REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

Case number: CA 67/2013In the matter between

PETER VISAGIE APPELLANT

versus

THE STATE RESPONDENT

Neutral citation: Visagie v State (CA 67-2013) [2015] NAHCMD 216 (11

September 2015)

Coram: UEITELE J et UNENGU AJ

Heard: 14 August 2015

Delivered: 11 September 2015

Flynote: Appeal against –Conviction- Appellant convicted in Regional court on two

counts of Rape- Appellant listed 24 grounds of appeal in notice to appeal- introduced

two new grounds of appeal at hearing- Appellant has failed to lay a basis for

introducing the two new grounds of appeal- Despite fact that Appellant did not

amend or applied to amend his notice of appeal, grounds sought to be introduced

without merit- Appeal dismissed- Court wants to alert the Registrar and clerks of the

Magistrates Courts (and their supervisors) –the dereliction of their duties with regard

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to court records may cause potential injustice and disrepute to the administration of

justice.

Summary: The appellant was convicted of two counts of Rape in contravention of

Sec 2 read with Sections 1, 3,4,6,7 and 8 of the Combating of Rape Act, 8 of 2000

by the Regional Court for the District of Windhoek. He lodged an appeal against his

conviction and sentence of 15 years imprisonment, but did not pursue his appeal

against his sentence on the date of argument.

Appellant listed 24 grounds of appeal in his notice of appeal. However, he introduced

two new grounds of appeal on the date that the matter is argued, to wit (1) that the

coercive circumstances as required by Sec 2(2) of the Combating of Rape Act are

not apparent from Complainant’s testimony; and- (2) that the charge sheet is not

specific with regards to the coercive circumstances as it fails to expressly states the

nature or manner of the physical force, this is undesirable as it leaves the Court to

speculate on a very material and crucial aspect of the charges. Appellant avers

that he has not introduced new grounds of appeal, he has merely summarized the

different grounds of appeal set out in his notice of appeal.

The matter was once removed from the roll and clerk of Criminal Court was directed

by the Court to rectify the defects and mistakes in the record of proceedings, clerk of

Criminal Court failed to adhere. Matter was re-enroled by the Registrar of the High

Court for hearing whilst the record was still containing the same defects and matter

was postponed and clerk of Criminal Court was once again instructed to correct the

record. Clerk of Criminal Court once again failed to adhere and the Trial Magistrate

personally, at the last hour adhered to the Court’s direction.

Held, that the dereliction of duties by the Registrar and clerks of the Magistrate’s

Court and their supervisors may cause potential injustice and disrepute to the

administration of justice.

Held further, that Appellant has introduced two new grounds of appeal without filing a

notice of amendment of the grounds of appeal, nor has he applied for leave to file

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such notice. Appellant has failed to lay a foundation to introduce the new grounds

of appeal.

Held further, that the phrase ‘coercive circumstances’ connotes the absence of free

will or consent. Therefore the sexual act was committed under coercive

circumstances.

Held further, that the charge sheet is not too broad and inadequate regarding

“application of physical force to the complainant”. It intelligently informs the

accused of the material aspects relied upon to substantiate the charge against him.

It is not required to provide the details of what constitutes coercive circumstances in

the charge sheet.

ORDER

The appeal is dismissed.

JUDGMENT

UEITELE J (UNENGU AJ concurring):

1] On the 25TH of June 2012 the appellant was convicted by a magistrate sitting

in the Regional Magistrates’ Court for the District of Windhoek of two counts of rape

in contravention of s 2 read with sections 1, 3, 4, 6, 7 and 8 of the Combating of

Rape Act, 2000 ( Act No 8 of 2000). He was subsequently (on 6 July 2012)

sentenced to 15 years imprisonment. On 19 July 2012, the Appellant lodged an

appeal against his conviction and sentence, setting out several (twenty four in total)

grounds upon which he based his appeal.

