One of the two men convicted of raping and violently robbing an elderly couple from Uis in the Erongo region during 2010 wants the High Court to grant him leave to appeal both his conviction and sentence in the Supreme Court.
Charles Namiseb, who was sentenced to an effective 57 years imprisonment after fleeing to South Africa for an extended period shortly after his conviction, is claiming the High Court was wrong when it convicted him on three counts of rape, one count of robbery with aggravating circumstances and two counts of assault with intent to do grievous bodily harm.
His co-accused in the matter, Edwin Tourob, was sentenced to an effective prison term of 53 years.
At the time, Judge Alfred Siboleka said Namiseb’s actions on the date in question were driven by mere greed, as he was a businessman who owned a plumbing business and was the mastermind behind the violent attack.
Namiseb through his lawyer, Mbanga Siyomunji, now claims that the judge was wrong when he concluded that it was him who attacked and robbed the elderly couple that may not be named to protect the identity of the woman.
According to him, the elderly couple could not identify their attackers, either through an identity parade or through dock identification.
He further claims that there was no bruising, no tears, no bleeding and no lacerations found on the private parts of the woman even though she testified that she was violently raped several times.
He claims that the judge was wrong when he concluded that he (Namiseb) committed a robbery as he was never positively identified by either complainant and that he was never found in possession of any of the items stolen from the house of the complainants.
The convict said that one of the State witnesses testified that he met up with him on the day in question and that he had no property in his possession, either a firearm, jewellery, or money.
He further claims that no evidence was placed on record to place him on the scene of the crime and thus the judge erred when he concluded that the State proved its case against him beyond reasonable doubt.
According to Namiseb, none of the State witnesses including the police officers who mounted a roadblock in search of the attackers could positively identify him as one of the occupants of the motor vehicle, while the witness who testified about a person coming to him in search of clothes also did not positively identify him.
Furthermore, Namiseb claims, no fingerprints or DNA that belongs to him was found either on the scene or in the motor vehicle.
According to him, the DNA that was found was so contaminated that it was of no use.
With regards to the sentence, he said it was so inappropriately harsh that it induces a sense of shock.
He said the Supreme Court has already pronounced itself on sentences that surpass the legitimate life expectancy of a person in the Zedekias Gaingob judgement.
He said that a sentence in excess of 37 and half years is unconstitutional and such sentence should rather be converted to life imprisonment where a convicted person is liable for parole after serving 25 years.
He concluded that when consideration is given to his submissions, there exists a very high possibility that the Supreme Court, acting carefully, may come to a different conclusion.
An acting judge who heard the application indicated he will deliver his ruling on 25 September.