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REPUBLIC OF NAMIBIA

IN THE HIGH COURT OF NAMIBIA, NORTHERN LOCAL DIVISION, OSHAKATI

JUDGMENT

CASE NO. CA 04/2014

DATE: 23 JUNE 2016

In the matter between:

TUHAFENI SHINYAMA..................................................................................................APPELLANT

And

THE STATE....................................................................................................................RESPONDENT

Neutral citation: Shinyama v The State (CA 04/2014) [2016] NAHCNLD 45 (23 June 2016)

CORAM: MASUKU J et HINDA AJ

Heard: 24 November 2015

Delivered: 23 June 2016

Flynote: CRIMINAL PROCEDURE – Duplication of convictions – applicable tests – CRIMINAL LAW – Combating of Rape Act No. 8 of 2000 - sentencing in matters of rape where there are coercive circumstances.

Summary: The appellant was convicted of three counts, namely rape (10 years), assault with intent to cause grievous bodily harm (8 years) and malicious damage to property (5 years). He appealed against the convictions on the last two counts, alleging that they formed part of one transaction and that the conviction on all of them amounted to a duplication of convictions.

Held – that the commission of the counts of assault with intent to cause grievous bodily harm and that of malicious damage to property formed part of one intention, namely to rape the victim. Held further – that convicting the appellant on all three counts amounted to a duplication of convictions, warranting that the convictions on those two latter counts be set aside.

Held – that the court below erred in sentencing the appellant to 10 years imprisonment in relation to the count of rape in view of the seriousness of the assault perpetrated on the complainant, which amounted to coercive circumstances in terms of the Rape Act. As a result, the sentence was increased to 20 years imprisonment. The sentences on the two other counts were set aside.

ORDER

1. The appeal succeeds to the extent that the conviction and sentences imposed on counts 2 and 3 are hereby set aside.

2. The conviction on count 1 is hereby confirmed.

3. The sentence imposed on the appellant in respect of count 1 is set aside and is replaced with one of 20 years imprisonment.

JUDGMENT

MASUKU J, (HINDA AJ concurring):

[1] The appellant was arraigned before the Eenhana Magistrate’s Court charged with three counts, namely rape, assault with intent to do grevious bodily harm and malicious damage to property. All the charges related to the appellant’s dealing with one Veronika Jonas in Oshakati in the District of Eenhana.

[2] In the first count, it was alleged that the appellant committed the offence of rape in that he, in contravention of the provisions of s. 1, 2, 3, 4, 5, 6 and 7 of the Combating of Rape Act had unlawful, intentional and wrongful carnal knowledge of the said Ms. Veronica Jonas on 25 January 2007 under coercive circumstances[1] in that he inserted his penis into the victim’s organs of generation by or while applying physical force to the complainant; threatening the complainant and that the complainant was 46 years while the appellant was 27 years, being more than three years older than the appellant. (The last allegation is included in the charge sheet but does not seem to make sense in the circumstances of this case).

[3] On the second count, it was alleged that the appellant, on the same date stated in the first count and at the same place, wrongfully and unlawfully and maliciously  assaulted the said Ms. Jonas by pulling her, pushing her, beating her with an unknown object; putting sand in her mouth and nose and further threatening to kill her. It was accordingly alleged that all the above acts were carried out with the intent to cause the said Ms. Jonas grievous bodily harm.

[4] In respect of the last count, it was alleged that the appellant, on the same date and place, maliciously and wrongfully damaged the appellant’s property, being her underwear and blouse and was thus charged with malicious damage to property.

[5] The learned trial Magistrate, after the trial found the appellant guilty on all the counts and sentence him to 10 years imprisonment in relation to count 1; 8 years imprisonment in relation to count 2 and to 5 years imprisonment on count 3. Five years of the sentence in count 2 was ordered to run concurrently with the sentence in the first count. He was advised of his rights to appeal within 14 days of the sentence.

