S v Katamba (SA 2/99) [1999] NASC 7; 2000 (1) SACR 162 (NmS) (7 December 1999)

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S v Katamba (SA 2/99) [1999] NASC 7; 2000 (1) SACR 162 (NmS) (7 December 1999)

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SA 2/99
S v MICHAEL KATAMBA 1999/12/07
Strydom, C.J., Silungwe, A.J.A., O'Linn, A.J.A.
EVIDENCE
Cautionary Rule in Sexual Cases

The State appealed to the Supreme Court against a decision of the High Court acquitting the accused on all charges - being rape, abduction, alternatively kidnapping.

The Supreme Court upheld the appeal and substituted the above order with an order that the accused is found guilty on the charges of rape and abduction and remitted the case to the Court a quo for consideration of and imposition of an appropriate sentence.

The Supreme Court further held:
1. That the cautionary rule in sexual cases should not apply in Namibian Courts inter alia because:

The rule has outlived its usefulness and there are no convincing reasons for its continuation.
2. The rule is difficult to apply because of its inherent vagueness.

The principles relating to a fair trial, such as the burden on the State to prove the case against an accused beyond reasonable doubt, relating to the evidence of single witnesses and youthful witness, are sufficient to ensure that an innocent accused shall not be convicted.

The additional burden imposed by the cautionary rules on alleged victims, may adversely infringe on the fundamental rights and interests of victims which, include a fair trial also in regard to their rights and interests. The Courts also have a constitutional duty to protect such rights and interests. In this regard the Courts are also required to consider and give some weight to the contemporary norms, views and opinions of Namibian society. So e.g. the Courts must take into consideration that serious crime is prevalent in Namibia, if not escalating. Society is outraged by this phenomenon. It is a notorious fact that many Namibians believe that the Courts among others, overemphasise the rights of the perpetrators of crime and under-emphasise those of the victims, including those of the women and child victims in sexual crimes.

The cautionary rule in sexual cases, in particular, is perceived by many, including leaders of society, academics and other informed persons as an example of a rule in practice, which places an additional burden on victims in sexual cases which is not only unnecessary, but may lead to grave injustice to the victims involved.

The Court reiterated and confirmed however, the remark in SvD, that "this does not mean that the nature and circumstances of the alleged offence need not be considered carefully" and the remark in S v Jackson, that "the evidence In a particular case may call for a cautionary approach, but that Is a far cry from the application of a general cautionary rule".

The Court also adapted the rule laid down in R v Makaniuola, R v Easton and adopted its as a general guideline in the following form:

"In some cases it may be appropriate for the judge to exercise caution before acting upon the unsupported evidence of a witness. This will not be so simply because the witness is a complainant in a sexual offence, nor will it necessarily be so because a witness is alleged to be an accomplice. There will need to be an evidential basis for suggesting that the evidence of the witness may be unreliable. An evidential basis does not include mere suggestions by cross-examining counsel.

The court did not find it necessary to express an opinion on whether or not the aforesaid cautionary rule is also "unconstitutional".

It was a misdirection for the trial Court not to have taken into consideration the conflicting defence of the accused in the s. 119 proceedings.

The Court also misdirected itself by holding it against the version of the child complainant, that she had failed to point out to the police the point where she had been raped when this alleged deficiency was never put to the complainant in cross-examination or in questions by the Courts.

The Court further misdirected itself by holding it against the version of the complainant and the State, that an allegation by the accused first made by the accused when he testified, was not contradicted by the complainant or the State, notwithstanding the fact that neither the defence counsel nor the accused had mentioned the alleged fait before the accused testified and furthermore, defence counsel had never put it to the complainant in the course of cross-examination.

It was pointed out that even if state counsel had failed in his/her duty to recall the complainant, it was the Court's duty as administrator of justice, to have done so - to enable her to deal with alleged facts raised in the accused's evidence.

In this regard the Court reiterated the guidelines for Courts set out in State v Van den Bereh and the need to follow them in respect of the Courts role as "administrator of justice".

