REPUBLIC OF NAMIBIA
REPUBLIC OF NAMIBIA
CASE NO. CC 64/07
IN THE HIGH COURT OF NAMIBIA
In the matter between:
THE STATE
and
HERMANUS CARL DU PREEZ
CORAM: VAN
NIEKERK, J
Heard: 11 June 2009
Delivered: 18 June 2009
JUDGMENT : APPLICATION
FOR DISCHARGE AT CLOSE OF STATE CASE
VAN NIEKERK, J: [1] In
this matter the accused is standing trial on the following counts:
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.
Abduction, alternatively
kidnapping.
Attempted murder.
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.
____________________
VAN NIEKERK, J
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
S v Du Preez (CC 64/07) [2009] NAHC 70 (18 June 2009);