[6] The appellant duly filed an appeal. The gravamen of his complaint was that there was no sufficient evidence to ground the conviction. He also claims that the trial magistrate exhibited bias and hence he did not have a fair trial. He also contended that the trial magistrate erred in rejecting his version that he did not ravish the complainant and further complained that the prosecution failed to tender ‘technical evidence to ‘highlight the content of the offence and prove the evidence of fact’ and which evidence could link the appellant to the offence of rape. In fairness, the appellant made a rambling of allegations which appear repetitive and follow the pattern I have outlined above. I do not need, therefor, to enumerate all the grounds canvassed by the appellant as they add nothing new to what has already been stated above.

[7] The appellant, when called upon to plead, pleaded not guilty to all three counts. When asked if he wished to make a plea explanation, the appellant, in relation to the rape charge alleged that he had a sexual relationship with the complainant in the past and that on the date in question, she was the first to touch him and grabbed his virilia and held on to it. He denied having carnally known the complainant on the date in question. He denied any knowledge of the count relating to malicious damage to property. Regarding the assault charge, the appellant stated that he assaulted the complainant because she had jumped on his penis.

[8] The evidence adduced during the trial, shorn of all the frills amounts to this: the complainant was in her house on the evening of the date in question. A person came into the house and greeted her and he initially called himself Hilifa and later called himself Tuhafeni. He walked towards her and she became afraid. She took to her heels and the person apprehended her by her arm and she pulled away and ran away. This person pursued her and later caught up with her within the fields. A struggle ensued between the two culminating in the complainant falling down to the grounds. She started shouting and this person put soil into her mouth and started dragging her. She disentangled herself and ran away but the assailant again apprehended her and dragged her towards her house, where the struggle continued with the assailant making clear his intentions to carnally know the complainant.

[9] It was her evidence that during the latest bout of the struggles, her dress got torn on both sides and so did her underwear. The assailant started to assault her repeatedly on her face using an instrument she could not see, at the same breathing threats that he would kill her. After assaulting her, she further testified, the man laid her on the bed facing upwards and then proceeded to insert his penis into her vagina and also assaulting her in the process as the complainant was struggling. Her underwear, she testified, was at this time torn and was at this time on her waist. The complainant completely denied ever holding the assailant’s virilia. It was her further evidence that she lost consciousness and when she came to the following morning, she found herself lying on the ground and in excruciating pain. She did not know how she got out of the house.

[10] The complainant further testified that when she came to, she could hardly walk and could not see properly as her vision was seriously impaired and the face was swollen. A lady called Veronica took a piece of cloth and cleaned her as it was full of sand. She was eventually transported to Eenhana hospital where she was admitted for 11 days. The complainant’s clothes which were torn and bloodstained were exhibited in court and the complainant identified them positively as hers, namely her blouse and jacket. The underwear did not have bloodstains however. The complainant stated that it was the appellant who assaulted and had sexual intercourse with her forcibly.

[11] In cross-examination, I should point out that the appellant, who had been fingered as the culprit, did not deny being at the scene and having some interaction with the complainant. It was his version that when he entered the house, he found the complainant sleeping and suggested they engage in sexual intercourse which invitation the complainant declined allegedly claiming that she was pregnant. The complainant denied the appellant’s version and completely denied suggestions that there was a sexual relationship between the two. She even denied the appellant’s suggestion that she used to cheat on her husband by having sexual relations with the appellant.

[12] The next witness was Mr. Martin Nghifekuena, a head man in the community. His evidence was that he was informed by Ms. Kishta that the appellant had been found badly assaulted in the veld. He proceeded to the complainant’s house but did not find her there. After a search, they found her at a neighbour’s house. It was his evidence that the complainant could not even open her eyes as her face was badly swollen. They went to her house and found things in disarray and the complainant told him together with those he was with that the appellant had come to her house and had ravished her. It was his evidence that he saw some struggle and drag marks and also observed some blood spots on the ground.

[13] The next witness, Mr. Ephraim Elias, also lives in the same village and owns a motor vehicle. He testified that on 26 January 2007, he was approached by one Ms. Veronica Oshona at around 07h00 and requested by her to go to her neighbour’s home as the latter had been seriously assaulted and was about to die. He accordingly proceeded to Ms. Oshona’s home where he found the complainant who was being assisted to walk and was heavily swollen on the head and face and her eyes were closed. It was the witness’ evidence that he refused to transport the complainant to hospital as he was requested to, without seeing where she had allegedly been assaulted.

