WINDHOEK - A Swakopmund man who thought he got away with rape after the Windhoek High Court convicted him of indecent assault instead of rape got a rude awakening when the Namibia Supreme Court overturned his conviction and replaced it with one of attempted rape.
Stefanus Hendrick Ruba Gariseb was convicted by High Court Judge Naomi Shivute in May 2015 on indecent assault and acquitted on two counts of rape of a nine-year-old on April fool’s Day in 2011 in Mondesa, Swakopmund.
The judge sentenced him to seven years imprisonment. The State appealed the judgement to the Supreme Court and yesterday the Supreme Court delivered its judgement. It found that Gariseb is guilty of attempted rape set aside the sentence and ordered that he should be sentenced afresh on the attempted rape conviction. Court of Appeal Judge Sylvester Mainga with Judge of Appeal Dave Smuts and Acting Judge of Appeal Fred Chomba concurring found that Judge Shivute did not err in her judgment that no penetration took place, but that there was an attempt to rape the complainant.
According to the Supreme Court judges, there is no doubt that while an offence of attempted rape under the Rape Act is a competent verdict, the only concern will be whether the verdict would be prejudicial to the respondent (Gariseb).
“In this case the prejudice does not arise, for two reasons, namely, he was defended in the High Court and that it is unlikely he would have mounted a different defence to the one he raised. That is so in this case because the respondent pleaded not guilty and declined the basis of his defence which turned out to be bare denials,” stated Judge Mainga.
He went on to say that Gariseb denied presenting himself to the school where the complainant was and presented himself as the father of the child, he denied that he was referred to the principal, he denied the evidence of the complainant and that of her stepfather that he caught him red-handed on top of the complainant.
Gariseb was arrested after the stepfather of the complainant, who was nine years old at the time, walked into the room where he allegedly was having intercourse with the child.
Upon this discovery, the young girl allegedly revealed that Gariseb had raped her several times before. It is alleged that on the day of the rape, Gariseb went with the complainant to her school where he informed her teacher that the complainant was sick and that he was her father. He then allegedly took her to the shack where he stayed with the complainant’s mother and her boyfriend. When they arrived at the home the complainant allegedly wanted to go to her mother’s room to take off her school uniform, but Gariseb told her to undress in his room while he watching, it is alleged.
He then took the nine-year-old girl and made her lie on his bed and raped her, it is alleged. It was then when the stepfather walked in on them, the indictment read.
Gariseb was represented by Trevor Brockerhoff in the appeal and the State by Advocate Innocencia Nyoni.