S v Shikongo and Others (SA 3/99) [1999] NASC 6 (7 December 1999)

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S v Shikongo and Others (SA 3/99) [1999] NASC 6 (7 December 1999)

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CASE NO.: SA 3/99
IN THE SUPREME COURT OF NAMIBIA
In the matter between
THE STATE       APPELLANT
And
HUBERT SHIKONGO         FIRST RESPONDENT
VASCO DUMBA     SECOND RESPONDENT
NEROMBA DAVID   THIRD RESPONDENT
CORAM: Strydom, C.J.; Silungwe, A.J.A, et O'Linn, A.J.A. HEARD ON: 1999/10/04 DELIVERED ON: 1999/12/07
APPEAL JUDGMENT

STRYDOM. C.I.: The three respondents were arraigned before the High Court on three counts of rape and one of assault. In regard to count 4 (the assault charge) respondent no. 3 was acquitted after the State had closed its case. At the end of the trial all the respondents were acquitted on all charges still remaining against them at that stage. In terms of s 316A of Act no. 51 of 1977 (the Act) the Prosecutor-

General applied for and was granted leave to appeal to the Supreme Court against the acquittal of-the three respondents.on the rape charges, i.e. counts 1 to 3. The State was represented before us by Miss Tjipueja whereas Mr. Kauta appeared for the respondents amicus curiae. The Court want to thank him for his assistance in this matter. Mr. Kauta also represented the respondents in the Court a quo.

The grounds on which the appellant launched its appeal were the following:
"...applicant wishes to appeal on the grounds that the honourable Court misdirected itself and/or erred in law and/or in fact:

by completely disregarding the record of proceedings in terms of section 119 of Act 51 of 1977.

by evaluating the evidence of the respondents and the State without having regard to the admissions made by the respondents in the section 119 proceedings.

by disregarding the admissions made by the respondents in the section 1 19 proceedings and thereby by holding that the State had not established the guilt of the respondents beyond a reasonable doubt as the versions of the respondents were reasonably possibly true."

The grounds of appeal are evidently aimed at attacking a finding made by the trial ]udge in totally disregarding informal admissions made by each of the respondents in the s 119 proceedings when the respondents were required to plead before the magistrate at Rundu.

The record of the s 119 proceedings was handed in by counsel for the State seemingly in terms of the provisions of s 235(1) of the Act. No objection of any kind was raised by the defence when this record was handed in at the start of the trial. This handing in followed immediately upon explanations given by Mr. Kauta in terms of s 115(1). The gist of these explanations was that each of the respondents denied having had intercourse with the complainant in this case. These explanations were in direct conflict with what was said by each of the respondents when they were called upon to plead before the magistrate. On that occasion each one admitted having had intercourse with the complainant but stated that this was consented to by the complainant after they proposed to her.

The admissibility or otherwise of the s 119 proceedings was really only addressed by both counsel after evidence was completed and they were putting their final submissions before the Court a quo.

According to the evidence complainant is a scholar at the Dr. Romanus Kampungu School in the district of Rundu where she is also a lodger at the girls' hostel. The third respondent was also a scholar of the said school and was a lodger at the boys' hostel. The first respondent was attending another school and so was the second

4
respondent. Apparently the two hostels accommodating the scholars were on the
same premises, but some distance apart. \-

On the night in question the complainant was in her room with her two roommates

when four men came there. They were the three respondents and the witness Robert

Muronga. The latter and the third respondent were in a room next door. First and

second respondents firstly tried to take away Asteria Dominicus, one of the

complainant's roommates. When the latter was not willing to go she was assaulted by

the second respondent. Thereupon first respondent got hold of complainant and

took her to an adjacent room and thereafter to the boys' hostel to the room of the

third respondent, where, according to complainant, first respondent undressed

himself and raped her. After first respondent completed his act the second

respondent was admitted into the room and thereafter the third respondent who, all

of them, raped the complainant. First respondent again wanted to have intercourse

with the complainant but this was interrupted by a group of students who arrived at

the scene. Amongst these students were members of the S.R.C. and the complainant

was taken to a teacher. Eventually she was examined by a doctor who found a

redness of the mucous which might have been caused by some mechanical type of a

rotation. The hymen was not intact which indicated some prior sexual activity.

