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S v Gaseb and Others (SA 9/99) [2000] NASC 6; 2000 (1) SACR 438 (NmS) (9 August 2000)

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CASE NO.: SA 9/99
IN THE SUPREME COURT OF NAMIBIA
In the matter between

ANDRIES GASEB
HARRY CLAASEN
KARL GANASEB
And
THE STATE
FIRST APPELLANT
SECOND APPELLANT
THIRD APPELLANT
RESPONDENT

CORAM: Strydom, C.J., Dumbutshena, A.J.A, et O'Linn, A.J.A. HEARD ON: 2000/04/14 DELIVERED ON: 2000/08/09

APPEAL JUDGMENT
O'LINN. A.J.A.:
A. INTRODUCTION
 The three, appellants, Andries Gaseb, Harry Claasen and Karl Gawaseb, appeal against their convictions and sentences in the High Court.


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They appeared in the High Court before Gibson, J. charged jointly with the following crimes:
 1)       Rape.
 2)       Rape.
 3)       Rape.
 4)       Rape.
 5)       Housebreaking with intent to commit a crime unknown to the prosecutor.
 6)       Attempted rape.
The wording of the four charges of rape was identical. But the State explained in its summary of substantial facts in terms of section 144(3)(a) of Act 51 of 1977 that:
"During the early morning hours of Sunday 7 July 1996 in Donkerhoek, Khorixas, at about 04h00 the accused forced open the door of the house where Ria Gamiros, Eveline Gamiros and Olga Blad were sleeping.
They dragged Ria Gamiros and Eveline Gamiros out of the house with the intention to have sexual intercourse with them. Eveline Gamiros escaped due to the intervention of some people.
The accused proceeded to rape Ria Gamiros at a nearby shack each taking turns and assisting one another.
Accused No. 1 then dragged Ria Gamiros away to his shack where he again raped her."
The State did not aver a prior conspiracy or other form of common purpose.

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The basis of the first three charges of rape was that each of the accused had intercourse with the complainant. Accused no. 1 was the first to have intercourse with the complainant assisted by the other two; then after completion of intercourse by No. 1, No. 2 would commence and complete intercourse assisted by No. 1 and 3 and lastly No. 3 would commence and complete intercourse assisted by accused No. 1 and 2.
The roles and identity of perpetrator and assistant, therefore changed after each completed act of intercourse.
The fourth conviction of rape was based on accused No. 1 acting alone and committing this crime at a different place.
All the accused pleaded - "Not Guilty".
Accused no. 1, first appellant, was convicted and sentenced on four (4) counts of rape, one of housebreaking with intent to rape and one of common assault.
Accused no. 2, second appellant, was convicted of three (3) counts of rape, one of housebreaking with intent to rape and acquitted on the charge of attempted rape.
Accused no. 3, third appellant, was convicted of three counts of rape, one of housebreaking with intent and one of common assault.

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The accused were sentenced as follows:
Accused no. 1: Ten years imprisonment on each of the first three counts
of rape, but the sentence on counts two and three to run concurrently with
that on count one. On the fourth count of rape - ten years imprisonment,
five years of which to run concurrently with the sentence on count 1. On the
count of housebreaking with intent to commit rape, three years imprisonment;
on the count of common assault, one year imprisonment.
Accused no. 2:   Ten years on each of three counts of rape, but the
sentence on counts 2 and 3 to run concurrently with count 1. On the count
of housebreaking with intent to commit rape, two years imprisonment.
Accused no. 3:   Ten years on each of three counts of rape, but with the
sentence on the second and third count running concurrently with that on the first count. On the count of housebreaking with intent to commit rape, three years imprisonment and on the assault common, one year.
After conviction and sentence, the accused applied to the trial judge for leave to appeal against conviction and sentence, but leave was refused. Thereafter the accused applied to the Chief Justice for leave to appeal against conviction and sentence. Leave to appeal was granted by this Court against all convictions and sentences. In the order granting the applications the Court stated inter alia:
"3. Without limiting the grounds of appeal, Counsel appearing must also address the Court on the following issues:

