IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE STATE

and

PIO MARAPI TEEK

Accused

THE STATE·S MAIN HEADS OF ARGUMENT ___________________________________________________________________________

1.

The Accused is arraigned before this Honourable Court on eight (8) separate charges. The Counts can be summarized as follows:

1.1 1.2

Adduction, Alternatively, Kidnapping [Counts 1 and 2]; Contravening section 2(1)(a) of the Combating of Rape Act, 2000 (Act 8 of 2000)-Rape, Alternatively, Contravening section 14(a) of Act 21 of 1980Committing or attempting to commit a sexual act with a child under sixteen, Alternatively contravening section 14(b) of Act 21 of 1980Committing or attempting to commit an immoral or an indecent act with a child under sixteen, alternatively, Indecent Assault [Counts 3 and 8];

2

1.3

Contravening section 16 read with Act 21 of 1980-Use of means to stupefy a female for unlawful carnal intercourse alternatively Contravening section 71(s) of the Liquor Act, 1998 [Act 6 of 1998]Supplying liquor to a person under the age of eighteen [Counts 4 and 5], and

1.4

Contravening section 14(b) of Act 21 of 1980-Committing or attempting to commit an immoral or an indecent act with a child under sixteen alternatively Indecent Assault [Counts 6 and 7].

2. 2.1

The charges can also be viewed as follows: Adduction, Alternatively, Kidnapping [Counts 1 and 2] in respect of the 10 year old Trisha Tahiti Cain, [Count 1] and the 9 year old Queen Kaheka Kaunozondunge [Count 2];

2.2

Contravening section 2(1)(a) of the Combating of Rape Act, 2000 (Act 8 of 2000)-Rape, Alternatively, Contravening section 14(a) of Act 21 of 1980Committing or attempting to commit a sexual act with a child under sixteen, Alternatively contravening section 14(b) of Act 21 of 1980Committing or attempting to commit an immoral or an indecent act with a child under sixteen, alternatively, Indecent Assault in respect of the 10 year old Trisha Tahiti Cain [Counts 3 and 8];

2.3

Contravening section 16 read with Act 21 of 1980-Use of means to stupefy a female for unlawful carnal intercourse alternatively Contravening section 71(s) of the Liquor Act, 1998 [Act 6 of 1998]Supplying liquor to a person under the age of eighteen in respect of the 10 year old Trisha Tahiti Cain [Count 4], and

2.4

Contravening section 14(b) of Act 21 of 1980-Committing or attempting

3

to commit an immoral or an indecent act with a child under sixteen alternatively Indecent Assault in respect of the 10 year old Trisha Tahiti Cain [Count 7]. 3. ELEMENTS OF THE OFFENCES CHARGED AND RELEVANT CASE LAW AND LEGISLATION 3.1 Counts 1 and 2

3.1.1 Abduction ´Abduction consists in unlawful taking a minor out of the control sexual intercourse with that minor.µ1 3.1.2 ´The taking out of the control and against the will of the parent and guardian is an element of the crime of abduction but not of rape. Although the taking in this case was an integral part of a continuing chain of events, which included rape, the crime of abduction was nevertheless also committed in addition to the crime of rape.µ 2 3.1.3 Kidnapping ´Kidnapping consists in unlawfully and intentionally depriving a of his

or her custodian with the intention of enabling someone to marry or have

person of liberty of movement and/or his custodians of control.µ3

1

The South African Criminal Law and Procedure, Volume II Common Law Crimes, P. M. A. Hunt, Second Edition by

J.R. L. Milton, 1982 at p575 and S v Shashi 1976 (2) SA 446 (N) at 447
2 3

S v Katamba 2000 (1) SACR 162 (NmS) at 375B The South African Criminal Law and Procedure, Volume II Common Law Crimes, P. M. A. Hunt, Second Edition

by J.R. L. Milton, 1982 at p509 and S v Blanche and ¶n Ander 1969 (2) SA 351 (W) at 360D

4

3.1.4 ´Kidnapping is the unlawful deprivation of liberty of movement or of custody of a person intentionally.µ4 3.1.5 ´If an adult goes willingly, there is no deprivation and the act is not unlawful. However, a child may go perfectly willingly, yet the crime may still be committed. If Y has intellectus and judicium the taking may be regarded as one from the child·s custodians. If Y is a very young child, its consent may simply be disregarded and the act regarded as a deprivation of custody.µ5 3.1.5 ´Nor is Y free from control where she goes somewhere without parental consent but without intending to leave parental control; for example where she goes to a dance without consent, and then goes off with X.µ6 3.1.6 ´In S v F 1983 (1) SA 747 (O), the judgment of which is in Afrikaans, the headnote reads as follows: 'In regard to the crime of manstealing (kidnapping) of a young child, as soon as there is an intention to violate the parental authority and effect is given to that intention by removing the child, with or without the consent of the child, the offence is committed and the period of time for which the kidnapper plans to remove the child from the parental authority is not relevant except in cases where the de minimis non curat lex principle is applicable.' The relevance of the period of detention was questioned in S v Mellors1990 (1) SACR 347 (W) at 351 where Goldstone J said:
S v Lopez 2003 NR 162 (HC) at 169I; S v Mouton and Another 1999 NR 215 (HC); S v Lunyangwe and Another 1994 NR 66 (HC)
5 4

The South African Criminal Law and Procedure, Volume II Common Law Crimes, P. M. A. Hunt, Second Edition by Milton, 1982 at p512

J.R. L.
6

The South African Criminal Law and Procedure, Volume II Common Law Crimes, P. M. A. Hunt, Second Edition by Milton, 1982 at p579 and R v Brand 1943 (2) PH H 173 (O)

J.R. L.

5

'The appellant argues that because the detention only lasted about

two

hours the appellant should have been reasonably found to be guilty of a lesser offence. This time element argument is based on the appellant's interpretation of the following passage in the judgment in R v Long 1970 (2) SA 153 (RA) at 161: "The relevance of the time element is in my judgment correctly stated in the first part of the passage from the judgment of Maasdorp JP cited above (in R v Adams and Ibrahim 1911 CPD 863) - the length of time may be of importance as providing evidence of the accused's intentions." In that passage MacDonald JA emphasised the word "may", indicating that while this factor may be important in some cases, this is not a general rule to be applied in all cases. In addition it is important that this proposition be read in its proper context. The three cases cited discuss the use of the time factor as an indicator of intention; all address the issue with respect to the kidnapping of a child. This is important because in such cases the essence of the offence under the lex Fabia is the deprivation of the parents of the custody and control over the child. That statement of Maasdorp JP in R v Adams and Ibrahim to the effect that the time element may be of importance in determining the intention of the parties, is an obiter dictum, and was stated in response to counsel's proposition that there must be the intention to permanently remove a child from the parent's custody to sustain a conviction for abduction. He also stated in the same paragraph, that a very short time may be sufficient to show that there was the intention of moving the child out of the custody of its parents. There is no authority for the argument that the time factor introduced to provide evidence of intention in one type of kidnapping, namely child stealing, is appropriately applied in this or has been previously applied to a case of this nature. It is certainly not the case that the lower court was required to deduce the intention of the appellant for the amount of time that Miss Fasser was deprived of her liberty. Even if this factor is to be taken into account, the case

6

evidence clearly shows that Miss Fasser was confined in the same room with the appellant for two hours while he held a gun in his hand the entire time, and while he gave her orders to call various people. This cannot be considered deprivation of liberty for a "very short time". In fact, in the Adams and Ibrahim case the time period involved in that case was "some hours" and was held to be "a considerable time period" (see at 867).'µ7 3.2 Counts 3, 7 and 8 Contravening Section 2(1)(a) of the Combating of Rape Act, 2000 (Act 8 of 2000)-Rape, 3.2.1¶2. (1) Any person (in this Act referred to as a perpetrator) who intentionally under coercive circumstances (a) commits or continues to commit a sexual act with another person; or (b) causes another person to commit a sexual act with the perpetrator or with a third person, shall be guilty of the offence of rape; (2) For the purposes of subsection (1) ´coercive circumstancesµ includes, but is not limited to (a) the application of physical force to the complainant or to a person other than the complainant; (b) threats (whether verbally or through conduct) of the application of physical force to the complainant or to a person other than the complainant; (c) threats (whether verbally or through conduct) to cause harm (other than bodily harm) to the complainant or to a person other than the complainant under circumstances where it is not reasonable for the complainant to disregard the threats;
7

S v Dimuri and Others 1999 (1) SACR 79 (ZH) at 82E-83C

7

(d) circumstances where the complainant is under the age of fourteen years and the perpetrator is more than three years older than the complainant; (e) circumstances where the complainant is unlawfully detained; (f) circumstances where the complainant is affected by (i) physical disability or helplessness, mental incapacity or other inability (whether permanent or temporary); or (ii) intoxicating liquor or any drug or other substance which mentally incapacitates the complainant; or (iii) sleep, to such an extent that the complainant is rendered incapable of understanding the nature of the sexual act or is deprived of the opportunity to communicate unwillingness to submit to or to commit the sexual act; (g) circumstances where the complainant submits to or commits the sexual act by reason of having been induced (whether verbally or through conduct) by the perpetrator, or by some other person to the knowledge of the perpetrator, to believe that the perpetrator or the person with whom the sexual act is being committed, is some other person; (h) circumstances where as a result of the fraudulent misrepresentation of some fact by, or any fraudulent conduct on the part of, the perpetrator, or by or on the part of some other person to the knowledge or the perpetrator, the complainant is unaware that a sexual act is being committed with him or her; (i) circumstances where the presence of more than one person is used to intimidate the complainant. (3) No marriage or other relationship shall constitute a defence to a

8

charge of rape under this Act.8 3.2.2 ´complainantµ, in relation to an offence of a sexual or indecennature, means a person towards or in connection with whom any such offence is alleged to have been committed, irrespective of whether or not that person has actually laid a complaint or gives evidence in the criminal proceedings in question; ´perpetratorµ means a perpetrator as referred to in section 2(1); ´sexual actµ means ² (a) the insertion (to even the slightest degree) of the penis of a person into the vagina or anus or mouth of another person; or (b) the insertion of any other part of the body of a person or of any part of the body of an animal or of any object into the vagina or anus of another person, except where such insertion of any part of the body (other than the penis) of a person or of any object into the vagina or anus of another person is, consistent with sound medical practices; carried out for proper medical purposes; or (c) cunnilingus or any other form of genital stimulation; ´vaginaµ includes any part of the female genital organ.9 3.2.3 ´Section 2(2) of the Act then sets out a number of 'coercive circumstances' for the purposes of ss (1) though it is made plain that the list is not exhaustive. One such coercive circumstance is '(e)
8 9

circumstances where the complainant is unlawfully detained;'.

See: Section 2 of the Combating of Rape Act, 2000 Section 1 of the Combating of Rape Act, 2000 See also: Similar definition of ´complainantµ inserted into Section 1 of

the Criminal Procedure Act, 1977 by section 11 of the Combating of Rape Act, 2000

9

The question which therefore arises is was the complainant unlawfully detained when the act of sexual intercourse was committed? In my view, this question must be answered in the affirmative. The appellant had unlawfully deprived her of her liberty at the Levinson Arcade and he was clearly determined that she should continue to be so deprived until he had her at Katutura Police Station where he considered his will and wants would overcome any of hers with regard to the withdrawal of the assault charge. On this basis he was guilty of rape as defined in s 2 of the Act. The fact that he was married to the complainant constitutes
10

no defence: s 2(3) of the Act.µ

3.2.4 ´No court shall treat the evidence of any complainant in criminal proceedings at which an accused is charged with an offence of a sexual or indecent nature with special caution because the accused is charged with any such offence.µ11 3.2.5 ´Evidence relating to all previous consistent statements by a complainant shall be admissible in criminal proceedings at which inference may be drawn only from the fact that statements have been made.µ12 3.2.6 ´In criminal proceedings at which an accused is charged with an offence of a sexual or indecent nature, the court shall not draw any inference only from the length of the delay between the commission of the sexual or indecent act and the laying of a complaint.µ13 no an accused is charged with an offence of a sexual or indecent nature: Provided that no such previous

10 11 12 13

S v Lopez 2003 NR 162 (HC) at 170-171B Section 5 of the Combating of Rape Act, 2000 Section 6 of the Combating of Rape Act, 2000 Section 7 of the Combating of Rape Act, 2000

10

3.2.7 ³Evidence as to the character of an accused shall be admissible or inadmissible if such evidence would have been admissible or inadmissible on the thirtieth day of May, 1961.14 3.2.8 Evidence of sexual conduct or experience of complainant of rape or
offence of an indecent nature 227 A. (I)

No evidence as to any previous sexual conduct or experience of a complainant in criminal proceedings at which an accused is charged with rape or an offence of an indecent nature, shall be adduced, and no question regarding such sexual conduct or experience shall be put to the complainant or any other witness in such proceedings, unless the court has, on application made to it, granted leave to adduce such evidence or to put such question, which leave shall only be granted if the court is satisfied that such evidence or questioning (a) (b) tends to rebut evidence that was previously adduced by the prosecution; or tends to explain the presence of semen or the source of pregnancy or disease or any injury to the complainant, where it is relevant to a fact in issue; or (c) is so fundamental to the accused·s defence that to exclude it would violate the constitutional rights of the accused: Provided that such evidence or questioning has significant probative value that is not substantially outweighed by its potential prejudice to the complainant·s personal dignity and right of privacy.