The Court also re-emphasised the need for counsel in criminal cases to put to a witness in cross-examination any alleged specific circumstance or omission on the part of the witness, on which counsel intends to rely to discredit that witness.

CASE NO.: SA 2/99 IN THE SUPREME COURT OF NAMIBIA
In the matter between
APPELLANT
THE STATE
And
RESPONDENT
MICHAEL KATAMBA
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
O'LINN, A.J.A.:
A. INTRODUCTION:
This is an appeal by the State against the judgment of Mtambanengwe, J in the High
Court of Namibia, in which the learned Judge found the accused, the Respondent in
this case, not guilty on the following charges:
"Count 1: Rape Count 2: Abduction, alternatively, kidnapping."

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The charges were set out as follows in the indictment: "COUNT 1:
IN THAT on or about 1 October 1995 and at or near GROOTFONTEIN in the district of GROOTFONTEIN the accused unlawfully and intentionally had sexual intercourse with FLORIEDA NARUBES, a female person, under the age of consent, namely 11 years old. COUNT 2:

IN THAT on or about 1 October 1995 and at or near GROOTFONTEIN in the district of GROOTFONTEIN the accused did unlawfully and intentionally take and abduct FLORIEDA NARUBES, a minor female, out of the control and against the will of JONAS GAESEB, her lawful guardian, with the intention of having sexual intercourse with the said FLORIEDA NARUBES."

In the summary of substantial facts provided in terms of section 144(3)(a) of the Criminal Procedure Act, 41 of 1977, the State set out the facts on which it relied, as follows:

"On Sunday 1 October 1995, the complainant a 11 year old girl arrived in Grootfontein and walked to the school hostel. On the way she met with the accused. The complainant walked with the accused but when she became suspicious she screamed. The accused produced a knife and eventually overpowered her. The accused assaulted her by beating and kicking her and

then had sexual intercourse with the complainant. He forced her to accompany him and sleep with him that night. The next morning he took the complainant with him to a place at Berg Aukas where they stayed for another two days."

I will in the course of this judgment for the sake of convenience, continue to refer to the parties as the State and the accused respectively.

Ms. Lategan appeared for the State in this appeal and Mr. Grobler for the accused. Mr. Grobler also appeared for the accused in the Court a quo, but Ms. Sauls appeared for the State in that Court.

The State appeals essentially on three grounds set out as follows:

" 1. The Honourable Court erred in law in holding that it was not bound bv S. v D and Another 1992(1) SACR 143 (Nm) such being a judgment on appeal which held that the cautionary rule relating to sexual offences 'has no rational basis for its existence and should therefore not form part of our law and is probably contrary to the provisions of the Namibian Constitution'.

2. The Honourable Court erred in law when subsequently applying the said cautionary rule.

3. The Honourable Judge erred in law and/or fact in holding that on the totality of the evidence the accused's version was not improbable and thus reasonably possibly true in the light of all the circumstances of the case."

Mtambanengwe, J gave leave to appeal but indicated that leave was granted on the legal ground. He expressed the view however, that there were no reasonable prospects of success on the facts.

On appeal Ms. Lategan persisted in arguing the appeal on all the aforestated grounds.

Ms. Lategan contended that the Court a quo, sitting as a single judge, erred in law in that the Court had failed to follow the decision of two judges of the High Court in S v D and An¹, in which decision the Namibian Court had held that the cautionary rule relating to sexual offences "has no rational basis for its existence and should therefore not form part of our law and is probably contrary to the provisions of the Namibian Constitution." (My emphasis added.)

S v D and An will hereinafter be referred to as S v D.
The Court a quo, according to Ms. Lategan, "erred in law" because it was bound to
/; 1992(1) SACR and also in 1992(\) 5A513 (Nm) jnd 1991 (NK)37t HC

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follow the decision in S v D, being a decision of two judges, unless it could be said that the judgment in S vD on this point was given per incuriam.

