Child rapist gets 12 years

A 29-year-old man accused of raping a 12-year-old girl at Otjiwarongo more than three years ago was found guilty and sentenced to 12 years behind bars last week.

Natangwe Shishiveni's legal aid lawyer told Namibian Sun that they planned to lodge an appeal, based on their arguments during the trial that the complainant had fabricated the rape allegation as a way to avoid being punished for breaking a strict curfew.

Otjiwarongo Regional Court Magistrate Marelize du Plessis in her judgment last week found that the evidence presented by the State, including the results of a medical examination done shortly after the rape, confirmed the girl's version.

“There was clear sexual intercourse proven by the State through the production of the medical report,” Du Plessis stated.

“If the accused is to be believed, it would logically mean that the complainant, be it through consent or not, engaged for the first time in her life in sexual intercourse, leading to the broken hymen, and then coincidentally was confronted by the threat of the accused telling his mother of the complainant's absence from home, giving her the perfect opportunity to exact revenge on the accused,” she added.

During the trial a doctor confirmed that he had examined the girl after she had reported the incident to the police in January 2014. The doctor testified that there had been recent penetration as presented by a “broken hymen” that showed “fresh tears”.



Weak and strong testimony

She also added that Shishiveni's “defence is clearly one of bare denial of all the facts against him.”

Du Plessis said “although it seems likely that there was forced penetration as evidenced by the medical report”, the accused only stated that he was falsely implicated as the rapist of the 12-year-old “because she was afraid of his that that he would report her absence from home.”

She added that while the court must treat the testimony of the young complainant “with caution on both the grounds that she was a single witness and the fact that she was youthful”, her testimony “did not waver and remained consistent” and she was not “swayed during cross-examination.”

During cross-examination, the defence focused on the fact that the complainant had failed to tell the police and the court during her evidence in chief about her coming home later that night and arguing with the accused, whose mother she was living with at the time.

The defence argued that her failure to reveal this was an attempt to cover up the fact that she had made up the rape allegation as a way to avoid being punished for breaking curfew.

However, Du Plessis said that “given the magnitude of the episode the complainant went through, it is reasonably believable that she thought her transgression to be irrelevant to what happened thereafter.”

Siambango argued that the accused's version was that after the exchange he went out and came back later that night and immediately went to his room, and that he never touched the minor girl.



Ben and Shishiveni's absences

The magistrate also noted the absence of a key witness, who was cited by both Shishiveni and by the complainant as being able to corroborate their accounts of the night of 27 January 2014, had been suspicious.

The witness, Ben, whose last name was never provided to the court and who was named as a brother of Shishiveni, was called at least three times by the State as a witness, and failed to show up despite three remands.

The magistrate said that during his evidence in chief Shishiveni “became visibly uncomfortable when asked whether he knows where his brother is and stated that he does not know and that he lost the phone on which Ben's number was saved.”

The magistrate also stated that the lengthy search for Shishiveni, a builder, before his arrest, was suspicious.

“It is very suspicious that the accused departed for Windhoek on exactly the morning when the police came to his house to arrest him.”

She said his defence that he was called to another town for work, and could not be reached by his mother between the period of the incident and when he was arrested months later, was “very suspicious”.

She added that “his behaviour has all the characteristics of someone evading arrest for as long as possible”.

Du Plessis said that if he had been innocent of the crime “it begs the question why he did not report to the police himself in order to at least clear his name.”

JANA-MARI SMITH