14

Section 227 of the Criminal Procedure Act, 1977 as applicable in Namibia after the deletion of the words ´or as to the

character of any woman upon or with regard to whom any offence of an indecent nature has been committed,µ by section 17 of the Combating of Rape Act, 2000

11

(2)

No evidence as to the sexual reputation of a complainant in criminal proceedings at which an accused is charged with rape or an offence of an indecent nature, shall be admissible in such proceedings.

(3)

Before an application for leave contemplated in subsection (1) is heard, the court may direct that the complainant in respect of whom such evidence is to be adduced or to whom any such question is to be put, shall not be present at such application proceedings.

(4)

The court·s reasons for its decision to grant or refuse leave under subsection (1) to adduce such evidence or to put such question shall be recorded, and shall form part of the record of the proceedings.15

3.3

CONTRAVENING SECTION 14(A) OF ACT 21 OF 1980-COMMITTING OR ATTEMPTING TO COMMIT A SEXUAL ACT WITH A CHILD UNDER SIXTEEN [FIRST ALTERNATIVE TO COUNTS 3 AND 8]

3.3.1 Any person who(a) commits or attempts to commit a sexual act with a child the age of sixteen; and who(i) (ii) is more than three years older than such child; and is not married to such child (whether under the under

general law or customary law). shall be guilty of an offence and liable on conviction to a fine no exceeding N$40 000 or to imprisonment for a period not exceeding ten years or to both such fine and such imprisonment.16
15 16

Section 227A of the Criminal Procedure Act, 1977 as inserted by section 18 of the Combating of Rape Act, 2000 Section 14(a) of the Combating of Immoral Practices Act, 21 of 1980 as substituted by section 2 of the Combating of Immoral Practices Amendment Act, 7 of 2000.

12

3.3.2 ´sexual actµ means ² (a) the insertion (to even the slightest degree) of the penis of a person into the vagina or anus or mouth of another person; or (b) the insertion of any other part of the body of a person or of any part of the body of an animal or of any object into the vagina or anus of another person, except where such insertion of any part of the body (other than the penis) of a person or of any object into the vagina or anus of another person is, consistent with sound medical out for proper medical purposes; or (c) cunnilingus or any other form of genital stimulation;17 3.3.3 Contravening section 14(b) of Act 21 of 1980-Committing or attempting to commit an immoral or an indecent act with a child under sixteen [Second Alternative to Counts 3 and 8], Any person who(b) commits or attempts to commit an indecent or immoral act with a child under the age of sixteen; and who(i) (ii) is more than three years older than such child; and is not married to such child (whether under the general law or customary law). shall be guilty of an offence and liable on conviction to a fine not exceeding N$40 000 or to imprisonment for a period not exceeding ten years or to both such fine and such imprisonment.18 practices; carried

17

Section 1 of the Combating of Immoral Practices Act, Act 21

of 1980 after section 1 of Combating of Immoral

Practices Amendment Act, 7 of 2000 inserted the aforesaid definition ´sexual actµ means a sexual act as defined in section 1(1) of the Combating of Rape Act, 2000 into that Act.
18

Section 14(b) of the Combating of Immoral Practices Act, Act 21 of 1980 as substituted by section 2 of the Combating of Immoral Practices Amendment Act, 7 of 2000.

13

3.3.4 INDECENT ASSAULT [THIRD ALTERNATIVE TO COUNTS 3, 7 AND 8] ´Indecent assault consists in an assault which is itself of an indecent character.µ19 3.3.5 ¶When ..assault is qualified by the term ´indecentµ«it is the act of violence that is qualified; there must be an act of indecent physical violence«but for an indecent assault, the violence constituting the assault must in itself be indecent; there must be some indecent handling of the complainant·µ20 3.3.6 Touching or playing with a man·s or woman·s private parts constitutes indecent assault.21 3.3.7 ´A girl below the age of 12 years is irrebuttably presumed incapable of consenting.µ22 3.4 COUNT 4 CONTRAVENING SECTION 16 READ WITH ACT 21 OF 1980USE OF MEANS TO STUPEFY A FEMALE FOR UNLAWFUL CARNAL INTERCOURSE 3.4.1 ´Any person who applies, administers to or causes to be taken by any

female any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower her so as thereby to enable him to have unlawful
19

The South African Criminal Law and Procedure, Volume II Common Law Crimes, P. M. A. Hunt, Second Edition by

J.R. L. Milton, 1982 at p494 and R v Abrahams 1918 CPD 590
20 21 22

R v Abrahams 1918 CPD 590 at 593 and Rex v Jeremiah 1947 (2) SA 938 (SR) at 939 R v Curtis 1926 CPD 385 at 389 and S v C 1965 (3) SA 105 (N) The South African Criminal Law and Procedure, Volume II Common Law Crimes, P. M. A. Hunt, Second Edition by

J.R. L. Milton, 1982 at p495; R v Socout Ally 1907 TS 338; R v Sideropoulus 1910 CPD 15 at 18 and R v Sagaye 1932 NPD 236

14

carnal intercourse with her, shall be guilty of an offence and liable on conviction to imprisonment for a period not exceeding five years.µ23 3.4.2 ´unlawful carnal intercourse means carnal intercourse between persons who are not married or who are not partners in a customary union in terms of a customary union in terms of traditional laws and customs applied by a particular population group«µ24

3.4.3 CONTRAVENING SECTION 71(S) OF THE LIQUOR ACT, 1998 [ACT 6 OF 1998]-SUPPLYING LIQUOR TO A PERSON UNDER THE AGE OF EIGHTEEN [FIRST ALTERNATIVE TO COUNT 4] ´(1) Any person, whether or not he or she is a licence holder, who(s) sells or supplies any drink or substance referred to in section 56 to a person under the age of 18 years; shall be guilty of an offence25 3.4.4 ¶No licensee, or manager or employee of such licensee, shall, in the course of business conducted in terms of a licence, sell to any person under the age of 18 years, or supply such person with, any drink or substance which contains more than three per cent of alcohol by volume.µ26

23 24 25 26

See:

Section 16 of the Combating of Immoral Practices Act, Act

21 of 1980

Section 1 of the Combating of Immoral Practices Act, Act 21 of 1980 Section 71(s) of the Liquor Act, 1998 [Act 6 of 1998] See: Section 56 of the Liquor Act, 1998 [Act 6 of 1998]

15

3.5

RELEVANT PROVISIONS OF THE NAMIBIAN CRIMINAL PROCEDURE ACT. 1977 [ACT 51 OF 1977], AS AMENDED

3.5.1 (7A)

(a)

Any document purporting to be a medical record prepared by

a medical practitioner who treated or observed a person who is a victim of an offence with which the accused in criminal proceedings is charged, is admissible at that proceeding and prima facie proof that concerned suffered the injuries recorded in that document. (b) The Minister may in consultation with the Minister responsible for Health, make regulations requiring medical practitioners to record such information as may be prescribed in such regulations, if he or she (c) treats a person that he or she has reason to suspect is the the victim of such crimes as may be prescribed in such regulations. Regulations contemplated in paragraph (b) may prescribe manner in which medical practitioners shall deal with records produced in pursuance of the duties imposed under paragraph (b) and may also impose duties upon medical practitioners to make such records available when he or she is aware of investigations or criminal proceedings for which those records may be relevant.µ27 4. It is trite law that the State bears the onus of proving the guilt of any accused beyond reasonable doubt. The following quotations are however apposite at this stage: 4.1 "I may sum up the law as follows: In all criminal cases it is for the crown to establish the guilt of the accused, not for the accused to establish his innocence. The onus is on the Crown to prove all averments guilt of the accused, not for the accused to establish his
27

the

victim

Section 212(7A) of the Criminal Procedure Act, 1977 as inserted by section 4 of the Criminal Procedure Amendment Act, No. 24 of 2003

16

innocence.

The onus is on the Crown to prove all averments

necessary to establish his guilt."28 4.2 "Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave a remote possibility in his favour, which can be dismissed with the sentence of course it is possible, but not in the least probable; the case is proved beyond reasonable doubt, but nothing short of that will suffice."29 4.3 "An accused's claim to the benefit of doubt when it may be said to exist must not be delivered from speculation but must rest upon a reasonable and solid foundation created either from positive evidence or gathered from reasonable inferences which are not in conflict with or outweighed by, the proved facts of the case" (my underlining)30 4.4 "The court should not « find on his behalf some explanation which, if given, might perhaps have been true, but which he himself has not given."31 4.5 "The evidence must be weighed as a whole, taking account of the probabilities, the reliability and opportunity for observation of the respective witnesses, the absence of interest or bias, the intrinsic merits or demerits of the testimony itself, any inconsistencies or contradictions, corroboration, and all other relevant factors. It is in the context of this overall scrutiny of the evidence that demeanour, if
28 29

R v Ndhlovu 1945 AD 369 p 386 Miller v Minister of Pensions 1957 2 ALL ER 372 at p 373-374; R v Mlambo 1957 (2) SA 727 (A) at 738 A; S v Rama

1966 (2) SA 395 (A); S v Sauls 1981 (3) SA 172 (A) at 182 H
30 31

R v Mlambo (supra) on 738 B R v Bardhu 1945 AD 813 at 823 and also S v Muyeni 1966 (3) SA 776 (T) at 778 B

17

there are sufficient indications thereof to be significant, must be assessed." 4.6
32

"'Prima facie' evidence in its more usual sense is used to mean prima facie proof of an issue the burden of proving which is upon the party giving that evidence. In the absence of further evidence from the other side, the prima facie proof becomes conclusive proof and the party giving it discharges his onus."33

4.7

"If a doubtful or unsatisfactory answer is given it is equivalent to no answer and the prima facie - proof, being undestroyed, again amounts to full proof."34

4.8

´The subjective state of mind of an accused person at the time of the infliction of a fatal injury is not ordinarily capable of direct proof, and can normally only be inferred from all the circumstances leading up to and surrounding the infliction of that injury. Where, however, the accused person's subjective state of mind at the relevant time is sought to be proved by inference, the inference sought to be drawn must be consistent with all the proved facts, and the proved facts should be such that they exclude every other reasonable inference save the one sought to be drawn. If they do not exclude every other reasonable inference, then there must be a reasonable doubt whether the inference sought to be drawn is the correct one. (See R v Blom, 1939 AD 188 at pp. 202 - 3.)35

4.9

³In

the present case, although other witnesses were called by the

defence, the accused himself did not testify. The magistrate in his
32 33 34 35

S v Civa 1974 (3) SA 844 (T) at 846 H Ex Parte Minister of Justice: In Re R v Jacobson and Levy 1931 AD 466 at 478 Ex Parte Minister of Justice: In re R v Jacobson and Levy (supra) at 479 S v Dlodlo 1966 (2) SA 401 (A) at 405H

18

judgment and the State in this appeal relied heavily on that omission. The general rule is that, the onus being on the State, it must initially produce prima facie proof of the commission of the offence, that is, it must go as far as it reasonably can in adducing such evidence of the facta probanda constituting the offence as calls for an answer from the accused; if he remains silent the prima facie proof may become conclusive proof (see Gardiner and Lansdown, supra, vol. 1, p. 466, where the authorities are collected). That the factum probandum is one that is peculiarly within the knowledge of the accused, like for example his state of mind, is an important factor to be taken into account in the State's favour when considering whether it has gone as far as it reasonably can (Union Government v Sykes, 1913 AD 156 at pp. 173/4), and, if it has, whether the accused's failure to testify has converted the prima facie proof of that fact into conclusive proof. Generally, in the latter case, his silence weighs heavily against him because, ex hypothesi, the accused could so easily have refuted the prima facie proof by his own evidence if it were not correct (cf. R v Ismail, 1952 (1) SA 204 (AD) at p. 210C). That applies especially where the accused's state of mind is in issue, for it has been authoritatively pronounced that 'it is not easy for a court to come to a conclusion favourable to the accused as to his state of mind unless he has himself given evidence on the subject'. (per SCHREINER, J., as he then was, in R v Mohr, 1944 T.P.D. 105 at p. 108, approved and applied in R v Deetlefs, 1953 (1) SA 418 (AD) at p. 422; S v Kola, 1966 (4) SA 322 (AD) at p. 327F). Generally, in regard to an accused's failure to testify, a useful, practical distinction can be drawn between situations in which the State's case is (i) the direct testimony of a witness or witnesses, and (ii) circumstantial evidence. In (i), if the testimony is wholly credible or non-credible, no problem arises, for in the former case the accused's failure to contradict the credible evidence must inevitably result in the

19

prima facie becoming conclusive proof, and, in the latter case, it would be irrelevant: there would then be no prima facie proof and the accused's silence could not make or restore the State's case. It is only when the State's evidence, although amounting to prima facie proof, creates some doubt about its credibility that the accused's silence becomes important, and may be decisive, for his failure to contradict the State's evidence may then resolve the doubt about its credibility in the State's favour. Of course, if the accused adduces other evidence to contradict the State's, his silence would then usually lose much, if not all, of its importance. Similarly in (ii), if the inference of the accused's guilt or innocence can be drawn with the requisite degree of certainty, the accused's silence is unimportant. It is only of importance if, although there is prima facie proof of his guilt, some doubt exists whether that proof should be now regarded as conclusive, that is, that the only reasonable inference from the facts is one of guilt. His silence then 'becomes a factor to be considered along with the other factors, and from that totality the Court may draw the inference of guilt. The weight to be given to the factor in question depends upon the circumstances of each case' (per HOLMES, J.A., in S v Letsoko and Others, 1964 (4) SA 768 (AD) D at p. 776C - E). See also R v Ismail, supra, at p. 210; S v Masia, 1962 (2) SA 541 (AD) at p. 546E - H).36 4.10 The evidential implications of an accused put to his defence, but failing to give evidence, was discussed in S v Van Wyk 1993 NR 426 (SC) (1992 (1) SACR 147) at 434D where Ackermann AJA said the following: It has long been settled that failure to testify may, depending on the circumstances, be taken into account against an accused. It is necessary to distinguish between a situation where the State's case is based on circumstantial evidence and where there is
36

S v Theron 1968 (4) SA 61 (T) at 63D-64D

20

direct prima facie evidence implicating the accused. (a) Where the State's case against an accused is based on circumstantial evidence and depends upon the drawing of inferences therefrom, (b) Where there is direct prima facie evidence implicating the accused in the commission of the crime '. . . his failure to give evidence whatever his reason may be for such failure, in general ipso facto tends to strengthen the State case, because there is then nothing to gainsay it, and therefore less reason for doubting its credibility or reliability; . . .' (S v Mthetwa (supra) [1972 (3) SA 766 (A) - Eds] at 769 D - E)). As pointed out, however, in S v Snyman 1968 (2) SA 582 (A) at 588H: 'The ultimate requirement . . . is proof of guilt beyond reasonable doubt; and this depends upon an appraisal of the totality of the facts, including the fact that (the accused) did not give evidence.' See also S v Buda and Others 2004 (1) SACR 9 (T) para 19 [at 16j - 17b Eds]: It is, of course, in accordance with their constitutional right to remain silent. Yet there are, as has been held by the Supreme Court of Appeal and the Constitutional Court, limits to this right. There comes a stage in a prosecution where an accused has a duty to tell her or his story or to lead other evidence, which would show that, for example, the denial of participation is reasonably possibly true.µ
37

5.