[14] On arrival at the complainant’s home, in the company of Mr. Martin Nghifikuwena, he saw some struggle marks in a field and some drag marks as well. It was his evidence that they also saw some shoe prints from the said field to the complainant’s home. He eventually transported the complainant to Eenhana hospital and to the police as well. Mr. Elias testified that he enquired from the complainant what had happened to her and she informed him that she had been assaulted and raped by a person whom she stated but whose name the witness testified he could no longer remember. He was cross-examined by the appellant but nothing of significance turns on the cross-examination.

[15] Thereafter, the medical reports were introduced by agreement. The appellant confirmed that he was shown these and understood them as well. When informed that the State wished to produce these as part of its evidence, the appellant indicated that he did not have any objection to same being handed in as evidence. The report indicated that the complainant was in a stable condition, had swelling but her mental state was calm. She was cleaned as she had bruises and abrasions in both eyes and the swelling was serious such that both eyes were closed with signs of bleeding oedema over the lips.

[16] The next witness was a police officer Ms. Josephine Sebolile Chauze. It was her evidence that she was the investigating officer and that she received a report at Eenhana police station where she is stationed that a complaint of rape and assault had been laid in respect of the complainant. She requested that the complainant be taken to the Eenhana hospital for interview and hospitalization. It was her evidence that she has an office at the hospital. They proceeded to the casualty ward where they saw the complainant as she was pointed out by a Dr. Kaku. It was her evidence that the complainant was swollen on her face and the eyes could not see anything as they were closed. Her lips as well were swollen and they had bold marks on them. She then interviewed the complainant who told her version of what had happened and it is largely consistent with her evidence recorded in this judgment.

[17] Ms. Chauze explained that having received information from the complainant, she opened a case against the appellant and she drove to Oshandi village to view the scene where she saw drag marks and marks that people had slept and had also been running around. When she eventually met the appellant, she further testified, she introduced herself as a police officer and produced her certificate. She informed him of his rights and further told him that she was going to charge him in connection with the complainant and why. She also informed him that a case of rape and assault with intent to cause grievous bodily harm had been opened against him.

[18] A statement by the appellant which had been recorded and called a warning statement was introduced. Ms. Chauze testified that the appellant had recorded the statement freely and voluntarily, which he confirmed before court. The appellant had no objection to the said statement being introduced as part of the evidence. In that statement, the appellant recorded that he went to the complainant’s house at night and knocked and introduced himself as Tuhafeni. She admitted him and when he entered, he asked to have sexual intercourse with the complainant but she declined reasoning that she was with child. She then started pulling his penis and he felt pain as a result of which he slapped her on the face. When asked why he put sand in her mouth, he denied having done so and alleged that it might have gone into her mouth when he pulled her inside the hut. He denied having cut her underwear between the legs. The officer also confirmed that they found the complainant’s clothes.

[19] In cross-examination, the appellant alleged that he had been forced to make the statement referred to immediately above and had indicated he wanted to speak in court, a suggestion that the witness denied, stating he had made the statement freely and voluntarily. The appellant claimed that he had been told that if he refused to make the statement he would go to jail for a long time, a suggestion which the witness vehemently denied. It was put that the witness had forced the appellant to admit having had carnal knowledge of the victim a suggestion that the witness again denied. An application in terms of s. 174 of the Criminal Procedure Act[2] was dismissed and the appellant was placed on his defence.

[20] In his evidence given under oath, the appellant repeated largely what he had said in his statement referred to above, namely that he went to the complainant’s house and asked to have sexual intercourse which she refused on grounds that she was pregnant. He accepted her explanation and when he was about to leave, she asked to with him to a cuca shop. On the way, the complainant started grabbing the appellant’s virilia and he defended himself by beating her. That was the extent of his evidence. The appellant was cross-examined at length.