[2] The hearing of the appeal was set down for 22 February 2013. On that day,

when the matter was called, it transpired that the clerk of the Court at the

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Magistrate’s Court, Mungunda Street in Katutura, Windhoek instead of presenting

the full record of the proceedings with the Notice of Appeal and the grounds thereof

to the magistrate who convicted and sentenced the appellant, who was Mr Endjala,

for his reasons of both the conviction and sentence, the record was submitted to Ms

Usiku (as she then was). Ms Usiku dealt with the bail application, not with the

criminal proceedings as such. That being the case, Ms Usiku then issued a

Certificate of Accurate Report in which she certified that the notes were the true

record of the State v Peter Visagie, and was an accurate report of the proceedings in

the Magistrate’s Court Katutura, which was tried before her on 02 November 2012.

[3] We found that the certificate issued by Ms Usiku might be of the bail

proceedings which took place before her and that her comments on the reasons for

convictions and sentence could not be correct. We furthermore found that the record

presented to us suffered from some other shortcomings which we pointed out in a

judgment delivered on 22 February 20131. We accordingly removed the appeal from

the roll and directed that the record must be returned to the clerk of the Criminal

Court, Windhoek at Mungunda Street for corrections of defects and mistakes in the

record of proceedings and thereafter to be submitted to the Registrar to assign a

date for the hearing of the appeal after consultation with the parties.

[4] It is disheartening to note that the clerk of the Criminal Court, Windhoek at

Mungunda Street did not heed our directions. The matter was returned to the

Registrar and she placed it on the roll for hearing on 15 May 2015. On that day we

discovered that the same shortcomings that we had pointed out some twenty six

months ago (i.e. on 22 February 2013) were not corrected and the record still

suffered from the same defects necessitating another postponement. We accordingly

postponed the matter to 14 August 2015 for hearing.

[5] When the matter was called for hearing on that day (i.e. on 14 August 2015)

the magistrate who presided over the trial of the appellant addressed a letter to the

Registrar of this Court. In that letter he states that he only received the Registrar’s

letter of 20 May 2015 (i.e. the letter to which our orders of 22 February 2013 and 15

May 2015 were attached) on 10 July 2015 and that he directed the clerk of Court to

1 Visagie v State (CA 67/2012) [2013] NAHCMD 44 (22 February 2013) in paragraph 6.

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obtain the record from the Registrar’s office but to no avail. The trial magistrate

further states that, on 28 July 2015, he ended up collecting the record personally

from the Registrar’s office and corrected and certified it as required by law.

[6] The reason we are pointing out the history of this matter is to bring to the

attention of the Registrar and the clerks of the Magistrates Court and their

supervisors the potential injustice which may result from the dereliction of duty by

clerks of Court and the disrepute which the administration of justice may dragged

into. We accordingly implore the clerks of the Magistrates Court to diligently perform

their duties in order to avoid undue delay in the administration of justice.

[7] As we indicate above the appellant lodged his notice of appeal on 19 July

2012 and he listed twenty four different grounds of appeal which are formulated as

follows (I quote verbatim from the Notice of Appeal):

‘A AD CONVICTION

1. That the learned Magistrate in the court a quo erred in respect of the merits of

this case not to take cognizance of the evidence of the complainant’s mother

Millicent Julius, that she was aware of the alleged sexual assault of the

complainant by the appellant over a very long period of time, but did not lay

charges as she had no proof of this, while she had ample opportunity and

time to lay charges. This, despite her evidence that the complainant had

informed her on more than one occasion of the sexual assault by the

appellant.

2. That the learned Magistrate in the court a quo erred in respect to the merits of

this case not to take into account the fact that Millicent Julius was an

extremely hostile witness toward the appellant, and that she tried her utmost

to paint as dark as possible picture of the appellant, even on issues that was

not related to the two charges leveled against the appellant, such as the

sexual and marital relationship between herself and the appellant.