CREDIBILITY, WITNESS STATEMENTS, CROSS-EXAMINATION AND EXCULPATORY PARTS OF PLEA EXPLANATIONS

5.1
37

"I can find no merit in counsel's criticism of this conclusion, particularly

S v Auala (No 1) 2008 (1) NR 223 (HC) at 231E-232A

21

when it is borne in mind that the contradictions related to events which had happened some eight months previously. Moreover the contradictions were of a trivial nature. I am always surprised that witnesses can, or think they can, after a passage of weeks and months, recollect how they were seated in a motor car, what route they travelled and at what time they reached their venue. I am not surprised, however, when they fall into contradiction. The wise trial Judge knows that human memory is only too fallible; perhaps he should bear in mind the Spanish proverb 'memory, like women, is usually unfaithful'!"38 5.2 ´A witness is proved to be in error where his statements are contradicted by the proved facts or where he is guilty of self- contradiction. Where he made contradictory statement, since both cannot be correct, in one he must have spoken erroneously. Yet error does not in itself establish a lie. It merely shows that, in common with the rest of mankind, the witness is liable to make mistakes. A lie requires proof of conscious falsehood, proof that the witness has deliberately misstated something contrary to his own knowledge or belief.µ39 5.3 ´All that can be said is that where a witness has been shown to be deliberately lying on one point, the trier of fact may (not must) conclude that his evidence on another point cannot safely be relied upon. The circumstances may be such that there is no room for honest mistake in regard to a particular piece of evidence: either it is true or it has been deliberately fabricated. In such a case the fact that the witness has been guilty of deliberate falsehood in other parts of his evidence is relevant to show that he may have fabricated the piece of evidence in question. But

38 39

S v Nyembe 1982 (1) SA 835 (A) at 842F ²H; and also S v Mpetha and Others (2) 1983 (1) SA 576 (C) at 595C-E Memorial Lecture, delivered at the University The Credibility of Witnesses, R A Nicholas, An Oliver Schreiner published in 1985 SALJ 32

of the Witwatersrand, Johannesburg, on 28 August 1984 as

22

in this context the fact that he has been honestly mistaken in other parts of his evidence is irrelevant, because the fact that his evidence in regard to one point is honestly mistaken cannot support an inference that his evidence on another point is a deliberate fabrication.µ40 5.4 ´But the process does not provide a rule of thumb for assessing the credibility of a witness. Plainly it is not every error made 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 contradictions, their number and importance, other parts of the witness's evidence.µ41 5.5 ´Where the statements are made by different persons, the contradiction in itself proves only that one of them is erroneous: it does not prove which one. It follows that the mere fact of the contradiction does not support any conclusion as to the credibility of either person. It acquires probative value only if the contradicting witness is believed in preference to the first witness, that is, if the error of the first witness is established.µ42 5.6 ´It follows that an argument based only on a list of contradictions between witnesses leads nowhere so far as veracity is concerned. may be that the court is unable to say where the truth lies as The between argument must go further, and show that one of the witnesses is lying. It contradictory statements, and that may effect the question whether the onus of proof has been discharged: but that has nothing to do with the nature of the and their bearing on

40 41 42

S v Oosthuizen 1982 (3) SA 571 (T) at 577B-D S v Oosthuizen 1982 (3) SA 571 (T) at 576G-H; S v Mkohle 1990 (1) SACR 95 (A) at 98f-g S v Oosthuizen 1982 (3) SA 571 (T) at 576B-D and S v Mkohle 1990 (1) SACR 95 (A) at 98f-g

23

veracity of the witnesses.µ43 5.7 ´Other contradictions were pointed to. Yet I do not think that they or the ones I have listed materially affect the credibility of the persons in question. Contradictions per se do not lead to the rejection of a witness' evidence. As Nicholas J, as he then was, observed in S v Oosthuizen 1982 (3) SA 571 (T) at 576B-C, they may simply be indicative of an error. And (at 576G-H) it is stated that not every error made by a witness 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' evidence.µ44 5.8 ´Secondly, the mere fact that there were contradictions between the evidence of the appellant and his mother on the details of what each of them did and saw in the night in question is not, of itself, a sufficient ground for rejecting the evidence of the appellant. That there were differences in matters of detail admits of no doubt. What the trial Court had to do was to consider the significance or otherwise of such differences and to evaluate the evidence of each of the witnesses. Thus, if a good witness is contradicted by an indifferent one, that is no reason for rejecting the evidence of the former.No adverse findings of demeanour were made against the appellant nor was it suggested that there was any inherent improbability in his version of what occurred on the night in question. There is some substance in the submission of counsel for the appellant that the trial Court exaggerated the significance of the differences, some of which were possibly explicable on the basis that some of the events testified to by the appellant had occurred before his
43 44

The Credibility of Witnesses (supra) at p 36 S v Mkohle 1990 (1) SACR 95 (A) at 98f-g

24

mother arrived on the scene. Quite apart from that aspect of the matter, the trial Court does not seem to have considered the possibility that the appellant's mother's recollection of events which had occurred some two years earlier might be less accurate than that of the appellant.µ45 5.7 ´But it is, of course, necessary that the Court should be satisfied beyond reasonable doubt that in its essential features the story which he tells is a true one. If more than that were required the would in many cases be rendered impossible.µ46 5.8 ´The second ground advanced on behalf of the appellant is that the conviction is based exclusively on the magistrate's finding as to the demeanour of the witnesses. If it could be said that the finding on demeanour is outweighed by other considerations affecting merit serious consideration. For, whatever the degree of credibility would importance which the trial court has not taken in to account this ground administration of justice

that is attachable to that vague and indefinable factor in estimating a witness's credibility - a point touched on later herein - demeanour is assuredly not the only there are other factor to be considered by a trial court where factors relevant to credibility. Thus a trial Judge is

required to have regard also to the question whether the story testified to by the witness contains material improbabilities, and, where it is contradicted by defence evidence, whether the latter can or cannot be held to be false or whether it be so highly improbable that no reasonable doubt about the guilt of the accused remains.µ47 5.9
45 46 47

´There can be little profit in comparing the demeanour only of one

S v Jochems 1991 (1) SACR 208 (A) at 211g-i R v Kristusamy, 1945 AD 549 at p. 556 and S v Sauls and Others 1981 (3) SA 172 (A) at 180F Rex v Lekaota 1947 (4) SA 258 (O) at 262-263

25

witness with that of another in seeking the truth. In any event, as counsel conceded in a homely metaphor, demeanour is, at best, a tricky horse to ride. There is no doubt that demeanour - 'that vague and indefinable factor in estimating a witness's credibility' (per HORWITZ AJ in R v Lekaota 1947 (4) SA 258 (O) at 263) - can be most misleading. The hallmark of a truthful witness is not always a confident and courteous manner or an appearance of frankness and candour. As was stated by WESSELS JA in Estate Kaluza v Braeuer 1926 AD 243 at 266 more than half a century ago in this Court: 'A crafty witness may simulate an honest demeanour and the Judge had often but little before him to enable him to penetrate the armour of a witness who tells a plausible story.' On the other hand an honest witness may be shy or nervous by nature, and in the witness-box show such hesitation and discomfort as to lead the court into concluding, wrongly, that he is not a truthful person.µ48 5.10 ´The demeanour of witnesses can be a matter of the greatest importance, and the trier of fact will observe each witness closely judgment and common sense, but it must be demeanour alone without AD 303 at p. 306; R. v 1947 (4) SA 258 (O) at 708.µ49 5.11 ´This shows the futility of the exercise, frequently performed by crossexaminers, of raking at tedious length over the evidence of
48 49

during that

his the

testimony. The effect of demeanour in assessing credibility is a matter of remembered truthfulness or untruthfulness of a witness can rarely be determined by regard to other factors. Arter v Burt, 1922 Macaba, 1939 AD 66 at p. 70; R. v Lekaota, p. 263, and R. v Abels, 1948 (1) SA 706 (O) at p.

different

S v Kelly 1980 (3) SA 301 (A) at 308B-E S v Civa 1974 (3) SA 844 (T) at 846G-H

26

eyewitnesses in order to uncover contradictions, variances,

omissions,

discrepancies, differences and inconsistencies. For the most part it shows no more that what is to be expected, namely, that eyewitnesses differ from one another in their accounts and are liable to error.µ50 5.12 ´The availability to the defence of the contents of the police docket, which usually contains the statements of all potential State witnesses, has enabled accused persons to make use of such statements in order to test the credibility and/or reliability of those State witnesses who testify at the trial. This has had the result that it seldom happens in a criminal trial that one or more of the State witnesses are not confronted with what are perceived to be contradictions between the evidence of the witness and the contents of his or her police statement. Similarly, witnesses are regularly confronted with the fact that their police statements do not contain any reference to important aspects of their evidence. There is, of course, nothing improper about such cross-examination, provided it is properly done. Unfortunately this does not always occur, especially in the lower courts. I make this statement on the basis of what I have read in a number of records have come before me. It frequently said something in a statement to a in reviews and appeals that without any proper occurs,

foundation having been laid, that it is put to a witness that he or she policeman which is at variance with that witness' evidence, or that a witness is merely asked why he or she did not tell the police of something about which the witness has testified. I mention this in passing, for in the present matter the crossexamination of the State witnesses in connection with the contents of their police statements was done in a proper manner, which is not surprising having regard to the undoubted ability and considerable experience of defence counsel. In my view it is important that it should
50

See: The Credibility of Witnesses at p 41

27

always be borne in mind '. . . that police statements are, as a matter of common experience, frequently not taken with the degree of care, accuracy and completeness which is desirable. . .'. (S v Xaba 1983 (3) SA 717 (A) at 730B - C.) Furthermore, as was pointed out in S v Bruiners en 'n Ander 1998 (2) SACR 432 (SE) at 437h, the purpose of a police statement is to obtain details of an offence so that a decision can witness is not intended to be a precursor to that witness' be in made whether or not to institute a prosecution, and the statement of a evidence court. Quite apart from that, however, there are other problems associated with police statements. They are usually written in the language of the person who records them. Frequently the use of an interpreter is required and, invariably, such interpreter is also a policeman and not a trained interpreter. The statement, according to my experience, is also usually a summary of what the policeman was told by the witness and is expressed in language or in terms normally used by him and not necessarily the witness. That this is so, is apparent from what I shall refer to more fully later regarding witnesses who confirm that the statement correctly reflects what they said to the police, but do not know what the meaning is of a word or words appearing in the statement when they are asked about it. I shall mention another simple example. The time of a particular occurrence is reflected in in the 24-hour mode (eg 20:30) in the case of a a statement witness who cannot tell

the time never mind explain what time of the night that refers to. While I would not go so far as to say that it would be far-fetched (vergesog) to expect a witness to give exactly the same version in his police statement as in his evidence in open court (cf S v Bruiners en 'n Ander (supra) at 437i), I am of the view that the fact that discrepancies occur between a witness' evidence and the contents of that witness' police statement is not unusual nor surprising.µ51
51

See:

S v Govender and Others 2006 (1) SACR 322 (E) at 324E-325E

28

5.13 ´The juridical approach to contradictions between two witnesses

and

contradictions between the versions of the same witness (such as, inter alia, between her or his viva voce evidence and a previous statement) is, in principle (even if not in degree), identical. Indeed, in neither case is the aim to prove which of the versions is correct, but to [establish] that the witness could err, either because of a defective recollection or because of dishonesty. The mere fact that it is evident that there are selfcontradictions must be approached with [circumspection] by a court. Firstly, it must be carefully determined what the witnesses actually meant to say on each occasion, in order to determine whether there is an actual contradiction and what the precise nature thereof [is]. In this regard the adjudicator of fact must keep in mind that a previous statement is not taken down by means of cross-examination, that there may be language and cultural differences between the witness and the person taking down the statement which can stand in the way [of the correctness] of precisely what was meant, and that the person giving the statement is seldom, if ever, asked by the police officer to explain [his or her] statement in detail. Secondly, it must be kept in mind that not every error by a witness and not every contradiction or deviation affects the credibility of a witness. Non-material deviations are not necessarily relevant. Thirdly, the contradictory versions must be considered and evaluated on a holistic basis. The circumstances under which the versions were made, the proven reasons for the contradictions, the actual effect of the contradictions with regard to the reliability and credibility of the witness, the question whether the witness was opportunity to explain the contradictions - and explanations - and the connection between the the given a sufficient quality of the

contradictions and the

29

rest of the witness' evidence [must], amongst other factors, be taken into consideration and weighed up. Lastly, there is the final task of the trial Judge, namely to weigh up the previous statement against the viva voce evidence, to consider all the evidence and to decide whether it is reliable or not and to decide whether the truth has been told, despite any shortcomings.µ52

5.14 ´A factor that is associated with the quality of the witness' explanations regarding contradictions and/or omissions is the reaction of the witness when confronted with such contradictions or type of person the witness is. The less omissions. and Different the less witnesses will react in different ways. Regard must always be had to the intelligent sophisticated the witness is, the more likely it is that he or she will react to such a situation in an unsatisfactory way. In my experience it frequently happens that such a witness, when confronted with a statement taken by a policeman, will, without giving it any thought, confirm that every single word in such statement was uttered by him or her when speaking to the policeman concerned and also confirm that it word reflects the truth, but when that witness is asked what a specific

means he or she has no idea. This is in fact what happened on at least one occasion in the present matter. In addition, it frequently happens that witnesses start giving ill-considered and, at times, nonsensical answers when they find themselves in what they perceive to be a predicament because of the fact that what is reflected in the police statement is at variance with the evidence they have given. It would seem that, because of their station in life, their lack of education, their immaturity, and/or a variety of other reasons, they are so in awe of the
52

Headnote in S v Mafaladiso en Andere 2003 (1) SACR 583 (SCA) of 593e - 594h, as summarized in S v Govender

and Others (supra) at 325G-326C

30

police that when they are told that

a

policeman

has

written

down

something which purports to be what they told that policeman they feel that they could get into trouble if they deny that they in fact said that. But even intelligent, educated and sophisticated people at times react inappropriately account particular when faced with a situation such as that under discussion. Quite obviously these are factors which must be taken into when assessing the credibility and the reliability of that witness, but it does not necessarily mean that an

unsatisfactory and unfavourable reaction requires the evidence of that witness to be rejected. What is necessary, is that regard must be had to the type of person the witness is when deciding what weight should be attached to his or her evidence. The reaction of such witness in the witness box when he or she is asked to deal with contradictions in the police statement of that witness must be evaluated by also having due regard thereto. Finally, on this aspect, even if it is concluded that a witness has been untruthful in his or her endeavours contradictions between his or her police to explain any statement and evidence, this

does not mean that all the evidence of that witness should be rejected.µ53

5.15 ´As regards the contradictions between the complainant's evidence and her statement to the police, I am in agreement with the findings of the magistrate that, considering the nature of the alleged contradictions and the circumstances under which the statement was made, the contradictions are not such as to impact in a negative way on the evaluation of her evidence (see in this regard the remarks of Olivier JA in S v Mafaladiso en Andere 2003 (1) SACR 583 (SCA) ([2002] 4 All SA 74) at 594d - f).µ54
53 54

S v Govender and Others (supra) at 326C-J S v Lotter 2008 (2) SACR 595 (C) at 600 paragraph 21

31

5.16. Similar views were expressed by the Namibian Courts. 5.16.1´«one must exercise a certain degree of caution when dealing with statements such as those produced in the present case. Each one states that it was made in English but I very much doubt whether they were. It seems more likely that the police officer taking the statement down translated into English what was said and this, in my view is a bad practice. One knows nothing of the police officer·s skill in translation and to what extent the translation is accurate. And even if the witness did make their statement in English, which I doubt, English of course, is not their mother tongue and again the way is left open for errors to creep in. The proper practice is for witness statements to be taken down in the witnesses· mother tongue and for statements then to be properly translated.µ55 5.16.2´..However, all these must be seen and judged in context. What is set out in a police statement is more often than not simply the bare bones of a compliant and the fact that flesh is added to the account at a later stage or oral testimony is not necessarily of adverse consequence. It will all depend on the circumstances of each case and in the present case. I can see nothing sinister arising from a comparison of what the complainant said to the police and what she said in the witness box.µ56 5.16.3The Hanekom case went on appeal to the Supreme Court, and in dismissing the appeal the Supreme Court stated the following: ´Before evaluation of the evidence of the various witnesses mention must also be
55

S v Simon Gowaseb, Unreported Judgement, delivered on 15 August 1995, Case Number CC 70/95, p 17 S v Albertus Jacobus Hanekom, Unreported Judgement, delivered on 24 May 2000, Case Number CA 68/99, p 10

56

32

made of the fact that not every contradiction or discrepancy in the evidence of a witness reflects negatively on such witness. Whether such discrepancy or contradiction is serious depends mostly on the nature of the contradictions, their number and importance, and their bearing on other parts of the witness·s evidence. (See S v Oosthuizen, 1982(3) SA 571 (TPD) at p 576G.) (See further S v Jochems, 1991(1) SACR 208 (A) at p 211g-h; S v Mkohle, 1990(1) SACR 95(A) at p 98f-h and S v M, 2000(1) SACR 484 (WLD) at p 499h-j.) I also agree with the Court a quo that police statements are often incomplete and not supposed to contain all the witness·s evidence. Again, contradictions between the witness·s evidence and the statement must be properly evaluated on the lines set out herein before.µ57 5.17 Melunsky J, in K v Regional Court Magistrate NO and Others
(1) SACR 434 (E) at 442F-443I made the following observations:

1996

´The object of cross-examination is, first, to elicit information that is favourable to the party on whose behalf the cross-examination is conducted and, secondly, to cast doubt upon the accuracy of the evidence-in-chief given against such a party (Cross on Evidence 7th ed by Tapper at 303). It is therefore not open to an accused person to contend that his right to a fair trial has been infringed if the court intervenes to prevent his counsel from conducting a questioning is calculated to confuse the witness. bullying It seems to or be intimidating form of cross-examination, nor if it appears that his line of reasonably clear, therefore, that whether or not the curtailment or limitation of cross-examination has resulted in the negation of a right to a fair trial depends upon the circumstances of the case. The background to the legislation which is now in issue is dealt with in the respondents' opposing affidavits. The third respondent
57

points out -

S v Albertus Jacobus Hanekom, Unreported Judgement, of the Supreme Court delivered on 11 May 2001, Case

Number SA 4/2000, p 16

33

and his views are not seriously challenged - that the

incidence

of

crimes involving young persons as victims, particularly crimes involving sexual abuse and assault, has risen significantly in recent years. He adds that in cases of sexual assault and rape the fear of investigation and trial seriously impedes the combating of these crimes; that child witnesses experience significant difficulties in dealing with the adversarial environment of a court room; that a young person may experience difficulty in fully comprehending the language of legal proceedings and the role of the various participants; and that the adversarial procedure presently involves confrontation and extensive crossexamination. There is also an affidavit from Karen Muller who is engaged in research into the question of the ability of young and the witnesses to give evidence in an accusatorial environment. She explains and illustrates that the communication ability of the child context in which questions are asked may distort the meaning attached

to the child's language. She says that in cases of criminal prosecutions for sexual offences the language problem becomes more acute because 'it is overlaid by a range of emotional stresses and fears which flow from the traumatic events about which the child is called to testify'. Ms Muller explains that a victim of sexual abuse, assault or rape experiences a second victimisation in the form of the trial and she goes on to say the following: 'In the first instance the victim is required to relate in open court graphic detail the particular abusive acts perpetrated upon the abuse is subjected to intensive, and at times them. in This and

occurs in the presence of the alleged perpetrator. Thereafter the victim of protracted aggressive, cross-examination by the accused or his legal representative. This experience instills fear, anxiety and high levels of stress in the witness. Under normal circumstances within court proceedings the capacity of the prosecutor or the presiding officer to intervene to curtail cross-examination and thereby to protect the witness is extremely

34

limited. This further serves to emphasise the isolation and vulnerability of the witness in the circumstances. Secondary victimisation may, consequently, be as traumatic and as damaging to the emotional and psychological well-being of the victim as the original victimisation was. It is for these reasons, in essence, that various jurisdictions, including South Africa, have introduced procedures and sexual offences.' We were also referred to numerous articles and to the reports of various commissions which deal extensively with the problems faced by young witnesses, particularly complainants in cases of sexual abuse. I do not intend to quote from these. It is sufficient to say that I am quite convinced that a child witness may often find it traumatic and stressful to give evidence in the adversarial atmosphere of the court room and that the forceful cross- examination of a young person by skilled counsel may be more likely to obfuscate than to reveal the truth. Moreover, criminal prosecutions may be thwarted because of the unwillingness of young witnesses to subject themselves to the ordeal of the court hearing, even if the proceedings are in camera. From these remarks it seems to me to be obvious that the ordinary procedures of the criminal justice system are inadequate to meet the needs and requirements of the child witness.µ 5.18 ´There are sound reasons why the conveyance of the general purport of mechanisms to facilitate the reception of the evidence of young witnesses in proceedings involving

the question might enable a child witness to participate properly in the system. Questions should always be put in a form understandable to the witness so that he or she may answer them properly (see S v Gidi (supra at 540E)). Where the witness is a child, there is the possibility that he may not fully comprehend or appreciate the content of a question formulated by counsel. The danger of this happening is more real in the case of a very young child. By conveying 'the general purport' of the

35

question, the intermediary is not permitted to alter the question. He must convey the content and meaning of what was asked in a language and form understandable to the witness. From the articles and the evidence put before us it is quite apparent that it is in the interests of justice for questions to be posed to children in a way that is appropriate to their development. This furthers the truth-seeking trial court without depriving the accused of his proceedings and is able to see to it function of the right to cross-examine.

Moreover the Judge or magistrate who presides at the trial controls the that the intermediary carries out his function properly and without prejudice to the accused.µ58 5.19 Rose-Innes J had occasion to consider the duties of a cross- examining prosecutor. It may be useful to record his remarks at as it applies to defence counsel as well. ´In the case of many a witness it calls for no skill to intimidate or confuse or distress a witness who does not have the resources of intellect, language or personality to defend himself against a bullying prosecutor. Conduct of this kind offends against good manners, politeness and humanity. That is sufficient reason for refraining from such unseemly behaviour. What is more important for the administration of justice is that tactics of that kind are a negation of the object and purpose of cross-examination.'59 5.20 In S v Monday 2002 NR 167 (SC) at 195D, O·Linn AJA refused to follow the case of S v S 1995(1) SACR 50 (ZS) in which the Court stated that the six main objections to relying on children's evidence, are that (a) children's memories are unreliable; (b) children are egocentric; (c) children are highly suggestible; (d) children have difficulty distinguishing fact from
58 59

K v Regional Court Magistrate NO and Others (supra) at 445C-F S v Gidi and Another 1984 (4) SA 537 (C) at 540B-C

36

fantasy; (e) children make false allegations, particularly of sexual assault; and (f) children do not understand the duty to tell the truth, and remarked: ´Surely, one cannot generalise about children. It would always depend on age, intelligence, education, the home and school environment, and to what extent the child has been taught in his home environment the need for moral values, in particular the meaning of the 'truth' and the need to tell the truth. The traditional cautionary rules, properly understood, certainly do not exclude these considerations.µ 5.21 The weight of authority favours the view that an exculpatory explanation of plea which is not repeated under oath, has no evidential value and cannot be used to the benefit of the accused.
60

5.22 ´The informal admissions contained in her explanation of plea stand on the same footing as extra-curial admissions in that they are items of evidence against the party who made them, but which such party may contradict or explain away. They are not evidential material which count in favour of the accused. Exculpatory statements in such explanations of plea must, as a general rule, be repeated by the accused under oath in the witness-stand for them to have any value in favour of the accused. See S v Malebo en Andere 1979 (2) SA 636 (B); S v Sesetse en 'n Ander 1981 (3) SA 353 (A) at 374A-376H. One possible exception to the general rule is that when a defence is raised in the exculpatory part of an explanation of plea, it may be necessary for the State to negative that defence to the extent of a facie case. See S v Mothlaping en 'n Ander 1988 (3) SA 757
60

prima See

(NC).

