CASE NO.

: SA 19/2001

IN THE SUPREME COURT

JACKSON NDJIMBA APPELLANT

And

THE STATE RESPONDENT

CORAM: STRYDOM C.J., O’LINN A.J.A. et CHOMBA A.J.A.

HEARD ON: 3 April 2002

DELIVERED: 19 June 2002

JUDGMENT

STRYDOM, C.J.: The appellant was granted leave by the Court a quo to appeal

against his conviction on a charge of rape and against his sentence of 20 years

imprisonment. It was alleged:

“That on or about 25 May 1997 and at or near Erf 1336, Freedomland in

the district of Windhoek the accused unlawfully and intentionally had
sexual intercourse with Theopolina Nangolo a female person under the
age of consent, namely 2 years old.
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Mr. Potgieter appeared on behalf of the appellant and Ms. Lategan on behalf of

the respondent. Neither Counsel represented any of the parties in the Court a

quo Mr. Potgieter appeared amicus curiae and the Court wants to thank him for

his assistance in this matter.

The mother of the complainant, Ms. Ndahekelekua Mondjila, testified that the

appellant, together with the State witness Timo Thomas, one Dawid and one

Marcus, lived with her, her husband and children, in a house in Freedomland. On

the morning of the 25th May, she and Timo Thomas went to town and left the

complainant in the care of the appellant. On their return they met the

complainant who was crying. On being questioned, the complainant told them

that Hambulondo beat her and she indicated between her legs. The witness

thereupon examined the private parts of the complainant and found that there

was blood mixed with white things coming out of her vagina. These white things

looked like semen. The entrance to the vagina was also torn. Hambulondo is the

name under which the appellant was known.

Timotheus was sent to call the appellant but he had left the house and Ms.

Mondjila testified that she neither saw him nor talked to him again up to the date

that she gave evidence in Court. The witness did not take the complainant to the

hospital nor did she lay a complaint with the police. She explained that her

husband was away and that she did not have money to go to hospital. She tried

to borrow money but was unsuccessful. She did not go to the police because this

was the first time that something like this had happened to her and she was
 3

shocked and afraid. When her husband returned she reported the incident to him

and he then laid a charge whereafter the complainant was taken to hospital.

Timo Thomas, also referred to as Timotheus, testified that the complainant was left

in the care of the appellant when he and the previous witness went to town. On

their return form town they met the complainant who was crying and who told

them that she was beaten by the appellant on her vagina with his penis. As to

the instrument with which she was assaulted the complainant demonstrated this

by showing her arm and fist. When they came into the house the appellant left.

The witness was present when the mother examined the complainant’s private

parts. He said he saw blood and he identified the “white things” as semen.

The father of the complainant, Mr. Sagaria Nangolo, confirmed that he left for

Ovamboland on the 24th May and returned on the night of the 31st. On his return

the mother of the complainant made a report to him as a result of which he laid a

charge at the police on the 1st June. He said that he had asked his wife why she

had not laid a charge and she said that she had been shocked and afraid of the

appellant. From the evidence it seems that the reference to the 31st May, as the

date on which the witness returned, was wrong and should be the night of the 1st

June.

The respondent also called the complainant to testify. She was now five years old.

She said that she was assaulted between her legs and demonstrated the size of

her fist. She stated that Jackson assaulted her but she said that this person who
 4

assaulted her was in Ovamboland and not present in Court. She further stated

that she would know him if he was present in Court. The appellant was pointed

out to her but she said that she did not know him.

Dr. Odumlami examined the complainant on the 2nd June. He observed old

bruises on both thighs, in the inner aspect of the thighs. There was also an old

bruise around the vestibule and around the fourchette and perineum. The doctor

further observed a foul smelling discharge which he ascribed to infected blood.

Because of this infection and the time lapse the doctor did not find any remnants

of the hymen although he also mentioned that there were instances where girls

were born without a hymen. The doctor was of the opinion that the injuries had

been caused by blunt force like a penis or finger or any other blunt object. The

colouring of the bruises, found by Dr. Odumlami, showed that they were sustained

about a week before he saw the complainant.

