Court name
High Court Main Division
Case number
CC 46 of 2009
Title

S v Matundu and Others (CC 46 of 2009) [2013] NAHCMD 241 (15 August 2013);

Media neutral citation
[2013] NAHCMD 241
Coram
Ndauendapo J













REPORTABLE



REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



JUDGMENT



CASE NO.: CC 46/2009



In the matter between:



THE STATE



and



JOHNSON MATUNDU
..................................................................................1ST
ACCUSED



UAZENGA TJAMUAHA
................................................................................2ND
ACCUSED



KAHIJAMBUA KAMUINGONA
....................................................................3RD
ACCUSED



UTJATAE MURETI
.......................................................................................4TH
ACCUSED



Neutral citation:
State v Matundu (CC46/2009) [2013] NAHCMD 241 (15 August
2013)



CORAM: NDAUENDAPO, J



Heard on: 27-28
May 2013



Delivered on: 15
August 2013



______________________________________________________________________



ORDER



______________________________________________________________________



In the result,



Accused 1 is convicted of
count 1, 4, 5, 10, 14, 18



Accused 2 is convicted of
count 2, 3, 6, 11, 15, 17



Accused 3 is convicted of
count 7, 12, 13, 19



Accused 4 is convicted of
count 8, 9, 16, and 20



______________________________________________________________________



JUDGMENT



______________________________________________________________________



NDAUENDAPO, J:



[1] The accused are
arraigned in this Court and charged with the following crimes.



COUNT 1 In respect of
accused 1 Johnson Matundu



That the accused is
guilty of contravening section 1, 2(2), 3, 5, 6 and 18 of Act 8 of
2000 – Rape.



The state alleges that
upon or about 23 May 2008 and at or near Okakarara Secondary School
in the district of Okakarara, JOHNSON MATUNDU hereinafter
called the 1st perpetrator, did wrongfully, unlawfully and
intentionally commit or continue to commit a sexual act with
Mbajoroka Kauami, hereinafter called the complainant, under coercive
circumstances, by inserting his penis into the vagina of the
complainant and the coercive circumstances are:



That he applied physical
force to the complainant



That the presence of the
2nd perpetrator Uazenga Tjamuaha was used to intimidate
the complainant and the complainant was unlawfully detained.



COUNT 2 In respect of
accused 2 Uazenga Tjamuaha



That the accused is
guilty of contravening section 2 (1) (b) read with section 1, 2(2),
3, 5, 6 and 18 of Act 8 of 2000 – Rape.



The state alleges that
upon or about 23 May 2008 and at or near Okakarara Secondary School
in the district of Okakarara, the accused UAZENGA TJAMUAHA
hereinafter called the 2nd perpetrator did wrongfully,
unlawfully and intentionally cause the 1st perpetrator
Johnson Matundu to commit or continue to commit a sexual act with
Mbajoroka Kauami, hereinafter called the complainant, under coercive
circumstances by holding the complainant while Johnson Matundu
inserted his penis into the vagina of the complainant and the
coercive circumstances are:



That he applied physical
force to the complainant;



His presence was used to
intimidate the complainant and;



The complainant was
unlawfully detained.



COUNT 3 In respect of
accused 2 Uazenga Tjamuaha



That the accused is
guilty of contravening section 2 (1) read with section 1, 2(2), 3, 5,
6 and 18 of Act 8 of 2000 – Rape.



The state alleges that
upon or about 23 May 2008 and at or near Okakarara Secondary School
in the district of Okakarara, the accused UAZENGA TJAMUAHA
hereinafter called the 2nd perpetrator did wrongfully,
unlawfully and intentionally commit or continue to commit a sexual
act with Mbajoroka Kauami, hereinafter called the complainant,
under coercive circumstances by inserting his penis into the vagina
of the complainant and the coercive circumstances are:



He applied physical force
to the complainant;



That presence of accused
1st Johnson Matundu was used to intimidate the complainant
and the complainant was unlawfully detained.



COUNT 4 in respect of
accused 1 Johnson Matundu



That the accused is
guilty of contravening section 2 (1) (b) read with section 1, 2(2),
3, 5, 6 and 18 of Act 8 of 2000 – Rape.



The state alleges upon or
about 23 May 2008 and at or near Okakarara Secondary School in the
district of Okakarara, the accused JOHNSON MATUNDU hereinafter
called the 1st perpetrator did wrongfully, unlawfully and
intentionally cause the 2nd perpetrator Uazenga Tjamuaha
to commit or continue to commit a sexual act with Mbajoroka Kauami,
hereinafter called the complainant, under coercive circumstances, by
holding the complainant while the 2nd perpetrator Uazenga
Tjamuaha inserted his penis into the vagina of the complainant and
the coercive circumstances are:



That he applied physical
force to the complainant;



His presence was used to
intimidate the complainant and;



The complainant was
unlawfully detained.



COUNT 5 in respect of
accused 1 Johnson Matundu



That the accused is
guilty of contravening section 2 (1) (a) read with section 1, 2(2),
3, 5, 6 and 18 of Act 8 of 2000 – Rape.



The state alleges that
upon or about 23 May 2008 and at or near Okakarara Secondary School
in the district of Okakarara, the accused JOHNSON MATUNDU hereinafter
called the 1st perpetrator, did wrongfully, unlawfully and
intentionally commit or continue to commit a sexual act with
Mbajoroka Kauami, hereinafter called the complainant, under coercive
circumstances, by inserting his penis into the vagina of the
complainant and the coercive circumstances are:



That presence of the 2nd
perpetrator Uazenga Tjamuaha, the 3rd perpetrator,
Kahijambwa Kamuingona and the 4th perpetrator Utjatae
Mureti was used to intimidate the complainant and the complainant was
unlawfully detained.



COUNT 6 in respect of
accused 2 Uazenga Tjamuaha



That the accused is
guilty of contravening section 2 (1) (b) read with section 1, 2(2),
3, 5, 6 and 18 of Act 8 of 2000 – Rape.



