REPORTABLE

CASE NO.: SA 09/2008

IN
THE SUPREME COURT OF NAMIBIA

In
the matter between:

and

Coram:
Mainga JA, StrydomAJA etMtambanengweAJA

Heard
on: 28/10/2011

Delivered on: 13/08/2012

____________________________________________________________________

APPEAL JUDGMENT

STRYDOM, AJA :

[1] The appellant was
convicted in the Regional Court of the common law crime of rape and
was sentenced to imprisonment of 15 years. He appealed to the High
Court of Namibia but because his notice of appeal was out of time he
was advised to simultaneously make an application for condonation of
his late filing of the notice of appeal. This was done by the
appellant. He appeared before DamasebAJ (as he then was) and Usiku,
AJ (as she then was). In a well reasoned judgment by Damaseb, AJ, in
which Usiku, AJ, concurred, the Court rejected the application for
condonation on the grounds that there was not a reasonable and
acceptable explanation for not complying with the provisions of
Magistrates’ Court Rule 67; and that it was not a proper
application for condonation. Although the merits of the appeal were
fully argued the Court did not find it necessary to consider the
prospects of success of the appeal because of the Court’s
finding in regard to the failure of the appellant to explain his
non-compliance with the Rules.

[2] The appellant was not
satisfied with this outcome and he launched, without further ado,
various petitions to the Supreme Court in which he asked for leave to
appeal. He was informed by the Chief Justice that in this instance,
where his appeal floundered on the basis that condonation was refused
he had a right of appeal and did not need leave to appeal. (See in
this regard Absalom v The State, 1989(3) SA 154 (AD).)

[3] At his trial before
the Regional Court, and in the High Court, the appellant had legal
representation. In the latter instance the Court appointed counsel
amicus curiae for the appellant. However, in his appeal before
this Court he appeared in person whereas the State was represented by
Mr. Kuutondokwa.

[4] The appellant filed
written heads of argument in which he criticised
the regional magistrate for not evaluating the evidence properly and
not being cautious when he accepted the
evidence of the complainant and the other two eyewitnesses because of
the fact that they were under the influence of liquor. He further
criticised the magistrate for not applying the probabilities emerging
from the evidence in his favour or at all. The appellant also
complained that the evidence of the complainant and the other
witnesses was inconsistent with statements they had made to the
police. The magistrate also failed to state his findings in regard to
the medical evidence. In conclusion the appellant alleged that the
State did not prove its case beyond reasonable doubt.

[5] Mr. Kuutondokwa
pointed out that the High Court properly considered all facets
applicable to condonation. The Court analysed the application to see
if there was a proper and acceptable explanation for the appellant’s
non-compliance with the rules of the magistrates’ court. The
High Court further allowed the appeal to be fully argued to consider
the prospects of success on the merits and concluded that there was
no merit in the appeal. The Court also considered the allegation by
the appellant that he was unrepresented in the trial court. This was
a lie as the record showed that he was ably represented throughout
the trial. Counsel further submitted that this Court would only
interfere with the findings of the Judges a quo if it was
shown that they misdirected themselves on the law or on the facts,
where the reasons of their findings were unsatisfactory or, though
satisfactory, it was shown that they had overlooked other facts or
probabilities. Counsel argued that the appellant failed to
demonstrate any grounds on which this Court would be entitled to
interfere. Counsel dealt with the various grounds of appeal and
concluded that they were without substance and that, looking at the
evidence overall, it was clear that the complainant’s evidence
was corroborated by the other two witnesses.

[6] Mr. Kuutondokwa
referred the Court to the case of S v Van der Westhuizen, 2009(2)
SACR 350(SCA) where at p353c-d it was stated that a Court dealing
with an application for condonation must consider all relevant facts.
The following was said by the learned Judge:

“Factors such
as the degree of non-compliance, the explanation for the delay, the
prospects of success, the importance of the case, the nature of the
relief, the interests in finality, the convenience of the court, the
avoidance of unnecessary delay in the administration of justice and
the degree of negligence of the persons responsible for
non-compliance are taken into account. These factors are
interrelated, for example, good prospects of success on appeal may
compensate for a bad explanation for the delay.”