That was the evidence presented on behalf of the respondent.

The defence of the appellant, who had pleaded not guilty, was an alibi. He

denied that he was at the house of the complainant on the morning of the 25th

and denied that she was left in his care. He stated that on the afternoon of the

24th he went to a house in the Ombili Township where he stayed the night. He

stayed there until 4 o’clock on the 25th. He explained further that, on the 25th, he

met Dawid and Marcus at a certain cuca shop. They brought him a message

from one Joseph that a certain company was looking for employees and that
 5

appellant should go to the Company early in the morning, together with one

Lucas, seemingly to try and find employment.

The message was that they should also tell Lucas about this opportunity. They

went to the home of Lucas but did not find him and left a message that he should

come early the next morning to the house of the appellant. Because they did not

know where the premises of this company were they went to Joseph in Havana to

get directions from him. He told them where to go but also informed them that

the next day, which was Monday, was Africa Day, which was a public holiday,

and that they should go to the Company on the Tuesday morning. They then

returned to their home in Freedomland. Lucas, who was not aware that it was a

holiday, turned up early the next morning and the two of them spent the day

together and visited various places. Appellant returned to Freedomland late that

afternoon where he found the mother of the complainant alone at home. She

invited him twice to have sex with her but he declined every time.

On the Wednesday, that was the 28th, appellant said that he was at the house in

Freedomland when Ms. Mondjila and Timotheus, together with the children, left

him at home and told him that they were going to sell cooking oil. Appellant later

also left the house but again slept there that night. In each instance the

appellant described in detail his coming and goings in regard to the week

following on the 25th May.

 6

From the 30th May till the 2nd of June appellant said that he stayed at the house of

his uncle in Ombili. Early the morning of the 2nd he returned to the house in

Freedomland to get ready to go to Klein Windhoek where he was employed on a

casual basis. When he arrived at the house he knocked and Dawid opened the

door for him. Although he did not see them he found that Mr. Nangolo, the owner

of the house, was back from Owamboland and he greeted him as well as his wife,

Ms. Mondjila. That afternoon he returned to Ombili where the police later arrested

him.

The appellant called two witnesses to substantiate his alibi. The first was Dawid

Hamukwaya, who lived with him in the house at Freedomland. The witness started

off by saying that the appellant had not been at the house on Saturday and that

he had slept at Ombili. That was the Saturday before the Sunday on which it was

alleged that the appellant raped the complainant. The witness further stated that

the appellant had stayed at the Freedomland house from Monday through to

Wednesday. Dawid could not remember where the appellant was during the rest

of that week but stated that he again saw the appellant very early on the morning

of the 2nd June On this occasion the appellant greeted them all and that

included Mr. Nangolo and his wife, Ms. Mondjila. The witness further stated that he

had left the house early on the Sunday morning, the 25th of May, and could

therefore not say what might have happened later that Sunday and whether the

appellant had returned to the house or not.

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The second alibi witness, called by the appellant, was Mbery Thomas. This witness

testified that he lived in Ombili. He said that on the 25th or 24th of May the

appellant arrived at their house and slept there that evening. It was a Saturday.

Appellant stayed the next day at the house until 2 p.m. and then went to Havana.

When he left he said that he was going to visit one Joseph. The witness again saw

the appellant on Friday the 30th of May. He then stayed there until Monday

morning when he left early that morning to go to work. The witness did not see

the appellant again and only later heard that he was arrested on a charge of

rape. This witness also testified that the house where the appellant periodically

stayed in Ombili was a house belonging to an uncle of the appellant.

That concluded the evidence on behalf of the defence.

The learned Judge in the Court a quo accepted the evidence of Ms. Mondjila and

Timo Thomas, as further corroborated by the medical evidence, and rejected the

evidence of the appellant and his witnesses. In the latter instance the Court

referred to certain improbabilities in the evidence of the appellant and further

stated that it was his impression that there was collusion between the appellant

and more particularly the witness Dawid to mislead the Court. The Court

consequently convicted the appellant as charged.