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7)      
Where there is a multiple rape is it sound/acceptable practice to charge each accused with assisting in the rape of the other resulting in multiple counts? Or is such practice oppressive?
8)      
Was the medical report of Dr. Than properly admitted in evidence? If not what impact does the report and Dr. Mass' comments thereon have on the convictions?
9)      
The trial ]udge found at page 26 of the Judgment that all three accused raped complainant. It was only after this finding that the Judge summarised, commented on and rejected the evidence of the second and third accused. Was this simply poor structuring or does it affect the verdicts in respect of those two accused?
10)     
Were the sentences, especially the sentence of 19 years on the first accused, too long?"
At the hearing of this appeal, appellant no. 1 was represented by Mr. Christiaans, the second and third appellants by Mr. Kauta, and the State represented by Ms. Verhoef.
B. THE LEGAL ISSUES RAISED MERO MOTU BY THIS COURT IN GRANTING LEAVE TO APPEAL
1. "WHERE THERE IS A MULTIPLE RAPE, IS IT SOUND/ACCEPTABLE PRACTICE TO CHARGE EACH ACCUSED WITH ASSISTING IN THE RAPE OF THE OTHER RESULTING IN MULTIPLE COUNTS? OR IS SUCH PRACTICE OPPRESSIVE?"
The problem raised above has been raised in our Courts and in South Africa over many years in regard to a great variety of crimes and offences as part and parcel of

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the question whether or not there is an "improper splitting of charges". Since the decision of the South African Appellate Division in State v Grobler and Another, in 1966, the question for decision was "whether or not there is or has been an improper duplication of convictions"1.
The Appellate Division in the aforementioned decision specifically dealt with the impact of section 314 of Act 56 of 1955 (similar to the former section 19 of Act 39 of 1926) on the issue of whether or not there is or has been an improper splitting of charges. It must be noted that the aforesaid sections 314 and 19 were the forerunners of section .83 of the Criminal Procedure Act 51 of 1977 which provides:
"If by reason of any uncertainty as to the facts which can be proved or if for any other reason it is doubtful which of several offences is constituted by the facts which can be proved, the accused may be charged with the commission of all or any of such offences, and any number of such charges may be tried at once, or the accused may be charged in the alternative with the commission of any number of such offences.
Rumpff, J.A., one of the eminent judges in the aforesaid decision of State v Grobler explained:
"The section deals, in my view, with the manner of charging and not the legislative and common law principles in regard to conviction and the imposition of sentence. The consequence of this article, in my view, is that the State is free to draw up as many charges as are justified by the available facts. At the end of the case it is the task of the Court to
I)       t966( I) SA 507 AD

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decide whether a crime has been proved and if so, which crime and how many crimes have been proved. Should it then for example appear according to the proved facts that two charges in the indictment embrace one and the same punishable fact, the Court will find the accused guilty only on one charge. The effect of the article is thus, inter alia, that, no objection can be made against the indictment at the outset of the trial should in terms of the indictment, one punishable fact is charged as multiple crimes."2 (My free translation from the Afrikaans.)
Beyers, acting C.]., agreed with Rumpff and Wessels, J.A., who wrote the main judgment, put it as follows:
"In the circumstances postulated the section has no doubt drawn a veil across the taking of exceptions of a technical nature directed to the formulation of the charges, but has not in my opinion affected the application of the rule in question in the field in which it was primarily designed to apply, i.e. in the field of punishment ..."3
As to prejudice to the accused in regard to the formulation of two charges rather than one in the case in casu, Wessels continued:
"The formulation of the two charges did not prejudice, and could indeed not have prejudiced the accused in his defence. The prejudice arose upon the resultant duplication of convictions. If the magistrate were to have applied the rule and were to have convicted the accused on one charge only, there would have been no prejudice whatever..."
The ratio of the decision in S v Grobler was applied in South Africa and Namibia repeatedly since its pronouncement except in a decision by Hannah, ]. in the
IBID, 513/514 IBID. p. 522