S v Mkize 1978 (2) SA 249 (N) at 251A-B; S v Dreyer 1978 (2) SA 182 (NC) at 184-A-B ; S v Malebo 1979 (2) SA 636

(B) at 640D-E; S v Thomas 1978 (2) SA 408 (B) at 410B

37

also discussions in S v Tjijo (2) 1990 NR 266 (HC). Furthermore, exculpatory portions of an incriminating statement should also be considered, although a court can reject the exculpatory part in its discretion, particularly when it was not made under oath and not subject to cross-examination. See S v Yelani 1989 (2) SA 43 (A) at 49H-50D.µ61 5.23 ´The Court indicated to Mr Maritz, who defended the accused with great distinction throughout the trial, that certain exculpatory allegations and explanations which were contained in the accused's written explanation of plea could not and would not be accepted by the Court in the absence of evidence under oath proving those facts.µ62 5.24 ´There is not always unanimity in the authorities regarding the application of a s 115 statement by an accused. A distinction appears to be drawn between informal admissions and exculpatory statements contained in the explanation of plea. In regard to informal admissions it must be accepted that they can be accepted as evidence against the accused on the same footing as extra-judicial admissions made by the accused. (See in this regard S v Malebo en Andere 1979 (2) SA 636 (B) at 642A; S v Mjoli and Another 1980 (3) SA 172 (D) and S v Sesetse en 'n Ander 1981 (3) SA 353 (A). See further Van der Merwe, Barton and Kemp Plea Procedures in Summary Criminal Trials (Butterworths, 1983) at 134.) Most of the authorities are agreed that exculpatory statements are not evidence.µ63

5.25 ´The authors Du Toit, De Jager and others (op cit at 18-13) say
61 62 63

that

S v Shivute 1991 NR 123 (HC) at 127A-D S v Da Costa and Another 1990 NR 149 (HC) at 151H S v Tjiho (2) 1990 NR 266 (HC) at 270H-J

38

there is great similarity between a s 115 statement and an unsworn statement which the accused could make in terms of s 169(6) of the old Criminal Procedure Act 56 of 1955. They then as follows at 723B: 'This exculpatory statement was not subsequently substantiated on oath, and, while not entirely disregarding it, I am unable to attach decisive weight thereto.'µ64 5.26 Although the decision of S v Shikunga and Another 1997 NR 156 (SC) deals with confessions, it would be submitted that the principles, applicable to incriminating and exculpatory parts of confessions, can be used also when one considers a plea explanation. The Court stated on 177I-178D: ´The Appellate Division of the Supreme Court of South Africa has consistently held that an extra-curial statement of an accused, once adduced in evidence, must be viewed and evaluated in its entirety, inclusive of assertions and explanations favourable to the maker: R v Valachia and Another 1945 AD 826 at 837; S v Felix S v Yelani 1989 (2) SA 43 (A) at 50A-F; 1993 (2) SACR 501 (A) at 505f-h at 505fin Valachia's case at 837: 'Naturally, the fact that the statement is not made under oath, and is not subject to cross-examination, detracts very much from the weight to be given to those portions of the statement favourable to its author as compared with the weight which would be given to them if he had them under oath, but he is entitled to have them taken into consideration, to be
64

refer to S v Van Niekerk

1972 (3) SA 711 (A), where Ogilvie Thompson CJ sets C out the position

any

and Another 1980

(4) SA 604 (A) at 609H-610A; S v Khoza 1982 (3) SA 1019 (A) at 1039A-B; and S v Nduli and Others h. In my view, the same

principle should be applied by this Court. However, as was pointed out

S v Tjiho (2) 1990 NR 266 (HC) at 27C-D

39

accepted or rejected according to the Court's view of their cogency.' Similar sentiments were expressed in S v Nduli and Others (supra at 505g): 'A statement made by a man against his own interests generally speaking has the intrinsic ring of truth; but his exculpatory explanations and excuses may well strike a false note and should be treated with a measure of distrust as being unsworn, unconfirmed, untested and selfserving.'µ 5.27 Finally, the Auala-matter referred to hereinbefore went on appeal and the Supreme Court summarized several principles as follows in its unreported judgment delivered on 27 April 2010 at pages 10-11: ´The court rightly referred to the rule and practice to put the defence case to State witnesses ´to ensure that trials are conducted fairly; that witnesses have the opportunity to answer challenges to their evidence, and parties to the suit know that it may be necessary to call corroborating or other evidence relevant to the challenge that has been raised.µ In this regard the Learned Judge a quo referred to S v Boesak, 2001(1) SA 912 (CC), where it was said (at par. [27]): ´a criminal trial is not a game of catch-as catch-can.µ [15] So too, may the appellant·s decision not to testify have consequences. What Langa DP said in S v Boesak, supra, at 923E-F equally applies mutatis mutandis, I think, to the situation in this case: ´The fact that an accused person is under no obligation to testify does not mean that there are no consequences attaching to a decision to remain silent during the trial. If there is evidence calling for an answer, and an accused·s person chooses to remain silent in the face of such evidence, a court may well be entitled to conclude that the evidence, is sufficient in the absence of an explanation, to prove the guilt of the accused. Whether such a conclusion is justified will depend on the

40

weight of the evidence.µ Langa DP in this connection approved the remark of Madala J in Osman and Another v Attorney-General-Transvaal, 1998(4) SA 1224 (CC) (1998(2) SACR 493; 1998(11) BCLR 1362) para [22]: ´Our legal system is an adversarial one. Once the prosecution has produced evidence sufficient to establish a prima facie case, an accused who fails to produce evidence to rebut that case is at risk. The failure to testify does not relieve the prosecution of its duty to prove guilt beyond reasonable doubt. An accused, however, always runs the risk that, absent any rebuttal, the prosecutor·s case may be sufficient to prove the elements of the offence. The fact that an accused had to make such an election is not a breach of the right to silence. If the right to silence were to be so interpreted, it would destroy the fundamental nature of our adversarial system of criminal justice.µ In S v Katoo, 2005(1) SACR 522 (SCA) Jafta AJA criticised the weight attached by the trial judge ´to the defence version which was put to State witnesses under crossexaminationµ and remarked further: ´It was treated as if it were evidence when the trial court considered verdict on the merits. As respondent failed to place any version before the Court by means of evidence, the Court·s verdict should have been based on the evidence led by the prosecution only.µµ

6. 6.1

THE FACTS The State just for purposes of its argument will first of all comment on the original judgement in which this Honourable Court set out 21 points referred to as ´inconsistencies,deviations and contradictionsµ against the evidence of the two complainants.65

65

See:

Record Volume 9 and 10, Pages 1109-1117

41

1. Queen testified that whilst at the Single quarters they saw a Mercedes Benz vehicle. Trisha went to it and stopped it. However, on the other side Trisha·s evidence it·s in fact that she went to the motor vehicle because the man called her. It should be obvious that by so saying Trisha is trying to create the impression that she did not take the initiative to go to the car on her own. On the other hand the combined evidence of the other witnesses in particular Ms Sheya is that both Queen and Trisha ran after this car, shouted at the driver to stop and the car stopped after they shouted ´oh it·s our car, it·s our carµ. Queen does not say that Tricia ran after the car and stopped it the first round. This is what Queen says about the first time that stopped: ´..when we returned on our way we saw a car and the car then stopped. Tricia then ran towards this car. I followed her.µ
66

time

the accused·s car

The evidence clearly indicates that the accused stopped his car and then drove off and it was only after he drove off that Tricia ran after the car.
67

The accused person in his plea explanation alleges that he stopped his car in order to inquire about his gardener and not because he was stopped by any of the children. He does not allege that Trisha stopped his car.68 In chief Trisha never said the man called her. She later stated that the accused called them [us]69 2.Trisha conceded that when they went to the accused for the first time he did ask them if they knew somebody who stayed there. She conceded that he did made mentioned of a name but she forgot the name. On the contrary Queen who
66 67 68 69

See: See: See: See:

Record Volume 8, Page 847 lines 7-10. Record Volume 8, Page 919 lines 16-17 Record Volume 9, page 11101 paragraph 2 Record Volume 8 pages 917 and 978

42

was with Trisha at all material times when at the motor vehicle, disputed this version. This is not a concession by Trisha. It·s clear she came out with this on her own. And Queen was neither asked about this man Accused was looking for, nor did she dispute this.70 In evaluating this evidence the Honourable Court should consider that

Tricia

and Queen did not reach the accused at the same time. Queen was running behind Tricia so it is quite possible that the accused made that inquiry from Tricia before Queen got to the car.
71

It is submitted that this is not important.? Court should rather consider that both Trisha and Queen stated that the accused enquired about their older sisters. It is also important that the accused does not deny this while Queen gives evidence. Only puts that the other children does not mention this.72 3. Queen testified that she was forced to board the accused·s motor vehicle by Trisha. However, later on she changed her version and stated that she in fact boarded this motor vehicle. Contrary to this version by Queen, Trisha and Michelle testified that Queen boarded this motor vehicle on her own. Queen even went to an extent of trying to force Michelle to go into the motor vehicle with them by literally pulling Michelle into this motor vehicle. As Michelle resisted and did not want to go with them the evidence is to the effect that Queen then tried to lure Michelle into this motor vehicle by telling her that if she goes with them the man had promised to give them new clothes the following day. Queen testified further that Trisha gave Michelle
70 71

See: See:

Record Volume 8, page 979 Record Volume 8, Page 847 lines 9-10.

72 See: Record Volume 8, Page 847, 863 and 917

43

N$1 and asked her not to go and tell. Michelle quite interestingly confirms that it is in fact Trisha who gave her N$1 and asked her not to go and tell the parents. It is correct that Tricia and Queen·s evidence differed in this aspect. It is submitted that it should not be considered as that important. The accused apparently also accepts that he only gave money to Michelle as the evidence is not disputed. Accused admitted during of Queen that he gave Michelle one dollar (N$1.00).73 4. According to Trisha the man in the motor vehicle gave the boys N$5 and told them to go away and not to go and tell. On the contrary the evidence of Queen and Michelle and Uno and Shipempeka is to the effect that the boys left the motor vehicle as they were following Antony to the shops to go and change the N$1 so that they could share. It is clear that by so saying Trisha was trying to create a false impression that the boys were sent away by the man so that he could go away with them. It is respectfully submitted that this is not born out by evidence. The record reflects that Trisha said: ´The car came back and the boys were given five dollars (N$5-00). Yes?--Then they went to change their five dollars (N$5-00) And Queen did climb in the car---.µ
74

cross-examination

´then

me

and

It is important to note here the evidence of Queen and Trisha that Michelle was given money by the accused not to go and tell.75
73

See:

Record Volume 8, page 875 and 956

74 See: Record Volume 9 and 10, Page 920 lines 2-6 also 988 lines 10- 11.

44

It is further important to consider the evidence that the accused apparently accepts that he only gave money to Michelle as the evidence is not disputed. Accused admitted during cross-examination of Queen that he gave Michelle one dollar 5. (N$1.00).76

In cross-examination Trisha denied pertinently that the man gave her N$1 that evening. However her statement to the police shows quite clearly that she stated to the police that she received N$1 from the driver of the motor vehicle.

It is correct that Tricia denied that she had been given N$1-00 by the Accused. It is submitted that in the light of the totality of other evidence this denial by Trisha may have been a simply case of forgetting. It is submitted that the issue of whether the N$1-00 was given to Trisha or Michelle is not so important that it destroys the credibility of Trisha to such an extent that it can be said there was nothing left of it. The Accused apparently also does not allege that he gave Trisha any money. Accused admitted during cross-examination of Queen that he gave Michelle one dollar (N$1.00).77 6. Trisha testified that whilst en-route to the man·s house the man gave her a beer to drink which she gave to Queen and Queen drank whilst on their way to the man·s house. On the contrary Queen said absolutely nothing of any beer being given to her whilst on their way to the man·s house. This is correct. However it is submitted that one cannot disregard the fact

that Queen did not deny that they were given beer while on their way to the
75 76 77

See: See: See:

Record Volume 9 and 10, Page 873 also 920. Record Volume 8, page 875 and 956 Record Volume 8, page 875 and 956

45

man·s house. She just stated on a question that she did not have alcohol prior to that evening. When asked if they had any other alcohol that evening her response was not a denial but that she did not recall. This clearly related to the Brandy and not the beer.78 It is submitted that this can never mean that Trisha is lying. The Court should further consider the fact that when Trisha gave this evidence, Accused did not deny this. The only thing that is put to her is that Queen never mentioned the beer in the car. 7. For the first time in cross-examination Trisha revealed that the man told them to come with him so that they can go and have a beer and a party at his home. Trisha went on to say that Queen hear this and knew that they were in fact going to the man·s home to go and have some beer and a party. On the contrary Queen feigned ignorance of this. It is correct that Queen never said anything about being invited to the accused·s home to have some beer and party. It is submitted that Queen never denied that that happened and in any event even if the Honourable judge disbelieved that evidence by Tricia he could have rejected it but considered especially the evidence that is corroborated by other evidence. Queen corroborates Trisha·s evidence that that the accused gave them alcohol to drink. 8. Trisha testified that upon arrival at the man·s house the man forcibly took them into the house by holding both herself and Queen by their necks. Queen was asked if this happened in cross-examination pertinently, and she stated in no uncertain terms that if anybody would come to this Court and say, this is what happen that would be a blatant lie.
78 See: Record Volume 8, Page 887

46

It is correct that that Queen differed with Tricia on this point. It however is clear that Trisha never said that the accused forcibly took them into the house. She only states that the accused were holding their necks. It is submitted that the difference in the evidence of the witness is not so material that it destroys the credibility of Trisha completely. It is submitted further that the fact that these two children differed with one another is an indication that they did not connive to falsely incriminate the accused. The Court should consider the fact that Accused never disputed the version of Trisha. It was only put to her that Queen said nothing about this.79 9. To my greatest horror Queen confessed openly in Court that when she made here statement to the police subsequent to the events of the night in question 28 January 2005, she did not tell the police the truth. It is true that Queen said that she had told the police an untruth. The Court should however also consider that-Queen did not say that all that she told the police was untrue and that Queen and her parents are apparently related to the Respondent.
80

It is quite clear from the record of proceedings that Queen Kaunozongunge·s parents were totally against Queen testifying against the accused. Her mother said that much in her testimony before the trial court.
81

Her father was so determined to stop the State from calling Queen as a witness
79 80

See:

Record Volume 8 and 9, Pages 921-922 and 1009

See Record Volume 8 Pages 857-859 See Record Volume 2, Page 170 lines 17-21; Page 171 lines 1-8

81

47

that he went and consulted a legal practitioner for that purpose. Queen·s father informed the legal practitioner for the Respondent

82

that he did
83

not want his daughter and again sought advice on what he should do.