3. That the learned Magistrate in the court a quo erred in respect of the merits of

this case not to keep in mind the evidence of Millicent Julius that she and the

complainant did not make use of the first opportunity they had to lay charges

against the appellant, once they were in possession of the “proof” they had, in

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the sense that the appellant ejaculated on the stomach of the complainant.

They instead chose to first make a report to their pastor or his wife and to

seek guidance, and whose house is in a different direction to the police

station.

4. That the learned Magistrate in the court a quo erred in respect of the merits of

this case to ignore the evidence by Millicent Julius that during the two years

that the appellant was incarcerated, no charges were laid, even though the

appellant was during that period not in a position to threaten or harm her or

the complainant.

5. That the learned Magistrate in the court a quo erred in respect of the merits of

this case not to consider the evidence by Millicent Julius that she did not get

professional help for the complainant after her alleged suicide attempts, and

that is strongly suggests that the picture painted of the mental health of the

complainant is exaggerated.

6. That the learned Magistrate in the court a quo erred in respect of the merits of

this case not to keep in mind the fact that the complainant and the appellant

argued about the life style of the complainant and that they did not have a

very good relationship.

7. That the learned Magistrate in the court a quo erred in respect of the merits of

this case to ignore evidence by the complainant, Letitia Salome Steenkamp,

that she did not run away from the scene even though she knew the appellant

wanted to rape her. She gave evidence that some considerable time elapsed

between the calls of the appellant to come to his room. She had ample

opportunity to run away.

8. That the learned Magistrate in the court a quo erred on the merits of this case

to ignore the absurd explanation by the complainant that she was not wearing

appropriate clothes, and that this was the reason she could not flee from the

appellant.

9. That the learned Magistrate in the court a quo erred in the law and / or the

merits of the case not to take notice of the lack of evidence of any injuries to

the complainant despite her evidence that she went to the bedroom when the

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appellant called her, and that she could not give an answer as to why she did

this, even-though she knew the appellant wanted sex.

10. That the learned Magistrate in the court a quo erred in law and/or the merits

of the case no to take notice of the lack of evidence of any injuries to the

complainant, despite her evidence that a violent struggle ensued between

herself and the appellant, when she resisted him during the sexual assault,

and between the first and second rape.

11. That the learned Magistrate in the court a quo erred in law and/or on the

merits of the case to ignore the fact that the medico-legal report also contains

no evidence of injuries to her body and private parts that should have

supported the version of a violent rape as described by the complainant.

12. That the learned Magistrate in the court a quo erred in law and/or on the facts

and /or on the merits of this case in not taking cognizance of the lack of

evidence of semen found on the stomach of the complainant, or on her

clothes, and that she neglected to show her clothes to the police which would

have supported her claim of being raped.

13. That the learned Magistrate in the court a quo erred in the law and / or on the

facts/or on the merits of the case by not giving enough weight to the evidence

by the complainant that the rape was not painful, she voluntary went to the

room of the appellant after he had called her, that interview, that she and her

mother went to the pastor for guidance instead of going directly to the police,

and that she like the appellant as a person. These are not the actions of a

traumatized person who was raped twice in short succession.

14. That the learned Magistrate in the court a quo erred in not taking note of the

facts and/or the merits of the case by ignoring the fact that the first and

second witnesses contradicted each other on the issue of whether the

complainant had previously laid an assault charge against the appellant.

15. That the learned Magistrate in the court a quo erred in not taking note of the

facts and /or the merits of the case by ignoring the fact that the first and

second state witnesses knew quite well how to report a crime and lay charges

at the police, as they had done before with the assault charge against the

appellant. The evidence by the first two state witnesses that the rapes over a

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long period could not be reported because the vital “proof” was absent is thus

utter nonsense.

16. That the learned Magistrate in the court a quo omitted to take notice of the

fact that the complainant took a long time to give an answer to the statement

under cross examination that there was no rape, and that when she

eventually answered her answer was non-committal.