Mr. Potgieter strongly criticized the evidence of the two main State’s witnesses and

further pointed out that the complainant was, in certain respects, a single witness

whose evidence should have been approached with caution which, so Counsel
 8

submitted, was not done by the Court a quo. He also submitted that the Court

did not apply the cautionary rule in regard to children although the complainant

was still a child of tender years. Counsel further submitted that the State did not

prove beyond reasonable doubt that the crime of rape was committed and

submitted that the evidence fell short of proving penetration by the male genital

organ into that of the complainant.

Ms. Lategan submitted that the State proved beyond reasonable doubt that

penetration per penis took place. She also submitted that it was proved beyond

reasonable doubt that the appellant was the perpetrator of the crime. Counsel

criticized the evidence of the appellant and his witnesses and submitted that the

trial Court had certain advantages by seeing and hearing the witnesses which a

Court of Appeal does not have. Consequently this Court would only interfere with

the factual and credibility findings of that Court if there were cogent reasons for

doing so.

I must agree with Ms. Lategan that the evidence proved beyond reasonable

doubt that the complainant was raped. The evidence of Ms. Mondjila and Timo

Thomas on what they saw when they inspected the private parts of the

complainant stand uncontested and is furthermore corroborated by the medical

evidence. Ms. Mondjila testified that she saw blood and a white matter, which

looked like semen, coming out of the vagina and the vagina was torn. Timo

Thomas had no hesitation in identifying this white matter as being semen. Dr.

Odulami stated that when he saw the complainant, after about a week, he could
 9

not find any remnants of the hymen. He said that this could be due to the lapse

of time and also because he found that there was infection. It is so that he also

testified that there are rare instances where a girl is born without a hymen and Mr.

Potgieter latched on to this evidence to submit that this might be such an instance

and that there was therefore nothing significant in the fact that the doctor found

that the hymen was absent. However, in the light of all the evidence I am

satisfied that such a possibility can be ruled out as so remote that it can be left out

of consideration.

The only question that remains is whether the State proved beyond reasonable

doubt that it was the appellant who raped the complainant. When considering

the evidence it is clear that there is no onus on an accused to establish his alibi,

and if there is a reasonable possibility that it might be true the accused should be

acquitted. (See R v Biya, 1952 (4) SA 514 (AD) at 521 B – D and S v Mhlongo, 1991

(2) SACR 207 (A) at 210 d – g.) Furthermore it was stated in R v Hlongwane, 1959

(3) SA 337 (AD) that a Court’s approach to alibi evidence is not to consider it in

isolation but to consider it in the totality of all the evidence and the impressions

made by the witnesses. ( p 341 A).

Another aspect of which I am mindful, and which was pointed out by Ms. Lategan,

is the fact that the Court a quo had the advantage of seeing and hearing the

witnesses and being steeped in the atmosphere of the case. (See R v Dhlumayo,

1948 (2) SA 677 (AD) at 705 and 706 and R v Nxumalo and Others, 1960 (2) SA 442

(TPD) at 446 A – B.) Consequently a Court of Appeal would be reluctant to

 10

upset the findings of the trial Court. However, on a reading of the trial Judge’s

reasons for rejecting the evidence of the two alibi witnesses, Dawid and Mbery, it

is, in my opinion clear that he did so solely on the basis of their demeanour in

Court. The only reason for the rejection of this evidence appears in the judgment,

on page 144 of the record, and reads as follows:

“In order to convince the Court that on the day in question and at all
relevant time, 25 May 1997, he was not present the accused called
the witnesses here-in-before mentioned. The accused did not make a
good impression on me and the same applies to his witnesses. It is
clear from the way in which they testified especially, in the case of the
accused’s first witness, Davey Hamukwaya, that there was some sort of
collusion between the two in trying to mislead the Court.”

