S V Savage (CC 12-2014) 2015 NAHCMD 287 (25 November 2015)

1

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: CC 12/2014

In the matter between:

THE STATE

and

FRANKLIN SAVAGEACCUSED

Neutral citation:S v Savage(CC 12-2014) [2015] NAHCMD 287 (25 November 2015)

Coram:USIKU J

Heard:08 June 2015

Delivered:25 November 2015

Flynote:Rape – attempted – What constitutes – Accused found on top of complainant, who lay naked on the ground screaming- Accused’s pants pulled down- Such act constituting act of preparation for rape- Lack of penetration- Inferences to the drawn there from.

Summary:Rape – What constitutes – Act 8 of 2000 accused admitting having scratched the complainant inside her vagina- Sexual act in Section 1 of Act 8 of 2000 – Accused accordingly guilty of Rape on that basis.

Flynote:The accused stands indicted on the following counts:

Count 1: Contravening section 2 (1) read with sections 1, 2 (2), 3, 5, 6 and 18 of Act 8 of 2000. Count 2: Kidnaping. Count 3: Contravening section 16 of the Combating of Immoral Practices Act, Act 21 of 1980 – as amended – Using certain means to stupefy or overcome a female for immoral purposes. Count 4: Attempted Murder. Count 5: Contravening section 2 (1) a read with section 1, 2 (2), 3, 5, 6 and 18 of Act 8 of 2000. Count 6: Contravening section 2 (1) a read with section 1, 2, (2) 3, 5, 6 and 18 of Act 8 of 2000. Accused pleaded not guilty to all count and denied his involvement in the commission of the said crimes. MrLutibezi appeared for the state while the accused is represented by MrUirab.

ORDER

Count (1) Attempted Rape – Guilty

Count (2) Kidnapping – Acquitted

Count (3) Contravening section 16 of the Combating of Immoral Practices Act of 1980- Using certain means to stupefy or overcome a female for immoral practices – Acquitted.

Count (4) Attempted Murder – Guilty

Count (5) Rape –Guilty

Count(6) Rape - Guilty

JUDGMENT

USIKU J

[1]Before the state started to lead evidence the pre-trial memorandum and a death certificate in respect of complainant Stephanie Kisting were submitted without any objections from the defence, as well as the photo plan by detective warrant officer Coetzee.

[2]MsJesmerille Lewin testified that on the evening of the 3 December 2010 she was coming from a youth gathering. She was in the company of another friend. As they were afraid, they send out ansms in order to be met halfway. Whilst they were at Mandy’s pub waiting to buy electricity they heard someone crying for help. She and a friend went towards the post office in order to investigate. She then saw the accused coming out of the post office and as he reached the telephone booth next to the post office, he started to run, she was at a distance of plus minus 2.5 meters. She could clearly see as there were street lights in front of the post office. Ms Lewin testified further that at the time she saw the accused coming from the post office he was carrying shoes in his hands with white socks which was blood stained. He wore dark jeans and a dark blue t- shirt. She described the accused as a light skinned male of medium size. As she entered the post office they found a lady laying on the ground in a dark area who was completely naked. She then made use of her cellphone by lighting it order to see. She saw blood around the lady on the floor. The lady’s legs were open and underneath her, there was also lots of blood. The lady was crying and informed them that she was in pain. She then went to seek assistance at the nearby police station.

[3]At the police station she made the report about someone who had been injured and gave a description of the possible suspect. Later on, the accused was arrested and brought to the scene as police waited for the arrival of the ambulance in order to take the victim to hospital. She came to know the accused on that date.

[4]In cross examination Ms Lewin confirmed that there were lights on at the service and that she could clearly see the surrounding area towards the post office as the accused came out from the post office. She also confirmed that in the immediate surrounding area where the victim lay on the floor she did not observe a knife lying around neither a bottle or pieces of broken bottles. She also did not see any white powder or any white substance around the victim.

[5]Ms Lewin also confirmed that she could see when accused started to run after he got to the telephone booth as there were lights from the side of the museum which is next to the post office. She further confirmed that accused had turned around and looked at them before he started to run away. With regard to the victim, Ms Lewin testified that she saw her for the first time that evening.

