Case No. CA114/2003
“Not Important”
IN THE HIGH COURT OF NAMIBIA
In the matter between:
PAULUS NEPEMBE
Appellant
vs
THE STATE
Respondent
CORAM:
HINRICHSEN, AJ
Heard on:
18 May 2009
Delivered on:
15 July 2009
APPLICATION FOR LEAVE TO APPEAL
HINRICHSEN, AJ [1]
This is an application for leave to appeal to the
Supreme Court against a Judgment delivered by Mr Justice Maritz J (as he then
was) and Gibson, J concurring on the 20th January 2005 (the Appeal Judgment or
the Appeal Court as the case may be) appealing against the Judgment delivered
by the Regional Court on 18th July 2002 (the Regional Court Judgment or the
Regional Court as the case may be).
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[2]
Paulus Nepembe, the Applicant was sentenced on a charge of statutory
rape as defined in Section 2 of the Combating of Rape Act No 8 of 2000 (the Act)
and the Applicant was sentenced to 12 years imprisonment, no portion thereof
having been suspended.
[3]
The Appeal Judgment contains a clear and concise analysis of the facts (per
Maritz, J as he then was) (page 5 to 9) and these need not be summarized again.
[4]
Although the Applicant formerly appealed to the High Court from the
Regional Court against both conviction and sentence, the sentence portion was not
pursued and argued by the Applicant. Accordingly the appeal judgment does not
deal with the sentence issue.
[5]
The hearing for Leave to Appeal to the Supreme Court against the Appeal
Judgment took place before me on 18th May 2009. I caused these proceedings to
be transcribed for purposes of having them on the Court file.
[6]
In fairness to the accused I raised the issue of sentence and invited him to
address me thereon which he did. The upshot is that whereas initially he was not
keen to pursue the sentence part of his Appeal, he submitted in the end that the
sentence imposed on him of 12 years was too harsh and that he should receive a
lighter sentence. I shall address this issue in the further course of my Judgment.
[7]
I am in respectful agreement with the remark in the Appeal Judgment that
basically time limits within which to bring appeals should be adhered to in “… the
interest of the State and the accused to have finality in the case, the convenience
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of the Court and the avoidance of unnecessary delay in the administration of
justice.” (Appeal Judgment page 4, first paragraph).
[8]
The Appeal Judgment then proceeds to examine the Application for
Condonation by the Applicant for the delay which he brought about as regards his
Appeal to the High Court from the Regional Court. The Appeal Court finds that
such reasons “lack candor and are at best rather vague…”
[9]
The delay which occurred in the Applicant bringing this Application for Leave
to Appeal to the Supreme Court is far worse. In this instance it took the Applicant
some four years to come to Court. I am in agreement with the Respondent’s
submission that the Applicant on this occasion was or should have been familiar
with the requirements attached to launching an Application for Condonation for the
late filing of an Appeal or Leave to Appeal.
[10]
The
Applicant
advances
reasons
for
his
delayed
Application
for
Condonation as being inter alia that he was wrongly influenced by fellow prisoners
and that the Judge President of this Court would not entertain any further
correspondence. In the course of the hearing before me he added that his case
was “ignored from the start”. He then proceeds to blame the Prison Authorities
insinuating that they do not properly forward Notices of Motion or Appeals to the
relevant instances. “If you argue against them then you are being told that you are
not disciplined.” (Record page 12 lines 10 to 11). He repeated that he “tried very
hard” even though he did not know what to do exactly. The response by the
Respondent represented by Mr Muvirimi was the following “The impression I gather
is that the Applicant is being fake.” That is with respect also my impression.
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[11]
My finding is therefore that the Applicant failed completely in his Application
for Condonation. However, Applications for Condonation demand that the Court
also enquires into the question whether as the Appeal Court put it in the Appeal
Judgment “… the Application may not be salvaged by the prospects of success in
the Appeal”, - and the Appeal Court proceeds to cite decided cases in support
which I need not repeat here.
[12]
Mr Muvirimi for the Respondent agrees with this approach and submitted
that it would be advantageous for the Application for Condonation and the merits to
be heard together as was then done in the proceedings before me on 18th May
2009.
[13]
In testing the Applicant’s Appeal to the High Court, the Appeal Court
analysed the facts which it had summarized and applied the relevant legal
principles. I respectfully agree with that analysis but would add the following.
The Applicant’s version of the sexual encounter has already been summarised in
detail by the Appeal Court. Accordingly the Applicant was lying on top of the
complainant’s stomach. He then took out his penis and put it”… into the thighs”.
(Record page 73 line 25). When he felt that he was about to ejaculate he withdrew
and ejaculated on her thighs.
To this I would like to add the following:
The complainant’s version of the event is that the Applicant removed her shorts and
her panty (Record page 24 line 7 and 8). Counsel for the Applicant Mr Louw crossexamined the medical doctor who examined the complainant after the incident.
Louw asked whether it was possible that if someone ejaculates outside near the
vagina that spermatosa or semen would be detected inside the vagina. The
medical doctor answered that it depends on the position of the woman: if she stood
bent there can be dripping into the vagina. That is not the Applicant’s evidence. Mr
Louw, for purposes of this cross–examination seems to have assumed the version
of the complainant i.e. that the complainant’s panties were pushed aside. But
according to the Applicant’s version it must be assumed that the complainant at the
-5time had on both shorts and a panty. For the spermatosa or semen to move up the
complainant’s thighs while she is lying on her back through the shorts and the
panty into the vagina sounds highly unlikely and makes the Applicant’s evidence in
this regard unbelievable.