The state alleges that
upon or about 23 May 2008 and at or near Okakarara Secondary School
in the district of Okakarara, the accused UAZENGA TJAMUAHA
hereinafter called the 2nd perpetrator did wrongfully,
unlawfully and intentionally cause the 1st perpetrator
Johnson Matundu to commit or continue to commit a sexual act with
Mbajoroka Kauami, hereinafter called the complainant, under coercive
circumstances, by holding the complainant, while the 1st
perpetrator Johnson Matundu inserted his penis into the vagina of the
complainant and the coercive circumstances are:



That he applied physical
force to the complainant;



His presence was used to
intimidate the complainant and;



The complainant was
unlawfully detained.



COUNT 7 in respect of
accused 3 Kaijambua Kauingono



That the accused is
guilty of contravening section 2 (1) (b) read with section 1, 2(2),
3, 5, 6 and 18 of Act 8 of 2000 – Rape.



The state alleges that
upon or about 23 May 2008 and at or near Okakarara Secondary School
in the district of Okakarara, the accused KAIJAMBUA KAMUINGONO
hereinafter called the 3rd perpetrator did wrongfully,
unlawfully and intentionally cause the 1st perpetrator
Johnson Matundu to commit or continue to commit a sexual act with
Mbajoroka Kauami, hereinafter called the complainant, under coercive
circumstances, by holding the complainant while the 1st
perpetrator Johnson Matundu inserted his penis into the vagina of the
complainant and the coercive circumstances are:



That he applied physical
force to the complainant; His presence was used to intimidate the
complainant and; the complainant was unlawfully detained.



COUNT 8 in respect of
accused 4 Utjatae Mureti



That the accused is
guilty of contravening section 2 (1) (b) read with section 1, 2(2),
3, 5, 6 and 18 of Act 8 of 2000 – Rape.



The state alleges that
upon or about the 23 May 2008 and at or near Okakarara Secondary
School in the district of Okakarara, the accused UTJATAE MURETI
hereinafter called the 4th perpetrator did wrongfully,
unlawfully and intentionally cause Johnson Matundu to commit or
continue to commit a sexual act with Mbajoroka Kauami, hereinafter
called the complainant while the 1st perpetrator Johnson
Matundu inserted his penis into the vagina of the complainant under
coercive circumstances by holding the complainant and the coercive
circumstances are:



That he applied physical
force to the complainant; His presence was used to intimidate the
complainant and; the complainant was unlawfully detained.



COUNT 9 in respect of
accused 4 Utjatae Mureti



That the accused is
guilty of contravening section 2 (1) (a) read with section 1, 2(2),
3, 5, 6 and 18 of Act 8 of 2000 – Rape.



The state alleges that
upon or about 23 May 2008 and at or near Okakarara Secondary School
in the district of Okakarara, the accused UTJATAE MURETI
hereinafter called the 4th perpetrator, did wrongfully,
unlawfully and intentionally commit or continue to commit a sexual
with Mbojoroka Kauami, hereinafter called the complainant, under
coercive circumstances, by inserting his penis into the vagina of the
complainant and the coercive circumstances are:



That presence of 1st
perpetrator Johnson Matundu, the 2nd perpetrator Uazenga
Tjamuaha and the 3rd perpetrator, Kahijambua Kamuingona
was used to intimidate the complainant and the complainant was
unlawfully detained.



COUNT 10 in respect of
accused 1 Johnson Matundu



That the accused is
guilty of contravening section 2 (1) (b) read with section 1, 2(2),
3, 5, 6 and 18 of Act 8 of 2000 – Rape.



The state alleges that
upon or about 23 May 2008 and at or near Okakarara Secondary School
in the district of Okakarara, the accused JOHNSON MATUNDU
hereinafter called the 1st perpetrator did wrongfully,
unlawfully and intentionally cause the 4th perpetrator
Utjatae Mureti to commit or continue to commit a sexual act with
Mbajoroka Kauami, hereinafter called the complainant, under coercive
circumstances, by holding the complainant while the 4th
perpetrator Utjatae Mureti inserted his penis into the vagina of the
complainant and the coercive circumstances are;



That he applied physical
force to the complainant;



His presence was used to
intimidate the complainant and;



The complainant was
unlawfully detained.



COUNT 11 in respect of
accused 2 Uazenga Tjamuaha



That the accused is
guilty of contravening section 2 (1) (b) read with section 1, 2(2),
3, 5, 6 and 18 of Act 8 of 2000 – Rape.



The state alleges that
upon or about 23 May 2008 and at or near Okakarara Secondary School
in the district of Okakarara, the accused UAZENGA TJAMUAHA
hereinafter called the 2nd perpetrator did wrongfully,
unlawfully and intentionally cause the 4th perpetrator
Utjatae Mureti to commit or continue to commit a sexual act with
Mbajoroka Kauami, hereinafter called the complainant, under coercive
circumstances, by holding the complainant while the 4th
perpetrator Utjatae Mureti inserted his penis into the vagina of the
complainant and the coercive circumstances are;



That he applied physical
force to the complainant;



His presence was used to
intimidate the complainant and;



The complainant was
unlawfully detained.



COUNT 12 in respect of
accused 3 Kaijambua Kamuingono



That the accused is
guilty of contravening section 2 (1) (b) read with section 1, 2(2),
3, 5, 6 and 18 of Act 8 of 2000 – Rape.



The state alleges that
upon or about 23 May 2008 and at or near Okakarara Secondary School
in the district of Okakarara, the accused KAIJAMBUA KAMUINGONO
hereinafter called the 3rd perpetrator did wrongfully
, unlawfully and intentionally cause the 4th perpetrator
Utjatae Mureti to commit or continue to commit a sexually act with
Mbajoroka Kauami, hereinafter called the complainant, under coercive
circumstances, by holding the complainant while the 4th
perpetrator Utjatae Mureti inserted his penis into the vagina of the
complainant and the coercive circumstances are:



That he applied physical
force to the complainant;



His presence was used to
intimidate the complainant and;



The complainant was
unlawfully detained.



COUNT 13 in
respect of accused 3 kaijambua kamuingona



That the accused is
guilty of contravening section 2 (1) (a) read with section 1, 2(2),
3, 5, 6 and 18 of Act 8 of 2000 – Rape.