Mr. Grobler on the other hand contended that the dicta referred to in S vD amounted to obiter dicta and that the Court a quo was consequently not compelled by the doctrine of stare decisis to follow the judgment in S v D on this point. It appears to me to be quite clear that the words relied on by Ms Lategan in S v D are in fact obiter dicta as contended for by Mr. Grobler. I say this because the Court in S v D per Frank J, first analyzed the evidence against accused No. 1 on the first charge and found that "the State cannot be said to have discharged the onus, resting upon it".

Then the Court analyzed the evidence in regard to accused No. 2 on the second charge and found that the complainant in the case was a truthful witness.
The Court then dealt with the cautionary rule and after setting out its nature and ambit said:

"Considering the evidence relating to the incident involving the second complainant and in view of the said cautionary rule and even taking the stunningly imaginative approach adopted in the Balhuber case into consideration, I am of the view that the State did prove its case bevond reasonable doubt against the second appellant." (My emphasis added)

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The Court consequently actually applied the cautionary rule and even took into consideration the approach in S v Balhuber, when it found that "the State did prove its case beyond reasonable doubt". It was only thereafter that Frank, J commenced his criticism of the cautionary rule.

When he summed up his criticism of the rule by saying "... in my view, the cautionary rule evolved in case of Rape has no rational basis and is probably contrary to the provisions of the Namibian Constitution", he clearly regarded it as a probability that the rule is unconstitutional, envisaging a future occasion when the full bench of the High Court or the Supreme Court will consider the issue anew and will then probably decide that the rule is unconstitutional.

It is furthermore clear from these passages quoted supra, that aforesaid criticism of the rule was not necessary for the purpose of coming to a decision. It was certainly not part of the ratio decidendi of the acquittal of accused No. 1 and the conviction of accused No. 2 that the cautionary rule was inapplicable.

In the circumstances it is crystal clear that the criticism of the rule in S v D amounted to obiter dicta and Mtambanengwe, ] was consequently not bound by the said obiter dicta. Frank, J of course was fully entitled to express obiter dicta in the judgment. Such obiter dicta may constitute valuable guidelines which should be considered by any other Court considering the issue and particularly when deciding the issue in a binding judgment.

Mtambanengwe, J was correct in holding in the Court a quo that he was not bound by the dicta in SvD. Mtambanengwe, J was also entitled not to follow an obiter opinion if he felt it was not properly argued and researched, but if it was not obiter, he would have been bound by it because it was then a judgment of two judges, whether he agreed with it or not. In that case the only legal ground for not following the ratio decidendi of such judgment would have been if it had been given per incuriam.

Although Ms. Lategan was correct in contending that the doctrine of stare decisis bound a judge sitting alone to follow a two-judge decision of his own division, unless the High Court acted per incuriam, she erred in not realizing that Frank, ]'s criticism constituted obiter dicta, not forming part of the ratio decidendi of the judgment in S_y D_and as such it did not bind the Court a quo, but only had persuasive authority.

The Court in Namunjepo and Others v Commanding Officer, Windhoek Prison and Others, per O'Linn, A], as he then was, dealt with Article 81 of the Namibian Constitution and explained that:

"The binding force of the decisions of the Supreme Court on all other Courts in Namibia is termed the rule of stare decisis.

The decision referred to in the aforesaid article is by the clearest implication only a valid decision, i.e. not a nullity vitiated by illegality or given per incuriam.

What is binding on other Courts is only the ratio decidendi of the decision on a point which was in issue and on which it was necessary to give a decision. Obiter dicta, however weighty, is not binding."²

Both the Court in State v D as well as the Court a quo in this matter had the opportunity to decide whether or not the cautionary rule in sexual cases should continue to apply in Namibia. In the case of the Court a quo, the court applied the cautionary rule as part of its ratio decidendi for acquitting the accused.

Although the Court a quo was not bound by the obiter dicta in SvD_f the issue was raised and argued before it. Furthermore the application of the rule was part of its ratio decidendi. The Court a quo could therefore not evade actually deciding as part of its ratio decidendi, the issue of the constitutionality of the rule measured against the Namibian Constitution, irrespective of the existence of the rule since times immemorial and notwithstanding the fact that the matter had up to the date when the matter came before the Court a quo, not been decided authoritatively by the Namibian High Court or Supreme Court.