As if that was not enough the legal practitioner representing the Respondent during his trial, for whatever reason gave Queen a lift to the victim friendly court in Katutura. He did not only give Queen given a ride to Katutura but the esteemed practitioner saw it fit to talk to this witness about the case. ´ I also wish to place on record My Lord that Ms Kaunozondunge was at Court yesterday, I did offer her a lift to the Windhoek Court when we relocated and she informed me that she is not wasting her time, she is not coming to the Court.µ84 It is also in the record that the Court took a lunch break before she finished her testimony and when the court reconvened after lunch Queen was so upset that she could not continue with her testimony. No amount of persuasion could get her to continue with her testimony until she was stood down to the following day.
85

It is also noteworthy that when Queen stated that some of the things that she told the police were untrue this was after the lunch break when she came back so upset that the court had to stand her down to the following day. Her evidence states: When I told the police I did not tell the truth, some things were wrong as I could not properly remember.µ It is submitted that despite what Queen said she still gave evidence which does not stand on its own but is corroborated by other evidence.86
82 83 84 85 86

See Record Volume 2, Page 172 lines11-14 See Record Volume 8 Page 842 Lines 4-20.

See Record Volume 8 Page842 lines 3-22. See Record Volume 8 Page 896 to page 912. See:Record Volume 8, p 936

 

48

10.

Trisha testified that while at the house the man offered them one Castle beer. She stated that as she did not want to drink it, the man literally forced her mouth open with his hand and forcibly poured liquor into her mouth. Queen was asked pertinently if this is what happened and she disputed this in no uncertain terms. Her evidence is to the effect that the man offered them not a Castle beer but one Tafel Lager each and that they each drank their beer out of their own volition.

It is true that Tricia and Queen differed about the type of beer offered to them by the accused. Tricia said that it was Castle while Queen said that it was Tafel. Queen in stated is the following: ´Queen if anybody says that the man grabbed hold of your, you or Tricia·s mouth, and forced it open and forced you to drink beer, would that be the truth or not? ²That person is lying.µ87 It is submitted that one should consider that the two children were 9 and 10 years old at the stage the incident happened and that despite that disagreement Tricia and Queen agree with one another that the accused offered them alcohol to drink. The fact that they mentioned different names for the alcohol is not a material difference especially when regard is had, to their ages. The difference as to the name of the beer was also not taken up with then in cross-examination. 11. Trisha testified further that the man then brought brandy which he poured into three cups and asked them to drink. As she did not want to drink she passed the brandy to Queen who then drank this beer. It is interesting to note that when confronted with this piece of evidence Queen stated that she could not recall anything relating to any brandy being given to her, or her drinking brandy at any stage whilst at the home of the accused.
87

See Record Volume 8 Page 945

49

It is true that Tricia testified that the accused gave them brandy and that Queen said that she could not recall. It is submitted that one cannot disregard the fact that Queen did not deny that the accused offered them Brandy. All she said was that she could not recall. It is submitted that Queen did not deny what Tricia said. ´Tricia said that Queen, you drank brandy?---I cannot recall.µ88 It is submitted that Trisha cannot be lying about the issue of brandy because the accused in his plea explanation also mentions having seen glasses that smelt of brandy although he states that the children took that brandy without his knowledge.89 12. Trisha testified further that after having had the brandy they all, that is Trisha and Queen including the accused went into the accused·s bedroom where they all slept on the bed. And whilst sleeping on the bed the man then tried to kiss her. When asked about this important piece of evidence Queen unequivocally denied ever having entered the man·s bedroom on the night in question. This then implies that Trisha was lying on this aspect. It is true that Tricia and Queen differed in this regard. The Honourable Court however cannot disregard the fact that although Queen denies entering the accused·s bedroom, she accepts that Tricia went into the accused·s bedroom. ´And then what happened then?---The person stood up. Went to the bedroom--He went to the bedroom, called Tricia. Hmm?---And he called Tricia. Court: Sorry---The person stood up. Went to the bedroom. Called Okay yes, you said Tricia went into the bedroom. What happened then, did she stay
88 89

Tricia.--there or

See Record Volume 8 Page 946 lines 8-9 See Record Volume 9 Page 1103 paragraph 9

50

what? ---She returned back. Ja. And where was the accused? He the just stayed for a while there and also came out.µ
90

The only basis on which the Court can conclude that Trisha is lying, as to both being in the bedroom and on the bed, is if the by the accused. 13. In Exhibit B photograph no. 12 Exhibit B represent a photo album of the scene of crime taken by police specialist after the events of 28 January 2005 when Queen and Trisha had gone to this place to go and point out important scenes to the police. On this photograph Trisha purports to point out the chair where the accused was when he played with her private parts. However, according to her viva voce evidence in this court the man only put his finger in her private parts whilst they were out of the house at or near the swimming pool. Except for this incident the man never touched her private parts. It is true that Trisha made these pointings out. Unfortunately Queen was asked to explain during her cross examination after the lunch break where she returned to court upset. She refused to give any answer. The question was not pursued further on the following day when Queen was calmer. No clarification was sought from Trisha.It is submitted that despite this piece of evidence from the two children, there remains strong evidence on which a court can convict the accused. 14.
90

Court

accepts

Queen·s

evidence in this regard. How can the Court do this in the absence of evidence

There is a charge that relates to the accused having unlawfully and

See Record Volume 8 Page 946 lines 8-9Page 855 lines 2-16

51

intentionally put his finger into the private parts of Queen. On this score Queen testified in this court that nothing of the sort happened to her at the house of this man. I find it necessary on this aspect to indicate that this Court was left extremely shocked and perturbed when the State called Sylvia Kauzonondunge, the mother to Queen as a State witness to testify in this matter. And she told this Court under oath of the frustrations she experienced when after having been at the police station on the 29th of January 2005 she returned to the police station and she spoke to the senior investigating officer in this matter, Detective Warrant Officer Haraes, and told her that she had had candid and frank discussions with her daughter being Queen and Queen had told her in no uncertain terms that she does not wish to testify in this case because nothing had happened to her while she was at the accused·s home. I will deal with that aspect of her evidence later on in my judgment. It is simply not correct that there was a charge that the accused inserted his finger into the private parts of Queen.
91

It is submitted further one has to take into account that despite her mother·s testimony that she nothing happened to her while at the home of the accused, Queen did in fact testify and it is clear from her testimony that something indeed happened to her and to Tricia. Even Queen·s mother who was adamant that nothing happened to her daughter while she was at the home of the accused testified that Queen told her that the accused carried her on her lap which is what both Queen and Tricia also told the court.
92

The Court should consider that Queen and her parents are apparently related

91

See:

Record Volume 9, p 1090-1099

92

See: Record Volume 2 Page 160 lines 15-20

52

to the Accused.

93

It is quite clear from the record of proceedings that Queen Kaunozongunge·s parents were totally against Queen testifying against the accused. Her mother said that much in her testimony before the trial court.
94

Her father was so determined to stop the State from calling Queen as a witness that he went and consulted a legal practitioner for that purpose.
95

Queen·s father informed the legal practitioner for the Respondent

that he did
96

not want his daughter and again sought advice on what he should do. 15.

Trisha testified that as she emerged from the swimming pool after swimming, Queen gave her a beer to drink but she refused. For her own part Queen never stated anything about any beer being made available to her at or near the swimming pool which she tried to give to Trisha.

That is correct. It is submitted that the Honourable Court should assess the evidence in its totality and should not only concentrate on those areas where Tricia and Queen differed. It is submitted that if that is done the Court will see that the differences in the evidence of Queen and Tricia are on minor points and that there is strong corroborative evidence by these two witnesses when it comes to the evidence of the commission of the offences. 16. Trisha testified that whilst they were swimming in the swimming pool in their panties only the accused stood next to the swimming and was watching them. On the contrary, the evidence of Queen is to the effect that
93

See Record Volume 8 Pages 857-859 See Record Volume 2, Page 170 lines 17-21; Page 171 lines 1-8 See Record Volume 2, Page 172 lines11-14 See Record Volume 8 Page 842 Lines 4-20.

94 95 96

53

as they were swimming in the swimming pool the man was sitting at the stoep away from the swimming pool. It is submitted that this is not borne out by the evidence. In fact Tricia said: ´We jump in the swimming pool me and Queen. Queen was holding me on my back, because she was scared that she will falling. And then the man was sitting, there just watching for us. (Underlining mine)
97

17.

Trisha created the impression and this was my understanding of her evidence that at all material times that evening she wanted to and she was desperate to go back home. But on the contrary Queen testified that at some state she actually requested Trisha to ask the man to take them home, and Trisha told her to cool down which suggests that she was comfortable to be at his house.

It is true that there was that contradiction between the evidence of Trisha and Queen. Unless the Court accepts Queen·s evidence as the truth this cannot be held as meaning that Trisha was in fact comfortable at Respondent·s house. 18. Trisha testified that whilst they were sleeping the man came to invite them to go and sleep with him in his bedroom and he was naked when he so spoke to them. On the contrary, Queen testified that when the man came to speak to them to invite them to go and sleep in the bedroom he was fully dressed in dark blue clothes. It is submitted that Tricia and Queen agree that the accused was dressed in a dark blue suit before he went and undressed and came out naked. ´ The man came to us and said, ´Tricia lets go and sleep togetherµ And I
97

See:

Record Volume 8 Page 923 lines 17-20.

54

refused, I said hu-uhµ And he then turned to Queen and said, ´Queen lets go and sleepµ and Queen said ´noµ Now what kind of clothes was he wearing?³Dark blue. So, when he asked you to come he was wearing dark blue clothes?³Yes .( underlining mine) And what happened next?³From there he went to his room, to his bedroom to take off his clothes or do something, whatever and from there he went to the sitting room, where he continued to watch his blue movie. And what was he wearing at that stage then? ---Naked.98 Queen for her part also testified that the accused was naked: ´And what happened then?----The person stood up and went to the bedroom. Hmm?---And he called Tricia. Court: Sorry---The person stood up. Went to the bedroom.³He went to the bedroom and called Tricia. -- -- --Yes before you go ahead, when the Accused came out of the bedroom what kind of clothes was he wearing? - - -He was not wearing clothes. So he was naked?- - -Yes.µ 19
99

Trisha continued to testify that the next day when the man dropped them at Katutura that is at their homes, he offered them a beer which she refused. Queen never said anything about this.

That is true but she also never denied it. Unfortunately she was not asked by the State, the defence or the court to comment on that piece of evidence by Trisha. The fact that Queen does not mention it can never prove that Trisha is lying.
98 99

See: See:

Record Volume 8, Page 928 lines 10 to page 929 lines 1-4 Record Volume 8, Page 855 lines 2-21 to page 856 lines 1-2.

55

The accused also did not deny this. The Court should also deal with the undisputed evidence by both Trisha and Queen that the accused at this stage stated ´Queen, please give me this child, I will bring her back tomorrow.µ And that Queen said no. ´The person then said I must give him Tricia, I said Tricia is not my child. He said he wants for Tricia to play with her and then he is going to give her one hundred dollars. (N$100.00).µ100

20.

Queen testified that when Trisha·s mother met them the next day after they returned she asked them where they had been and they came from, and they said to her they are coming from a party. Both of them conceded that when they said this to Trisha·s mother they knew that they were deliberately and knowingly lying to her because they were not coming from a party. One is tempted to ask the question, why did they say they were coming from a party? The answer is not hard to find. The answer is simply that the previous night the evidence revealed that Trisha·s mother had been alerted to the fact that Queen and Trisha were preparing themselves to go to the party that is on the 28th January 2005. She went and confronted them and they confirmed that they were going to a party. It should be clear that in the morning while they were grabbling with the question what are they were going to say to their mother they must have thought very cleverly that the only plausible story they could tell Trisha·s mother which she was likely to believe was to say that they were coming form a party. Trisha testified that it is in fact Queen who suggested that they must lie to her mother and say that they were coming from a party. Queen for her part denied ever having conspired to lie to Trisha·s mother.

