WINDHOEK - Windhoek High Court Judge Dinnah Usiku on Wednesday convicted Brendan van Wyk, 33, a resident of the seaside town of Swakopmund on three counts of rape, but acquitted him on a fourth rape count and a count of attempting to obstruct or defeat the course of justice at the High Court.
The High Court session in which the conviction took place at the Windhoek Correctional Facility.
Van Wyk was acquitted on the first count of rape of a woman he told the court he paid N$70 after having consensual sexual intercourse with her. The woman who may not be named however decried this assertion of Van Wyk vehemently and told the court in no uncertain terms that she will never have sex for money. Judge Usiku however gave Van Wyk the benefit of the doubt as she said the court was not satisfied the truth has been told.
According to the judge, the complainant in the first count remained behind in the vehicle with the accused even after she earlier indicated that she wanted to go home. According to the accused’s version, the judge said, he and the complainant had already kissed when they were at the ocean and that should have rang alarm bells when he followed into the room if she was not inclined to follow through. Why would she open her door for him?” The judge asked with judicial contempt.
Moving onto the rape of the minor girl on which Van Wyk was found guilty, Judge Usiku said the medical evidence confirmed that the complainant had a tear on her vagina and was bleeding.
That evidence corroborated the complainants’ version of having been raped recently and the doctor who examined her found sand around her private parts and that she had a small laceration at her perineum, the judge remarked.
“The victim reported that she was raped on the ground in the cemetery is consistent with the doctor’s findings,” Judge Usiku stated. She said that having regarded the testimony of the complainant the accused’s claim of having had consensual sexual intercourse, cannot be reasonably possibly true, and therefore stands to be rejected as it is clearly false.
“The complainant immediately upon her return to their house informed her mother that she was raped by a man. She did not know the name of the man who raped her. She was scared and crying. The doctor’s observation was that the complainant seemed to be distressed as well as anxious. The lower part of her abdomen was covered in gravel and sand. Sand was also observed in her genital area. All those observations made by the doctor who attended to the complainant clearly show that the rape incident had traumatic effects on her,” the Judge narrated.
She said there is clear evidence that the sexual intercourse could not have been consensual as the accused claimed, that it was done under coercive circumstances and Van Wyk is accordingly guilty of rape. With regards to the third women he accosted, the judge said there is no doubt that two separate cases of rape had been proven against Van Wyk beyond reasonable doubt. She said the accused’s claim of consensual intercourse after he had proposed cannot be true given the state of her pregnancy. This victim was three to four months pregnant at the time. Judge Usiku further said that the observation of the doctor who examined the complainant after the rape was that the complainant appeared depressed and withdrawn. The judge further remarked that Van Wyk’s version is yet again another fabrication and must be rejected as false.
“The reason why the accused’s version must be rejected as false is firstly because the complainant could not have consented to sexual intercourse with the accused due to the state of her pregnancy. She was a married woman and the sexual intercourse took place in an open space. She sustained injuries during the sexual encounter. All these does not accord an atmosphere of bliss after consensual sexual intercourse,” Judge Usiku said.
Van Wyk was represented by Legal Aid lawyer Mpokiseng Dube and the State by Advocate Palmer Khumalo.
The trial will resume on April 05 for pre-sentencing procedures and Van Wyk remains in custody at the Windhoek Correctional Facility’s section for trail awaiting inmates.