[6]MsEIgeDenila van Wyk also testified. She confirmed that they met the victim at the post office after they had been alerted by some kids who came to them in Mandy’s pub. She also confirmed to have seen a male person who run out of the post office as she was at a distance of about 4 meters away. She corroborate the evidence of Ms Lewin about what the person wore at the time. Also that the male person was carrying shoes in his hands. She could clearly see as the lights on the street in front of the post office were on.

[7]Upon arrival inside the area of the post office they found the victim laying on the ground. The victim complained about pain as they sent the children to alert the police. The victim was crying a lot and requested them to help her to get up. As the place was dark, they made use of the cellphone light and they saw a lot of blood underneath the victim on the floor. She did not know the victim prior to the date of the incident.

[8]In cross examination Ms Van Wyk confirmed that she saw the accused running from the post office and run in the direction of the police station and from there she did not see him, as she paid her attention to the victim who she tried to calm down.

[9]MrHaratiusCelethoDiergaardttestified about the incident that happened on the 28th November 2010. According to MrDiergaardt he was dropping of his workers and on his way back to Block G, he heard a voice of a female screaming for help. At the time he was in the company of one of his workers who resided near his house. MrDiergaardt decided to reverse his car and turned the bright lights on in the direction where the screaming was coming. As he put on the bright lights of his car, he saw a men getting up and was pulling his pants which were beneath his knees at the time.The man had been laying on top of a women who was crying for help. The men then started to walk away, as the women sat on the ground and was closing her legs. He did not know the women at the time. The men started to walk away fast, as the witness decided to follow him, he then called the police. MrDiergaardt directed his worker to follow the men on foot so as not to lose sight of him. MrDiergaardt identified the men as being the accused person before court. The accused was arrested by the police that evening of the 28 November 2010.

[10]Mr Michael Richard Smith testified that he is an employee of Mandy’s Pub for the past 15 years. On the 28th November 2010, which was a Sunday, he closed earlier and then he was being taken home, by MrDiergaardt. They off loaded some of the employees in the Kavukuland location. On their return as they drove near the school, they heard screams of a person. They had been the only two in the vehicle. The person was screaming and asking for help. That was about 22h00 to23h00 in the evening. MrDiergaardt then reversed the vehicle and put on the bright lights of the vehicle towards the direction the person was screaming. MrDiergaardt then ask the person what he was doing as he got out of the vehicle. He then saw a male person standing up and was pulling his pants up-as the female person lay on the ground with her underwear pulled down. Mr Smith identified the accused as the person he saw on that evening pulling up his pants as the lady lay on the ground with her underwear pulled down. As they went towards the lady, the men started to walk away. They decided to follow him by walking behind him whilst MrDiergaardtdrove the vehicle with its bright lights on. The men was later on arrested by the police.

[11]With regard to the incident of the 3rd of December 2010, MrDiergaardt testified that whilst busy at his place of business to load stock, about 15h00 in the afternoon he saw the accused person in the bar which is adjacent to his shop. The accused approached him and told him that he was the guy that made him to be locked up on the 28th November 2010, referring to the incident of the rape.MrDiergaardt then turned and walked away from the accused, and continue to offload his stock.

[12]Having finished to offload his stock, he was joined by friends and they stood outside the shop chatting. The accused was still inside the pub. Accused then came out of the bar with a lady who is now the victimin the 2nd rape case.

[13]According to MrDiergaardt, accused had put his arm around the victim’s neck as they walked together. They walked past him, and accused had a black label beer bottle in his hands. They went towards the direction of the post office. He then went toward the post office as he wanted to purchase credit. On his return he got information about a lady who was raped at the post office. He left his shop in order to see what had happened. Upon arrival he recognized the victim as a person he had seen in the company of the accused, as accused left the bar that evening. They then waited for the arrival of the ambulance. MrDiergaardt confirmed that at the place where the victim lay, there were no lights and it was dark. Also that there were no security guards present. He had to light his mobile cellphone in order to see. The victim was crying and was asking for assistance.

[14]MrDiergaardt testified further that he saw the beer bottle and the glasses as well as blood that was around the scene. The beer bottle had been broken – a black label. At the time the victim was naked, and was in a bloody condition. The blood was coming from the victim’s private parts, and she had cuts on her thighs. They then loaded the victim in the ambulance where after he returned to his shop.

[15]In cross examination with regard to the incident of the 28th November 2010, MrDiergaardt conceded that he never saw the actual sexual intercourse between the accused and the alleged victim, neither could he testify how the two had met that evening, or where they met, or what they had discussed. He could also not explain why the victim only made a case against the complainant in April 2013, which was 2 and half years later, though confirming that the accused was arrested that same night, the 28th November 2010.