[7] A reading of relevant
cases shows that a factor such as the prospects of success on appeal
is of great importance and can be conclusive in certain
circumstances. Where the prospects of success on appeal are
non-existent or highly doubtful condonation is refused
notwithstanding that an acceptable explanation is given for the
non-compliance of the rules by the applicant. A finding that there
were no reasonable prospects on appeal comprised many of the other
factors referred to above such as the interest in finality, the
convenience of the Court and the avoidance of unnecessary delay in
the administration of justice. It would be a futile exercise to grant
condonation in circumstances where there were no good prospects of
success on a further appeal. Although the Court a quo declined
to consider the merits of the appeal because it concluded that there
was no acceptable explanation for the delay to comply with the rules
the casesshow that even a bad or unacceptable explanation for the
delay may be compensated for where there are good prospects of
success on appeal.

[8] I share the Court a
quo’s criticism of the explanation given by the appellant
concerning the reasons for his delay in filing his notice of appeal
timeously, but in my opinion the appellant endeavoured to give an
explanation and although it may be unsatisfactory, or even bad, I
will consider the prospects of success on appeal as we were fully
addressed on that issue. As set out in the case of van der
Westhuizen, supra, the factors to be considered are interrelated
and not mutually exclusive and an unsatisfactory or bad explanation
may be cured where there are good prospects of success on appeal. See
cases such as S v Ackerman, 1965(4) SA 740 (OPD) and the
majority decision in Chairperson of the Immigration Selection
Board v Frank and Another2001 NR 107 (SC).)

[9] I will then proceed
to consider the appellant’s prospect of success on appeal to
determine whether it is such that it may convince the Court to
nevertheless grant condonation notwithstanding the appellant’s
unsatisfactory explanation for the delay.

[10] All the State’s
witnesses were agreed that they drank heavily liquor on this fateful
day and that they were all under the influence when the alleged rape
occurred. It seemed that they had visited various places where they
drank, mostly wine and also obtained wine. At some stage they met
with the appellant who then accompanied them to the house of the
daughter of the witness Anna de Klerk. When they ran out of liquor
Anna and the appellant contributed money to buy some more wine. The
appellant invited the complainant to accompany him to the wine house
where they intended to buy more wine but Frans Angermund, the
boyfriend of the complainant, refused to let her go with appellant.

[11] The complainant
testified that Fanie and Frans then started to argue as a result of
which Frans decided to go home. The complainant also went outside and
as she and Frans were walking away the appellant called her and when
she came closer he grabbed her and pulled her into the house. He
locked the front door and put the key into his pocket. He then
started to undress her. He first took off her blouse and brassiereand
then pulled off her slacks and panty. The appellant also threatened
her with a knife. She did not know where the knife came from but
stated that at some stage the appellant went into the kitchen and she
did not know where he obtained the knife but it was a table
knife.When the appellant went into the kitchen the complainant fled
to the toilet but because the door could not lock the appellant was
able to pull her out of the toilet. She then went to the front door,
which was the only door in the house but because it was locked she
could not get out. There the appellant bent her over a low wall and
started to have sexual intercourse with her. He also pressed the
knife against her head. Fanie and Anna were present but they were
sitting and watching. The appellant then pulled her to a bed where
they kept on struggling. It was at the bed that Fanie came and pulled
the appellant off the complainant and tried to protect her by lying
down on top of her. He was however pulled off by the appellant who by
now only had his shirt on.

[12] Under
cross-examination the complainant gave a different version of how the
attack on her started. She said that after she was pulled into the
house they sat down and had another drink. The appellant then said
that he wanted to have sexual intercourse with her and he said that
he had paid her N$50 for this. The complainant denied that she was
paid N$50 by him and the appellant then started to undress her. She
was then taken to the bed. She struggled with the appellant and he
then went into the kitchen. She ran to the toilet but because it
could not be locked she went to the front door to try to escape but
because it was locked she could not get out. It was there that the
appellant then bent her forward and had intercourse with her.

[13] The complainant was
also confronted with a statement she had made to the police on the
same day that the alleged rape occurred. This also showed some
confusion in the mind of the complainant as to when and where she was
undressed and also what the sequence of events was.

