WINDHOEK - The murder trial of two men accused of brutally killing and raping a Swakopmund resident in September 2005 resumed on Friday last week with both men convicted of murder and violating a dead body by Judge Nate Ndauendapo in the Windhoek High Court.
They were acquitted of rape due to lack of sufficient evidence. According to the judge, the evidence is insufficient that they raped the deceased and the only reasonable inference that can be drawn is that they murdered the deceased. He said there was no evidence that the deceased was alive when they attempted to rape her. Kingsley Dausab, 44, and Michael Tsowaseb, 41, were charged with murder, rape, violating a dead body and theft in June 2011, but their trial has been disrupted by delay after delay.
According to the indictment they gang-raped and killed 34-year old Menesia Owoses at Swakopmund during the night of September 3 or 4, 2005.
Owoses died as a result of strangulation, it is stated, and they then violated her body by cutting/stabbing her neck and private parts with a broken bottle, stone or other object and by inserting an object into her privates and by having sexual intercourse with her corpse, the indictment reads.
Both men pleaded not guilty at the start of their trial on March 31 last year. They have spent more than 10 years in custody trial-awaiting. Both were convicted of murder and violating a dead body while Tsowaseb alone was convicted on a count of theft.
According to Judge Ndauendapo, the case is based on circumstantial evidence as there was no direct witnesses who saw what occurred when the deceased was murdered. According to the judge, the weight of the circumstantial evidence is so powerful and the probability of the accused’s version so weak that the test of circumstantial evidence has been satisfied. He further said that having regard to the totality of the evidence, he is satisfied that the state proved beyond a reasonable doubt that both Dausab and Tsowaseb, acting with common purpose, murdered the deceased. While the counsel for Dausab argued that he can only be convicted of culpable homicide as his only intention was to rape the deceased, the judge said he disagreed with that assertion. According to him, the doctor’s evidence was that there was forceful manipulation of the neck which caused cervical bone dislocation and the breaking of the cricoid. “The neck is a vulnerable and strong part of the body and to cause dislocation of it, strong force must have been used and to use such force, the intention was to cause death,” Judge Ndauendapo remarked.
On the counts of rape, the judge said, the question to be asked is whether the state proved beyond a reasonable doubt that the accused raped the deceased. He said there is no direct evidence adduced to prove that. “The medical evidence does not support or show any semen found on the deceased,” the judge stressed.
State Advocate Erich Moyo prosecuted and Dausab was represented by Braam Cupido from the office of Boris Isaacks and Tsowaseb by Mese Tjituri. The accused remain in custody.