at home, whether he had already left or whether he was leaving
the house when Ms. M and Timo came to the house after the complainant
had made her report to them.

Timo
Thomas also said that he did not see the appellant again until early
the morning after Mr. N had come home. Mr. N returned on the night
of the 1^st June. Timo however denied that the appellant
talked to Mr. N although he said that Ms. M heard him when he knocked
at the door. It would seem that she must have been awake and knew
that he was there. There then followed some confusing evidence as
to when this was and when the appellant returned to the house.
Although Timo said that it was the same day that Mr. N returned home
from Ovamboland he went on to say that the date was the 25^th
May. He was then specifically asked whether he meant the day that
the incident took place and he replied in the affirmative. He again
confirmed this on a further question asked by the prosecutrix. Then
later he said that the incident took place on the 20^th and
the father of the complainant returned the same month on the 5^th.
It is clear that the witness was completely confused as to the
dates and days when specific incidents took place and his denial that
the appellant was at the house on previous days, and even slept
there, is at least questionable. Timo was asked whether he saw the
appellant at the Freedomland house on the 28^th or 29^th
of May. He did not deny that the appellant was there but said that
he himself was not at home.

Under
cross-examination Timo was further asked about the comings and goings
of the appellant during the week preceding his arrest. It was put
to him that on Monday the 26^th May the appellant was at
home with the complainant. Again he did not deny that that was so
but stated that they, meaning the complainant and appellant, were
never left alone on this occasion. It was then put to him that on
the 28^th Ms. M, the two children and the witness went to
sell a litre of cooking oil and left the appellant at home. The
witness said that that was correct. To add to the confusion the
witness, after further cross-examination, now said that on the 2^nd,
seemingly the night of the 1^st to 2^nd June, the
appellant slept in the house. On re-examination by the State
prosecutrix Timo again confirmed that the appellant was at the house
on the day they went to sell the cooking oil. Counsel for the
defence was given another opportunity to cross-examine the witness
and he now said that the oil was sold by him and Dawid and that it
was on the day the father of the complainant left for Ovamboland.
He now denied that he said that that incident occurred on the 28^th
of May.

The
evidence of Timo Thomas, regarding the comings and goings of the
appellant during the week after the alleged rape of the complainant,
did nothing to disturb the evidence given by the appellant and Dawid,
and also that of Mbery Thomas to the extent that he testified that on
those days the appellant was not at the Ombili house. What is
significant is that from time to time it shimmered through the
evidence of Timo that the appellant’s evidence, as supported by his
two witnesses, that he stayed at the Freedomland house as usual, on
various days subsequent to the alleged rape, and even slept there,
might be true. However when the witness was pinned down he tried to
escape from his predicament by moving the particular incident to some
other date which fell outside the relevant period. One such
instance was the cooking oil incident which he now alleged happened
on the day Mr. N left for Ovamboland. That was before the rape was
committed.

The
only other witness, who denied that the appellant returned to the
Freedomland house and was present there after the rape was committed,
was Ms. M. In the light of all the evidence, also that of Timo
Thomas, I find her evidence that, after the incident, she only saw
the appellant again when she testified in Court, so improbable that
it can safely be rejected. She must have realized that it would
have been difficult to explain why the appellant was allowed to come
and go as he pleased and why neither she nor Timo Thomas ever
confronted him with what had happened on the 25^th. Then
again, if the appellant had disappeared, as she testified, and did
not return to the house where his belongings still were, it would
have lent support to the allegation that he was the rapist and,
knowing what he had done, to try and avoid a confrontation. The
fact that the appellant stayed away would have been an indication of
guilty knowledge. On the other hand, the fact that the appellant
returned to the house and stayed there, as if nothing had happened,
is difficult to reconcile with the actions of a man who knew that he
had raped the little complainant and, if he was indeed the person in
whose care she was left, he must have known that he would be under
suspicion.