[14]
What the Applicant also tried without success is to cast doubt on the
complainant’s evidence relating to the book she fetched from the Applicant’s
house. He averred that she already had the same book in her own home
insinuating that she entered the Applicant’s home under false pretences. This
evidence is likewise devoid of credibility.
[15]
As for the remainder the Appeal Judgment deals fully with the other issues
raised. These relate in particular to the uncorroborated evidence of the
complainant, a single child witness and the cautionary rules which apply.
[16]
As regards the single-witness-issue section 208 of the Act clearly states
that:
"An accused may be convicted of any offence on the single evidence of
any competent witness." The word “competent” points to Section 193 of
the Act reading as follows:
"The court in which criminal proceedings are conducted shall
decide any question concerning the competency or compellability
of any witness to give evidence". As the learned judge Maritz, J (as
he then was) pointed out in the Appeal Judgment (top of page 9)
the Regional Magistrate accepted the complainant's evidence
without corroboration. In effect the Regional Magistrate applied
Section 208 read with section 193.
[17]
The issue raised by the Applicant relating to an irregularity in the
proceedings in that he was at some stage thereof not represented has also been
fully and in my opinion correctly dealt with in the Appeal Judgment. Furthermore,
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there was no misdirection of fact or law as Mr Muvirimi for the Respondent rightly
pointed out.
[18]
The Appeal Court also dealt extensively and in detail with the issue raised
by the Applicant that he was denied a fair trial contrary to the Constitution. In fact,
the Appeal Court as Mr Muvirimi for the Respondent submitted in his Heads of
Argument considered the complete Record with a view to establish whether there
were any prospects of success on the merits. The question whether the Regional
Court committed an irregularity by proceeding with hearing the evidence of the
complainant and her mother without the Applicant being represented at that stage
was rightly answered in the negative. It was also pointed out that irregularities per
se would not necessarily vitiate proceedings.
[19]
The Applicant raised the issue of misdirection also in relation to the medical
report which was admitted in evidence. The Applicant’s complaint in this regard
was that the person having compiled it, a Ms Noble, was not called as a witness.
In this regard Mr Muvirimi rightly submitted that it was up to the Applicant at that
stage duly represented by his Counsel to have subpoenaed and called Ms Noble
as a witness. This he failed to do. There was therefore no misdirection.
[20]
Under all the circumstances this Court sides with the verdict of the Regional
Court which was upheld by the Appeal Court.
[21]
There remains the issue of sentence. The Applicant was sentenced by the
Regional Court to 12 years imprisonment with no portion thereof suspended. The
Applicant is a first offender. The question is whether his Appeal should be granted
for a lighter sentence, meaning either a reduced sentence or a portion of the
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sentence being suspended. The Act aims precisely at the present circumstances,
combating the evil which the Applicant created by grossly misusing his position of
trust viz-a-viz the complainant.
[22]
I respectfully agree with the tenor of the Regional Court judgment that “…
the Court must impose a sentence of at least FIFTEEN YEARS (15) imprisonment”
(Record page 109 line 25 end page 110 line 6 and further that “Nothing will be
suspended on that.” (Record page 110 line 11).
[23]
What needs to be pointed out is that the Regional Magistrate is with respect
mistaken in interpreting and applying the penalty provisions of the Act. On the one
hand he states that the minimum sentence in this case is “… at least FIFTEEN
YEARS (15) imprisonment” (Record page 110, line 6). On the other hand he goes
on to say:
“I do not agree that I am bound by that stipulation in the Act. But the
minimum sentence of TEN YEARS (10) because of the force that was used
to my mind is also not adequate. For that reason I’m sentencing you to
TWELVE YEARS (12) imprisonment.”
[24]
Even if one, as he with respect wrongly did, applies Section 3(1)(a)(iii)(bb)
(B) i.e. –
“(iii) where
(bb) the complainant –
(B) is by reason of age exceptionally vulnerable;” –
he cannot as he did, not consider himself “…bound by that
stipulation in the act ...”(Record 110 lines 6 and 7).”
[25]
The facts of this case make the following sections of the Act applicable:
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“2.
Rape
(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)
…
shall be guilty of the offence of rape.
(2)
For the purposes of ss (1) “coercive circumstances” includes,
but is not limited to:
3.
(a)
The application of physical force to the complainant ……
(b)
……
(c)
……
Penalties
(1)
Any person who is convicted of rape under this Act shall,
subject to the provisions of ss (2), (3) and (4), be liable
(a)
in the case of a first conviction –
(i)
………
(ii)
……...
(iii)
where –
(aa)
…….
(bb)
……..
(cc)
the complainant is under the age of
eighteen years and the perpetrator is the
complainant’s
parent,
guardian
or
caretaker or is otherwise in a position of
trust or authority over the complainant;
(dd)
….…
(ee)
…….
(ff)
..…..
to imprisonment for a period of not less than fifteen years.”
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[26]
In the light of the above:
1.
the Applicant’s Application for Condonation for the late filing of the
application for leave to appeal is dismissed by reason of
2.
a)
the Applicant applying the wrong procedure; and
b)
the Application as such being out of time.
With reference to the concomitant inquiry into the prospects of success
of this Application this Court finds that there are no prospects of
success both as regards
[27]
a)
the verdict; and
b)
sentence.
Accordingly the Applicant’s Application for leave to appeal to the Supreme
Court is dismissed.
______________________
HINRICHSEN, AJ
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COUNSEL ON BEHALF OF THE APPELLANT:
In Person
COUNSEL ON BEHALF OF THE RESPONDENT:
Mr Muvirimi
Instructed by:
Office of the Prosecutor General