Windhoek-based defence counsel Mbanga Siyomunji has successfully defended a Windhoek resident – referred to as a friendly uncle by the complainant – on a charge of rape in the Windhoek Regional Court.
Richardt Ucham was accused of raping a woman he claimed to have an intimate relationship with, which the woman (who may not be named to protect her identity) denied and accused him of raping her at his residence in Rocky Crest in Windhoek on 7 February 2021.
The complainant told the court she regraded Ucham as a “friendly uncle”, who always looked out for her and her children since they lived in the same building.
Regional Magistrate Mechluli Nyazo found that the two versions of the accused and complainant are mutually destructive, as they are on complete opposite ends.
While some of the evidence corroborated one another, such as what happened in the car of the complainant and the bedroom of the accused, it also differs materially.
While the accused maintains the sexual act was consensual and the complainant says it was non-consensual, the magistrate said he has no reason to reject the accused’s version.
He further said he finds the version of the complainant about what happened in the car and her conduct after disembarking from the vehicle flies in the face of logic and makes her credibility questionable, and that it also makes it highly questionable as to whether any coercive circumstances existed while she was in the vehicle.
“The court finds it highly improbable that after a person whom the complainant regarded as a ‘friendly uncle’ allegedly violated her by inserting his fingers in her privates and caressed and kissed her”, the complainant freely and voluntarily got out of her vehicle, freely and voluntarily walked with the accused to his house without raising any alarm, crying out for help or seeking refuge from a neighbour the compound.
The alleged sexual violation in the vehicle under normal circumstances ought to have traumatised her enough, such that she would fear the accused, which would make her conduct after disembarking from the vehicle that of a person acting out of free will, Nyazo stressed.
The events in the accused’s house also do not dispel the version the complainant acted out of her free will at all times, the magistrate stated.
According to him, the fact that she agreed to his request not to make noise, as his children were asleep, shows she was there out of her free will and was not forced by the accused.
Nyazo said, in his view, the complainant did not tell the truth and was disingenuous; consequently, the charges against the accused are dismissed.