2) Namunjepo And Ors v Commanding Officer, Windhoek Prison ? Ors, Namibia High Court, unreported, p 30 - 31.
State v Vries, 1996(2) SACR, 638 (Nm) the judgment of 0"Linn, A.), at 654 d - h and the authorities therein referred to.
See also authorities referred to by State counsel in this case:
Hahlo and Kahn, The SA Legal System, 1968, Juta, page 251 ? 252
Kahn, SALJ, 1967, Vol LXXXIV, page 310
Van Zyl en Van der Vyver, Inleiding tot die Regswetenskap, 2^ftd edition, 1982, page 307 - 308.

In my respectful view, the High Court as well as the Supreme Court would even be duty-bound to raise the issue mero motu, if it appears to that Court as a reasonable possibility that the application of an existing rule of procedure or evidence may adversely affect the fairness of the trial, or the outcome of the appeal irrespective of whether it is fairness in regard to the rights and interests of the accused or fairness in regard to the rights and interests of the victim or both. If a binding decision on the point is necessary to enable the Court to come to a just decision in the case, such High Court or Supreme Court will also be duty-bound to decide the issue.

Where a single judge is however confronted with a rule such as the cautionary rule which has been applied by all the Courts in South Africa and Namibia since their inception and the issue is not strictly one of constitutionality of the rule, but merely that the rule should no longer be applied as a matter of policy because it is e.g. "based on an irrational and outdated perception", such single judge should rather apply the rule until the Supreme Court has decided the issue definitively in a binding decision.

The Supreme Court however, cannot in this appeal evade deciding the issue raised in both State v D and in this case in the Court a quo and on appeal before us, unless the appeal can be decided on the merits without having to decide the legal issue whether or not the cautionary rule aforesaid should continue to be applied in our Courts. In the latter case, it would however, be in the interests of justice for the Supreme Court to lay down clear guidelines on the issue.

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B. THE CAUTIONARY RULE IN SEXUAL CASES:

1. The decision in State v D_f even though it was an obiter dictum, is persuasive authority also for this Court, particularly because it was a decision of a bench of two judges of the Namibian High Court, given in 1991, after the Namibian Constitution, being the Supreme Law of Namibia, had come into force.

The Namibian decision in State v D has been referred to with approval in a judgment of the South African Supreme Court of Appeal in the case of State v Jackson³.

It is apposite consequently to set out at this stage the relevant critique of the cautionary rule as it appears in the aforesaid report of the decision in S v D⁴:

"Why cases of sexual assaults which are 'easily laid and difficult... to disprove' should be treated on a different footing is not clear. There is no empirical data to support the contention that in cases of this nature more false charges are laid than in any other category of crimes. Indeed, the evidence that is available indicates the contrary. D Hubbard A Critical discussion of the Law of Rape in Namibia states at 34 of her discussion that '(a) US study found that the incidence of false reports for rape is exactly the same as that for other felonies - about two per cent'. Why should the Court not speculate as to possible defenses in other cases as well? Why is the ordinary burden of proof applicable to all other criminal offences not applicable to cases such as the present? Surely, whatever the offence, the trial court must take the nature of the evidence into account, i e reliance upon the evidence of a single witness, an accomplice or a child. The trial court must, of course, consider the nature and

10. 1998(1) SACR, 470 (SCA) Jt 474, footnote, and 476 b
11. SvD,supn,pp 1451- I46g

circumstances of the particular offence, but why must a different ultimate test be applied as suggested in RvW, supra?

While it is true that different motives may exist for laying false charges, this surely applies to any offence and not only to offences of a sexual nature. Of what relevance is the reference to the biblical story of Potiphar's wife except to indicate male bias? If the wife laid a false charge against Joseph, so what? False charges are laid in respect of all types of offences. I would have thought that the moral of this particular story was that one should stand by one's principles irrespective of the consequences. It would appear, however, that the reasoning in this regard is as follows. As the story appears in the Bible it is the truth. As it is the gospel truth it does not relate to a single incident but is of universal application. Thus all women are prima facie deceitful and act with hidden motives and all men are prima facie incorruptible and act without hidden motives. Hence one can speculate about motives of complainants in cases such as rape even without any evidence to suggest hidden motives. The question whether such hidden motive will be found by the trial court would depend, it seems to me, to a very large extent upon the fecundity of the presiding officer's imagination.