100

See:

Record Volume 8, p 930 and 856

56

It is true that both Queen and Tricia agreed that they lied to Tricia·s mother about where they had been. It is submitted that the Honourable Court should look at the detail in the evidence of these young childrenµs evidence taken into account that the fact that these two young girls lied about this point does not necessarily mean that they lied in all their evidence. It·s important to consider the Court·s own questioning in this regard: ´COURT: so? Queen: COURT: Yes. And ordinarily the person you trust most, the person that you rely You see Queen, I want you to help here, I don·t understand this. I told you never to lie, isn·t it

want to believe that at home, your mother has

on and you expect to assist if anything wrong happens to you, is your mother, isn·t that so? Queen: COURT: Is my mother. And I have thus (indistinct) understanding your evidence to be that

you were taken to this man·s house, against your wishes, you were made to sleep there against your wish? Queen: COURT: Yes. And at some stage, in the middle of the night, you pleaded with

Tricia, you said, ´Tricia, please ask the man to take us homeµ. Because you realised it was wrong that you were not home that time, isn·t that so? Queen: COURT: Queen: COURT: That·s correct, My Lord. So, if you had things your own way, if you had the power to, you It is far. What I don·t understand is the next morning, after the man has

would have left the man·s house that evening and went to your home?

dropped you off at or near Katutura Single Quarters, you meet Tricia·s mother, who then asks you where you had been. Instead of confiding into her and

57

telling her how were forcibly you were taken away, you both conspired to lie, you lied to her and said you have been to a party? Now, just explain to me where and when did you think out the story, if you were asked where we were, we are going to say we were at a party? when did you think it out? Where and

Queen: COURT: so? Queen: COURT: Queen: COURT:

We didn·t think about it. Tricia·s mother now make (indistinct), ´you don·t play games with

me. I know where you were, Anthony told meµ. She tells you that. Isn·t that That·s correct, My Lord. Now, you·re aware that she knows where you have been? That·s correct. Few seconds thereafter, few minutes thereafter you go to this

where there was a church and Tricia·s mother·s friend, repeated the same question and asked you where you had been? Queen: COURT: Queen: COURT: Queen: COURT: Queen: COURT: That·s correct, My Lord. Yet you still go to the same lie, you said to her exactly what you Yes. Why Queen, why do you insist on the story of being at a party I don·t know. What were you hiding? Nothing. Yes, Mr Du Pisani?µ101

said to Tricia·s mother, we have been at a party.

when you well knew, you were not at a party, why?

21.

According to Trisha it was only after a friend to her mother beat them

up that they then told the story of having been abducted and/or kidnapped
101

See: Record Volume 8 p 950-952

58

and what happened at the accused·s house. Once again the evidence of Trisha·s mother revealed Trisha to be a pathological liar. According to the uncontroverted evidence of Trisha·s mother is that when she asked them where they had been they said they had been to a party. Immediately she confronted them and said to them, please don·t try and lie to me because I know where you had been, Anthony the brother to Trisha told me that you had gone into a strange car. And they realized that the truth was known they then decided to remain quiet. It is Trisha·s mother·s evidence that she then took them to the police station where they were interviewed by the police. When the police asked them where they had been they refused to answer. They were then taken to the office of the women and Child Abuse Centre where they were interviewed again as to where they were, once again they refused to answer. The only question they answered according to Trisha·s mother was when the police did not ask them where they had been but when they asked them whether they would be in a position to point out where they had been and both of them agreed to accompany the police to go and show where they had been. It is submitted that although it·s true that Tricia lied to her mother, one cannot conclude that Tricia is a pathological liar in light of the detailed evidence that she gave which evidence is also corroborated. It·s again important to look at the following questions by the Court:
.

´Court: then? Tricia: COURT:

Take me into your confidence, Tricia, why did you persist in this lie Not to be beaten. So, you would rather strange man put his fingers into your private Yesµ102

part, hurt you, force you to drink brandy, rather then tell the truth? Tricia:
102

See: Record Volume 9, p. 996

59

6.2

The Court should consider that Trisha Cain was cross-examined for 49 pages for 2 ½ hours after she gave evidence the previous day. The Court should also consider that Queen was cross-examined for 77 pages for almost 6 hours over two days.

6.3.

It would be submitted that the Court consider the manner in which the two complainants were cross-examined and also consider that they in fact corroborated each other on vital aspects relevant to the charges. The Court should also consider that a lot of the allegations made by the complainants, were not disputed by the accused.

6.4

Adduction, Alternatively, Kidnapping [Counts 1 and 2] in respect of the 10 year old Trisha Tahiti Cain, [Count 1] and the 9 year old Queen Kaheka Kaunozondunge [Count 2];

6.4.1 The accused in his plea explanation does not dispute that he took Trisha and Queen to his home. He does not dispute that the two children spent the night at his plot. 6.4.2 Both the mother of Queen and Tricia testified that they had not given the accused permission to take the children to his home.103 6.4.3 It is also apparent from the evidence of Tricia and Queen that when the accused took them, he was aware of the fact that they had parents. Both Tricia and Queen testified that the accused inquired about their parents while they were already driving to his plot and Queen said: ´He asked Tricia the whereabouts of her parents, Tricia responded that her
103

See: Record Volume 2 Page 154 lines 6-10; Page 155 lines 1-9; Page 162 lines 2-10; Record Volume 5, Page 586 lines 2-20; 589 lines 8-20;590 lines 1-20.

60

mother is at work and the father is residing or staying in Kavango.µ This was not disputed on behalf of the accused.104 This was summarized as follows in S v Teek 2009 (1) NR 127 (SC) at 129F-I ´All eight charges against the respondent, both in the main and in the alternative, arise from events that allegedly occurred at the respondent's residence on a plot in the Brakwater area outside Windhoek between 28 and 29 January 2005. They all relate to two young girls, to whom I shall refer as T and Q, who were respectively aged 10 and 9 years at the time. It is not in dispute that respondent picked up the two young girls at about 21:00 on 28 January 2005 while they were playing in a street, together with a group of other children, near their homes in the Windhoek suburb of Katutura and that he then took them by car to his residence. Nor is it disputed that the two girls were only returned to the area where they live during the morning hours of the next day and that the respondent had no permission from the girls' parents to take them away. The issues at the trial turned, first, on the purpose for which the girls were so removed and secondly, on what happened to them while they were in the company of the respondent.µ 6.4.4 It is submitted that the evidence supports the inference that when the

accused took these children away it was with the intention of having sexual relations with them, alternatively to perform indecent acts with them.
(a)

The group of children that went to the accused after he stopped his car comprised both boys and girls and all were playing outside their homes at night. Both boys and girls had a ride in his car. He decided to take the girls with him and if Michelle had not resisted she too would have gone with the accused.

(b) (c)

104

See: Record Volume 8 Page 848 to page 849

61

(d) (e)

He enquired about the sisters of Queen and Trisha.105 If he was concerned about the plight of the children who were hungry and neglected the question that begs him to answer is why he did not collect the boys as well and took them to his plot so that they too could get food. Or why did not have to take the two girls to his plot? Why not simply go to for example a quick-shop and buy them food.

6.4.5 It is submitted that the accused is not being truthful in his plea explanation when he says that he took Tricia and Queen with him because they said they were hungry. All the children one told the accused that they were hungry.106 6.4.6 ´My instructions are, this is what the man who was in the car say, girls specifically complained that they were hungry and that they the also stated that [no-

wanted money because of that reason and they had not eaten all day, and they were afraid that you boys would not share the five Namibian Dollars (N$5-00) with them. Can you recall such any such conversation?---They ever said they were hungry, the girls never said they were hungry.µ107 6.4.7 If the story about the hungry children falls away, like it does, there is no innocent explanation for the accused taking the two complainants to his plot. To this should be added that there is no evidence whatsoever from the defence stating this.

105 106

See: Record Volume 8 p847 and 917 See: Record Volume 8, Queen page 876 Lines 4-7, 879 lines 13-20880 lines 1

See: Record Volume 9, Trisha Page 1004 lines 18-20 See: Record Volume 7, Michelle page 821 lines 19-20.page 832 lines See: Record Volume 7, Rinouzeu page 800 lines 5-7 See: Record Volume 7, Tjimbapewa page 779 lines 1-2 and lines 6-14
107

14-17

See: Record Volume 7, page 779 lines 1-2 and lines 6-14

62

6.4.8 When he reached the turnoff near the police roadblock he instructed Tricia and Queen to bend. Obviously so that the police do not see them. He again made them bend when they neared the police road block when he was taking them back the following morning. The accused does not deny this in cross-examination. It is submitted that if the accused·s intentions were noble he would not have wanted the police not to see these two children.
108

6.4.9 When he got to his plot with these two young girls he not only offered them food but also made them to swim in their panties that late at night.
109

6.4.10

The accused made both children sit on his lap and made certain movements. This is not denied by the accused.110

6.4.11

In the case of Trisha the evidence is that he inserted his finger into the vagina of Trisha.

6.4.12

The evidence is that he made the children watch a pornographic movie. Sylvia Kaunozondunge, Queen·s mother also testified to having received that report from Queen. Wilhem Angula who is one of the first police officer to take the children to the accused·s plot the next morning confirms having seen a cover of a blue movie at the residence of the accused.
111

6.4.13
108 109 110

There is evidence from both Queen and Tricia that the accused

See: Record Volume 8, p849, 878, 921 and 930 See: Record Volume 8, Page 886 lines8-13, Page 888 lines 4-6. See: Record Volume 8 and 9, page 853-854, 1011 See: Record Volume 2, Page 161 Lines 9-11. Record Volume 8, Page 852-853 Record Volume 8, page 922 Record Volume 4, Page 407, 437, 439.

111

See: See: See:

63

invited both of them to go and sleep with him.112 6.4.14 6.4.15 The accused exposed his naked body to these children. There is also undisputed evidence that on the following day the accused complained that the children had not slept with him and that is interested in, and that he wanted to ´playµ with, Trisha.113 6.4.16 It is submitted that there is evidence from which Court can convict the accused of abduction, if the Court can conclude from the aforesaid that the accused intended to have sexual intercourse with the two children as the only reasonable inference on the evidence. It is submitted that even if the Honourable Court have doubts about the abduction charges, there still is evidence on which the accused could be convicted on the two charges of kidnapping as he took them away without the consent of their parents and thus deprived the parents of the custody of these children. That both Queen·s Mother and Tricia·s mother went to the police to report their children missing is clear evidence that they were deprived of the custody of their children. There is just no evidence whatsoever that they abandoned their children. On the contrary, the evidence points the other way: 6.4.16.1 Queen·s mother started looking for her at 21h00.114 6.4.16.2 When the children did not return home until after midnight she and

112

See: Record Volume 8 Queen Page 891 lines6-7; Page 958 Lines 5-

11

See: Record Volume 8 Tricia Page 928 Lines 9-13
113

See: Record Volume 8 Page 929 Lines 13-15.

See: Record Volume 8, p 930 and 856
114

See Record Page 154 Vol. 2 of 10.

64

Trisha·s mother went to the police.115 She was worried. 6.4.16.3 She never gave permission for her child to be taken.
117

116

6.4.16.4 Trisha·s mother Theresia Cain became aware that her daughter was missing after she received a report from the boys.
118

6.4.16.5 She got worried.119She took a picture of Trisha and she and Queen·s mother went to the police.
120

6.4.16.6 She did not sleep and was awake all night and she moved up and down the streets.
121

6.4.16.7 It was never put to either of the mothers or conceded by them that they have abandoned their children. 6.5 Contravening section 2(1)(a) of the Combating of Rape Act, 2000 (Act 8 of 2000)-Rape, Alternatively, Contravening section 14(a) of Act 21 of 1980Committing or attempting to commit a sexual act with a child under sixteen, Alternatively contravening section 14(b) of Act 21 of 1980Committing or attempting to commit an immoral or an indecent act with a child under sixteen, alternatively, Indecent Assault in respect of the 10 year old Trisha Tahiti Cain [Counts 3 and 8]

6.5.1 Count 3 relates to what happened in the vehicle on the way to the plot. In respect of Count 3 the State concedes that there is no case was made out to beyond reasonable doubts to convict the accused of the main count or alternative charges to that count.
115 116 117 118 119

See Record Page 154 (bottom) to 155 Vol. 2 of 10. See Record Page 162 Vol. 2 of 10 See Record Page 181 Vol. 2 of 10. See Record Page 586 Vol. 5 of 10.

See Record Page 586 Vol. 5 of 10 See Record Page 589-590 Vol. 5 of 10. 121 See Record Page 590 Vol. 5 of 10.
120

65

6.5.2 Although Trisha denied that the accused inserted his finger into her genital organ while they were in the car, there is the following evidence by her: ´Okay, what happened then?- - - Then the car drive. When it drive, in the middle of the road, that man was driving, he was touching on my thigh.µ
122

6.5.3 There is no evidence as to where on the thigh the accused touched her. It is submitted that, that Trisha was being truthful is evidenced by the fact that when it was put to her that the accused inserted his finger into her ¶onini· in the car she denied that and said the insertion of the finger into her onini only happened at the house of the accused. ´I see. Did you tell your mother that the man touched on your onini, in the car? - - - He didn·t touch me on my ¶onini· in the car, but only at his home.µ123 6.5.4 In respect of the charge of rape in Count 8, there is evidence supporting the charge and the ´sexual actµ, alternatively an indecent act Trisha told the court: ...she then put her finger on my private part....µI was paining. ´124 6.5.5 Trisha also went on to explain why she did not tell Queen what the respondent had done to her.125 6.5.6 It is submitted that although Queen did not see the accused insert his finger into the vagina of the Tricia she corroborates the evidence of Tricia. Queen testified that when Tricia got out of the
122 123

swimming

pool

she

See Record Page 921 lines 5-7 Vol.8 of 10. See Record Page 1009 lines 11-13 Vol. 9 of 10. 124 See: Record Volume 8 and 9, Page 924, 994-995, 1008, 1011-1014 See: Record Volume 9 Page 1014 lines 13-16.

125

66

went to the accused.126 6.5.7 It is submitted that there is also medical evidence that corroborates Tricia·s evidence that her genital organ was interfered with. vestibule. 6.5.8 A lot of issue was made of the fact that on the copy of the medical report that was sent to the Judicial service commission Dr Auguste added a comment to the effect that the abrasions observed on Tricia·s vestibule could have been caused by a finger having been inserted in that area. It is submitted that the only thing that the doctor added on the report to the judicial service commission is her professional opinion as to what could have caused the injuries. She did not change the other report to reflect injuries that are not in the first report. In both reports the results of the examination of the doctor are the same, which is that she saw small abrasions on Tricia·s vestibule. 6.5.9 It is submitted that Dr Gloria Jackylin Ber testified that it is possible for the abrasions observed on Tricia to have been caused by a finger. Dr Ber only added that there are other possibilities. 6.5.10
127

When

Dr.