The state alleges that
upon or about 23 May 2008 and at or near Okakarara Secondary School
in the district of Okakarara, the accused KAIJAMBUA KAMUINGONO
hereinafter called the 3rd perpetrator did wrongfully,
unlawfully and intentionally commit or continue to commit a sexual
act with Mbajoroka Kauami, hereinafter called the complainant, under
coercive circumstances, by holding the complainant while the 4th
perpetrator Utjatae Mureti inserted his penis into the vagina of the
complainant and the coercive circumstances are:



That by words and or
conduct he threatened to apply physical force to the complainant.



That presence of 1st
perpetrator Johnson Matundu, the 2nd perpetrator Uazenga
Tjamuaha and the 3rd perpetrator, Utjatae Mureti was used
to intimidate the complainant and the complainant was unlawfully
detained,



COUNT 14 in
respect of accused 1 Johnson Matundu



That the accused is
guilty of contravening section 2 (1) (b) read with section 1, 2(2),
3, 5, 6 and 18 of Act 8 of 2000 – Rape.



The state alleges that
upon or about 23 May 2008 and at or near Okakarara Secondary School
in the district of Okakarara, the accused JOHNSON MATUNDU
hereinafter called the 1st perpetrator did wrongfully,
unlawfully and intentionally cause the 3rd perpetrator
Kaijiambua Kamuingona to commit or continue to commit a sexual act
with Mbajoroka Kauami, hereinafter called the complainant, under
coercive circumstances,, by holding the complainant while the 3rd
perpetrator Kaijambua Kamuingona inserted his penis into the vagina
of the complainant and the coercive circumstances are:



That he applied physical
force to the complainant;



His presence was used to
intimidate the complainant and;



The complainant was
unlawfully detained.



COUNT 15 in respect of
accused 2 Uazenga Tjamuaha



That the accused is
guilty of contravening section 2 (1) (b) read with section 1, 2(2),
3, 5, 6 and 18 of Act 8 of 2000 – Rape.



The state alleges that
upon or about 23 May 2008 and at or near Okakarara Secondary School
in the district of Okakarara, the accused JOHNSON MATUNDU hereinafter
called the 1st perpetrator Kaijambua Kamuingona to commit
or continue to commit a sexual act with Mbajoroka Kauami, hereinafter
called the complainant, under coercive circumstances, by holding the
complainant while the 3rd perpetrator Kaijambua Kamuingona
inserted his penis into the vagina of the complainant and the
coercive circumstances are:



That he applied physical
force to the complainant;



His presence was used to
intimidate the complainant and;



The complainant was
unlawfully detained.



COUNT 16 in respect of
accused 4 Utjatae Mureti



That the accused is
guilty of contravening section 2 (1) (b) read with section 1, 2(2),
3, 5, 6 and 18 of Act 8 of 2000 – Rape.



The state alleges that
upon or about 23 May 2008 and at or near Okakarara Secondary School
in the district of Okakarara, the accused UTJATAE MURETI hereinafter
called the 4th perpetrator did wrongfully, unlawfully and
intentionally cause the 3rd perpetrator Kaijambua
Kamuingona to commit or continue to commit a sexual act with
Mbajoroka Kauami, hereinafter called the complainant, under coercive
circumstances, by holding the complainant while the 3rd
perpetrator Kaijambua Kamuingona inserted his penis into the vagina
of the complainant and the coercive circumstances are:



That he applied physical
force to the complainant;



His presence was used to
intimidate the complainant and;



The complainant was
unlawfully detained.



COUNT 17 in respect of
accused 2 Uazenga Tjamuaha



That the accused is
guilty of contravening section 2 (1) (a) read with section 1, 2(2),
3, 5, 6 and 18 of Act 8 of 2000 – Rape.



The state alleges that
upon or about 23 May 2008 and at or near Okakarara Secondary School
in the district of Okakarara, the accused UAZENGA TJAMUAHA
hereinafter called the 2nd perpetrator, did wrongfully,
unlawfully and intentionally commit or continue to commit a sexual
act with Mbajoroka Kauami, hereinafter called the complainant, under
coercive circumstances, by inserting his penis into the vagina of the
complainant and the coercive circumstances are:



That the presence of the
1st perpetrator Johnson Matundu, the 3rd
perpetrator Kaijambua Kamuingona and the 4th perpetrator
Utjatae Mureti was used to intimidate the complainant and complainant
was unlawfully detained.



COUNT 18 in respect of
accused 1 Johnson Matundu



That the accused is
guilty of contravening section 2 (1) (b) read with section 1, 2(2),
3, 5, 6 and 18 of Act 8 of 2000 – Rape.



The state alleges that
upon or about 23 May 2008 and at or near Okakarara Secondary School
in the district of Okakarara, the accused JOHNSON MATUNDU
hereinafter called the 1st perpetrator did wrongfully,
unlawfully and intentionally cause the 2nd perpetrator
Uazenga Mbajoroka Kauami, hereinafter called the complainant while
the 2nd perpetrator Uazenga Tjamuaha inserted his penis
into the vagina of the complainant and the coercive circumstances
are;



That he applied physical
force to the complainant;



His presence was used to
intimidate the complainant and;



The complainant was
unlawfully detained.








COUNT 19 in respect of
accused 3 Kaijambua Kamuingono



That the accused is
guilty of contravening section 2 (1) (b) read with section 1, 2(2),
3, 5, 6 and 18 of Act 8 of 2000 – Rape.



The state alleges that
upon or about 23 May 2008 and at or near Okakarara Secondary School
in the district of Okakarara, the accused KAIJAMBUA KAMUINGONO
hereinafter called the 3rd perpetrator did wrongfully,
unlawfully and intentionally cause the 2nd perpetrator
Uazenga Tjamuaha to commit or continue to commit a sexual act with
Mbajoroka Kauami, hereinafter called the complainant while the 2nd
perpetrator Uazenga Tjamuaha inserted his penis into the vagina of
the complainant and the coercive circumstances are:



That he applied physical
force to the complainant;



His presence was used to
intimidate the complainant and;



The complainant was
unlawfully detained.



COUNT 20 in respect of
accused 4 Utjatae Mureti



That the accused is
guilty of contravening section 2 (1) (b) read with section 1, 2(2),
3, 5, 6 and 18 of Act 8 of 2000 – Rape.



