S v Leevi (38/2008) [2009] NAHC 76 (20 July 2009);


Full judgment

CASE NO. 38/2008

In the matter between:





Heard on: 2009.06.11

Delivered on: 2009.07.20


LIEBENBERG, A.J.: [1] The accused stands charged with the offence of Rape in contravention of section 2(1)(a) of the Combating of Rape Act, 2000 (Act 8 of 2000), read with section 94 of the Criminal Procedure Act, 1977 (Act 51 of 1977) and section 21 of the Combating of Domestic Violence Act, 2003 (Act 4 of 2003).

[2] Accused pleaded not guilty whereafter several witnesses testified for the State and at the end of the State’s case, Mr. Uirab, appearing on behalf of the accused, applied for the accused’s discharge in terms of section 174 of the Criminal Procedure Act, 1977 (“the Criminal Code”). Mr Sibeya, representing the State, opposed the application.

[3] It was submitted that the State had the burden of proving the charge against the accused and contended that the State failed to establish a prima facie case against the accused. Although acknowledging that credibility of witnesses at this stage plays a limited role, this notwithstanding, it was argued that their credibility is a factor that has to be taken into consideration.

[4] Defence counsel then embarked on an attempt to point out a number of discrepancies in the evidence of the State witnesses, particularly between the complainant and the witness Mahodhi, who testified in respect of the last incident. It was also pointed out that the complainant contradicted herself since the time she had made the first report. It was furthermore contended that the complainant’s conduct during the alleged incidents was not consistent with what one would have expected from a person in her position and neither did the probabilities favour the complainant’s version. Regarding the alleged admissions made by the accused to the complainant’s father and also in a warning statement, it was argued that the accused was assaulted in respect of the first mentioned and what is contained in the warning statement, came from the police officer who recorded the statement and not the accused. Lastly, it was contended that because the complainant gave single evidence the Court had to approach it with caution; and because of the discrepancies in her evidence, she was unreliable and therefore, the State failed to prove that a sexual act was committed with the complainant.

[5] From the outset it must be said that the test for discharge under section 174 differs from that at the end of the case where the Court is required to assess the evidence as a whole, including the probabilities of the particular case.

[6] When considering an application like the present the court has a judicial discretion whether to grant the application or not. This gives the court the power at the close of the State case where it is clear that there cannot be a conviction, to discharge the accused, on condition however, that the court is of the view that there is no evidence upon which a conviction can reasonably be based. The court therefore has to determine whether there is a lack of evidence and, if so, whether discharge should be granted. The discretion the court has must be viewed subject to the Constitution (Article 12), which has not rendered the court’s discretion incompetent or non-existent (S v Tsotetsi and Others (2) 2003 (2) SACR 638 (W) at 645c-d). In S v Hudson and Others 1998 (2) SACR 359 (WLD) it was said that the (South African) Constitution did not affect the court’s discretion when considering an application in terms of section 174 and that it had to exercise its discretion fairly to both the accused and the State. I can think of no reason why this principle should not equally apply to Namibia.

[7] Article 12 (f) of the Namibian Constitution provides protection to an accused in a criminal trial for not being compelled to give evidence against himself. The statutory capacity granted to the court does not detract from either the right to silence or the protection against self-incrimination because, if an acquittal is granted, then the need for presenting evidence by the defence falls away and when it is refused, the accused is still left with the option of giving evidence himself and is under no obligation to do so. In the unreported matter of The State v Joseph Kangamenwa and 6 Others, Case No. CC 17/2005, this Court endorsed the sentiments expressed by White, J in S v Mqayi, Ciskei High Court (unreported) delivered 10 June 1999 when he said:

In my opinion the cornerstone of an open and democratic society is a system of justice which is fair both to the accused, the prosecution, and the administration of justice as a whole. It seems to me that the Constitution envisages such a system of justice and that it can never be said that the interests of justice are the interests of the accused only. There is therefore, in view of the anomalies and injustices which could arise, ample justification for affording the courts a discretion in terms of section 174. Furthermore, if that discretion results in a limitation of the accused’s rights in terms of section 33 of the Constitution, there are ample and justifiable reasons therefore. It does not, however, appear to this Court that the said discretion makes any inroads into the rights of the accused. If he is placed on his defence neither he nor any of the other accused are compelled to testify against him. He retains all the rights referred to in the abovementioned extract from the Mathebula-case, and he is still ensured of a fair trial.”