[14] The two State
witnesses Mr. Fanie Benz and Ms. Anna de Klerk corroborated the
evidence of the complainant in material respects. Fanie testified
about his altercation with Frans and stated that it concerned some or
other work relationship. That is also the evidence of Anna. They also
did not hesitate to state that they were all heavily under the
influence of liquor. Both witnesses also said that when they decided
to buy more liquor the appellant invited the complainant to go with
him but that Frans did not want her to go. Fanie testified that after
the argument with Frans the complainant left with him but the
appellant went out and brought her back. Appellant locked the door
and he then started with the complainant. He further stated that the
appellant removed the complainant’s clothes and he had bent the
complainant over a low wall. The witness said that the complainant
shouted for help but he did not do anything then but during the
struggle they went into the bedroom and he then went to help the
complainant. He threw his body onto the complainant in an attempt to
stop the appellant. By this time he saw that the appellant had a
knife. Because of the knife, the witness decided to desist and not to
interfere further. After sometime the appellant and the complainant
left.

[15] Under
cross-examination he was positive that the appellant had sexual
intercourse with the complainant. He also corroborated the
complainant that she was fully undressed and that the appellant had
only removed his trousers and not his shirt. He also testified that
he did not see any assault by Frans on the complainant. It seems that
this witness also did not hesitate to deny some of the evidence given
by the complainant. He denied that after the complainant was pulled
into the house they sat around having some more liquor. He stated
that the alleged attack on the complainant started the moment she was
pulled into the house.He also stated that all her clothes were
removed there at the door. He, somewhat hesitantly, also denied that
the complainant went to the toilet.He further said that he did not
try to open the door because he knew it was locked but stated that
the complainant had asked him, at some stage, to open it.

[16] Frans Angermund
confirmed that he and the complainant had been living together for a
period of 15 years. He further stated that when they went out for
more liquor the appellant asked the complainant to go with him but he
refused to let her go.He further testified that he and the
complainant were already out of the house when the appellant came and
pulled her back and said that he would have sex with her that day. He
then tried to enter the house but the door was locked and nobody
opened it. He said he went home because he thought that nothing
untoward would happen because of the presence of Fanie and Anna.
Later on the complainant came home. She woke him up and told him she
was raped. He became very angry and they there and then went to the
police station to report the rape. He also testified that he saw
bruises on the complainant and he denied that he had assaulted her.

[17] Ms. Anna de Klerk
stated that they were all under the influence of liquor. That
included the appellant. She testified that Fanie and Frans had an
argument about work and that Frans then told the complainant that
they had to go. They left and the appellant followed them. He and the
complainant returned and she saw that the appellant held the
complainant by the arm. The door was closed and she heard the
appellant saying that he was looking for his money and he started to
undress her. He, the appellant, also undressed himself and he bent
the complainant over a low wall and started to have sex with her. The
complainant was struggling but the appellant pulled her into a room
to a bed. It was then that Fanie went to help the complainant. The
witness now also saw that the appellant had a table knife. Fanie was
pushed away and from there the complainant and the appellant again
moved towards the low wall where he again bent her forward and had
sex with her. After the appellant had finished he unlocked the door
and they then left.

[18] Under
cross-examination Anna told the Court that the appellant had removed
all the clothes of the complainant and that she was completely naked.
She also stated that the appellant first removed the blouse and
brassiere of the complainant and that he only took off his trousers
and underwear. Anna also confirmed that the complainant was at the
sitting room window but that the window had burglar bars. She also
described that from the movements made by the appellant she could see
that he was having sex with the complainant. She was certain that
this occurred each time when the parties were in the corridor and
that she was of the opinion that when they were on the bed the
appellant did not succeed in having sex. Anna also denied that they
were sitting around having liquor before the appellant started to
undress the complainant. Although the witness denied that the
complainant was at some stage at the door, when confronted with her
statement to the police, she changed her evidence and stated that the
complainant was at the door and tried to open it but it was locked.

[19] The complainant was
recalled by the State but she could not remember whether the doctor
drew blood from her but she remembered that he took vaginal smears.
She was asked by the Court whether she had sex with anybody
twenty-four hours prior to the incident and she said no.

[20] According to the
medical evidence the doctor observed a bruise above her right eye and
some bruises on her body. Her genital parts were normal and the
doctor saw no injuries.