17. That the learned Magistrate in the court a quo erred in law when he accepted

the evidence by the control social worker on the face of it and as contained in

her report. The learned Magistrate in the court a quo omitted to take notice of

the fact that the social worker basically just repeated what was told to her by

the complainant’s mother, without going to the trouble of investigating the

averments, or to at least talk to the appellant to get his input and version,

especially in the light thereof that the social worker knew the complainant and

her mother were hostile towards the appellant.

18. That the leaned Magistrate in the court a quo erred in the law and /or on the

facts and/or on the merits of the case by ignoring that cross examination by

the State mostly revolved around issues not relevant to the charges leveled

again the appellant, for instance whether the first state witness and the

appellant had sex during her monthly period, that one of the other children of

the appellant and first state witness was handicapped and whether the

complainant stayed in England for a period of time.

19. That the learned Magistrate in the court a quo erred in law and/or on the facts

and /or on the merits of the case by ignoring the fact that little of the cross

examination by the State of the appellant revolved around the two instances

of rape leveled against the appellant. Most of the appellant’s evidence in

chief was uncontested and should thus stand as accepted.

20. That the learned Magistrate in the court a quo erred in law when he on his

own, and without any evidence being presented on this issue, decided that a

sexual act was committed based on the presence of a “thick yellowish

discharge’ as indicated on the J 88 medico-legal report handed in during the

trail as Exhibit “A”. The state decided not to call the doctor who compiled the

J88 medico-legal report to explain what this yellowish discharge might be,

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and the learned Magistrate is not a trained medical person, and can therefore

not decide on his want that this evidence of a sexual act being committed.

21. That the leaned Magistrate in the court a quo erred on the facts and/or on the

merits of the case when he decided that a sexual act was committed, despite

glaring and obvious holes in the evidence of the complainant, which evidence

was not supported by the J88 medico-legal report in any way whatsoever.

22. That the learned Magistrate in the court a quo erred in law and or/on the facts

and/or on the merits of the case when he decided that since a sexual act was

committed, the only issue to be decided was whether it was consensual or

not, and thereafter making the findings that the sexual act was not

consensual. The findings by the learned Magistrate are in sharp contrast to

the medical evidence, and the evidence as a whole of the complainant.

23. That the learned Magistrate in the court a quo erred in law and/or on the fact

by accepting the arguments of the State Prosecutor, Mrs. Esterhuizen, that

the complainant and her mother were exemplary witnesses, and furthermore

that the appellant was a poor and untruthful witness.

24. That the learned Magistrate in the court a quo erred in the law and/or on the

facts by accepting that the State had proved its case beyond reasonable

doubt. It is submitted that serious doubt should exist on the evidence of all

the state witnesses.’

[8] At the hearing of the appeal Mr. Tjombe who appeared for the appellant did

not rely on the grounds of appeal quoted above. Mr. Tjombe’s thrust of argument

was that the State did not prove beyond reasonable doubt that the offence of rape

had been committed. He argued that the words or phrases that the complainant

used to describe the sexual intercourse were: “…he forced his penis into my

vagina…”, “[a]gain the Accused person forced his penis into my vagina.” Mr. Tjombe

thus submitted that:

‘The coercive circumstances, as required by section 2(2) of the Combating of Rape

Act are not apparent from her testimony. Coercive circumstances are set in section

2(2)(a) to (i) – but not limited to these – which reads as follows:

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(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;

(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;

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(i) circumstances where the presence of more than one person is used to

intimidate the complainant.

[9] Mr. Tjombe furthermore submitted that;

‘The only plausible coercive circumstances under 2(2)(a) – (i) of the Combating of

Rape Act, is under subsection (a): “the application of physical force to the

complainant...” Can it be construed that the reference by the complainant to “…he

forced his penis into my vagina…”, “[a]gain the Accused person forced his penis into

my vagina” is the physical force applied to the complainant? Unfortunately, the

charge sheet is not specific in that regard, only stating the “application of physical

force to the complainant” in both counts of rape, without expressly stating the nature

or manner of the physical force. This is undesirable as it leaves the Honourable

Court to speculate on a very material and crucial aspect of the charges.’