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Namibian High Court with which I will deal in due course.
In the Judgment of the Full Bench of three judges of the Namibian High Court given on review in the decision of The State v Moses Seibeb and Edward Eixab,4 the Court held per Hannah, J. who wrote the judgment, that there were no duplication of convictions where the two accused were charged in the magistrates court with two statutory offences under the game laws, viz contravention of sections 30(1 )(a) and 40(1)(a)(i) of Ordinance 4 of 1975 which made it an offence respectively to hunt huntable game without a permit and to hunt in a manner not authorised by a permit.
The Court dealt with the implication of section 83 of the Criminal Procedure Act and said in regard to the procedure:
"And so, as was pointed out by White, ]. in S v Tantsi, 1992(2) SACR 333 (TK), the term 'splitting of charges' is not really appropriate at this present point in time. The concern of the Court is not so much with a splitting of charges as with a duplication of convictions."
After applying the tests set out in several decisions and textbooks, the Court concluded that there was no duplication of convictions in the case considered, even though it must have been a borderline case, to say the least.
4)       Still unreported decision CR 81 jnd 82/97

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The first available report of a Namibian Court dealing with the procedure of charging and convicting in regard to the so called "gang rape" is S v David Garoeb &E 3 Others,5 Frank, J. as he then was, made the following observation:
"That is even more so when one is dealing with gang rape. Although the custom is to regard it as one rape - technically speaking each participant is guilty of more than one rape. Thus in the present case each respondent was a perpetrator of rape when he had intercourse with the complainant. In addition he was an accomplice to all the other rapes by assisting when holding the complainant down."
In the decision of the High Court in State v De Klerk and 3 Others/ Hannah, J. summarily quashed the 2nd and 3rd charges of rape on application by the defence counsel made before plea, where in a typical gang rape, four accused were charged with three counts of rape in one indictment.
The learned judge gave the following reasons:
"The accused were arraigned on an indictment which contained three counts of rape. The prosecution case as set out in the summary of substantial facts is that the three male accused, with the encouragement and assistance of the female fourth accused, each took turns to rape the complainant during the early hours of the 19th September 1996. That,
11)      CA 23/9S, p J, still unreported, refined to by Teek, ].?., la Suit v Hihi K 3 others. CC 73/73, 8/3/99. still unreported.
 12)      CC 15/93, 13/2/93.

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submitted Ms. Hendriks, on behalf of the State, if the case is made out, constitutes three acts of rape committed by each accused. Technically, that is correct but in reality what is alleged is one continuous single criminal transaction and in my view it would be oppressive for the accused to face the risk of three separate criminal convictions in such circumstances. The clear practice in England is to charge all concerned in one count of rape. See D.P.P. v Merriman, 1972(3) ALL E R 42, and in my opinion that is a practice which should be adopted in this country as well. For these reasons I quashed the second and third counts on the application of Mr. Potgieter who appears for the accused and they were required to plead to the first count only. That alleges that on or about the 19th September 1996 the accused unlawfully and intentionally had sexual intercourse with Leilly Scott, to whom I shall refer as the complainant, without her consent. To that count all accused pleaded not guilty."
It is clear from the above that Hannah, ]. relied exclusively on the practice in England as set out in the decision in D.P.P. v Merriman for entertaining an application for quashing an indictment on the ground of an alleged "splitting of charges". The learned Judge consequently did not consider the decision in State v Grobler and all the decisions in South Africa and Namibia following thereon, and did not consider and even impliedly repudiated the Namibian Full Bench decision in the State v Seibeb & Eixabr supn, which judgment was written by himself. Similarly the decision of Frank, J. in S v Garoeb, supn, was not referred to and probably also not considered.
Hannah, J. was bound by the principle of stare decicis7 and consequently not entitled to adopt an approach in conflict with the decision of the Full Bench in S v Seibeb &C Eixab.
7)      Sfjce v K-irjnihi. BCLR 2000(1) 405 (NmS) JC 403 ¡ 409; Nummiepo md Others v Commmdin* Officer. Windhoek
Prison &: On, Nimibij High Court, unreported p. 30/31.