The Court went on to state that Timo Thomas was adamant that the appellant was

present on that day and that there was no reason, and none was advanced, why

he would falsely incriminate the appellant. The excerpt, cited above, contained

the only reason for the rejection of this evidence and the Court seemingly did not

give any consideration to the fact that these witnesses, not only corroborated the

evidence of the appellant, but that there were indications in the evidence of the

State witness, Timo Thomas, which support important parts of their evidence. I am

mindful of the fact that a judgment cannot be all embracing but as was stated in

S v Singh, 1975 (1) SA 227 (N) at 228 F – H, the best indication that a Court has

applied its mind to the evidence in the proper manner is to be found in its reasons

for judgment including its reasons for the acceptance and the rejection of the

respective witnesses.
 11

It was pointed out in many cases that, although important, a witness’s evidence

should not be rejected solely on the basis of demeanour. In S v Dladla, 1974 (2)

SA 689 (N), the following was stated in this regard on p.690H – 691A, namely –

“The demeanour of a witness, although always a relevant and

sometimes a very important factor in the final determination of
disputes of fact, is notoriously fallible as a decisive ground of decision.
As Wessels, J.A., observed in Estate Kaluza v. Braeuer, 1926 A.D. 243 at
p. 266, a crafty witness “may simulate an honest demeanour”. It is
always the court’s function and duty to test the apparent sincerity of
such a witness by such means as are available to it and the most
important of such means is almost invariably a close examination of
the content of the evidence given and the degree of its harmony with
the inherent improbabilities.”

In S v Civa, 1974 (3) SA 844 (T), Margo, J. approached demeanour evidence as

follows:

“The effect of demeanour in assessing credibility is a matter of

judgment and common sense, but it must be remembered that the
truthfulness or untruthfulness of a witness can rarely be determined by
demeanour alone without regard to other factors…The evidence must
be weighed as a whole, taking account of the probabilities, the
reliability and opportunity for observation of the respective witnesses,
the absence of interest or bias, the intrinsic merits or demerits of the
testimony itself, any inconsistencies or contradictions, corroboration,
and all other relevant factors.”

See also S v Van As, 1991 SACR 74 (W) at p. 101 a – f.

The danger lies therein that just as a crafty witness can simulate honesty, factors

such as anxiety or fear may create the impression of uncertainty or hesitancy and

may reflect poorly on the demeanour of an honest witness. As was laid down in
 12

the cases of Dladla, supra, and Civa, supra, rather than to rely on demeanour

alone, the Court should also consider the evidence of a witness in relation to

various other factors and should closely examine the content of the evidence

given and the probabilities or improbabilities inherent in such evidence. As a

result of the Court a quo’s failure to deal properly with the alibi evidence, this

Court is at large and is under the circumstances obliged to undertake this task as

best it can and to make its own findings in that respect.

Dawid’s evidence as to whether the appellant was at the Freedomland house on

the 24th and 25th May is somewhat confusing and Ms. Lategan strongly criticized his

evidence in this regard. It is correct that he sometimes said that the appellant

was there on the Saturday and that he slept there that night. He may also have

been confused with the dates when he spoke of July instead of June as the date

on which the appellant was arrested. He testified however that the appellant

slept at the Freedomland house on the Monday, Tuesday and Wednesday nights.

The witness knew about the cooking oil incident and also testified that the

appellant came to the house early on the morning of the 2nd of June and spoke

with Mr. Nangolo and his wife. He said that the appellant, during this period, also

stayed at the house during the daytime. He mentioned that he together with

Timo Thomas visited the appellant in prison and that on that occasion Timo said

that he was influenced by Ms. Mondjila to incriminate the appellant. Timo, when

he was recalled by the Court, confirmed that he visited the appellant in prison, but

he denied that he said that he was influenced by Ms. Mondjila to incriminate the

appellant in the crime.