Eileen Auguste examined Tricia she observed small abrasions on her

It is submitted there are clearly ´coercive circumstancesµ in terms of the Combating of Rape Act, in that Tricia was only 10 years of age at the time while the accused was more than 3years older than her and as the complainant she was unlawfully detained when the sexual acts were committed.

126 127

See: Record Volume 8 , p 852 See: Record Volume 3, Page 324 lines 13-16.

67

6.5.11

It was the evidence of Trisha Cain that while she and Queen were swimming, the accused was sitting and watching them swim. She further testified that the accused called her and put his finger into her vagina. ´ Okay.So, okay, she went to her clothes and then?- - - Then the man did call me. Then she turn over, then she put her finger on my private part. Which finger was that? - - - This one.µ This witness was asked to indicate which finger the accused used and she indicated the index finger.
128

6.5.12

Trisha maintained this testimony even under cross examination. This witness had been confronted about the use of the word ¶onini· in reference to her private parts. She confirmed having used that word and explained that the word refers to ´something which is situated between the legs of girls.µ129 Trisha explained that learnt that word, ¶onini· from the kids in her street.

6.5.13

When Trisha was confronted by counsel for the accused about her failure to have testified about the accused touching her ¶onini· while they were in the car she denied that the accused touched her ¶onini· while she was in the car but reiterated that the accused touched her ¶onini· at his home. The following is what transpired during cross examination: ´Mr. Du Pisani: Thank you, My Lord. Is there any reason why you didn·t tell us here in Court, either yesterday or today that the man touched you on your onini, while in the car? - - - I was only asked some questions, and I answered according to them. I see. Did you tell your mother that the man touched on your

128 129

Page 924 lines 8-13, Vol. 8 of 10. Page 1008 Lines 6-11.

68

onini, in the car? - - - He didn·t touch me on my onini in the car, but only at his home.µ 6.5.14
130

Later Trisha was asked: ´I see. You also told the Court, that while outside the swimming pool, the man put his finger into your private parts?- - - Yes. Which finger was that? Interpreter: The witness is indicating the index finger on the right hand. Mr. Du Pisani: Tricia, you may not remember this, but yesterday, my notes on this was that yesterday, you showed the index finger on your left hand? - - - It was the left hand finger. So you are making a correction? Did she understand that Mr. Interpreter? Mr. Interpreter: She is saying that is the left hand finger. Mr. Du Pisani: Tricia, I am putting it to you, you·re not telling the truth. The man never put his finger into your private part. - - - He did.µ
131

6.5.15

Trisha was again asked: ´ I see. Where was Queen, when the man put his finger into you? She was not close to me, she was at the lawn. And where were you? - - - I was with the man. Yes, but where was that, was it inside the house, or was that outside? Outside the house. At the swimming pool? - - - Yes. Did Queen see what was happening to you? - - - She did no. Why is that? - - - She went to put on her trouser.

130 131

Page 1009 Lines 6-13. Page 1012 Lines 19-20 to Page 1013 lines 1-15 Vol. 9 of 10.

69

Where did she go to put her trouser on? - - There on the lawn.µ 6.5.16

132

That Tricia went to the accused at the swimming pool area is corroborated by Queen. Queen testified that while they were swimming the accused was seated on the stoep. ´.Yes, and then? Trisha then left or went out of the swimming pool. Hmm? - - - She went to that man. Hmm? - - - I don·t know what happened to her.µ
133

6.5.17

Queen maintained this evidence under cross examination. Queen was asked: And what did the man then do, did he go back to where you were sitting on the stoep? - - - He went and sat on the stoep.µ
134

6.5.18

Queen again confirmed that Trisha went to the accused on the stoep although she could not say whether the accused called Trisha or she went to him on her own volition. And you told us that after some time Tricia got out of the swimming pool and she then walked to the man who was sitting on the stoep? - - - Yes.µ
135

6.5.19

It is submitted that the evidence of Trisha that the accused inserted his finger into her private parts is strongly corroborated by Queen who saw her going to the accused.

6.5.20

As further corroboration of her evidence in Court there is a photo plan showing Trisha indicating to the police the spot outside the

132 133 134 135

Page 1013 Lines 15-20 to page 1014 lies 1-8 Vol. 9 of 10 Page 852 lines 3-9. Vol. 8 of 10. Page 888 lines 12-13 Vol. 8 of 10. Page 889 Lines 5-7 Vol. 8 of 10.

70

swimming pool where the accused inserted his finger into her private part. Photo number 15 of the photo plan shows Trisha pointing to the spot outside the swimming pool where the accused touched her private parts. 6.5.21
136

Although there was a big issue on the fact that the doctor who examined Trisha later added an opinion that the injury observed on Trisha was as a result of ¶finger putting in that zone·; it is submitted that what is important to note is that even on the first report the doctor·s findings were that there were abrasions in the vestibule. All that was added was the opinion of the doctor as to the likely cause of those abrasions.
137

It is respectfully submitted that the findings of the doctor on both medical reports are identical and they both confirm that there were abrasions on the vestibule. It is respectfully submitted that both medical reports corroborate Trisha·s evidence that the accused inserted his finger into her genital organ. 6.6 Contravening section 16 read with Act 21 of 1980-Use of means to stupefy a female for unlawful carnal intercourse alternatively Contravening section 71(s) of the Liquor Act, 1998 [Act 6 of 1998]Supplying liquor to a person under the age of eighteen in respect of the 10 year old Trisha Tahiti Cain [Count 4]. 6.6.1 It is conceded that the State has not made out a case beyond reasonable doubt to convict the accused in respect of the main count in Count 4. 6.6.2 Tricia and Queen corroborate each other that the accused supplied them
136 137

Page 016 Vol. 1 of 1. Page 024 ² 035 Vol. 1 of 1

71

alcohol to drink.138 6.6.3 Both Trisha and Queen maintained throughout their evidence that the accused supplied them with liquor. Queen testified that after they finished eating the accused offered them beer. ´Ja? - - - She finished cooking and then we ate. Yes, and then after that? - - -We were offered beer. Do you know what kind of beer? - - - It·s a Tafel. Yes and then? Did you drink the beer? - - - Yesµ
139

6.6.4 When the accused·s version that Queen and Trisha were not offered the beer but that they took it for themselves, she maintained that the accused gave them the beer. ´He also said that he did not give you any beer, but that you took it yourself, well he assumed you took it because he saw empty beer bottles and the two glasses of, glasses on the table. - - - We didn·t take the beer ourselves. Where did you get it? - - - We were offered the beer. Who offered it to you? - - - That person.µ 140 6.6.5 Queen maintained that the accused gave them beer during cross examination. This she did even after the lunch adjournment when she returned to Court visibly upset and refused to answer some questions. ´ Queen, I want you to think carefully and tell the Court the truth. Is it not so that you and Trisha took the beer yourselves from the fridge in the kitchen? - - No.µ
141

138 139 140 141

See: Record Volume 8 and 9, Pages 856 lines 20-21 857 lines 1-6; Page 850 lines 19-20 to page 851 lines 1-4. Page 856 Lines 19-20 to page 857 lines 1-6. Page 946 lines 7-9 Vol. 8 of 10.

Page 924 lines 18-20 to 925 lines 1-8.

72

6.6.6 Queen was again cross examined on the issue of the beer and the brandy and she reiterated her testimony that the accused offered them the beer and the brandy. ´ He will further say that he never gave you beer or brandy, and that you and Trisha you must have taken it yourselves while he was sleeping. - - That is not correct.µ
142

6.6.7 Trisha also testified that the accused offered them beer. ´Ja. - - - And then the man give us Castle. That·s beer no? - - - Ja.µ
143

Trisha maintained that evidence.

144

6.6.8 Even under cross examination Trisha maintained that the accused offered them alcohol. ´ The accused will deny that he ever forced you to have beer or any brandy. - - - He did.µ
145

6.6.9 Once again I put it to you that this never happened but you and Queen must have must have taken the brandy yourselves, without this man knowing. - - - He ¶s the one who take it from the fridge.µ 6.6.10
146

It is respectfully submitted that the fact that the two young complainants consumed alcohol at the accused·s home is confirmed by the accused himself although he seeks to blame the two for having helped themselves to the alcohol while he slept. What is clear for the evidence of both Trisha and Queen is that the accused never left them and went to sleep.

142 143 144

Page 958 lines 14-17. Vol. 8 of 10. Page 924 lines 18-19 Vol. 8 of 10.

145

Page 925-927 Vol. 8 of 10. Page 1015 lines 4-5. Vol.9 of 10. 146 Page 1015 Lines 17-20 Vol. 9 of 10.

73

6.6.11

It was the evidence of the two girls that the accused watched them as they swam. their evidence. This evidence both girls maintained throughout
147

6.6.12

´ He says that while you and Trisha were swimming he went to lie on his bed and he fell asleep? - - - That·s not correct.µ
148

6.6.13

´ He said that while you were swimming in the swimming pool, he went to lie on his bed and he fell asleep and he didn·t see you until 24.00 again when he woke up? That is not the truth.µ
149

6.6.14It is submitted that the evidence of both Trisha and Queen that the accused: i) ii) iii) Never went to sleep while they were swimming. Watched them as they swam. Trisha went to him from the swimming pool was not discredited under cross examination. 6.6.15 Slyvia Kaunozondunge, Queen·s mother confirms that Queen told her that the accused instructed them to open some beers.150 6.6.16 The accused does not deny that they might have consumed alcohol. 6.6.17 The accused admitted in terms of section 220 of the Criminal Procedure Act, 1977 that both Castle and Tafel Beer contains an alcohol level of more than three (3) percent.
147 148 149 150

Page 852 Lines 3-4, Page 888 lines 11-13, Page 889 lines 5-7 Vol. 8 of 10 evidence of Queen. Page 958 Lines 2-4. Evidence of Queen. Page 933 lines 6-9 Vol. 8 of 9. Evidence of Trisha. See: Record Volume 2, Page 160 lines 7-11

74

6.6.6 It is submitted that charge under the Liquor Act, 6 of 1998, that of giving intoxicating liquor to a child below the age of 18years was proved beyond reasonable doubt. There is evidence that the accused gave Tricia and Queen alcohol. Tricia was only 10 years old at the time while Queen was 9 years of age. There is no evidence contradicting this. It is further submitted that it is sufficient for purposes of the Liquor Act that the accused made the liquor available to the Tricia and Queen even if the children did not drink it. 6.7 Count 6

6.7.1 There is evidence from both Trisha and Queen testified that while inside the house the accused at some stage placed Trisha on his lap and made some movements. 6.7.2 During cross examination Trisha was asked about the issue of the accused carrying her on his lap. ´I see you told us that, while at the house of the man, at some stage during the evening, you sit on his lap? - - - Yes. What did the man do, while you sat on his lap? He was moving his body.µ
151

6.7.3 Trisha re affirmed this during re examination. ´ Now, going back to the house, while you were sitting on the accused·s lap, you said he was moving his body ? - - - Yes.? [bolding for emphasis] Now, was he moving his whole or what, what was the position, can you show the Court, how he moved his body?
151

Page 1010 lines 18-19 to page 1011 lines 1-3 Vol. 9 of 10.

75

Interpreter: The victim is making movements back and front
movements.

[Bolding for emphasis] Ms Jacobs: With what? Interpreter: With the middle part of her, with the buttocks. [Bolding for emphasis] Ms. Jacobs: Is it correct that he was seated at that stage? - - - That·s correct.µ 6.7.4 Queen for her part testified that while they were watching the movie with people who were doing ¶insulting or swearing things· the accused called Trisha. Trisha first refused to go to the accused but later went. ´Okay and now what did you do while this movie was playing? - - - The person then first called Tricia, Tricia refused saying she is not going. He then called me, and the person also called me, I refused. Yes, and the? - - - Tricia was then called, she went to the person. Yes? - - - I was called and I went to the person. Now before you continue, you said Tricia went to him. What happened then, what did you see? ²I saw someone moving. [Bolding for emphasis] No, but where was Tricia now, you said she went to him. ² - -Seated on the person·s lap.µ
152

6.7.5 Queen further testified that the accused also called her and placed her on his lap and made movements. It is submitted that the fact the Queen informed her mother about:
i) That the accused instructed them to swim; ii) The video with ¶insulting or swearing things that the accused made them watch, iii) About the beer that was given to them by the accused and iv) About the accused placing her on his lap.

152

Page 853 lines 3-15 Vol. 8 of 10.

76

strengthens her evidence in that regard.153 7. The Honourable Court is therefore requested to convict the accused in respect Count 1 and 2 on the Kidnapping charges; The alternative charge to count 4, Count 6 and/or the alternative to that charge and Count 8 and/or the alternatives to that count.

___________ D.F. Small

________ I. Nyoni Counsel for the Appellant/State Office of the Prosecutor-General High Court Building Windhoek The Registrar High Court of Namibia Windhoek

To:

And to:

Metcalfe Legal Practitioners Legal Representatives of Respondent P/A Law Society of Namibia

153

Page 160 lines 4-17 Vol.2of 10 evidence of Sylvia Kaunozondunge.

77

Namlex Biuilding Windhoek