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Be that as it may, this Court on appeal can and should reconsider the issue, in view of the fact that it has been raised by this Court mero motu when granting leave to appeal..
1 have already referred supra to the decision in S v Grobler where it was pointed out that there was no prejudice in the charging in that case of two crimes being murder and robbery. The prejudice if any would have occurred if the accused were improperly convicted twice, not where they were charged twice.
In regard to the issue of prejudice, it is of some interest to note the remarks of Borchers, ]. in the fairly recent South African decision of State v Blaatiw.'
The learned Judge pointed out that there may be a need in some cases to set out in the charge, the aggravating circumstances contained in Part 1 of Schedule 2 of Act 105 of 1997 in regard to charges of rape, where section 51, read with subparagraph (a)(i) and (a)(ii) of the said Part 1 of Schedule 2 of the said Act, provides for a minimum sentence of life imprisonment in cases where the rape was committed in circumstances where, e.g. the victim was raped more than once, whether by the accused or by any co-perpetrator or accomplice or by one or more persons, whether or not such persons acted in the execution of a common purpose or conspiracy.
8)      1999(2) SACR 295 (W)

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It seems that a single charge will probably suffice in cases of gang rape in South Africa, because the Court is nevertheless duty-bound to decide inter alia, whether or not the victim was raped more than once.
Nevertheless, there could be no impediment to level multiple charges against each accused in a gang rape, as has been done in Namibia since the decision in State v Garoeb and 3 Others, supra.
As a matter of fact more clarity and certainty will be achieved by making use of multiple charges and will leave the accused in no doubt of the case he or she has to meet. Multiple charges, will probably better serve the aim of preventing prejudice to the accused than one composite charge, because it will make it clear to each accused whether one rape or more than one rape will be held against him or her not only when convicted, but also when sentenced.
The decision in State v Blaauw dealt with the tests to be applied to decide whether one or more rapes were committed. That issue is dealt with infra.
In the case of State v De Klerk and 3 Others, supra, the one charge left after the

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Court quashed the second and third charges, was arbitrarily selected. The question arises: Why was the first count selected and not rather the second or third count? Furthermore the charge which remained stated that the accused, that is all the accused, including the woman Anne Drotsky, had sexual intercourse with the complainant, unlawfully, intentionally and without her consent. This is an absurdity because Anne Drotsky, being a woman, could not have had intercourse with another woman, but could only be an accomplice to the unlawful intercourse by the three male accused. Furthermore an indictment in such imprecise and vague terms, does not distinguish between perpetrator, co-perpetrator and accomplice and whether or not it is alleged that a particular accused had intercourse or were only assisting.
Separate charges in the same indictment for separate completed acts of unlawful intercourse, will as in the case of State v Grobler, not prejudice the accused. Again, as pointed out in State v Grobler. the only prejudice that can arise, would be an improper duplication of convictions.
Teek, J.P., considered the available decisions in his judgment in the Namibian High Court in State v Haita & 2 Others7 including the judgment of Hannah, J. in State v De Klerk at 3 Others.
9)       CC 73/98, dated 8/3/99, unreported.

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In regard to the issue of improper splitting of charges, Teek, J. (as he then was) stated:
"It goes without saying that it is for the Prosecutor-General to decide as to whether or not to rely on the doctrine of common purpose and to charge the accused with multiple counts of rape in the case of an alleged gang rape would depend on the peculiar set of facts and the actual participation of the role played by each accused in the rape, ..."
Later in the judgment the learned Judge said:
"... And whether or not the arraignment of the accused on the basis upon which they are brought before court by the Prosecutor-General in matters of gang rape is oppressive is better left to his discretion to decide upon due and diligent consideration of the relevant facts and the actual participation by the accused in the alleged rape..."
Teek, J.P., followed the ratio of the decisions in State v Garoeb and 3 Others and State v Eixab and Another on this issue.
In my respectful view his approach was correct.
The decision in P.P.P. v Merriman, 1972(3) All England Law Reports, 42 relied on by Hannah, ]., in State v Pe Klerk & 3 Others, supra, as setting out the practice in England, is not very helpful because the practice is stated in very general terms