The state alleges that
upon or about 23 May 2008 and at or near Okakarara Secondary School
in the district of Okakarara, the accused UTJATAE MURETI
hereinafter called the 4th perpetrator did wrongfully,
unlawfully and intentionally cause the 2nd perpetrator
Uazenga Tjamuaha to commit or continue to commit a sexual act with
Mbajoroka Kauami, hereinafter called the complainant, under coercive
circumstances, by holding the complainant while the 2nd
perpetrator Uazenga Tjamuaha inserted his penis into the vagina of
the complainant and the coercive circumstances are .



That he applied physical
force to the complainant;



His presence was used to
intimidate the complainant and;



The complainant was
unlawfully detained.



[2] SUMMARY OF
SUBSTANTIAL FACTS



The complainant was a
learner at Okakarara Secondary School. All 4 accused persons were
also learners at the same school.



On the 23 May 2008 the
complainant and her friends failed to get lifts to take them to their
homes where they were to spend the weekend off school. They returned
to the hostel.



Later the complainant and
her friends were on their way to get food when the complainant was
stopped by the 1st and 2nd perpetrators who
were her classmates. Her friends proceeded without her. The 1st
and 2nd perpetrator grabbed hold of the complainant and
dragged her to a toilet. The 2nd perpetrator closed the
door to the toilet. The 1st perpetrator then had sexual
intercourse with the complainant while the 2nd perpetrator
held her down.



When the 1st
perpetrator finished having sexual intercourse with the complainant
the 2nd perpetrator had sexual intercourse with her while
the 1st perpetrator held the complainant down.



When the 2 finished
having sexual intercourse with the complainant, they left the
complainant in the toilet. The complainant who was crying got out of
the toilet and started walking towards the hostel. While she was
walking the complainant was called by the 3rd perpetrator,
Kaijambua Kamuingona.



The 3rd
perpetrator threatened her with a knife and then pushed her to the
boy’s hostel. In the hostel the 3rd perpetrator was
joined by the 1st perpetrator, Johnson Matundu and the 2nd
perpetrator, Uazenga Tjamuaha and the 4th perpetrator
Utjatae Mureti. All 4 perpetrators assisted each other and took turns
to have sexual intercourse with the complainant.



[3] All the accused
pleaded not guilty to all the charges preferred against them. Accused
1 was not present at the hostel when the alleged rape took place in
the toilet and in the hostel. Accused 2 explained that he had
consensual sex with the complainant in his room. He denied raping her
in the toilet. Accused 3 was at the village when the alleged rape
took place. Accused 4 explained that he had consensual sex with the
complainant in the toilet. Mr Karuaihe is representing accused 1; Mr
Mbaeva is acting for accused 2, Mr Uirab for accused 3 and Mr Coetzee
for accused 4. Ms Esterhuizen is acting for the state.



The state called the
following witness and the summary of their evidence is as
follows:



[4] ALEX MWENDERA



He testified that he
photographed certain points pointed out to him by the complainant.
The photo plan handed in court is a true reflection of what he has
photographed.



[5] TUVATEE TJIVAU



She is a teacher at
Okakarara secondary school. She testified that she knows all accused
persons and the complainant. The complainant and accused 1 and
accused 2 were learners in her class in 2008. Accused 3 and 4 were
learners at the same school. She was informed by Sexy that the
complainant was raped.



She then approached the
complainant who further told her during her register period at school
on the 28th May 2008. According to her the complainant’s,
looked sad also crying and unstable.



She decided that she
could not ask her in class and she called the complainant outside.
Outside the complainant told her that she was raped over the weekend
by the 4 accused persons. The complainant was continuously crying and
she decided to take her to the office of the principal. She also told
the court that she did not ask the complainant in detail as to what
had happened as she was crying continuously.



[6] Doctor Sikota
Mutanekelwa Zeko



Dr. Zeko testified that
during 2008 he was stationed at Otjiwarongo state hospital at the
outpatient department.



He examined the
complainant on the 28th May 2008. Five days after the
alleged rape. His observations were as follows: ‘fourchete
tender, vestibule tender, hymem-annular, not present, fresh tear,
vagina difficult to examine, even with one finger, marked tenderness
examination was painful, bruising on posterior wall.’
Conclusion ‘injuries fit with the time and circumstances of
alleged incident, findings suggestive of forceful entry’.



He further testified that
because of the examination which showed that there was lot of
tenderness, that indicated that there was forceful entry and also
indicated that, there was some penetration and the fact that his
examination was several days later, from the time of the incident, he
would not expect so much pain.



On a question by the
Court on whether if there was consensual sex between the patient
(complainant) who was a virgin for that matter, and a man would you
be able to observe this kind of forceful entry that you referred to
in your report? The doctor replied “no I will not because the
pain was so much and usually when there is consent, there is
lubrication, because the body respond positively when there is
consent.”



Q: you mean
lubrication from within the body



A: yes, because there
were glands there that lubricate the vagina



The Court further asked
from your examination can you say that this forceful entry happens
once or twice or what was your observation about that? In other words
how many times would you say the penis caused that injury. The doctor
replied: ‘your Honour it would be more than once. ‘‘because
the pain was not just on the outside, but also on the inside.’’



Dr Zeko also examined
each of the accused persons. In respect of ACCUSED 2, UAZENGA
TJAMUAHA he found hyper pigmented patches on circumcised glans penis.
Tender, no bruising or tenderness on shaft. He explained the colour
was different from the actual glans penis because the colour is
usually pink, but this one looked a bit reddish. He stated any force
could have caused that, if it is used against any resistance. Dr Zeko
found it to be tender, painful as the accused showed that there were
some pain when he touched that area. He concluded that the ‘injuries
fit with the time and circumstance of the alleged incident’.



In respect of ACCUSED 3,
KANUINGONO KAHIJAMBUA he found circumcised hyper pigmented peri
urethal area. It means that the pigmentation there was darker around
the peri urethal area. Normal colour is, it looks pink. The
pigmentation could be caused by any external force on the glans penis
itself. Dr. Zeko however indicated he would not know when sexual
intercourse had taken place.



In respect of ACCUSED 1,
Johnson Matundu, he observed penis partial erection circumcised,
injuries fit the time and circumstances of the alleged incident’.
He testified that he cannot remember whether he had found any
injuries.



Dr Zeko’s
explanation with regard to the above he stated that this one was done
right at the end, after he had finished everything. And by that time,
the patients had already gone. He also explained that he wrote the
conclusion at the end of the examinations.