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Mbery Thomas did not stay with the appellant and Dawid at the Freedomland

house. He lived in Ombili, seemingly at the house where appellant periodically

slept when he was in Ombili. He testified that the appellant was there on the

Saturday, the 24th, till 2 p.m. on the Sunday afternoon when he left for Havana and

he informed them that he was on his way to one Joseph. Thereafter he only saw

the appellant again on the 30th of May, that was the Friday, and on this occasion

he stayed there until early Monday morning. The only criticism leveled at the

evidence of this witness by Ms. Lategan was that he could not explain why he

remembered the dates of the 24th and 25th of May. This is not entirely correct

because under cross-examination the witness said that he remembered those

dates because he and the appellant were together and because of the fact that

it was later alleged that the appellant committed the crime during that period.

The evidence of the two State witnesses, Ms. Mondjilo and Timo Thomas, was also

not satisfactory in all respects. When evaluating the merits or demerits of a

witness’s evidence it should not only be measured against how far that evidence

co-incides, or does not, with that of other witnesses. It is just as important to

consider probabilities or improbabilities flowing from that evidence judged against

the conspectus of all the evidence. Ms. Mondjila testified that after she had

examined the complainant on their return from town, Timotheus was sent to call

the appellant but that he could not find him. If one accepts for the moment that

this was so and, although she did not say why she wanted to see the appellant, I

think there could only have been one purpose namely to confront him with the
 14

evidence. Under the circumstances her later explanation that she did not go to

the police because she was afraid of the appellant does not make sense. Why, if

she was afraid of the appellant, was she willing to confront him directly instead of

laying a charge and leaving it to the police to deal further with the appellant? By

laying a charge she would also have solved her problem of getting the

complainant to a doctor. Another aspect, which is in my opinion important,

particularly in the light of the alibi evidence, is the statement by this witness that

she did not see the appellant again until she gave evidence in Court. I will later

deal more fully with this aspect. This witness also said that as a result of the assault

upon her the complainant is now lame in the left leg. The father of the child, Mr.

Nangolo, did not know anything about this.

Timo Thomas testified that the complainant, who was then two or three years old,

informed him that the appellant assaulted her with his penis. It only later became

clear that that was a conclusion drawn by him after a demonstration by the

complainant. Timo had great difficulty in explaining the whereabouts of the

appellant when they arrived home from town. This is an important aspect

because it turns on the dispute in this matter, namely whether the appellant was

present at the Freedomland House on the morning of the 25th May. He first of all

said that when they got into the house the appellant was leaving the house. By

then they had already received the report from the complainant as a result of

which he concluded that the appellant had assaulted her with his penis.

Seemingly nothing was done to stop the appellant from leaving. The witness was

again asked to state where the appellant was at the time the complainant told
 15

them of what had happened. His answer was that the appellant was not at

home. The learned Judge found these answers conflicting and questioned the

witness. He confirmed the answer previously given by him but said that when he

went to call the appellant he was not there. The Court further questioned the

witness and he then said that when they came to the house the appellant had

already left. Still later he said that when they came to the house the appellant

was going out. On this evidence it is impossible to come to any conclusion as to

whether the appellant was still at home, whether he had already left or whether

he was leaving the house when Ms. Mondjila and Timo came to the house after

the complainant had made her report to them.

Timo Thomas also said that he did not see the appellant again until early the

morning after Mr. Nangolo had come home. Mr. Nangolo returned on the night of

the 1st June. Timo however denied that the appellant talked to Mr. Nangolo

although he said that Ms. Mondjilo heard him when he knocked at the door. It

would seem that she must have been awake and knew that he was there. There

then followed some confusing evidence as to when this was and when the

appellant returned to the house. Although Timo said that it was the same day

that Mr. Nangolo returned home from Ovamboland he went on to say that the

date was the 25th May. He was then specifically asked whether he meant the day

that the incident took place and he replied in the affirmative. He again confirmed

this on a further question asked by the prosecutrix. Then later he said that the

incident took place on the 20th and the father of the complainant returned the

same month on the 5th. It is clear that the witness was completely confused as to
 16

the dates and days when specific incidents took place and his denial that the

appellant was at the house on previous days, and even slept there, is at least

questionable. Timo was asked whether he saw the appellant at the Freedomland

house on the 28th or 29th of May. He did not deny that the appellant was there

but said that he himself was not at home.