[21] I will highlight only a few main aspects of the cross-examination. Whereas the appellant claimed that the victim was his girlfriend, he testified that he did not know how old she was, stating that she did not tell him her age when the relationship was struck. He testified that as a result of the complainant pulling his penis, it was very painful but he did not scream. He tried to free himself and pushed her away and eventually hit the complainant numerous times and did not count. When asked whether he told the people at home that the complainant had pulled his penis, his evidence was that he did not because they were already asleep. Later in his evidence the appellant stated that he did not assault the complainant severely and that he left her standing. The appellant denied having had sexual intercourse with the complainant at all.

[22] The learned Magistrate, in the judgment, noted that the complainant had not been medically examined for the rape allegation but still, on the evidence, found it fit to return a certitude of guilt. The learned Magistrate reasoned as follows:[3]

‘This court is not convinced that the Complainant was concord (sic) in the story. She gave her story very well. And where she was not sure she would clearly show it by the use of appropriate terms like, “it seems and I think”. This is to be expected from an unsuspecting widow who is suddenly accosted and violated. If this was an afterthought then at least the Complainant would not be expected to have mentioned it to the people who took her to hospital. That the sexual assault was not medically investigated or she was not examined for the sexual assault, it can only be attributed to the ineptitude of the police. The accused’s story is not clear. He went to the Complainant’s place for sex and when it was denied he was content to leave. He is not very clear on why he assaulted Complainant. His story turns chameleonic. Many stories interlock and at the end of the day it is unclear which version is the truth of what took place. The only consistent thing in his story is that at some stage he alleges the Complainant grabbed his penis and hence he assaulted her.’

[23] At page 95, the learned Magistrate rejected the appellant’s story, having examined the probabilities and said:

‘It seems clear that the Accused person’s story is false beyond reasonable doubt. At 28 he will even have this Court believe that in his mind the Complainant, who appeared to be older than the stated age as 47, appeared to be the same age as him. Their age difference is 19 years. Complainant is a frail old lady fit to be the Accused person’s mother and not his girlfriend. It beats this Court as to what pregnancy Complainant could be said to be carrying at 46? No wonder why Complainant was very surprised when that was put to her. To cap it all Accused was very poor as a very poor and rude witness. It was clear that he was not being honest with the Court. During cross-examination his answers were characterized by counter-questions and unnecessary answers like “Me?” before answers. He will say “Me” and then pause and answer. It was clear he was thinking up and trying to patch up his story as it went on. Even the story of how he assaulted creates problems for him’.

[24] Having regard to the foregoing, can it be said that the learned Magistrate was not correct in returning the guilty verdicts? There is, before answering that question a legal issue that must be dispatched without much ceremony. It relates to the splitting of charges, particularly in relation to counts 1, 2 and 3. Count 1 related to the offence of rape. In count 2, as earlier intimated, the appellant was charged with assault with intent to cause grievous bodily harm and for malicious damage to property in relation to count 3. The trial court was, on behalf of the appellant, referred to a judgment of this court in The State v Rafael Isak Luhepo,[4]where the court examined the duplication of convictions. At para [15], the court said the following:

‘It is trite that there is no single test when determining whether or not a duplication of convictions has taken place and tests which have developed by the courts serve as practical guidelines only (S v Seibeb and Another; S v Eixab 1997 NR 254 (HC). The two tests most commonly used are the single intent test and the same evidence test (S v Benjamin en ‘n Ander 1980 (1) SA 950 (A). When two separate offences were committed with a single intent and were part of one continuous transaction, there is only one offence. This is referred to as the “single intent test”. When the offences differ from one another in their elements, there is only one offence and this is referred to as “the evidence test”’.

[25] In a later judgment of State v Simon[5] the accused was convicted subsequent to pleas of guilty on charges of Illegal Entry in contravention of s 6 (1) of the Immigration Control Act, 7 of 1993; Entering a Restricted Area contravening s 52 (1) of the Diamond Act, 13 of 1999; and Illegal Mining in contravention of s 3 (1) (a) of the Minerals (Prospecting and Mining) Act, 33 of 1992. On each count he was sentenced to a fine, alternatively imprisonment.