Vaginal smears were taken by the doctor which, on analysis, contained many intact

spermatozoa which were microscopically observed. This latter information was

contained in an affidavit which was handed in by the State in terms of the provisions

ofs 212(4)(a) and (8)(a) of the Act.

5
Robert Muronga testified that he was in the room next door to that of complainant. First and second respondents were in the room of the complainant and third respondent, who is Robert's younger brother, was standing with him. The witness saw first respondent walking away with the complainant. They were holding hands. Later Robert stated that first respondent had his arm around the waist of the complainant. The witness went to his room next to the room of the third respondent. The witness saw first respondent enter third respondent's room with the complainant. The witness sat in the washing room where he was joined by second respondent. At one stage he went to urinate and on his return he heard first respondent asking second respondent why the girl was crying. From that he drew the inference that second respondent was with the complainant in the room during his absence. When Robert came from the toilet he also saw the third respondent enter the room. He thereafter left and went to the girls' hostel to warn the girls at complainant's room to leave there as he was afraid that some of the boys might return to also take them away.

Asteria corroborated the complainant and Robert as to the fact that the respondents were at their room and how it came about that she did not go with the respondents. This witness stated that the complainant was pulled out of the room by the first respondent.

All the respondents testified and denied that they had intercourse with the complainant. When confronted by their plea explanations as set out in the s 119 proceedings they each denied what was recorded and stated that they only pleaded

not guilty when the charge of rape was put to them. First respondent however admitted .that he went to fetch the complainant at her hostel and brought her to third respondent's room. She came however voluntarily and he left her in the room to go and buy some cooldrink and fruit. On his return to the room he found a lot of people standing outside and they accused him of raping the complainant.

Second respondent denied that he saw the complainant on the evening of the alleged rape. Although he was at one stage at the girls' hostel he had already left by 21 hOO. He further denied having known the complainant, Asteria or Robert before the alleged incident. That also goes for the third respondent. As far as the first respondent was concerned he knew him but they were not close friends.

Third respondent left the keys to his room with first respondent at the latter's house earlier that day. He then went into town to visit family. He returned to the hostel at about 20h00. He saw somebody lying under the blankets on his bed. When this person removed the blankets he saw that it was a girl. He questioned her and she said that she was brought there by the first respondent. Because they were not allowed to receive girls in their rooms he told her that she must go. When they were about to leave the room he saw a crowd of people approaching. He was asked whether he was one of the people who raped the girl. The third respondent also denied that he was together with his elder brother, the witness Robert, on the day or night of the alleged rape.

The significance of the s 119 proceedings became apparent in the light of the evidence of all the respondents where they denied having had sexual intercourse with the complainant at any time. Dealing with the issue of the s 119 proceedings the learned trial judge stated that in terms of the provisions of s 122(1) of the Act the magistrate was obliged to act in terms of the provisions of s 115 of the Act. Because of the non-compliance with these provisions by the magistrate, none of the warnings and explanations normally given to an undefended accused under these circumstances, were given to the respondents. This led the learned judge to conclude as follows:

"Had the magistrate in this case complied with the requirements of section 122 and acted in terms of section 115, the accused might have declined to outline the basis of their defence as they are entitled to do in terms of section 115. That failure which the magistrate admitted, destroys even the prima fade evidential value of the admissions purportedly made by the accused at those proceedings", (p. 171 of the record).

This finding by the Judge seems to convey that, bearing in mind the wording of section 122, a magistrate, presiding at s 119 proceedings where a plea of not guilty is recorded by an accused, is obliged to apply s 115 and because of that anything which was said is not of any evidential value unless the necessary warnings and explanations had been given to the accused. See in this regard Commentary on the Criminal Procedure Act by Du Toit et a/, para 18-6 to 18-7. The learned trial

judge, so it seems, accepted that such admissions, even if informal, are evidential material which should be considered together :with all other evidence, but ruled that in the present case the Court had to disregard it.