[10] The change of emphasis by the appellant resulted in Ms. Esterhuizen who

appeared for the respondent to raise a point in limine in respect of the appellant’s

shift of emphasis. She argued that:

‘2.1 From the Appellant’s Heads of Argument it is clear that new grounds of

appeal has been introduced, in the absence of an application to amend the

earlier notice of appeal.

2.2 It is trite principle that a party who intends to amend his or her notice of

appeal is required to give due notice thereof to the other party. Evidently such

notice serves to inform the respondent of the case it is required to meet, to

crystallize the issues, and to inform the court of appeal of such issues.

2.3 No notice of amendment of the new grounds of appeal has either been filed

or applied for. No foundation whatsoever has been laid for the introduction of

the new grounds.

2.4 The correct procedure to be followed in such an instance is to withdraw the

appeal and file a fresh notice in terms of Rule 67 together with a condonation

application in respect of the late filing of the new notice of Appeal.

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2.5 Rule 67(5) must also be complied with, since the amended notice need to be

served on the presiding magistrate who has a discretion in terms of this Rule

whether to furnish further reasons for judgment.

2.6 There is no indication whether the grounds in the filed notice of appeal are

being abandoned.

2.7 In such premises, it is concluded that this new appeal grounds were never

properly noted in the prescribed manner.’

[11] At the hearing of the appeal Mr. Tjombe denied that the shift of emphasis

amounts to an introduction of new grounds of appeal. He argued that the

submissions he made in his heads of arguments are a summary of the different

grounds of appeal set out in the notice of appeal filed on 19 July 2012.

[12] Rule 67(1) of the Magistrate’s Court Rules requires that convicted persons

desiring to appeal under s 309(1) of the Criminal Procedure Act, 1977, 'shall within

14 days after the date of conviction, sentence or order in question, lodge with the

clerk of the court a notice of appeal in writing in which he shall set out clearly and specifically the grounds, whether of fact or law or both fact and law, on which the

appeal is based. This court, in the matter of Kakololo v State 2 had the following to

say as regards the requirements of Rule 67 (1).

‘The noting of an appeal constitutes the very foundation on which the case of the

appellant must stand or fall (S v Khoza 1979 (4) SA 757 (N) at 758B). It serves to

inform the trial magistrate in clear and specific terms which part of his or her

judgment is being appealed against, what the grounds are on which the appeal is

being brought and whether they relate to issues of law or fact, or both. It is with

reference to the grounds of appeal specifically relied on that the magistrate is

required to frame his or her reasons under Magistrates' Courts Rule 67(3). Once

those reasons have been given, the appellant may amend the notice of appeal under

subrule (5) and the magistrate may again respond to the amended grounds of

appeal.

2 2004 NR 7 (HC)

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The notice also serves to inform the respondent of the case it is required to meet

and, regard being had to the record and the magistrate's reasons, whether it should

concede or oppose the appeal. Finally, it crystallises the disputes and determines the

parameters within which the Court of Appeal will have to decide the case (Compare:

S v Maliwa and Others 1986 (3) SA 721 (W) at 727; S v Nel 1962 (1) SA 134 (T) at

135A; and R v Lepile 1953 (1) SA 225 (T) at 230H.)

Consequently, it also serves to focus the minds of the Judges of Appeal when

reading the (sometimes lengthy) record of appeal, researching the law in point,

considering argument and adjudicating the merits of the appeal. Given the

importance of its objectives, the rule is for good reason formulated in peremptory

terms and, as Broome JP pointed out in R v Hoosen 1953 (3) SA 823 (N) at 824,

“an attorney filing such a notice assumes the onus of satisfying this Court, when

the case comes on for hearing, that the appeal has been properly noted and that,

if the notice "is not a proper notice, all the consequences of a failure to note an

appeal properly in terms of the Rules necessarily follow"

[13] In the matter of Nghiimbwasha v Minister of Justice3 this court dealing with the

interpretation of the word ‘explicitly’ in Rule 73 of the rules of court said:

‘[12] The first allegation the applicant must “explicitly” make in the affidavit relates

to the circumstances alleged to render the matter urgent. Second, the applicant must

“explicitly” state the reasons why it is alleged he or she cannot be granted substantial

relief at a hearing in due course. The use of the word “explicitly”, it is my view is not

idle nor an inconsequential addition to the text. It has certainly not been included for

decorative purposes. It serves to set out and underscores the level of disclosure that

must be made by an applicant in such cases.