[26] In that case, the accused, on count 2, admitted entering a restricted area as defined in the Diamond Act with the intention of conducting mining activities. In respect of a further charge (count 3), he admitted having illegally mined in that area when apprehended. The question arose as to whether there was a duplication of convictions when the court convicted on both these counts. The court applied the single intent test and the same evidence test and concluded that either way, although the accused committed two separate acts, he had done so with a single intent and, in order to conduct mining activities, he had to enter the restricted area. Both acts were thus necessary to carry out that single intent. The conviction and sentence on count 2 was set aside therefor.

[27] Turning to the present case, it appears that the intention of the appellant was to have sexual intercourse with the complainant when he entered her house. She fled the house in an effort to evade the appellant’s initial requests for sexual intercourse. On denying him, he pursued her and later assaulted her, damaged her underwear and ultimately raped her.

[28] It seems clear from the above that this is an instance where the appellant committed three separate acts of which each, standing alone, was criminal, but all were with the single intent to rape the complainant. In order to do so, he had to assault the complainant to force her to subdue to his request. To conduce having sexual intercourse with her, he damaged her underwear which must have constituted an impediment to his nefarious purpose and scheme In these circumstances the appellant should only have been convicted of the offence set out in count 1 for having contravened the provisions of the provisions of s. 1, 2, 3,4,5,6 and 7 of the Combating of Rape Act.

[29] For the above reasons, the court a quo should not have convicted the appellant as of the offences of assault with intent to cause grievous bodily harm and as well as that of malicious damage to property as these amounted to a duplication of convictions. It follows therefore that the convictions and sentences imposed in respect of counts 2 and 3 fall to be set aside as I hereby do.

Sentencing

[30] In the court a quo, the Magistrate sentenced the accused to 10 years imprisonment for the charge of rape. This was done purportedly in reliance on s. 3 (1) (a) (ii) of the Combating of Rape Act. It must be noted that the appellant brutally assaulted the complainant, a defenceless old lady in the sanctity of her own homestead. As a result of the assault, the complainant suffered grievous bodily harm which served to conduce the rape. There is evidence, which is uncontroverted, that as a result of the seriousness and brutal nature of the assault, she lost consciousness at some stage. It is also in evidence that she had to be hospitalised for a period of 11 days in relation to the assault. These are matters that the trial court had to take into account in fashioning an appropriate sentence.

[31] Crimes of violence against women are on the rise countrywide. The courts must therefore pass sentences that have a retributive effect and which will send a clear and unequivocal message to society that such behaviour cannot be tolerated or condoned. The offence of rape is a very serious one as it is invasive of the victim’s bodily integrity and is innately degrading to them. Furthermore, it denies the victims, their God-given right to say ‘No’. It is rendered even more serious when coupled with grievous bodily harm to the extent described in evidence in this case.

[32] It is clear from the record that the appellant was unrepresented at the sentencing process. The trial court nonetheless took the time to explain to him in relation to mitigation of sentence and the applicability or otherwise of compelling and substantial circumstances[6]. I am of the considered view that the trial court erred in sentencing the appellant to a term of 10 years imprisonment, which appears to be in line with the provisions of s. 3(1) (a) (ii).  I say so for the reason that the crime of rape in the instant case, was attended by an aggravated assault thereby bringing the matter within the purview of the provisions of s. 3 (1) (a) (iii), which prescribes a minimum sentence of fifteen years.

[33] In the circumstances, I issue the following order:

1. The appeal succeeds to the extent that the conviction and sentences imposed on the appellant in respect of counts 2 and 3 are hereby set aside.

2. The conviction on count 1 is confirmed.

3. The sentence imposed on the appellant in respect of count 1 is set aside and is replaced with one of 20 years imprisonment.

[35] The appellant is advised that if he wishes to appeal against this judgment to the Supreme Court, he must file an application for leave together with the grounds of appeal to this court within a period of fifteen (15) days from the date of this judgment.

T.S. Masuku

Judge

G Hinda

Acting Judge

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