Under cross-examination Timo was further asked about the comings and goings of

the appellant during the week preceding his arrest. It was put to him that on

Monday the 26th May the appellant was at home with the complainant. Again he

did not deny that that was so but stated that they, meaning the complainant and

appellant, were never left alone on this occasion. It was then put to him that on

the 28th Ms. Mondjila, the two children and the witness went to sell a litre of

cooking oil and left the appellant at home. The witness said that that was correct.

To add to the confusion the witness, after further cross-examination, now said that

on the 2nd, seemingly the night of the 1st to 2nd June, the appellant slept in the

house. On re-examination by the State prosecutrix Timo again confirmed that the

appellant was at the house on the day they went to sell the cooking oil. Counsel

for the defence was given another opportunity to cross-examine the witness and

he now said that the oil was sold by him and Dawid and that it was on the day the

father of the complainant left for Ovamboland. He now denied that he said that

that incident occurred on the 28th of May.

The evidence of Timo Thomas, regarding the comings and goings of the appellant

during the week after the alleged rape of the complainant, did nothing to disturb
 17

the evidence given by the appellant and Dawid, and also that of Mbery Thomas

to the extent that he testified that on those days the appellant was not at the

Ombili house. What is significant is that from time to time it shimmered through the

evidence of Timo that the appellant’s evidence, as supported by his two witnesses,

that he stayed at the Freedomland house as usual, on various days subsequent to

the alleged rape, and even slept there, might be true. However when the witness

was pinned down he tried to escape from his predicament by moving the

particular incident to some other date which fell outside the relevant period. One

such instance was the cooking oil incident which he now alleged happened on

the day Mr. Nangolo left for Ovamboland. That was before the rape was

committed.

The only other witness, who denied that the appellant returned to the

Freedomland house and was present there after the rape was committed, was Ms.

Mondjila. In the light of all the evidence, also that of Timo Thomas, I find her

evidence that, after the incident, she only saw the appellant again when she

testified in Court, so improbable that it can safely be rejected. She must have

realized that it would have been difficult to explain why the appellant was allowed

to come and go as he pleased and why neither she nor Timo Thomas ever

confronted him with what had happened on the 25th. Then again, if the

appellant had disappeared, as she testified, and did not return to the house where

his belongings still were, it would have lent support to the allegation that he was

the rapist and, knowing what he had done, to try and avoid a confrontation. The

fact that the appellant stayed away would have been an indication of guilty
 18

knowledge. On the other hand, the fact that the appellant returned to the house

and stayed there, as if nothing had happened, is difficult to reconcile with the

actions of a man who knew that he had raped the little complainant and, if he

was indeed the person in whose care she was left, he must have known that he

would be under suspicion.

I have, in my discussion of the evidence, limited myself to that part of the evidence

which touched upon the movements of the appellant after the crime was

committed because it seems to me that if Ms. Mondjila and Timo Thomas lied

about this aspect of the case then there is also a reasonable possibility that they

had lied when they said that the appellant was at the Freedomland house on the

morning of the 25th May and that the complainant was left in his care. There is

nothing inherently improbable in the alibi evidence and nor are there material

discrepancies or conflicts in this evidence. In fact a reading of the evidence of

both Dawid and Mbery showed that they were not afraid to make concessions or

even to contradict the evidence of the appellant. Dawid correctly conceded to

the State that he could not say whether it was in fact the appellant who had

raped the complainant. This concession was made in the light of the evidence

that he himself had left the Freedomland house on the morning of the 25th and

could therefore not say what might have happened later that day. This

concession did however not affect his evidence that the appellant did not sleep

at the house and was not there at the time when he had left. As far as Mbery

Thomas was concerned it was put to him by Counsel for the defence that when

the appellant left the Ombili house on the afternoon of the 25th he did so in the
 19

company of two other persons. Mbery denied this. A reading of the evidence

showed that this statement by Counsel was wrong because appellant had

testified that he met Dawid and Marcus at a Cuca shop in Ombili. However, this

statement coming from appellant’s Counsel, it would have been easy for the

witness to tailor his evidence to fit in with what was put to him by Counsel. The

fact that he did not do so seems to gainsay the impression that he was telling a

fabricated story to give the appellant an alibi. He also only heard about the rape

after the appellant’s arrest and he testified that he did not see him again.