[8] Applications for discharge at the end of the State case are governed by section 174 of the Criminal Code which provides:

If, at the close of the case for the prosecution at any trial, the court is of the opinion that there is no evidence that the accused committed the offence referred to in the charge or any offence of which he mat be convicted on the charge, it may return a verdict of not guilty.”

[9] It is now settled that the words “no evidence” in section 174 mean no evidence upon which a reasonable court, acting carefully, may convict the accused. (S v Khanyapa 1979 (1) SA 824 (A) at 838F; S v Nakale 2006 (2) NR 455 (HC) at 457; and endorsed in S v Teek Case No. SA 44/2008 (SC) delivered 28 April 2009 (unreported).

Regarding the credibility of State witnesses, different views were held whether at the discharge stage consideration should be given to the credibility of such witnesses. In this regard Brand AJA said the following in S v Teek (supra) at p.5:

“Somewhat more controversial is the question whether credibility of the State witnesses has any role to play when a discharge is sought under this section. 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 (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?”

[10] I now intend applying the aforementioned principles to the present facts in order to determine whether the evidence adduced during the State case, is sufficient to put the accused on his defence.

[11] Despite the accused having pleaded not guilty on the charge of rape, the complainant testified about three incidents during which the accused has had sexual intercourse with her and one incident when he attempted to have sexual intercourse with her during the period of 2004 – 2005. She gave single evidence in respect of the first three incidents but on the last occasion, her evidence was partly corroborated by the witness Mahodhi who said that he observed the accused putting back his penis into his trousers and the complainant dressing herself. Complainant’s evidence on that score is that whilst she and the accused were lying on the bed under a blanket, he had sexual intercourse with her. Although this evidence was strenuously denied by the accused during cross-examination of the two witnesses, there is no evidence before the Court gainsaying their version. This position equally applies to the evidence of other State witnesses regarding a note the accused had written – which is not in dispute – as well as a warning statement which the accused admitted having signed. Although the accused claims to have written the note under duress, there is no evidence to support this contention and neither is there evidence on record stating, that what is contained in a warning statement signed by the accused, did not come from him. The value to be afforded to the evidence presented thus far and whether it, as such, is reliable, will be determined once the Court is in the position to consider the evidence as a whole.

[12] Regarding the credibility of the State witnesses, I find defence counsel’s submission that because there are material differences between complainant and Mahodhi’s evidence, therefore, the evidence of both should be rejected, untenable. Without making credibility findings in respect of any of the witnesses who testified for the State at this stage, it is trite that contradictions per se do not lead to the rejection of a witness’s evidence and what the trier of fact has to take into consideration, are matters such as the nature of the contradictions; their number and importance, and their bearing on other parts of the witness’s evidence. These differences could either be immaterial to the charges the accused is facing or bona fide mistakes made by a witness.

It must be borne in mind that the trier of fact, when assessing the evidence of a witness, is 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.

See also: S v Oosthuizen 1982 (3) SA 571 (T) at 576A where Nicholas, J said:

There is no reason in logic why the mere fact of a contradiction, or of several contradictions, necessarily leads to the rejection of the whole of the evidence of a witness.”

[13] Regarding self-contradiction (by the complainant) Nicholas, J at 576G-H said:

But the process does not provide a rule of thumb for assessing the credibility of a witness. Plainly it is not every error by a witness which affects his credibility. In each case the trier of fact has to make an evaluation; taking into account such matters as the nature of the contradictions, their number and importance, and their bearing on other parts of the witness’s evidence.

Two specific cases must be considered: the case of deliberate falsehood; and the case of honest mistake.”

[14] From the aforementioned it then follows that those contradictions pointed out by defence counsel in this case, do not per se make those witnesses dishonest and therefore unreliable witnesses. This might still be established on other grounds or by leading further evidence, but the evidence given by the State witnesses at this stage, has not been refuted. Whereas the defence up to now has merely disputed the evidence adduced by the State and did not lead any evidence that refutes such evidence, there is no evidence to gainsay the State’s version. That notwithstanding, the question thus, is whether the evidence of the State witnesses is of such poor quality that no reasonable person (court) could possibly convict on it?

(S v Mpheta and Others 1983 (4) SA 262 (C))

[15] After due consideration of the applicable principles discussed above and the evidence presented thus far, I have come to the conclusion that there is sufficient evidence before the Court on which a reasonable court, acting carefully, may convict.

In the result, the application is declined.