Counsel for the State, Ms. Tjipueja, strongly relied on the case of S v Sesetse 1981 (3) SA 353(A) where it was stated that where an accused made a spontaneous admission after he was required to plead in terms of s 119, but before the procedure prescribed by the Act was explained to him, such admission, if consented to, is deemed to have been made in terms of s. 220. Where the accused does not so consent, the admission should be treated as an informal one and forms part of the evidential material which the Court must consider.

Mr. Kauta in turn submitted that the Sesetse-case, supra, could be distinguished form the present case in that the Court there, in contrast with the present case, did comply with the provisions of si 15, sl21 and s 122. Counsel further submitted that the statement relied upon by the appellant is an obiter dictum, Mr. Kauta, however conceded that the appellant was entitled to use the s 119 proceedings for purposes of cross-examination.

As previously stated the s 119 proceedings were properly proved and handed in at the trial of the three respondents. At the time when the proceedings took place the respondents were only charged with the crime of rape. The relevant part of the record reads as follows:

"Accd informed that they have a constitutional right to be defended by a lawyer of their own choice and means. Both (sic) accd prefers (sic) to conduct their own defence.

PP inform (sic) court that it is a plea in terms of section of the criminal code.

Nature of the charge explained to accd and both (sic) accd understands (sic).

PP puts the charge.
Accd pleads (sic) as follows:
Accd 1: Not guilty, I proposed the lady and she accepted that I

can have sex with her. I did that with her consent. I started to have sex with her first, then accd 2 and lastly accd 3.

Accd 2: Not guilty, I proposed her and she consented to sexual intercourse with her, because she consented thereto.
Accd 3: I am not guilty. 1 proposed her and she consented to

sexual intercourse with her. This happened at Dr. Romanus Kampungu.

Section 11 5 Act 51 /1977 not applied.
Adj. 21/11/97 PG decision."

Section 1 19 of the Act requires an accused to plead in the magistrate's court on the instructions of the Prosecutor-General in those cases where the offence may only be tried in a superior court or where punishment may exceed the jurisdiction of the magistrate's court. Section 121 applies the provisions of s 112(l)(b) in circumstances where an accused pleads guilty and s 122 applies the provisions of s 115 where the plea is one of not guilty.

Section 122(4) provides -

"The record of the proceedings in the magistrate's court shall, upon proof thereof in the court in which the accused is arraigned for a summary trial, be received as part of the record of that court against the accused, and any admission by the accused shall stand at the trial of the accused as proof of such an admission."

Proof of such record is facilitated by s 235( 1) of the Act which provides that a copy of the record of judicial proceedings, certified in terms of the requirements laid down by the section, shall be prima facie proof of the correctness of what is recorded. There is no suggestion that the s 119 proceedings in this instance were not properly put before the Court a quo. This notwithstanding it is always open to an accused to attack the proceedings e.g. on the basis that admissions contained in it was not made voluntarily or that facts contained in it were not correct. (See Du Toit et a/. Supra, pa 24-109.) It was therefore open to the respondents to deny the correctness of the admissions contained in the record.

It is furthermore clear from the record that before the respondents were called upon to plead they were informed of their right to be legally represented, and there was no suggestion at any stage that the participation of the respondents in the s 119 proceedings was due to any coercion or influence which may render it involuntary. The record also reveals that the charge to which the respondents had to plead, namely rape, was explained to them and that they indicated that they understood it. The reference of the magistrate to "both accused" is a mistake because it is clear that all three accused were present during the proceedings.