I respect of ACCUSED 4,
UTJATAE MURETI, Dr. Zeko indicated he also found hyper pigment peri
urethral area. That was caused by external force, applied to the tip
of the glands penis.



[7] Mbajoroka
Kauami



She testified that in
2008 she was in grade 9 at Okakarara Secondary School. She was
staying in the hostel. She was 17 years old. She knows accused 1 and
2 very well as they were in the same class. She knows accused 3 as he
was a learner at the same school. Accused 4’s father is the
brother to her mother. She testified that the Friday 22 May 2008 was
an out weekend. The hostel supervisor told them that they must leave
the hostel premises to go to their homes and if they do not get
transport to their homes, they can come back to the hostel. She went
to look for transport to go home, but she could not pay the fare and
she then returned to the hostel. The girl who was in charge at the
hostel informed them that they had to provide for their own food as
it was an out weekend. A friend of hers suggested that they go to the
location to a friend to get food. At around 19h00 they decided to
walk to the location. There was a still light and as they were
approaching the boys’ toilets they found accused 1 and 2
standing there. Accused 1 asked her to stand/stop as he wanted to ask
her something. She stopped and asked her friends to wait for her at
the gate. They told her that time was not on their site and she must
find them on the way. When they left, accused 1 grabbed her on the
right arm and forcefully pulled her towards him. She asked him to
leave her so that she could go. Accused 2 came and held her on the
left arm. She was resisting. They pulled her into the boy’s
toilet. Accused 2 closed the door of the toilet and her back was
against the wall. She stood against the wall with the aim of trying
to beat them off so that they could not touch her. They told her to
be quiet. Accused 2 grabbed her legs and pulled her down. She hit her
back on the floor and injured her back. She was wearing a long
trouser, a top and a jersey. Whilst lying on the floor, accused 2
came and pulled her arms towards the back and pressed them down on
the floor. Accused 1 was in the meantime undressing his trouser and
pulled his trunkie up to his knees. Thereafter he undressed her
trouser and panty up to under her knees. He got on top of her and
inserted his penis into her vagina and raped her. After accused 1
finished he got off and told accused 2 that it was now his turn and
he accused 1 would hold her arms so that accused 2 could get his
turn. Accused 1 held her arms/pulled her arms upwards and then
pressed them down onto the floor. Accused 2 then undressed his
trouser and trunkie and then got on top of her. He inserted his penis
into her vagina and raped her. After they finished both dressed up
and ran out of the toilet towards the boy’s hostel. She then
dressed up and decided to go back to the girl’ hostel. She was
in much pain between her legs and her back. As she approached the
girls’ block, accused 3 was standing there. He called her and
she tried to wipe off her tears. The visibility was fine and she
recognized his voice. Accused 3 told her to come to him as he wanted
to ask her something. She went to him as she thought that he wanted
to ask her about school work. He asked her why she was crying, but
she was quite. She then told him that if ‘there was nothing
constructive he wanted to discuss she was going to sleep. She then
turned her back towards him with the intention of going and he then
grabbed her on the hair and forcefully pulled her back towards him.
He then took out a small knife and pressed the knife against her neck
and told her to listen to each and everything he was telling her. She
thought that he will stab her or even kill her. He then said she must
accompany him to the boys hostel. She did not want to go with, but he
was pushing her until they reached the boys hostel. He told her that
if she did not do what he was telling her, he can do anything to her
therefore she must do what he was demanding from her. They walked
pushing, pulling as she tried to resist. They entered the boys block
and he then took her inside to the 3rd room from the
entrance. She resisted entering, but he pushed her on the floor of
the room on a mattress. He pushed her from behind and she fell on the
floor on the mattress. She tried to jump up and ran away, but she
suddenly saw the other accused coming into the room. That was accused
1, 2, and 4. The lights were on and it was clear and they were coming
from the other rooms.



They grabbed her and
pushed her onto the mattress. Accused 2 then took her arms pushed
them backward and then pressed them down onto the mattress and sat on
them. Accused 4 then got hold of her legs and opened them. Accused 3
came undressed her trouser and panty and placed them into a locker.



She testified that the
room throughout was not all that dark, the light from the pole was
reflecting into the room, because the room did not have curtains, so
that light was coming into the room.



She testified that the
visibility inside the room was such that she could recognize each and
every one of them. Accused 4 opened her legs and pressed them down on
the mattress. Accused 1 then undressed himself and got on top of her
and inserted his penis into her vagina and raped her. Accused 1 was
facing her as he was raping her so she could recognize that it was
accused 1 who was raping her. She told him to get off her, but he
refused. After he finished he got up and held her legs and told
accused 4 that it was now his turn to get on top of her. Accused 4
undressed his trunkie up to his knees and got on top of her and
inserted his penis into her vagina and raped her. She was crying and
she did not know what to do as she was thinking that it was the end
of her life. She recognized accused 4 as he was facing her whilst on
top of her.



After accused 4 finished,
he told accused 3 that it was now his turn he must come and lay on
top of her. Accused 4 then held her one leg together with accused 1
holding the other leg. Accused 3 got on top of her undressed himself
and inserted his penis into her vagina and raped her. Accused 3 was
facing her and she could recognize his face. Whilst accused 3 was on
top of her, she managed to pull her hands out under accused 2 and
then she grabbed him on his ears and slapped him, he then slapped her
back.



After accused 3 finished
raping her, he told accused 2 that it was now his turn and that he
should come and lay on top of her. Accused 2 got on top of her,
inserted his penis into her vagina and raped her. Accused 2 face was
facing her face and she could clearly see his face and she recognized
him as accused 2.



