One of the two men tried for gang-raping a woman in Swakopmund says the court convicted him without a testimony of an eye-witness.
Chris van Wyk, through his lawyer Kalundu Kamwi, is seeking leave from the High Court to appeal his conviction in the Supreme Court.
Van Wyk, who was convicted on a charge of rape by Judge Claudia Classen, says the court convicted him without a witness to attest to the alleged sexual act.
“The issue of the sexual act, there was no witness who came on record that the sexual act did indeed occur,” said Kamwi.
The act described by the State does not meet the requirements are stipulated in the Rape Act, he said.
Van Wyk was convicted of having raped a 30-year-old woman at Swakopmund on 1 November 2015.
The victim, however, died before the trial started.
State prosecutor Dominic Lisulo argued Van Wyk has no prospect of winning an appeal in the supreme court on the ground that there was no eye witness to the alleged crime.
He said the state had a strong prima facie case against him – and as such, he was convicted.
“No other court would come to a different conclusion in this matter on the grounds advanced by the defence. We seek that the matter be dismissed,” said Lisulo.
During the trial, Van Wyk, through his then-lawyer Mbanga Siyomunji, said he knew the complainant from before the incident –and they were together at a shebeen in Mondesa.
He further said the complainant agreed to have intercourse with him, and they went to the toilet to do the deed.
However, he said, due to the fact that they had no protection, and there were a lot of people knocking on the door, wanting to use the amenities, they abandoned the idea of having intercourse at the shebeen and instead decided to go home.
On their way, he said, they were accosted by four men – unknown to him – and one of the men asked the complainant who he was, and she answered that he is her brother. An altercation then ensued between him, the four men and the complainant – and in the process, he sustained an open wound on his head, and his cellphone was stolen, he claims.
While they were busy with the altercation, the police arrived at the scene – and the four men ran away, he said.
He added that at that stage, he was sitting on the ground next to the complainant, and was not on top of her as one of the witnesses claimed.
He went on to say he was surprised when the police manhandled and arrested him, while he was a victim of assault and robbery.
His version was dismissed by the court.
The court is scheduled to give a ruling on 30 November.
– mamakali@nepc.com.na