Windhoek
A man charged with the multiple rape of a nine-year-old girl in Swakopmund was on Tuesday acquitted for rape and convicted on the lesser charge of indecent assault.
High Court Judge Naomi Shivute said in her judgment the State failed to prove that penetration took place when Swakopmund resident Stefanus Hendrik Ruba Gariseb allegedly raped the complainant.
She said the only medical evidence before the court was that there was some redness on the skin around the perineum and a white discharge on the vulva of the complainant.
She further said the only evidence placed before court was that the accused placed his penis between the buttocks of the complainant and made “up and down movements”.
“Whilst such conduct may amount to stimulation, the definition of a ‘sexual act’ under the Combating of Rape Act requires that such stimulation be genital stimulation,” the judge stressed and continued that the word genital is not defined in the Act and should therefore be given its grammatical meaning, which is defined in the Oxford Dictionary as relating to the reproductive organs.
Since the only evidence is the accused placed his penis between the buttocks of the complainant which are not reproductive organs, rape was not proven, only indecent assault the judge ruled.
Judge Shivute totally rejected Gariseb’s testimony that the complainant, her stepfather, aunt and mother falsely implicated him because of bad blood between him and her stepfather, saying it was an afterthought.
She said the complainant gave her evidence in a straightforward manner and came across as intelligent and able to differentiate between right and wrong.
On the second count of rape Gariseb faced, the judge stated that even though the State is permitted to allege that an offence was committed on diverse occasions where it cannot be established the exact date when such offence was committed, the allegation must be proved by giving sufficient particularities of the offence in evidence.
She said the standard of proof remains that of proof beyond reasonable doubt.
While the complainant claimed the accused did bad things to her more than four times no evidence was produced as to at least which year, where and in what circumstances it occurred.
“In my opinion there is not sufficient evidence proving the second count and the accused must be given the benefit of the doubt,” the judge concluded.
Gariseb was arrested after the stepfather of the complainant, who was nine at the time, walked into the room where he allegedly was having intercourse with the child on April 01, 2011.
Upon this discovery the girl-child allegedly revealed Gariseb had raped her several times before.
It is alleged on the day of the discovery, Gariseb went with the complainant to her school where he informed her teacher that the complainant was sick and that he was her father.
He then allegedly took her to the shack where he stayed with the complainant’s mother and her boyfriend.
When they arrived at home, the complainant allegedly wanted to go to her mother’s room to take off her school uniform, but Gariseb told her to undress in his room while he watched, it was alleged.
He then took the nine-year-old girl and made her lay down on his bed and raped her, it was alleged.
It was then when the stepfather walked in on them, the indictment read.
Gariseb pleaded not guilty to counts of rape at the start of his trial last year.
The trial was postponed to May 27 for submissions on sentence.
He is represented by Vetu Uanivi on instructions of the Legal Aid Department and Innocencia Nyoni appears on behalf of the State.