Iuze Mukube
A resident of Rehoboth was found guilty last Friday for unlawfully and intentionally exposing or showing a child (8) pornographic material on his cellphone.
The 27-year-old man was convicted by Windhoek High Court Judge Naomi Shivute, who ruled that there was evidence that the accused exposed a young child, in this instance, his eight-year-old niece, to pornographic content during 2018.
The accused was arraigned on four counts: two of rape, with alternative charges of committing or attempting to commit sexual or indecent acts with a child under 16, and a separate count of soliciting or enticing a child to engage in such acts.
In addition, he faced the fourth count of exposing or showing a child pornography, contravening section 226(1), as read with sections 1 and 226(3) of the Child Care and Protection Act.
For the two counts of rape, it is alleged that on an unknown date in 2018, the accused inserted his finger into the complainant’s vagina in respect of the first count, and inserted both his finger and penis into her private parts in respect of the second count.
For the alternatives on the two counts of rape, it was alleged the accused committed a sexual act with a child under the age of 16 years and committed an immoral or indecent act with her.
In relation to the third count, it was alleged that the resident of Block D in the district of Rehoboth solicited or enticed a child under the age of 16-years to commit an immoral or indecent or sexual act.
The accused pleaded not guilty to all charges. He based his defence on that the complainant had a tendency of fabricating stories.
He admitted to having pornographic content on his cellphone but denied showing it to the complainant.
Judge Shivute acquitted the accused on the two counts of rape and their alternatives, stating that the evidence led by the State, through the complainant, as a sole witness, was not clear nor substantially satisfactory.
She stated that it was not clear how the sexual acts were committed.
“The accused should be given the benefit of the doubt on the two rape counts and their alternatives. There is no evidence disclosing what type of sexual act or immoral act committed in respect of the complainant”.
She added that “the alternative charges are vague, as they do not disclose the manner in which the alleged offences were committed, and the defect in the charges has not been cured by the evidence”.
The judge acquitted the accused on the third count, finding that the manner in which the offence was alleged to have been committed failed to satisfy all the essentials of section 14 of the Combating of the Immoral Practices Act.
“The State failed to provide the manner in which this offence was committed, and it did not lead the evidence how it was committed. In other words, the charge was not cured by evidence. I am, therefore, not satisfied that the accused committed the charge proffered against him in this count,” said Shivute.
She found that the State has proved the fourth count beyond reasonable doubt, pointing out that there was no evidence that the complainant had seen pornographic material elsewhere.
The evidence from the complainant is that she saw this material from the accused’s cellphone when the accused first showed it to her. She admitted she took his cellphone without his permission to watch it.
“Her version is favoured by probabilities and is corroborated by the admitted presence of pornographic material on the accused’s phone. It is more probable that the complainant was first exposed to pornographic material by the accused before she started watching it with her cousin without the accused’s consent,” stated Shivute.
She added that the “accused’s version that he did not expose the complainant to pornographic material cannot reasonably possibly be true in the circumstances”.
The accused is represented by Damian Esau and the State by Palmer Khumalo.
The matter was postponed to 28 November for pre-sentencing proceedings.