An appeal by a man who was convicted of raping a minor girl repeatedly over several months during 2007 and 2008, was dismissed by Windhoek High Court judges Dinnah Usiku and Claudia Claasen.
The man, who may not be named to protect the identity of the victim, was convicted in the Swakopmund Regional Court on two counts of rape and sentenced to 20 years in prison during January 2016.
Not satisfied with both the conviction and sentence, he appealed in the High Court. He claimed that the magistrate was wrong in not considering that the complainant, who was nine years old at the time of the sexual assaults and 17 when she testified in court, was a single witness, and there was no corroboration of her version.
He further submitted that the complainant was ‘forcefully’ taken to the police station to make her report, and as such, there was duress and undue influence. Another oversight from the magistrate, he said, was that she did not consider that there was no rape kit taken from the complainant to confirm DNA existence, and that the J88 only suggested previous sexual intercourse, but not necessarily rape. He also claimed that the magistrate erred by not considering that there was never any alarm or report made against these allegations of rape, even though there were many other people staying at that residence. The victim testified that whenever her aunt – who was her guardian at the time – would go to the north, the appellant would come into the room she was sharing with a boy about a year younger than her at the time, tell the boy to leave the room, and then rape her.
This occurred several times during February 2007 and February 2008. After the rapes came to light, the appellant left his job, deserted his home and his two minor children, and fled. He was only arrested four years later.
Judge Usiku, who wrote the judgement, with the agreement of Judge Claasen, said while it is correct that the girl was a single witness regarding the rapes, she gave her evidence in a lucid manner.
“Although the victim was nine and ten years old, respectively, when the acts of rape were perpetrated on her, she was clear and consistent about the acts and the identity of the perpetrator,” Usiku stated.
“This is after a period of seven years. The victim was not shaken in cross-examination, and stood firm.” She said the magistrate was correct in finding that the appellant’s version that he did not rape the child and that it could have been another person who stayed in the same yard was not probable and therefore, not reasonably possibly true, and should thus be rejected as false beyond a reasonable doubt.
With regards to the sentence, the judge stated that in her view, the magistrate considered all the relevant factors, and she sees no reason to interfere.