WINDHOEK – “The court in its final analysis has come to the conclusion that despite some imperfections in the complainant’s evidence, she has told the truth and that she has been raped by the accused”.
With these words Judge Christi Liebenberg convicted Epafraditus Ndokotora Unengu, the son of Acting Judge of the High Court, Petrus Unengu and a prominent engineer, of rape.
He said that in his view Unengu on the other hand has clearly “tailored and fabricated evidence” to show otherwise.
“The accused as a witness did not particularly strike me as credible and though he clearly tried to come across confident and forthright, the manner in which he testified was unconvincing and gave the impression that it was rehearsed” the judge stated in his judgment.
Judge Liebenberg, however, acquitted Unengu on a second charge of rape by an 18-year-old Windhoek resident.
In that respect, the judge said, there are just too many inconsistencies and contradictions in the complainant’s evidence.
While Unengu’s version is improbable, the court may not convict unless it is satisfied that it is false beyond reasonable doubt, the judge stated.
He further said that there are material shortcomings and contradictions in the complainant’s evidence that impacted on her credibility.
“It obviously makes it difficult to determine the reliability of her evidence as a whole, and whether the truth has been told,” the judge said and added, “This unfortunate situation has further been aggravated by shortcomings in the investigation”.
He said that after due consideration of all the facts and the probabilities, he came the conclusion that the State failed to prove beyond a reasonable doubt that the complainant was raped and as a result assaulted as the assault charge is intertwined with the rape charge.
With regard to the attempted murder charges, the judge said that he could not find that the attacks were carried out with the intent to kill.
He said that the application of physical force to the complainant was clearly an act to force her into submission.
“His actions thus formed part of the offence of rape and in my view did not constitute a separate offence” the judge stated.
With regards to the punching with fists in the complainant’s face after sexual intercourse, it did not seem serious or dangerous although it did cause some bleeding to the nose, Judge Liebenberg said.
He further said that Unengu’s actions of stuffing sand into the mouth of the complainant could be viewed dangerous and life-threatening depending on the amount of sand inhaled.
However, he said, it seems reasonable that the sand could have gotten into her mouth while she was struggling to get out from under Unengu, and that no evidence was led to establish the quantity and whether she did inhale some of the sand.
He contended that he is not satisfied that Unengu intended to kill the complainant, but that he was convinced that Unengu intended to cause the complainant physical harm.
He thus opted to convict Unengu on the lesser charge of assault to cause grievous bodily harm.
The judge postponed the matter to tomorrow at 09H00 and Unengu’s bail was cancelled and he is remanded in custody.
State Advocate Dominic Lisulo and defense counsel Sisa Namandje are expected to address the court then on the sentence to be imposed.
Unengu denied both rape charges at the start of his trial and claimed that both complainants agreed to have sex with him.