[13] In the English dictionary, the word “explicit” connotes something “stated

clearly and in detail, leaving no room for confusion or doubt.” This therefore means

that a deponent to an affidavit in which urgency is claimed or alleged, must state the

reasons alleged for the urgency “clearly and in detail, leaving no room for confusion

or doubt”. This, to my mind, denotes a very high, honest and comprehensive

standard of disclosure, which in a sense results in the deponent taking the court fully

in his or her confidence; neither hiding nor hoarding any relevant and necessary

information relevant to the issue of urgency.’3 An unreported judgment of this Court Case No.(A 38/2015) [2015] NAHCMD 67 (20 March 2015)

per Masuku AJ

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[14] The same argument can be made of the words ‘clearly and specifically’ in

Rule 67(1) of the Magistrates Court Rules. The use of the words ‘clearly and

specifically’ is not idle, nor an inconsequential addition to the text. The words have

certainly not been included for decorative purposes. They serve to set out and

underscore the level of clarity which a notice of appeal must convey. In the English

dictionary, the word “specifically” connotes something “precise and in detailed,

avoiding vagueness.”

[15] We have above quoted the grounds in detail on which the appellant based his

appeal. Nowhere in the list of the twenty four grounds set out by the appellant does

the appellant specifically state that the charge which was read out to him at the trial

was defective, nor does the notice of appeal specifically list as ground of appeal, the

fact that the prosecution failed to lead evidence to establish the coercive

circumstances, as required by section 2(2) of the Combating of Rape Act, 2003. We

are therefore of the view that reliance by Mr. Tjombe on these grounds in his heads

of arguments is tantamount to introducing new grounds of appeal.

[16] We agree with Ms Esterhuizen that it is a trite principle of procedural fairness

that a party who intends to amend his or her notice of appeal is required to give due

notice thereof to the other party. This is so because the fundamental reasons

underlying the requirement to file an amended notice of appeal that introduces a new

ground (or new grounds) of appeal are salutary. Evidently, such a notice serves to

inform the respondent of the case it is required to meet; to crystallize the issues; and

to inform the Court of Appeal of such issues.4 In the present matter the appellant has

not filed a notice of amendment of the grounds of appeal nor has he applied for

leave to file such a notice. In other words, the appellant has not laid a foundation

whatsoever to introduce the new grounds of appeal and we are thus of the opinion

that the objection raised by Ms. Esterhuizen is valid.

[17] We are of the view that despite the fact that the appellant did not amend or

apply to amend his notice of appeal the grounds sought to be introduced by Mr.

Tjombe are without merit and will not assist the appellant. In order to substantiate

4 See the unreported judgment of this Court in the matter of S v Ngonga Case No128/2003 delivered on 22 July 2004.

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our conclusion that the grounds sought to be introduced by Mr. Tjombe are without

merit we will briefly outline the evidence (relevant to the allegations of rape) led in

the trial court and then apply the legal principles to that evidence.

[18] The complainant’s testimony is that she was at home alone during the

morning of 25 September 2007 busy cleaning the kitchen, when her stepfather (the

appellant) arrived at home, from Henties Bay. The complainant’s mother (who was

the appellant’s wife), was at Hermann Gemeiner School where she works as a

secretary. Whilst she was busy cleaning the kitchen, the appellant called her to his

room. She reluctantly went to his room. In his room the appellant instructed the

complainant to take off her shoes to which she responded that she was comfortable

in her shoes. He thereafter instructed her to sit on the bed, to which she likewise

responded that she preferred standing.