After that accused 1, 2
and 4 left the room and they went to sat at the boys block and she
remained in the room with accused 3. Accused 3 then got up took her
clothes from the locker and threw them at her face and he then also
left the room. After she came out of the room they were seated in
front of the block and as she was passing they were laughing saying
‘yah you can now go nice because you have saved us’
Accused 3 also said that if she happened to go and tell anyone, they
will come back and assault her or do something to her. They were all
seated together when accused 3 said that to her. She went to the room
where she slept for the weekend (not her usual room) took a bath and
went to bed. She pretended as if nothing had happened, she was
ashamed of telling the girls in the room what had happened to her.
When her friends returned from the location she did not tell them
that she was raped. She told them that she did not follow them
because it became dark and she decided to come and sleep. The next
morning she did not go out as she was not feeling well and she was
just in the hostel and did not tell anyone about the rape. Tuesday
morning she woke up, washed herself, and went to class. In the class
she was not concentrating and she was crying quietly. She did not
tell anyone on Tuesday as she was ashamed, feeling bad and could not
look people in the eyes as she was afraid that they would say that
she initiated that to happen to her. Sexy came to her and asked her
why she was crying and what had happened to her, she then related to
sexy what had happened to her. Sexy went to tell the teacher and the
teacher called her and she then related that to the teacher. She told
teacher Tjivau that she was raped in the toilet and in the boys’
hostel.



Teacher Tjivau then took
her to the principal’s office. She then told the principal what
she told Tjivau. She was crying when she talked to the principal and
it was difficult for her to relate each and every detail to him as
she was afraid. The principal immediately phoned the police who
arrived soon thereafter. She testified that she was also taken to the
hospital where a doctor examined her. She was admitted in the
hospital for the whole week as her body was painful and she could not
walk properly. She never gave any consent to any of the accused to
have sex with her.



[8] Uaukua
Kangononduezu (Sexy)



She knows the complainant
as a friend since 2007. They were classmate in 2008 at Okakarara
Secondary School.



She testified that the
weekend of 23 May 2008 was an out weekend and the boys who had to
play soccer had to stay at the hostel. She left home and on Monday
when she returned she saw that the complainant was not normal as she
was limping and quiet. She asked her why she was quiet and limping
and she informed her that she fell down and injured herself. On
Tuesday during break time she and a friend went to the complainant
and asked her what was wrong with her. She told her that accused 1
and 2 raped her and that she was threatened with a knife to go to the
boys block. She did not say anything further as she was crying. She
mentioned the names of all 4 accused. After she informed her, she
took her to teacher Tjivau.



[9] Esnath Kauami



She is the mother of the
complainant. She went at the school after she was told that her
daughter, the complainant was raped. When she met her they cried. She
told her that she was raped by four boys in the toilet and in the
boys hostel. She went to the police station and signed documents.
After that she returned to her home at the village. At home she was
told by her uncle that one of the accused is the child of her brother
and that she must go and withdraw the case. This brother was
supporting the complainant. She went to the police station to
withdraw the case, but the police refused to withdraw it. She did
that without the knowledge of the complainant.



[10] Theofilus
Ngozu



He is the principal of
Okakarara secondary school. He testified that on Wednesday 28 May
2008 Ms Tjivau reported to her office about a pupil who was raped.
The complainant was brought to his office and he could not ask her in
detail as she was not in a very good condition and, she was crying.
She gave him the names of the four accused as the persons who raped
her. The accused were learners at the school and they were also
soccer players. The complainant informed him that she was raped in
the toilet and again in the boy’s hostel.



He called the four
accused to his office and informed them about the allegations against
them. Accused 1 told him that he was trying to have sex with the
complainant whilst standing and he could not penetrate her and she
fell down. The police were called and the parents of the accused were
contacted.



He testified that the
four accused were soccer players and they stayed behind that weekend
as they were supposed to play in a soccer tournament that weekend. He
knows that because he is the principal of the school and he had a
keen interest in soccer.



[11] Nicola
Kazondendu



She was in grade 9 at
Okakarara secondary school in 2008. She knows the four accused as
they were schooling together. She testified that on 23 May 2008 was
an out weekend they stayed at the hostel as they could not find a
lift to go to their homes. After eating, they went to sit in front of
the girls’ block. Whilst seated there accused 3 came there and
called her to come to him, she refused. He then called the
complainant and she went. When she asked the complainant where she
was going she said she was going to watch DSTV. Whilst seated Yaunga
arrived there. She and yaunga left to the location. At around 22h00
they came back to the hostel and found the complainant asleep. In the
morning they went to take a bath. She observed that the complainant
was not walking properly as she walked with open legs. On Tuesday
they went to school. The complainant informed her that she was raped
over the weekend by the four accused. They first raped her in the
toilet and then took her to the boys’ hostel where they again
raped her.



[12] Warrant
officer Himarwa



She is the investigating
officer. She testified that she met the complainant on 28 May 2008 at
Okakarara police station. The complainant was emotional and crying
and she could therefore not take a statement from her. She took the
statement the next day and the complainant told her in detail what
had happened to her. She testified that she had investigated many
rape cases before and from her experience, the complainant did not
pretend to be emotional.



[13] Applications
in terms of s 174



At the end of the state’s
case, the accused brought applications in terms of s 174 of Act 51 of
1977. I refused the applications and indicated that my reasons will
be provided at the end of the trial. The complainant testified in
detail how she was grabbed by accused 1 and 2 and pulled into the
toilet. Accused 1 and 2 then took turns in raping her. When she left
the toilet and on her way to the hostel, accused 3 called her and
then grabbed her and threatened her with the knife. He then pulled
her to the boys hostel. She was resisting but, he was too strong for
her. At the hostel he pushed her into the room and pushed her down on
the mattress. As she was lying on the mattress the other accused1,2
and 4 came into the room. They assisted each other and took turns in
raping her. Here was light in the room and she could see and
recognize their faces as each one of them was on top of her. She was
examined by the doctor who observed that there was force penetration
more than once. The complainant also told her friend, teacher Tjivau
and the principal that she was raped by the four accused persons. In
my view a prima facie case was established by the state and the
evidence adduced was such that a court, acting carefully, may convict
the accused. On that basis the applications were refused.



DEFENCE’S CASE



[14] Accused 1



He was a learner at
Okakarara secondary school in 2008. He denied having had sex with
complainant on 23 May 2008. On that specific day he was at home in
Okakarara. He went home at 15h00 in the afternoon. He denied having
played soccer that weekend. He also did not meet with his co accused
that specific day when he went home. He only met them the Monday at
school.



He denied having admitted
to the principal that he tried to have sexual intercourse with the
complainant.