The cautionary rule relating to cases of sexual assault applies to all cases of this nature irrespective of the sex of the complainant (S_v C 1965(3) SA 105 (N)).

This, however, does not alter the fact that in the overwhelming majority of cases the complainants are female. Given the social fabric of society in Namibia this state of affairs is hardly likely to change. In this Court, for example, there were 31 cases involving sexual assault during 1990 with not a single one involving a male complainant. In my view one can safely assume that in at least 95% of the cases of this nature the complainants are female. Taking this factual situation into consideration, I am of the view that the so-called cautionary rule has no other purpose than to discriminate against women complainants. This rule thus probably also is contrary to art 10 of the Namibian Constitution which provides for the equality of all persons before the law regardless of sex.

To sum up, in my view, the cautionary rule evolved in cases of rape has no rational basis for its existence and should therefore not form part of our law and is probably contrary to the provisions of the Namibian Constitution.

In conclusion, I must emphasise, however, that this does not mean that the nature and circumstances of the alleged offence need not be considered carefully."

2. J Kriegler, the author of the 5^th Ed, of Hiemstra, Suid-Afirkaanse Strafproses, 5de Uitgawe, comments that the criticism in S v D of the cautionary rule, "is not deserved" (onverdiend). (My free translation from the Afrikaans.)

Kriegler is presently still an eminent judge of the Constitutional Court of South Africa. In view of his lucid exposition of the rule followed by his comment on S_y_D, it is appropriate to quote the whole of his comment in regard to these aspects:

"Sexual acts - Because of distinctive considerations, a peculiar cautionary rule applies in the case of alleged sexual offences. Complaints of a sexual nature are distinguished for several unique characteristics which distinguish such offences from other offences against the person. Sexual offences, being inherently intimate, normally take place in seclusion; consequently direct corroboration is exceptional. Unlike the case of most other impairments of the person, there often are no recognizable effects of such actions. Even those which are recognizable are often just as reconcilable with participation with consent, as participation obtained by force. As in the case of an accomplice, the participant in an alleged sexual offence is obviously also extraordinarily capable of bending the truth without it being possible to detect the distortion. Allegations of sexual crimes are consequently not only easily made but often difficult to counter.

The problem does not only lie with malicious incrimination. The human sexual urge is by its very nature irrational, and are often distinguished by deep-seated emotions and passions of which the person himself/herself is unaware; therefor the versions of the participants are afterwards often unreliable without them being aware of it; Moreover, judicial credibility findings and weighing up of probabilities by Courts are in such instances more fallible than ever. Rational criteria can only be applied to irrational material with great circumspection. When you deal with crimes

against women, particularly in tradition-bound communities cultural beliefs (e.g. that the male person must be seen as the 'hunter) often plays an unexpressed role which should not be underestimated. External factors such as current moral norms or communal or family sanctions often play a role which makes the function of the judes facti more difficult. Known internal factors such as feelings of guilt, shame, disappointment or frustration is even more difficult to establish or to evaluate. Furthermore, experience has learnt that there are sometimes psychosexual factors which even common sense cannot detect. Our practice insists that the judicial officer who has to decide the facts, must at all times be aware of the problematic nature of this type of case and that must be recognizable from the evaluation by the said judicial officer of the facts of the case that he/she was aware of the said problematic nature of the case and duly considered it. (fi v Rautenbach 1949 1 SA 135 (A) 143; R v W 1949 3 SA 772 (A); R v D and Others 1951 4 SA 450 (A) 456; R_vJ supra 92A-D; S v Snvman 1968 2 SA 582 (A) 585 C-G; S_v Balhuber 1987 1 PH H22 (A), which is found more fully reported in S v F 1989 3 SA 847 (A) 852H-855B; S v S 1990 1 SASV 5 (A) 8). In S v F supra, there appears two illuminating quotations from Glanville Williams The Proof of Guilt 3^rd Ed., 158- 159 en 160.

