WINDHOEK - Bertus Koch, the DRC settlement of Swakopmund resident accused of child trafficking and rape, alternatively committing an immoral act with a child under the age of 16 was on Tuesday convicted on the trafficking count, acquitted on the rape charge, but convicted on the alternative charge by High Court Judge President and Deputy Chief Justice Petrus Damaseb.
Presiding over the Windhoek High Court, Judge Damaseb said the State proved beyond a reasonable doubt that Koch received and harboured five minor girls which makes him guilty of child trafficking, but the Court could not prove that he is guilty of the offence of rape.
It was however proved, the judge said that Koch made “lewd and lascivious” suggestions to the complainants which amounts to an offence under the Combatting of Immoral Practices Act.
Koch, 43, was charged with the rape and trafficking of children aged nine, 11, 12 and 13 on diverse occasions in the DRC settlement. A greater part of the trial was conducted behind closed doors on camera as the victims are all under the age of 18 years. The State is alleging that Koch raped the five girls during the period of November 2015 to May 2016 in his zinc house at DRC. According to the indictment, he lured them into his house with the promises of food and sweets, then locked them up and raped them on several occasions.
According to Judge Damaseb, the evidence shows that the accused undressed in front of some of the complainants on at least two occasions. He said that two of the complainants testified that on one occasion the accused put on a condom and satisfied himself in front of them and a white substance came out of his privates. On another occasion, he wrapped a plastic used to cover bread on his genitals and ordered one of the girls to lick it. This, the judge said, has a ring of truth to it. “It is most improbable that the minor complainants could have been couched to provide that sort of detail,” he said. “The importance of this evidence is that it shines light on the accused’s motive for his association with the complainants. It makes it clear to me, beyond reasonable doubt, that he had a sexual motive for associating with the girls. I need not be satisfied that he actually physically molested them. It suffices if I am satisfied that, in the presence of one or more of the complainants, he engaged in acts of indecency or immorality from which he derived sexual gratification,” stated Judge Damaseb. With regard to the rape allegations, the Judge President said apart from the girl’s mere say-so, there is no physical evidence to show the accused committed sexual acts on the complainants. “The question therefore arises whether it is safe for me to convict him of rape on the evidence of the complainants alone,” Judge Damaseb wanted to know, and continued: An allegation of rape is very easy to make and quite difficult to disprove. He went on to say that the complainant’s versions are most confusing even to the seasoned and hardened judicial mind.
“Their versions are internally inconsistent and, in material respects, inconsistent as between the complainant’s – even when supposedly referring to the same incident. According to the judge, the unavoidable conclusion to which he came to based on the inconsistencies in the evidence of the complainants is that it is unsafe to convict Koch on rape based on the allegations of the complainants. Koch remains in custody and will come back to court on September 27 for pre-sentencing procedures. He was represented by Legal Aid lawyer Mpokiseng Dube and the State by Advocate Innocencia Nyoni.