[14] Accused 2



He testified that he
knows the complainant as they were in the same class. He testified
that on the 23 May 2008 was an out weekend. He was at school until
10h00 am and from there he went to look for a lift, but did not
manage to get a lift and returned to the hostel around 19h00. At the
hostel he sat a bit outside in front of the hall. Inside the hall
there were learners watching DSTV. He stood up and went to room 3 to
fetch a jacket. When he entered room 3 where he was sleeping, the
lights were on and the door was open. The complainant was lying on
his bed. He asked who was sleeping in his bed and she removed the
blanket off from her face and he saw that it was the complainant. He
asked her what she was looking for and she said ‘mepondo’
meaning I am struggling. He then moved close to the bed. He sat on
the bed and she started touching him on his body and she took off her
bra and showed him her breast. They started kissing, she then removed
her clothes, and he also removed his clothes. She put it on top of
the other bed. They then had sexual intercourse and after they
finished, the complainant put on her clothes and she left, from there
he went to room 5 picked up his jacket and then went to the location.
He returned around 24h00 midnight. He went to sleep and the next
morning he went to look for a lift and went to the village. He
returned to school on Monday around 17h00.



On Wednesday around 9h00
am whilst in class he was called by teacher Tjivau and they went to
the principals’ office. He was arrested on Wednesday at 15h00
and taken to the doctor for examination.



[15] Accused 3



He testified that in 2008
he was a learner at Okakarara secondary school and in grade 10. He
knows his co-accused. He knows the complainant.



Before leaving to the
village he saw the complainant at the hostel around 18h00 in front of
the girls block. She was with Nicola. They were seated in front of
the hostel block. He was waiting for the vehicle to come and pick him
up. He then called Nicola and she said she was not coming because she
was tired, thereafter he called the complainant and then she stood up
and came. When she came they started talking and they agreed to go to
the school hall to see what was on TV. They went there stayed for 5
minutes and came out and stood between the hostel block of the boys
and the hall talking. Whilst standing there, accused 4 came there and
called the complainant and she went to him and they walked to school.
He stood there for long until the vehicle arrived and he then went to
the village. He denied having a knife and having threatened and raped
the complainant.



[16] Accused 4



He testified that in 2008
he was a learner at Okakarara secondary school and in grade 10. On
Friday 23 May 2008 it was an out weekend. Around 13h00 he went to the
location strolling around in the location and returned back to the
hostel early in the evening. At the hostel, before reaching the front
block, he met accused 3 with the complainant, they were having a
conversation. He called the complainant to come to him, she came and
they walked in the direction of the school and as they were walking
he started proposing to her asking her to become his girlfriend. It
was not the first time that he proposed to her, before that he tried
2 or 3 times. She showed interest then and they tried to kiss once.
They walked freely and they kissed and they walked passed the
classrooms and went to the toilet. They stood at the toilet and
started kissing and whilst kissing the security guard passed by the
toilet and to avoid being seen by the security guard they went inside
the toilet. Inside the toilet they continued kissing and then the
complainant undressed herself and he then undressed as well. They had
sexual intercourse and when they finished they dressed up and then he
left first. He went to the hall and watched TV. There were other
learners in the TV hall. He stayed in the hall for 40-60 minutes from
there he went to his room, took a bath and went to sleep. He was
alone with the complainant in the toilet and he did not see accused 2
that day. He knows accused 1, 2 and 3 as they were schooling at the
same school, but they were not friends.



On Wednesday he was
called by teacher Tjivau to go to the principal’s office. At
the office the principal was with 2 police officers and he was taken
to the police station.



He was later taken to the
hospital with accused 1,2,3 and examined by a doctor and no injuries
were found on his penis. He denied having raped the complainant or
assisted his co-accused in any manner to rape the complainant. In
2008 he was playing soccer for the under 17 team.



[17] Analysis of
the evidence



The complainant testified
in detail how she was raped in the toilet by accused 1 and 2. She
testified that as they were approaching the boys’ toilets
accused 1 and 2 were standing there. Accused 1 grabbed her on the
right arm and forcefully pulled her towards him. She asked him to
leave her but he did not do that. Accused 2 came and held her on the
left arm and they pulled her in the boys’ toilet where they
took turns in raping her. Her evidence that she fell on her back in
the toilet and injured her back was corroborated by the doctor who
observed bruises on her back when he examined her. Accused 1 admitted
to the principal that he was trying to have sex with the complainant
when she fell on the floor. The complainant also testified that she
knows accused 4 very well. Accused 1 and 2 were in the same class
with her and accused 3 and 4 were also learners from the same school.
She testified how accused 3 forcefully took her to the boys hostel,
to room 3. She testified that in the room she was lying on the
mattress when each of the accused got on top of her and raped her.
There was enough illumination in the room and they faced her when
they were on top of her, so she could clearly recognise their faces.
The accused also testified that they know the complainant very well.
Some where in the same class with her and they assisted each other
with their homework. From the evidence adduced, there was no
animosity between her and the accused. Her evidence was also
corroborated by the doctor who examined her. His findings were that
there was ‘forced penetration’, and according to
the doctor if there was consensual sex the glands around the vagina
would excrete lubricants which makes it easier for penetration to
take place. The doctor testified that he examined the complainant 5
days after the alleged rape and his observation were: ‘fourchete
tender, vestibule tender, fresh tear, vagina difficult to examine,
even with one finger, examination was painful’.
On the
question by the Court whether the ‘forceful entry’
happens once or twice he replied ‘more than once because the
pain was not just on the outside, but also on the inside’.



The complainant was
subjected to intense and lengthy cross examinations. Counsel for the
accused pointed out contradictions in her testimony. Mr Karuaihe
submitted that the version of teacher Tjivau contradicted that of the
complainant. Tjivau testified that the complainant told her that she
was pulled into the toilet by accused 1 only and that another person
who assisted accused 1 was already in the toilet. Complainant
testified that both accused 1 and 2 pulled her in the toilet. The
complainant testified that her friends brought her some chips and
bread when they returned that evening, Nicola denied that.