[21] Initially the
defence attacked the chain of evidence concerning the smears and
other tests taken by the doctor and handed to the police. Further
evidence was led by the State in this regard and in the end the
defence accepted the findings as stated in the various reports. The
vaginal smears taken showed the presence of spermatozoa which could
be indicative of sexual intercourse during a period of twelve hours
before the smears were taken.

[22] The appellant gave
evidence under oath and confirmed that he was with the four state
witnesses on the day of the alleged incident.He testified that he
knew the witnesses and that they used to meet at drinking houses. On
this day they all went to a house and when they ran out of liquor he
wanted the complainant to go with him to buy more liquor but her
boyfriend Frans, would not allow that so he and Fanie Benz went to
buy more wine. Whilst drinking Frans may have mentioned that
complainant and appellant wanted each other and he became jealous.
Frans then said that they had to go but the appellant said that she
was still drinking and did not want to leave. He then pulled her up
and started to assault her. He hit her with the fist above the left
eye and when she fell he kicked her three times. Fanie then
intervened and Frans desisted from further assaulting the
complainant. Fanie then told Frans to leave and he left. Complainant
did not leave with Frans and they continued drinking. At some stage
during the drinking bout the complainant said that there was
something she wanted to buy and he, the appellant, then gave her
N$50. She then also mentioned to the appellant that later on they
might get a chance when they could meet and have sex. They continued
drinking and he and Fanie went to buy a bottle of wine again. Then
the complainant started to leave. He asked her what she was doing and
she told him that she was drunk and that they would meet again later.
He then asked her to give back his N$50 but she did not do so. He
then told her that if she did not hand back his money he would take
other steps. She then left.

[23] The appellant
further stated that on a previous occasion he and the complainant met
and that she then told him to come to her early in the morning when
her boyfriend was at work. He went to her house one morning but
because Fanie and Anna were there they could not do anything. It was
confirmed by Anna that they had met the appellant at the house of the
complainant one morning previously to the day of the incident.The
appellant denied that, on the day of the incident, he was under the
influence of liquor although he had drunk some liquor.

[24] Under
cross-examination he said that he gave the complainant N$50 because
she said that she wanted to buy something and she told him that they
would talk later about the possibility of having sex. He said that he
gave her the N$50 because he knew with his heart that at a later
stage he would get something back, and on a further question he
elaborated and said thathe would get sex. She, the complainant, did
not want to have sex at that stage because she said that she was
drunk. According to the appellant a possible reason why the
complainant had laid a complaint of rape against him was because he
threatened her with other steps if she did not return his money.

[25] In a short judgment
the regional magistrate accepted the evidence of the State witnesses
and rejected that of the appellant. The court found that although all
the parties were intoxicated he was satisfied that the witnesses
could observe what had happened and were able to testify about it.

[26] There can be no
doubt that the evidence of the complainant was to some extent
confusing. The fact that she was allowed in evidence-in-chief to
testify about the incident, not always in sequence, did not assist
her. A much clearer picture emerged during cross-examination. The
evidence of the complainant must be evaluated against the fact that
she was under the influence of liquor, that she was the victim of an
attack on her and that the scene was a moving one. Reference was made
to her evidence that after she was pulled into the house by the
appellant they all sat down together and continued to drink. The
State witnesses, Fanie and Anna denied this and said that when she
was pulled into the house the appellant locked the door and started
to undress her. According to Anna it was at this stage that the
appellant demanded his N$50.

[27] The question is
whether the complainant was telling a deliberate lie or whether she
was confused and did so in error when she said that after she was
taken back into the house they again sat down and had liquor. This
piece of evidence only came out under cross-examination and was not
part of her evidence-in-chief. Given the background, set out herein
before, the possibility that she was confused when she said that they
first of all sat down and drink cannot be excluded. Something like
that did happen but it happened at an earlier stage when they were
all still together and Frans was also still there. But even if this
was a lie it does not follow that all her evidence was false. (See in
this regardS vOosthuizen,1982(3) SA 571 (TPD).) I have set out
herein before the various aspects in which her evidence was
corroborated by the witnesses Fanie and Anna. Some of these instances
contained fine detail such as her evidence that the appellant had a
table knife. Anna was only asked under cross-examination what type of
knife the appellant had and she replied that it was a table knife.
They further testified to the fact that the complainant was
completely naked whereas the appellant only took off his trousers and
underwear. They also testified that the front door was lockedand that
the appellant took the key. They were far better able to give a
sequence of what had happened than the complainant. If their evidence
was a concoction in a conspiracy to get at the appellant, then they
had prepared themselves in great detail, something one would expect
from people much more sophisticated and with knowledge of court
procedures. Although they could adapt their evidence to that of the
complainant when certain aspects of the complainant’s evidence
were put to them, they did not hesitate to say when they did not
agree with her. They also did not try to hide their state of
intoxication from the court. Any inconsistencies in their evidence
were not material and in my opinion there is no reason to reject
their evidence. The evidence of the complainant can therefore only be
rejected if that of Fanie and Anna is also rejected.

[28] The evidence of the
complainant is further supported by the evidence of the medical
practitioner who took vaginal smears from her which later on proved
to have contained spermatozoa. She denied that she had sexual
intercourse with anybody else during a period of 24 hours prior to
the incident. It is so that the doctor testified that he could not
see any signs of semen or injury on the penis of the appellant but
there was obviously some time lapse since the incident and when he
saw the appellant. He did not take a smear but only made an
observation that he did not see any semen.

[29] There are some
serious improbabilities in the evidence of the appellant. He first of
all testified that the complainant was assaulted by her boyfriend
Frans. According to his evidence this happened inside the house but
all the witnesses denied this. According to all the witnesses,
including the appellant, Frans and Fanie had some disagreement which
did not include the complainant.Bearing in mind the injuries found by
the doctor on the body of the complainant it suited the purposes of
the appellant to create an assault on the complainant by someone
other than him.

[30] The appellant’s
evidence in regard to the N$50 is in my opinion highly improbable. He
testified that after Frans left they continued their drinking bout.
The complainant then said that there was something she wanted to buy.
He thereupon handed N$50 to her. The complainant then mentioned,
seemingly in the presence of Frans and Anna, that they might later
get a chance to have sex.The effect of this evidence was that she
wanted money to buy something for herself, obviously at some later
stage, and that he had her promise of having sex with her, at some
time later when there was a suitable occasion. This is the literal
meaning of the evidence of the appellant. In the light of this
evidence it is totally inexplicable why the appellant demanded the
return of his money when the complainant got up to leave. Surely
there was no indication by her that there, at the house of Anna’s
daughter, there was something that she could buy and shortly before
he was apparently satisfied to hand her the money on her promise of
sex at a later suitable occasion.

[31] The appellant’s
so-called threat that unless the complainant gave him back his money
he would take other steps was also the only reason he could think of
why there was this conspiracy. This threat regarding the return of
the N$50 had nothing to do with Fanie and Anna so why they have found
themselves obliged to enter into a conspiracy against the appellant
is an enigma. In my opinion this was an inept and false attempt to
explain away the evidence that he demanded N$50 from the complainant.

[32] But even if there
was a handing over of N$50 to the complainant because of some
clandestine relationship between the two of them, then it is clear
from the evidence of the appellant himself that she was not willing
to have sex with him on that occasion.

[33] In my opinion the
evidence is overwhelming that the appellant had sex with the
complainant on this occasion and that she was not a willing party
thereto. In fact she resisted the appellant throughout and even the
attempt by Fanie to protect the complainant did not make any
impression on the appellant. I am therefore of the opinion that the
conviction of the appellant of rape was correct and that there is no
reasonable possibility that the appellant would be successful on
appeal.

[34] As far as sentence
is concerned, the regional magistrate took into consideration the
fact that the appellant threatened the complainant with a knife and
that he had his way with her in the presence of two other persons.
This is evidence of a total disregard for the person of the
complainant and must have been a humiliating experience even for a
person who was under the influence of liquor such as the complainant.
The appellant has twelve previous convictions of which two are for
grievous assault. The previous convictions show that the appellant is
a personwith no respect for other people and that he is prepared to
take what he wants to have even if it involved the use of violence.
In all the circumstances I am also satisfied that there is not a
reasonable prospect of success on appeal as far as the sentence is
concerned.

[35] I am therefore
satisfied that the Court a quo correctly refused to condone
the non-compliance of the appellant with the rules of the
Magistrates’ Court.

[36] In the result the
following order is made:

1. 
   The appeal is dismissed.

   
   

____________________

STRYDOM AJA

I agree

____________________

MAINGA JA