Because the witness of sexual crimes are mostly women, the cautionary rule is sometimes called sexistic. (See eg. The strong criticism on what is regarded as the origin and effect of the rule in S v D 1992 (1) SACR 143 Nm. This reproach is not deserved because the rule is based on strong grounds of principle which do not specifically relate to the gender of the victim.

This notwithstanding, the criminal procedure is ¡ especially in
practice - not wholly to be exonerated from aloofness and even
prejudice against women complainants in sexual offences. The
cautionary rule is no pretext and not a license for discrimination
or for personal views on gender roles ." ^s

(My emphasis added. The above is my free translation from the

Afrikaans.)
There is much to be said for the views of Kriegler. The logic behind the rule and the special factors involved in sexual cases are set out in a manner which
5) Hiemstn, Suid-Afrikunse Strafprose$, Sde Ukgiwe, J Kriegler, at 506 ? 507, under heading "sekstundelinge".

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are understandable and which contradict the argument that the rule is aimed at discriminating against women because they are women.

I do not however, agree with Kriegler's equation of a women victim in a sexual case with an accomplice where he says:

"As in the case of an accomplice, the participant (deelnemer) in an alleged sexual crime is of course also exceptionally capable of bending the truth without it being possible to detect such bending of the truth". (My free translation from Afrikaans)

The point is that the victim in the alleged sexual crime is not a participant, except perhaps in cases of minors and persons under age who have consented to the sexual deed.

Kriegler sets out the gist of the rule as follows: "the adjudicator of the facts must throughout be cautious of the special problems in this type of case and that it must be clear from the Courts evaluation of the facts that the evidence was approached and considered in this manner". (My free translation and emphasis.)

It is clear from Kriegler's explanation that the evil guarded against is not restricted to the greater risk of false incrimination, but the greater risk of "wrong" incrimination, which may even be bona fide.

The rule is unfortunately difficult to apply because of its inherent vagueness. Even if it is conceded that the rule does not require "corroboration" as such, how then does a Court distinguish it from corroboration? Some Courts consequently simply require corroboration, whilst others merely warn themselves to be alert to the special problems that may arise in sexual cases, not being that women complainants are prone to lie, but that it is often more difficult to establish the truth in sexual cases compared to cases where crimes such as theft are involved.

The cautionary rule becomes even more complicated where the complainant is a child and/or a single witness where the Court has to apply in effect three cautionary rules which are overlapping to some extent.

Although both the Namibian decision in S v D and the South African decision in S v lackson, supra, amount to strong persuasive opinion for this Court on this issue, the following reservation must be made.

In S v D it was accepted as a fact that:

"There is no empirical data to support the contention that in cases of this nature more false charges are laid than in any other category of crimes. Indeed, the evidence that is available indicates the contrary. D. Hubbard, A Critical Discussion of the Law of Rape in Namibia, states at 34 of her discussion that 'a U.S. Study has found that the incidence of false reports for rape is exactly the same as that for other felonies - about two percent'." (My emphasis added.)

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In S v lackson - Olivier, JA said:

"... what proof is there of the assumptions underlying the rule? The fact is that such empirical research as has been done refutes the notion that women lie more easily or frequently than men, or that they are intrinsically unreliable witnesses."

As authority for this statement the learned judge refers inter alia to S v D and the aforesaid paper by Dianne Hubbard referred to above and the LLM-thesis, University of Cape Town, of one Collean Helen Hall.

Olivier, }A further relies for the same alleged statistic on a publication by D J Birch, "Corroboration in Criminal Trial: A Review of the proposals of the Law Commission's Workshop Paper" for the alleged fact that the New York Sex Crimes Analysis Unit has "carefully analysed all allegations made to them over a period of two years" and that "...they found that the rate of false allegations for rape and sexual offences was around two percent, which was comparable to the rate for unfounded complaints of other criminal offences".