Mr Mbaeva submitted that
accused 2 and the complainant knew each other and accused 2 could not
have raped the complainant while knowing that she could point him out
in case a report was made to the police. He also submitted that the
complainant was a single witness as far as the element of penetration
is concerned and therefore her evidence must be treated with caution.
Mr Uirab took issues with the fact that the complainant did not
scream whilst being raped, that she informed Tjivau that only accused
1 raped her in the toilet, the contradictions between her testimony
about the meeting with accused 3 and the testimony of Nicola that
accused 3 called the complainant whilst the two of them were seated
in front of the girls block and the fact that she told Nicola that
she was going to watch tv with accused 3 and that accused 3
threatened her with a knife whereas Nicola did not see that, also her
failure to report the rape immediately at least to Nicola showed that
she was never raped by any of the accused persons, according to Mr
Uirab. Mr Coetzee also pointed out the contradictions in the evidence
of Tjivau and that of the complainant, that when accused 3 took her
to the room, the other 3 boys were already in the room whereas the
complainant testified that the 3 boys only entered the room when she
and accused 3 were already in the room, that the complainant told
Tjivau that only accused 1 pulled her in the toilet, whereas she
testified that both accused 1 and 2 pulled her in the toilet, the
fact that she told an untruth about there being no cellphone
reception at the village of her mother, whereas there is indeed MTC
reception. Nicola’s evidence that the complainant was going to
watch tv with accused 3 is improbable. The complainant decided to go
to the location to look for food as she was hungry as there was no
food to be served at the hostel that weekend, and for her to abandon
the search for food in favour of going to watch tv, is improbable.
Nicola was less than candid when she testified that.



The court is mindful of
the contradictions and the discrepancies in the evidence of the
complainant. However the fact that there were contradictions and
discrepancies in her evidence, does not mean a court must reject her
evidence about the rape as untruthful especially where there is
corroboration from the doctor and other witnesses.



In Albertus Hanekom v
The state, Supreme Court, appeal case no SA 4 (A) /2010 delivered on
11 May 2001 at 16 stated the following: “Before evaluation of
the evidence of the various witnesses mention must also be made of
the fact that not every contradiction or discrepancy in the evidence
of a witness reflects negatively on such witness. Whether such
discrepancy or contradiction is serious depends mostly on the nature
of the contradictions, their number and importance, and their bearing
on other parts of the witness’s evidence”.



Mr Ngozu, the principal
of the school, testified that Tjivau made a report to him that the
complainant was raped by four boys. The complainant gave him the
names of the four students who raped her and that she was raped in
the toilet and in the boys hostel, but she could not give further
details as she was crying. He called the four boys to his office
trying to find out what had happened.



According to him accused
1 told him that he was trying to have sex with the complainant, and
then the girl fell down on the floor. When it was put to accused 1
why the principal would testify that, he replied ‘my lord I
have no comment why the principal have to testify such a thing that I
do not have comment.’ He further stated ‘me and the
principal were just normal since we were also communicating very
well’. That admission by accused 1 corroborates the version of
the complainant that she fell on the floor in the toilet. Why would
the principal lie about that and single out accused 1 out of the four
accused who were summoned to his office. I have closely observed Mr
Ngozu when he testified and he made a good impression on me. He came
to tell the truth and the court is satisfied he told the truth.



Accused 2 testified that
on Friday morning he went to school up to 10 am. At 10:30 he finished
eating and from there he went to collect his luggage and went to the
location to go and look for a lift. He was unsuccessful in getting a
lift and he returned to the hostel, there was no security guard at
the gate. He went to his room 3 where he found the complainant lying
in his bed. He testified that the complainant was never before in his
room, did not tell her that he was sleeping in room 3 and on that
specific bed. There were 12 beds in that dormitory. That weekend was
an out weekend and he did not meet with the complainant to tell her
that he would be around. According to him there were more than 7
dormitories at the hostel for boys. The questions that arise
immediately are the following: how did the complainant know that he
would be around that weekend? that he was sleeping in room 3 and on
that specific bed in which she was alleged found in sleeping?



The Court asked accused 2
those questions and he answered by saying he did not know. It is
highly improbable that the complainant will simply go to the boys
hostel, go to room 3 and sleep on accused 2 bed, keep the lights on
and the door open wait for accused 2 to arrive and demand sex from
accused 2.



Accused 4 testified that
the reason why they went into the toilet was because he saw the
security guard who was guarding the door and that is why they decided
to go into the toilet. There was evidence from accused 2 that when he
returned from the location to the hostel at 19h00 the security guard
was not there at the gate. Nicola also testified that at the time
when they exited the gate to go to the location around 19h00 there
was no security guard at the gate. The complainant also testified
that the security guard was not there. The principal also testified
that the gate guards do not walk around in the yard, they are only
there to man the gate. The evidence by accused 4 that they, him and
the complainant, saw the security guard that is why they went into
the toilet is not true.



Accused 4 also testified
that on 2 or 3 occasions before 23 May 2008 he proposed to the
complainant, showing that he was interested in her. According to him
he wanted her to be his girlfriend, yet when she agreed to be his
girlfriend and after he had sex with her in the toilet, he left her
in the toilet and never contacted her again. That is inconsistent
with his alleged prior conduct of wanting her to be his girlfriend
and still his girlfriend after the sex in the toilet. If his version
is credible, why would the complainant after having sex with him in
the toilet, proceed to the room of accused 2 and sleep in his bed
demanding more sex from another boy who was not her boyfriend? That
is highly improbable. The court is mindful that the complainant was a
single witness on the actual rape and that her evidence must be
treated with caution. But having regard to totality of the evidence,
I am satisfied that her evidence on that aspect is credible.



I have carefully
considered the totality of evidence, the inherent strengths,
weaknesses and probabilities on both sides and I am satisfied that
the prosecution proved the guilt of the accused beyond reasonable
doubt.



In the result,



Accused 1 is convicted of
count 1, 4, 5, 10, 14, 18



Accused 2 is convicted of
count 2, 3, 6, 11, 15, 17



Accused 3 is convicted of
count 7, 12, 13, 19



Accused 4 is convicted of
count 8, 9, 16, and 20
























































































________________________



G N NDAUENDAPO



JUDGE



APPEARANCES













THE STATE: Ms
Esterhuizen



Of The Prosecutor
General Office








ACCUSED 1: Mr Karuaihe



Karuaihe Legal
Practioner








ACCUSED 2: Mr Mbaeva



Mbaeva &
Associates








ACCUSED 3: Mr Uirab



Legal Aid Counsel








ACCUSED 4: Mr Coetzee



Tjitemisa &
Associates