The Supreme Court in the recent case of S vK 2000(4) BCLR 405, O'Linn, A]A, who wrote the judgment of the Court, stated that the cautionary rule in sexual cases has outlived its usefulness and that there were no convincing reasons for its continuation and further that Courts in Namibia should no longer apply it. However, the learned Judge, with reference to Sv D, 1992(1) CR 143 (Nm) and S v Jackson, 1998(1) CR, 470 (SCA) adapted the guideline laid down by Lord Taylor, Q, in R_v Makanjuola, R v Easton, 1995(3) AER 730 CA for Courts in England where in sexual assault cases the cautionary rule had been abrogated by legislation. At p. 419 H - I this guideline is formulated as follows in the decision in SvK,supra:
"In some cases, it may be appropriate for the judge to exercise caution before acting upon the unsupported evidence of a witness. This will not be so simply because the witness is a complainant of a sexual offence, nor will it necessarily be so because a witness is alleged to be an accomplice. There will need to be an evidential basis for suggesting that the evidence of the witness may be unreliable. An evidential basis does not include mere suggestion by cross-examining counsel.'
There is therefore no longer any cautionary rule which applies just because the complainant is a complainant in a sexual offence and his or her evidence must be considered and evaluated as the Court would consider the evidence of any other witness.
In my opinion there is a sufficient evidential basis to find that the evidence of the complainant is unreliable. There can be no doubt that on the question whether sexual intercourse was consensual or against her will, the complainant is a single