[19] Whilst she was standing, the appellant pushed her onto the bed and

instructed her to sit. When she sat down on the bed, he pushed her backwards so

that that she was in laying position. He thereafter opened or unbuttoned his trouser

and pulled it down to his knees together with his underpants. After that, he

undressed the complainant by pulling down her trousers and panties. The appellant

then laid down on the complainant and forced his penis into her vagina. While he

was still busy complainant screamed and was protesting. The appellant asked the

complainant why she behaved like that, he proceeded and ejaculated on her

stomach.

[20] After the appellant had ejaculated on complainant’s stomach he instructed her

to get up and to go into the other room which was her bedroom. As she stood up,

the appellant pushed her into the other room where he again had sexual intercourse

with her. She testified that she was wearing a T-shirt which the appellant lifted up to

her breasts. Again the appellant forced his penis into her vagina and again

ejaculated on her stomach. The appellant instructed the complainant to stand up and

to go and take a bath. She went to the toilet and pretended to take a bath. After she

finished washing herself, she left the clothes she was wearing in the bathroom and

went and put on other clothes. He was in the main bedroom, in his bedroom.

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[21] After she has changed her clothes, she went to the appellant and told him that

she was going for an interview. The appellant apologized for what had happened,

and asked her to keep what has happened as a secret between the two of them.

After he apologized, he told her that he loves and complimented her on her looks

and he also wished her good luck with her interview. She went straight from home to

her mother’s place of employment at Herman Gemeiner School.

[22] The complainant's version of what took place during the morning of 25

September 2007 was denied by the appellant in his testimony. He said that on the

25th September he came from Walvisbay. He found the complainant alone at home.

She opened the door for him after he had knocked. He stated that after he politely

greeted her, he enquired from her why she was not at work. Her reply was rude

and elicited arguments. He avoided the potential arguments, unpacked the fish he

brought with , went to his room, unpacked his bag, bathed and after the complainant

left the house, he also left for town.

[23] Commenting on the pronouncements by Slomowitz AJ in the matter of S v

Kubeka5, in respect of the approach to be adopted when enquiring whether the

prosecution has proven its case, that ‘…whether I subjectively disbelieve him is,

however, not the test. I need not even reject the State case in order to acquit him. I

am bound to acquit him if there exists a reasonable possibility that his evidence may

be true. Such is the nature of the onus on the State’ . Van Der Spuy AJ6 explained

that statement as follows:

‘In other words, even if the State’s case stood as a completely acceptable and

unshaken edifice, a court must investigate the defence case with a view to discerning

whether it is demonstrably false or inherently so improbable as to be rejected as

false. There is no room for balancing the two versions, i.e. the State case as against

the accused's case and to act on preponderances.’

[24] The import of Mr. Tjombe’s submission is that the State's case in respect of all

two counts relating to the events of 25 September 2007 did not stand as a

completely acceptable and unshaken edifice. The evidence of the complainant, 5 1982 (1) SA 534 (W) at 537D - H6 In the matter of S v Munyai 1986 (4) SA 712 (V) at

17

submitted Mr. Tjombe, falls short of establishing the “coercive circumstances”

contemplated under section 2(2)(a) of the Combating of Rape Act, 2000. Mr.

Tjombe argued that the complainant’s testimony is that she voluntarily went to the

appellant’s room (after she was called by him), and that she could not satisfactorily

explain why she did not escape from the house when there were opportunities to

escape therefore there was no evidence that the sexual intercourse took place under

coercive circumstances.