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whereas in South Africa and Namibia, the Courts as well as the authors of textbooks, have discussed the problem in depth and have extracted clearly defined principles and guidelines followed and to be followed in South African and Namibian Courts.
Furthermore the practice in England must always be seen in the context of the jury system not applicable in South Africa and Namibia as well as in the context of statutes applicable there which do not apply in South Africa and Namibia. Conversely, there is as far as I am aware, no provision or statute relating to criminal procedure which corresponds to section 83 of Act 51 of 1977 and its predecessors section 314 of Act 56 of 1955 and section 19 of Act 39 of 1926.
The aforesaid provisions have been instrumental in our Courts "drawing a veil" over the former practice of considering and deciding on objections against alleged improper splitting of charges in limine, i.e. before plea. The English decision in P.P.P. v Merriman. supra, obviously did not have to deal with provisions such as sections 83, or 314 or 19 above-mentioned. When Hannah, ]. dealt with the issue in his judgment in State v De Klerk, the learned Judge did not consider the authoritative South African and Namibian decisions as 1 have indicated at the outset, but he also did not consider section 83 of Act 51 of 1977 and its impact on the procedure to be followed.

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It was not quite clear at the hearing of this appeal whether or not Mr. Christiaans, for 1" appellant, agreed that it was for the Prosecutor-General to decide whether or not to charge an accused with multiple counts of rape in the case of a gang rape.
But it seems that he agreed with the view that "oppression" is at least a ground on which the Court can rely in refusing to convict an accused on multiple counts. Mr. Christiaans also relied on article 12 of the Namibian Constitution which provides for a fair trial.
Ms. Verhoef for the State and Mr. Kauta for 2nd and 3rd appellants submitted that the charges were in order. Mr. Kauta stated:
"In all fairness it would be difficult for drafters of charges to know what facts would be proven in Court. There is therefore nothing oppressive in being charged with multiple charges. However, it becomes the duty of the trial Court to ensure that an accused is not convicted twice on the same culpable facts."
"Oppression" raised by Hannah, ]., as a ground for quashing two rape counts in State v De Klerk, had not been raised in D.P.P. v Merriman and as far as I am aware, not in any other judgment referred to by counsel for the parties in the Court a quo or at the hearing of this appeal.

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It is appropriate to reiterate, as has been done in many decisions in the past, that the concept of a fair trial entrenched in Article 12 of the Namibian Constitution, does not mean that the trial must only be fair to the accused. The Court, as administrator of justice, must also ensure fairness to the State, to society and more specifically, to the victims of crime.10
I venture to suggest that when the question is raised whether or not multiple charges or multiple convictions are "oppressive" to the accused, the Court should not lose sight of the brutal and barbaric "oppression" of the victim when the victim has been subjected not to one rape, but repeated and multiple rapes over a period.
Mr. Christiaans also referred to Lansdown and Campbell, p. 227 where the learned authors deal with the objectionable features of a "splitting of charges". The learned authors create some confusion when they deal on page 227 with the problem and use the term "splitting of charges" in its headings "Obiections to the splitting of charges" and "Tests for an improper splitting of charges".
10) Scare v Michel Kjrjm’?j, BCLR 2000(4) 405 (NmS) Jt 418 - 419
Sute v VJO den Berg, 1995(4) BCLR 479 (Nm) J:495 F - / olso reported in SACR 19 (Nm) 490 B - 491 B S v Strowitsky 6f Another, (NmHc), 15/7/96, unreported section C. 5 v Vries, 1996(2) SACR 639 Nm JC 661 f- 662c

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It is only on p. 232 where the authors clearly indicate, albeit under the misleading heading "Alternative charges", that the rules against "splitting of charges", become relevant and effective at the conviction stage. They state: