S v Du Preez (CC 64/07) [2009] NAHC 70 (18 June 2009);


Full judgment


CASE NO. CC 64/07


In the matter between:





Heard: 11 June 2009

Delivered: 18 June 2009


VAN NIEKERK, J: [1] In this matter the accused is standing trial on the following counts:

  1. Rape in contravention of sec 2(1)(a), read with sections 1, 2(2), 2(3), 3, 5, 6 and 7 of the Combating of Rape Act, 8 of 2000.

  2. Abduction, alternatively kidnapping.

  3. Attempted murder.

  4. C/sec 16(1) of the Domestic Violence Act, 4 of 2003 (Breach of a protection order.)

[2] After several State witnesses were led, the State closed its case, where after Mr Basson for the accused applied for his discharge in terms of section 174 of the Criminal Procedure Act, 51 of 1977, in respect of Count 1 and 2. The application is opposed by Mrs Esterhuizen for the State.

[3] Counsel are in agreement about the applicable legal principles. The generally accepted approach is to consider whether there is no evidence upon which a reasonable court, acting carefully, might or could convict. (See R v Thiele 1918 AD 373; R v Shein 1925 AD 6 at 9; R v Herholdt & Others (3) 1956 (2) SA 722 (WLD); R v Mall and Others (1) 1960 (2) SA 340 (NPD) 342; R v Mkize and Others 1960 (1) SA 276 (N)); S v Nakale and Others 2006 (2) NR 455 HC 466G; S v Teek (Case No SA44/2008 unreported judgment of the Supreme Court delivered 28/4/09 at para. [7]).

[4] As far as the credibility of the State witnesses is concerned, the following was said in the Teek case (at p5):

Somewhat more controversial is the question whether credibility of the State witnesses has any role to play when a discharge is sought under the section [i.e. section 174]. But the generally accepted view, both in Namibia and in South Africa, appears to be that, although credibility is a factor that can be considered at this stage, it plays a very limited role. If there is evidence supporting a charge, an application for discharge can only be sustained if that evidence is of such poor quality that it cannot, in the opinion of the trial court, be accepted by any reasonable court (see eg S v Mpetha 1983 (4) SA 262 (C) at 265; S v Nakale supra at 458). Put differently, the question remains: is there, having regard to the credibility of the witnesses, evidence upon which a reasonable court may convict?” [my insertion]

[5] The relevant passage from the Mpetha case (at 265E-G) mentioned in the above quoted passage is necessary to bear in mind:

However, it must be remembered that it is only a very limited role that can be played by credibility at this stage of the proceedings. If a witness gives evidence which is relevant to the charges being considered by the Court then that evidence can only be ignored if it is of such poor quality that no reasonable person could possibly accept it. This would really only be in the most exceptional case where the credibility of a witness is so utterly destroyed that no part of his material evidence can possibly be believed. Before credibility can play a role at all it is a very high degree of untrustworthiness that has to be shown. It must not be overlooked that the triers of fact are entitled “while rejecting one portion of the sworn testimony of a witness, to accept another portion”. See R v Kumalo 1916 AD 480 at 484. Any lesser test than the very high one which, in my judgment, is demanded would run counter to both principle and the requirements of s 174.”

[6] This view has been followed in this Court by MTAMBANENGWE J on p6 of the unreported case of the S v Gerson Tjiwi delivered on 30 November 1995; and in S v Campbell 1990 NR 310 HC; S v Moringer & Others 1993 (2) SACR 268 (W) at 272g; S v Swartz and Another 2001 (1) SACR 334 (W) at 335b-i; S v Mark & Another 2001 (1) SACR 572 (C) at 576j -577a; S v Nakale, supra, at 458F; S v Johannes Alex Roos and another (High Court Case No. CC 34/2007 - unreported judgment delivered on 22/8/07 at para. [6]).

[7] Mr Basson analyzed the evidence of all the State witnesses in fine detail, pointing to several contradictions on a variety of issues. Some of these contradictions are between the testimony of certain witnesses and others concern contradictions in their own evidence or between their testimony and their police statements or their testimony during the bail proceedings. In my view it is not necessary to subject the evidence to such a detailed scrutiny at this stage of the proceedings. Much of counsel’s analysis concentrated on whether the complainant was in fact abducted and raped as she has testified. Bearing in mind that the accused’s defence is one of a total denial of involvement in that he was allegedly not the perpetrator of the deeds, and appears to rely on an alibi, Mr Basson was constrained to concede that the accused cannot deny that the incident recounted by the complainant and her brother did take place. Furthermore, the suggestion that the accused’s wife had connived with the complainant’s father and other witnesses to make up a story during 2004 that the complainant was abducted and raped is simply farfetched and can be rejected outright. The suggestion that the accused’s wife was instrumental in implicating the accused in the crimes might, and I stress the word “might”, be on a stronger footing, but in my view it would require a basis laid by testimony in the defence case itself in order to carry more weight than allegations made during cross-examination.

[8] In my view the gist of the dispute between the prosecution and the defence on the two relevant charges is whether the accused was the perpetrator of the two crimes. The available evidence on the identity of the perpetrator includes the following:

[9] The complainant, her father and the first investigating officer testified that complainant identified the accused 8 months later without any difficulty and that the accused fitted the description given by her earlier. The complainant was confident in Court that the accused was indeed the perpetrator. She had spent about two hours in his presence on the day of the incident and she stated that she would never forget his face. If I believe her testimony, the accused is placed on the scene.

[10] Evidence on record about the features of the perpetrator is that he was a white male, short, fat, had a big stomach and broad shoulders, that he had grey hair which was longer than during the trial. There is also evidence that the accused actually had a “beard” on his lips, from which it became apparent that he actually had a moustache. His eyes were described as giving the impression that they were falling closed, similar to a person falling asleep, giving the further impression that he may have been under the influence of alcohol at the time of the incident, further they were also described as “big and sleepy”.

[11] Some of the features described by the complainant and her brother fit the features of the accused, while others do not, but in my view the differences are not so many and so pronounced that I should reject their evidence outright as inherently unbelievable or unreliable at this stage.

[12] The perpetrator’s vehicle was described as a two door black Jeep with a spare wheel fitted to the back door. There is also disputed evidence that the description given by the two children was that the vehicle was a Pajero with a spare wheel at the back, and also that it was a four door black and grey Pajero. It is common cause that a Jeep and a Pajero are similar in appearance. There is also evidence that it could not be established that the accused had ever driven a black Jeep. Furthermore there is evidence that at the relevant time the accused owned a dark green Pajero. It is common cause that the accused at all relevant times was a dealer in vehicles, including second hand vehicles. In my view the vehicle description given by the two children does not necessarily exclude the possibility that the accused had indeed driven such a vehicle at the time. Whether it is the only reasonable conclusion I can draw is something which I do not have to decide at this stage. The weight to be given to their testimony can only be finally assessed at the end of the trial.

[13] The accused’s wife, who was called to testify on other unrelated charges against him as a complainant, gave evidence which tends to put accused at a different place at the relevant time when the complainant and her brother were picked up by the perpetrator. She is not a competent witness against the accused on the rape and abduction charges, but to the extent that her evidence favours him, her testimony is admissible. In my view her testimony on these charges and the weight it should be accorded cannot be properly assessed until the end of the case, when all the evidence has been led.

[14] Mrs Esterhuizen submitted that the available evidence is not of such poor quality that it cannot possible be accepted. I agree with counsel. The conclusion that I have reached is that the application for discharge on counts 1 and 2 should be refused.



Appearance for the parties:

For the State: Mrs Esterhuizen,

Office of the Prosecutor-General

For the accused: Mr B D Basson,

B D Basson Incorporated