S. v. Katamba

The respondent was tried for one count of rape and one of abduction for assaulting an 11-year-old girl, having sex with her and forcing her to sleep with him for the next three nights. In finding him not guilty the trial judge applied the cautionary rule, which required the court both to recognize the inherent danger in relying on the testimony of the complainant of a sexual offence and to look for the existence of some safeguard reducing the risk of wrong conviction, such as corroboration of the alleged victim’s statement. In applying the cautionary rule the trial judge was acting contrary to dicta from the High Court in S v D & Anor 1992(1) SACR 143 (Nam HC) where the rule had been criticized for being irrational and for failing to comply with constitutional protections against sex discrimination. The state appealed, inter alia on the grounds that the trial judge had erred in law in holding that he was not bound by S v D & Anor (above), and applying the cautionary rule.

[Adapted from INTERIGHTS summary, with permission]

In allowing the appeal and remitting the case for sentencing, the Court held that:

The cautionary rule was criticized in S v D & Anor (above) only by way of obiter dicta, and consequently did not abolish it; the trial judge was therefore not bound to follow that aspect of the decision (S v Jackson 1998 (1) SACR 470 (SA SCA) doubted).

The rule has outlived its usefulness. The presumption of innocence, together with cautionary rules regarding the evidence of youthful witnesses would, in the normal run of cases, afford sufficient protection to the innocent accused. The additional burden of applying the cautionary rule may adversely affect the fundamental rights of the victims.

The courts have a constitutional duty to protect the fundamental rights of victims and are also required to consider and give weight to contemporary norms, views and opinions of Namibian society (S v Van den Berg 1995 (4) BCLR 479 (Nam HC), S v Vries 1996 (2) SACR 638 (Nam HC), S v Namunjepo (1999) 2 CHRLD 331 (Nam SC) considered). These include the perception that the cautionary rule placed an unnecessary additional burden on victims, possibly leading to grave injustice to them.

The cautionary rule in sexual cases should not be applied by courts in Namibia, although in some cases it may be appropriate for the judge to exercise caution before acting on the unsupported evidence of a witness when there is an evidential basis for suggesting that the evidence may be unreliable (dicta of Lord Taylor CJ in R v Makanjuola, R v Easton [1995] 3 All ER 730 (UK E&W CA) considered).

[Adapted from INTERIGHTS summary, with permission]

“In my respectful view, the rule has outlived its usefulness. These are no convincing reasons for its continued application. The constitutional requirement contained in Article 12 of the Namibian Constitution that the accused is presumed innocent until proved beyond reasonable doubt to be guilty, once again reiterates and reinforces a fundamental principle of our criminal law and procedure. This principle, together with cautionary rules regarding the evidence of youthful witnesses, particularly children and the evidence of single witnesses, would in the normal run of cases, afford sufficient protection to the innocent accused.   The additional burden of the application of the cautionary rule, may adversely infringe on the fundamental rights of the victims to  the protection of their fundamental rights, which include a fair trial also in regard to such victims' rights and interests. Serious crime in Namibia is prevalent, and probably escalating. Society is outraged by this phenomenon. It is a notorious fact that many Namibians believe that the Courts, among others, over-emphasize the rights of the perpetrators of crime and under-emphasize those of the victims including those of the women and child victims in sexual crimes.

The cautionary rule in sexual cases, in particular, is perceived by many, including leaders of society, academics and other informed persons, in  addition to women's-rights activists and the victims themselves, as an example of a rule in practice, which places an additional burden on victims in sexual cases which is not only unnecessary, but may lead to grave injustice to the victims involved.” (pp. 25-26)