[16]MrDiergaardt also denied that the accused had informed him that he was with his girlfriend when he asked the accused and the complainant what was going on, or that the complainant related to him saying the men wanted to rape her. According to MrDiergaardt he never offered any help to the complainant but only told her that he would call the police at that point in time.

[17]He further denied that at that point, when he saw the accused and the complainant they had been five in the vehicle and were consuming alcohol, insisting that they were only two, after they had dropped off the other workers. He denied to have asked the complainant to get on his vehicle as well as the accused.

[18]According to MrDiergaardt the reason he brightened his car lights were because he heard the complainant screaming asking for help, also because at that point in time the accused’s pants was partially pulled down to his knees.

[19]He did not see any security guards around the place where the accused and the complainant lay on the ground. MrDiergaardt further insisted that he met Jan Olivier, a police officer at the place where the accused was arrested. Mrvan Zyl was among the police officers who arrived in a police van. His testimony is that when he saw the accused jumping from the complainant who was on the ground and with his pants pulled down to his knees and then started to run away, he concluded that the accused was raping the complainant who at the time was screaming and asking for help.

[20]In cross examination with regard to the incident of the 3rd December 2010, MrDiergaardt insisted that he saw broken glass on the scene, where the complainant lay in a pool of blood and that blood came from the complainants’ private parts. He also insisted that the accused had been at Mandy’s pub that day, and had confronted him, accusing him to be the person who made him to be locked up on the Sunday, the 28 November 2010. With regard to the condition of the complainant, MrDiergaardt testified that she was under the influence of alcohol that evening.

[21]MrLewis Coetzee a detective warrant officer also testified. On the date in question he was called to attend to the crime scene. He took some photographs at the scene and compiled a photo plan, also a key to the photo plan. Specific points were pointed out to him by the complainant. He identified the photo plan being Exhibit B before court. According to Mr Coetzee, the photographs he took on the 3rdof December 2010 were damaged due to malfunction of the printers. The only photographs before court were the ones that were compiled after April 2013. The complainant did point out the scene to him.

[22]Mr Coetzee further testified that when he arrived on the scene at the Rehoboth post office on the 3rdDecember 2010, there were lights at the entrance but the post office itself was relatively dark. He found some police officers as well as civilians on the scene. One of the witness had a cellphone torch. He then requested the police to bring in lights into the post office but it was difficult due to the height of the post office foundation wall. He found the complainant laying on her back with her knees up. She was screaming that she had a lot of pain and asking for help. He saw some broken bottle pieces on the floor. He described the bottle to be like beer bottle pieces and there was a lot of blood around. MrCoetze further testified that the blood was coming from the complainant’s vagina, as she had an open wound between her legs from her vagina to her anus. He then started to photograph the scene as found. The complainant was in pain at the time and was naked as the pieces of her clothing lay next to her on the scene. He also saw a male person’s trankie. The complainant’s hands was bloodied as well as her face. Warrant officer Hochtritt then took the complainant to the hospital.

[23]According Mr Coetzee, as he was still busy photographing the crime scene, two police officers came with the accused, and whilst the complainant was at the entrance of the post office, she started screaming saying it was him that raped her, making reference to the accused. He then ordered the 2 police officers to take the accused to the police station. At the time accused wore a blue t-shirt, jeans and white socks. He held his shoes in his hands as he was taken to the police station. Mr Coetzee described the wound on the complainant’s private part as a big open wound, not straight but down wards from the vagina up to the anus. The crime scene was again pointed out to him by the complainants on the 16 April 2013 and a photo plan was compiled which is before the court.

[24]In cross examinationMr Coetzee denied to have been called out to attend a crime scene on the 28 November 2010, near the Rehoboth primary school. Neither did he receive a report about the incident of that rape.

[25]Mr Coetzee insisted that he saw glasses on the scene which were picked up by Hochtritt, a claim denied by Hochtritt though. According to him the pictures of the scene were destroyed through the mechanical problem as such he could not produce them as exhibits before the court. He did not find white powder on the scene. Mr Coetzee testified that it was the complainant who identified the accused person immediately after he had been bought to the scene by the two police officers without having been asked to do so by the police or anyone else and asked the accused to be taken away.