[25] Section 2(2) of the Combating of Rape Act, 2000 by stating that "coercive

circumstances" includes, but is not limited to the circumstances stated in that

subsection recognizes the need to give that phrase a broad definition. The English

Dictionary defines coercive to mean ‘using force or threats to make somebody do

something against his or her will’. In my view the phrase ‘coercive circumstances’

connotes the absence of free will or consent. In the present matter the appellant

was charged with having sexual intercourse with the complaint under coercive

circumstances. The complainant testified that the appellant pushed her on the bed

he undressed her and forcefully inserted his penis into her vagina. All these

circumstances connote an absence of her free will or consent to the sexual

intercourse. It is in my view thus immaterial as to how she got to the appellant’s room

or whether she had opportunities to escape from the appellant. The crux of the

question is whether the sexual act was committed under coercive circumstances and

as I have said above it was so committed.

[26] The further argument by Mr. Tjombe that the charge sheet in the instant

matter does not adequately and intelligently inform the accused of the material

aspects relied upon to substantiate the charge against him is equally meritless. Mr.

Tjombe referred us to the case of S v Rudman7  and s 84 of the Criminal Procedure

Act 19778 . In the Rudman case Cooper, J stated that:

‘A judicial officer, already at the pleading stage, is obliged to examine the charge-

sheet, ascertain whether the essential elements of the alleged offence(s) have been

averred with reasonable clarity and certainty and then give the accused an

adequate and readily intelligible exposition of the charge(s) against him. The

7 S v Rudman; S v Johnson; S v Xaso; Xaso v van Wyk NO  1989 (3) SA 368 at 377D- 378A.8 The Criminal Procedure Act, Act 51 of 1977 (“the Criminal Procedure Act”).

18

accused should be informed by the presiding judicial officer or the prosecutor of the

operation of any presumption he may have to rebut, and the prosecutor should

inform the court and the accused of the content of the evidence he intends to lead.’

And s 84 of the Criminal Procedure Act 1977 amongst others provides that:

‘(1) Subject to the provisions of this Act and of any other law relating to any

particular offence, a charge shall set forth the relevant offence in such manner and

with such particulars as to the time and place at which the offence is alleged to have

been committed and the person, if any, against whom and the property, if any, in

respect of which the offence is alleged to have been committed, as may be

reasonably sufficient to inform the accused of the nature of the charge.

(2) Where any of the particulars referred to in subsection (1) are unknown to the

prosecutor it shall be sufficient to state that fact in the charge.

(3) In criminal proceedings the description of any statutory offence in the words

of the law creating the offence, or in similar words, shall be sufficient.’

[27] In the matter of S v Katari9 this court held that:

‘The purpose of this section [i.e. s 84] is to inform an accused of the case which he

or she will have to meet so that he or she knows which allegations to answer and to

prepare a defence, if any. See S v Rosenthal 1980 (1) SA 65 (A) at 89E-G; S v

Cooper and Others 1976 (2) SA 875 (T) at 885H. Unless the date or time is a

material element of the offence as contemplated in ss 92 and 93 of the Code, it is

unlikely that an accused will be prejudiced if those particulars are omitted from the

charge, provided, of course, that the other particulars are sufficient to adequately

inform him or her of the case he or she will be required to answer.

[28] In the present matter the accused was informed, in the charge sheet, of the

charges levelled against him. He was informed of the date and the place where the

alleged offence was committed and the person against whom it was committed. We

thus have no doubt that the appellant was not prejudiced by the prosecution's

restatement of the provision of the Combating of Rape Act, 2000. Given the

provisions of s 84(3) of the Criminal Procedure Act, 1977, we are of the view that it is

9 2006 (1) NR 205 (HC) per Maritz J

19

not required to provide the details of what constitute coercive circumstances in the

charge sheet. The details are in our view a matter of evidence. The appellant, in the

notice of appeal, indicated that he appeals against both conviction and sentence. In

arguments before us Mr Tjombe did not press the appeal on sentence and we find

no reason to interfere with the sentence imposed by the trial court.

[29] In the premises the appeal is dismissed.

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S F I Ueitele

Judge

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P E Unengu

Acting Judge

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APPEARANCES:

APPELLANT In person

RESPONDENT: M H Muhongo

Of Office of the Prosecutor-General, Windhoek