Taking into consideration the findings of the Court a quo and the submissions made by Counsel it seems to me that the following issues must be addressed to decide whether the trial ]udge was correct to disregard the s 119 proceedings and if not, the effect thereof on the case, namely:

The peremptory nature of the provisions of s 122(1) and the effect if there was not full compliance therewith;

The absence, in the specific circumstances of this case, of any warnings or explanations of their rights given to the respondents before they made the admissions;

Whether such admissions, if correctly recorded, have any evidential value and should have been considered by the Court a quo together with all the other evidence; and

(4) The nature of the admissions made by the respondents and the attack
on the correctness of what was recorded by the magistrate.

Regarding the first point referred to herein above it is so that s 122(1) provides that a Court before which an accused pleads not guilty to the offence charged in terms of s 119, "shall act in terms of section 115". The purpose of s 115 is to enable a Court to determine as far as possible which allegations contained in the charge are in dispute. By his plea of not guilty an accused places in issue each and every allegation

contained in the charge and s 115 empowers the presiding officer to question the accused, under the circumstances set but in the section, to narrow down the issues between the State and the accused. To this extent an accused may be asked to admit those issues which are not in dispute due to the plea of not guilty, and if such an admission is made it is deemed to have been made in terms of s 220 of the Act, which then shall constitute sufficient proof of the fact admitted. (See S v Seleke 1980(3) SA 745 (A).)

However, and although it may be mandatory to apply s 115 (see s 122(1)), s 115 itself is couched in permissive terms where it provides that an accused may be asked whether he wishes to make a statement indicating his defence (ss (1)) and the Court mav ask questions to clarify any matter raised under ss (1) or ss (2)(a). Accordingly Eksteen, ], (as he then was) refused to follow S v Sepela, 1978(2) SA 22 (B) where the Court came to the conclusion that it was mandatory to question an accused who had pleaded not guilty. See S v Herbst 1980(3) SA 1026 (ECD) at 1031 A-C. See further N.C. Steytler: The Undefended Accused, p 126 and S.E. van der Merwe, et a/, Plea Proceedings in Summary Criminal Trials (1983) 80. In this latter work the authors pointed out that although it was mandatory to apply s 11 5 the section does not make it mandatory to interrogate the accused. In my opinion the wording of s 115 makes this clear and no irregularity was committed by the learned magistrate when he did not question the respondents after their plea of not guilty. What was stated spontaneously by each of the respondents already limited the issues between the State and the defence. The magistrate could of course have applied ss 2(b) of s 1 1 5 by asking the respondents whether they were willing to admit that they

SA 3/99
S v HUBERT SH1KONGO SC 2 OTHERS 1999/12/07

Strydom, C.1_v Silungwe, A.J.A., O'Linn, A.J.A.

CRIMINAL PROCEDURE Plea of not guilty

S. 119 proceedings - pleas of not guilty - must be dealt with in terms of s. 115 of Act 51 of 1977 - purpose of s. 115.

S. 115 couched in permissive terms - not irregularity if Court does not apply provisions of section and refrain from questioning the accused.

Court not required to give usual warnings where accused pleads guilty. Warnings can therefore only be given once an accused has pleaded not guilty.

10.

Where accused pleads not guilty and simultaneously makes certain admissions concerning a matter which was put in dispute by the plea of not guilty, such admission admissible and forms part of evidential material which Court must consider at end of case - such admission regarded by Court as informal admission if not formally admitted i.t.o. s. 115(2)(b).

11.

Accused can attack admission on various grounds - if this is the intention the State should be informed thereof as well as the grounds on which such attack are based.

had sexual intercourse with the complainant, that is after he had given them the necessary warning and explanations. Because of the fact that the respondents, at the trial, denied that they had made such admissions it seems to me that the magistrate, by not applying the subsection, acted to the advantage of the respondents.

Regarding the second point set out above I have already referred to the fact that the appellant relied heavily on the case of S v Sesetse, supra. Mr. Kauta's reply to this was that the Sesetse-case must be distinguished from the present case as it is clear that in that case the presiding officer at the s 119 proceedings did explain to the accused their rights in terms of s 115