I
have, in my discussion of the evidence, limited myself to that part
of the evidence which touched upon the movements of the appellant
after the crime was committed because it seems to me that if Ms. M
and Timo Thomas lied about this aspect of the case then there is also
a reasonable possibility that they had lied when they said that the
appellant was at the Freedomland house on the morning of the 25^th
May and that the complainant was left in his care. There is nothing
inherently improbable in the alibi evidence and nor are there
material discrepancies or conflicts in this evidence. In fact a
reading of the evidence of both Dawid and Mbery showed that they were
not afraid to make concessions or even to contradict the evidence of
the appellant. Dawid correctly conceded to the State that he could
not say whether it was in fact the appellant who had raped the
complainant. This concession was made in the light of the evidence
that he himself had left the Freedomland house on the morning of the
25^th and could therefore not say what might have happened
later that day. This concession did however not affect his evidence
that the appellant did not sleep at the house and was not there at
the time when he had left. As far as Mbery Thomas was concerned it
was put to him by Counsel for the defence that when the appellant
left the Ombili house on the afternoon of the 25^th he did
so in the company of two other persons. Mbery denied this. A
reading of the evidence showed that this statement by Counsel was
wrong because appellant had testified that he met Dawid and Marcus at
a Cuca shop in Ombili. However, this statement coming from
appellant’s Counsel, it would have been easy for the witness to
tailor his evidence to fit in with what was put to him by Counsel.
The fact that he did not do so seems to gainsay the impression that
he was telling a fabricated story to give the appellant an alibi.
He also only heard about the rape after the appellant’s arrest and
he testified that he did not see him again.

I
have given careful consideration to the evidence set out above.
There are no inherent improbabilities in the evidence by these two
witnesses. The evidence supports the version of the appellant, not
only in regard to what had happened on Sunday, the 25^th,
but also in regard to his movements during the week after the 25^th.
Further impetus is given to this evidence by that of Timo Thomas
who at times admitted that that was so and at times tried to
extricate himself from his dilemma in a clumsy way. The totality
of this evidence refutes in my opinion the denial by Ms. M that after
the incident the appellant disappeared from the scene only to surface
again when he was arrested. As I have tried to show there were
various reasons for doing so, all of which would leave a question
mark over the cogency of her evidence.

Dealing
with the evidence of the appellant, the Court a quo mentioned
some unsatisfactory aspects in his evidence. This came about in the
following way. The appellant gave two reasons why he thought Ms. M
falsely implicated him in the commission of the crime. The first
concerned a ring of the witness which was given to him and which he
never returned. The Court a quo correctly pointed out that
Ms. M was never confronted with this evidence under
cross-examination. The reason why this was not done, which was
given by the appellant, may not be satisfactory however, both Timo
Thomas and Dawid testified that there were quarrels between the
appellant and Ms. M, from time to time, although they did not further
elaborate on that. The second reason given was the invitation to
have sex with her and which the appellant then refused. Appellant
further said that it suited her to have him arrested because then he
would not have been able to talk with her husband, Mr. N. The Court
a quo rejected this evidence as highly improbable and found it
strange that a mother would approach the person who had raped her
two-year-old child and of whom she was afraid. However this line of
reasoning begs the question because the Court accepted, against the
appellant, that he was indeed the person who committed the rape and
who was the person of whom she was afraid. The test is whether it
would still be so highly improbable if the appellant were not the
person who committed the crime, and in my opinion that would not be
so.

According
to the evidence the complainant was two years old when the incident
occurred. The trial was about a year later when she was still of
tender age. We have only the word of Ms. M and Timo Thomas that she
identified the appellant when she made her report concerning the rape
to them. The report is itself not evidence and when she testified
she did not again state that she had made such a report. She now
said that the person who raped her was Jackson and she was unable to
point him out. I do not think that much can be made of the fact
that she was unable to point out the appellant, given the fact that
she was so young when the incident happened and that a further year
had passed before she gave evidence. But under the circumstances
her evidence does not take the matter any further. Ms. Lategan
submitted that the fact that the complainant did not identify the
appellant as the person who raped her is of no significance because
of the inherent danger in a dock identification. I agree with the
sentiments expressed by the Courts in regard to dock identifications,
but I do not agree with Counsel’s suggestion that nothing turns on
the failure to identify an accused in Court. Mostly that would lead
to an acquittal of the accused unless there was other cogent evidence
to that effect. In the instant case the failure of the complainant
to identify the appellant as her assailant has the effect that her
evidence does not assist the State and cannot serve as corroboration
of the evidence of Ms. M and Timo Thomas.

Considering
all the evidence I am of the opinion that there is a reasonable
possibility that the alibi evidence of the appellant and his
witnesses might be true and if that is the case then there is also a
reasonable possibility that it was not the appellant who committed
the crime. I am therefore of the opinion that the appeal should
succeed.

In
the result the following order is made:

The
appeal succeeds and the conviction and sentence of the appellant is
set aside.

________________________

STRYDOM,
C.J.

I
agree,

________________________

O’LINN,
A.J.A

I
agree,

________________________

CHOMBA,
A.J.A.

COUNSEL
ON BEHALF OF THE APPELLANT: Mr. J.D. Potgieter

(Pro
Amico)

COUNSEL
ON BEHALF OF THE RESPONDENT: Ms. A. Lategan

(Prosecutor-General)