I have given careful consideration to the evidence set out above. There are no

inherent improbabilities in the evidence by these two witnesses. The evidence

supports the version of the appellant, not only in regard to what had happened on

Sunday, the 25th, but also in regard to his movements during the week after the

25th. Further impetus is given to this evidence by that of Timo Thomas who at times

admitted that that was so and at times tried to extricate himself from his dilemma

in a clumsy way. The totality of this evidence refutes in my opinion the denial by

Ms. Mondjila that after the incident the appellant disappeared from the scene

only to surface again when he was arrested. As I have tried to show there were

various reasons for doing so, all of which would leave a question mark over the

cogency of her evidence.

Dealing with the evidence of the appellant, the Court a quo mentioned some

unsatisfactory aspects in his evidence. This came about in the following way. The

appellant gave two reasons why he thought Ms. Mondjila falsely implicated him in
 20

the commission of the crime. The first concerned a ring of the witness which was

given to him and which he never returned. The Court a quo correctly pointed out

that Ms. Mondjila was never confronted with this evidence under cross-

examination. The reason why this was not done, which was given by the

appellant, may not be satisfactory however, both Timo Thomas and Dawid

testified that there were quarrels between the appellant and Ms. Mondjila, from

time to time, although they did not further elaborate on that. The second reason

given was the invitation to have sex with her and which the appellant then

refused. Appellant further said that it suited her to have him arrested because

then he would not have been able to talk with her husband, Mr. Nangolo. The

Court a quo rejected this evidence as highly improbable and found it strange that

a mother would approach the person who had raped her two-year-old child and

of whom she was afraid. However this line of reasoning begs the question

because the Court accepted, against the appellant, that he was indeed the

person who committed the rape and who was the person of whom she was afraid.

The test is whether it would still be so highly improbable if the appellant were not

the person who committed the crime, and in my opinion that would not be so.

According to the evidence the complainant was two years old when the incident

occurred. The trial was about a year later when she was still of tender age. We

have only the word of Ms. Mondjila and Timo Thomas that she identified the

appellant when she made her report concerning the rape to them. The report is

itself not evidence and when she testified she did not again state that she had

made such a report. She now said that the person who raped her was Jackson
 21

and she was unable to point him out. I do not think that much can be made of

the fact that she was unable to point out the appellant, given the fact that she

was so young when the incident happened and that a further year had passed

before she gave evidence. But under the circumstances her evidence does not

take the matter any further. Ms. Lategan submitted that the fact that the

complainant did not identify the appellant as the person who raped her is of no

significance because of the inherent danger in a dock identification. I agree with

the sentiments expressed by the Courts in regard to dock identifications, but I do

not agree with Counsel’s suggestion that nothing turns on the failure to identify an

accused in Court. Mostly that would lead to an acquittal of the accused unless

there was other cogent evidence to that effect. In the instant case the failure of

the complainant to identify the appellant as her assailant has the effect that her

evidence does not assist the State and cannot serve as corroboration of the

evidence of Ms. Mondjila and Timo Thomas.

Considering all the evidence I am of the opinion that there is a reasonable

possibility that the alibi evidence of the appellant and his witnesses might be true

and if that is the case then there is also a reasonable possibility that it was not the

appellant who committed the crime. I am therefore of the opinion that the

appeal should succeed.

In the result the following order is made:

 22

The appeal succeeds and the conviction and sentence of the appellant is set

aside.

________________________
STRYDOM, C.J.

I agree,

________________________
O’LINN, A.J.A

I agree,

________________________
CHOMBA, A.J.A.
 23

COUNSEL ON BEHALF OF THE APPELLANT: Mr. J.D. Potgieter

(Pro Amico)

COUNSEL ON BEHALF OF THE RESPONDENT: Ms. A. Lategan

(Prosecutor-General)