Court name
High Court
Case number
CC 56 of 2007
Title

S v Nahenda and Others (CC 56 of 2007) [2008] NAHC 149 (12 December 2008);

Media neutral citation
[2008] NAHC 149





CASE NO












CASE
NO.: CC 56/2007









IN THE HIGH COURT OF NAMIBIA








In
the matter between:








THE
STATE





and





TOBIAS
NAHENDA First Accused


MATEUS
NUUGONYA Second Accused


SIMON
PETRUS Third Accused


FILLIPUS
NAMASHONGO Fourth Accused


FESTUS
SHIPANGA Fifth Accused





CORAM: SILUNGWE,
AJ





Heard
on:
23/09/2008;
24/09/2008; 25/09/2008; 26/09/2008;



30/09/2008; 01/10/2008;
02/10/2008; 03/10/2008; 06/10/2008; 08/10/2008; 09/10/2008;
10/10/2008






Delivered on: 12/12/2008









JUDGMENT:





SILUNGWE,
AJ
: [1] All
five accused are arranged on a total of fourteen counts, thirteen of
which are for rape, in contravention of section 2(1)(a) read with
sections 1, 2, 2(3), 3, 4, 5 and 7 of the Combating of Rape Act, Act
8 of 2000, but the fourteenth count is for kidnapping. Each accused
faces counts as set out hereunder:






Accused 1: Counts 1, 6, 10
(rape) & 14 (kidnapping);



Accused 2: Counts 2, 7, 10, 11,
13 (rape) & 14 (kidnapping);



Accused 3: Counts 3, 11 (rape)
& 14 (kidnapping);



Accused 4: Counts 4, 8, 12
(rape) & 14 (kidnapping) and



Accused 5: Counts 5, 9, 13
(rape & 14 (kidnapping).





Accused
2 (Mateus) is alleged to have caused the following co-accused to
commit rape on JM (J) the complainant:






Accused 1 (Tobias): Count 6;



Accused 3 (Simon): Count 11;



Accused 4 (Fillipus): Count 12
and



Accused 5 (Festus): Count 13





[2] The
crimes, to which all accused persons pleaded not guilty, are alleged
to have been perpetrated upon JM – a female student – on
October 27, 2006, at or near Onayena in the district of Ondangwa. In
his plea explanation, Mateus states that he was in a love-sexual
relationship with JM, the complainant, both of whom were schoolmates
at Onehale Secondary School. In the evening of October 27, 2006,
Mateus met with the complainant in a classroom of their school after
she had been brought there by a female student called AH. Both he and
his girlfriend voluntarily remained in the classroom until the Girls’
and Boys’ Hostels closed. Then, both of them slipped through a
hole in the school fence and voluntarily went to sleep in a flat a
few metres away from, and outside, the school premises. There, they
consensually had sexual intercourse while his four co-accused, who
had also been locked outside the Boys’ Hostel, were at Lubango
nearby. He and the complainant usually had sexual intercourse in that
flat.





[3] The
State is represented by Mrs Barry, the Deputy Prosecutor General,
while the accused are all represented by Mr Namandje who is briefed
by the Directorate of Legal Aid.





[4] It
is common cause that during the period October 25 – 31, 2006,
the accused, then aged 22, 19, 21, 19 and 18 years, respectively, as
well as the complainant, then aged 16 years, were all schoolmates at
Onehale Senior Secondary School within the district of Ondangwa. This
is a boarding school for both female and male students. The accused
were not only schoolmates but also roommates in their final year
(that is, in Grade 12) at the school. The complainant was in Grade
11, having joined the school at the beginning of the 2006 academic
year. Thereafter, Mateus and the complainant entered into a
relationship as boyfriend and girlfriend. By October 27, 2006, they
had been in that relationship for six months. The complainant had a
girlfriend – Miss LL – who lived in a flat at Benguella
Flats, outside but next to Onehale School fence. Mateus and the
complainant were familiar with that flat as they had had sexual
intercourse therein prior to October 27, 2006.





[5] The
case for the State is that, on October 25, 2006, at about 20h00,
Kandjambanga Panduleni (Panduleni), a school and roommate of the
accused persons and now a State witness, heard Festus Shipanga
(Accused 5) talk in the presence of other room-mates about fucking LP
(L) (also a schoolmate) in a chain form. Subsequently, Simon Petrus,
who in evidence turned out to be Simson (Petrus) (Accused 3) went out
in search of L.





[6] In
the evening of October 27, Petrus went to look for L again but to no
avail whereupon Mateus told his now co-accused that he had a
substitute – JM – now the complainant whom they were
going to “fuck” in a chain form. This was said in
Panduleni’s presence. After that, Panduleni retired to his (as
well as the accused’s) dormitory and slept therein alone.





[7] The
gist of the complainant’s testimony is that, during the evening
of October 27, 2006, she was informed by AH that Mateus was calling
her to go to Grade 12 B classroom, and so, she proceeded to the said
classroom, in the company of Alfeus. Upon arrival there, Mateus also
showed up and, at that point, Alfeus returned to her dormitory.
Mateus then told the complainant that they should go into a storeroom
within the classroom and she obliged. While in the storeroom, Mateus
told her to have sexual intercourse with him but she refused because
she did not want to do so. He threatened to beat her up and lock her
in the storeroom where she would sleep alone. They were in the
storeroom for quite sometime. Upon a realization that the Hostel’s
were about to close for the night, Mateus said to her that they
should go and sleep in the (usual) Benguella flat (flat). When they
left the storeroom, they discovered that the classroom steel door was
locked. Someone unlocked the door from outside, allegedly after
Mateus had made a missed call. While Mateus was locking the classroom
door, the complainant started to head back to the Girls’ Hostel
but someone pulled her back and she was then joined by Mateus who
held her by the hand, pulled and told her to move fast. This was
still within the school premises. As they approached the school fence
and went through the drainage hole in the fence, the complainant was
no longer being held by Mateus.





[8] When
they approached the flat, they were by themselves. On entry into the
flat, Mateus told her to have sexual intercourse with him. She then
took off her clothes and lay down on bed. Mateus used a condom and
they had sexual intercourse. When they finished, Mateus got up and
went outside.





[9] The
complainant remained in bed. Someone she thought was Mateus came into
the flat and had sexual intercourse with her. Towards the end of the
sexual intercourse, she realized the man was not Mateus because his
behaviour was different, at the same time, she saw two persons at a
window and one at the door. That stranger, whom she was unable to
identify because of darkness in the flat, got up and left the flat.
The complainant too got up and put on her knickers.





[10] There
then came a second stranger into the flat and demanded to have sex
with her. She refused but Mateus came into the flat and said to her:





Why
are you behaving stupidly? Let him have sex with you.





He
(Mateus) then held the complainant’s legs while the second
stranger got on top of her and had sexual intercourse with her. The
complainant could not see the second stranger too as it was dark.
That stranger and Mateus left the flat.





[11] After
that, a third stranger came into the fat and demanded to have sex. By
then, the complainant was exhausted, confused and unable to resist
the intruder. Thereafter, she was allegedly raped repeatedly by the
perpetrators. At the end, Mateus told her that he was going to leave
one of them behind while he escorted the others, adding that, upon
his return, he should find that the man had finished. He then left
with the others but did not return to the flat. The complainant
refused to have sexual intercourse with the remaining person and,
after a while, he too left. She spent the night there alone as it was
late and there was nowhere she could go.





[12]
Apart from Mateus, the complainant could not identify any of the
other perpetrators on a count of darkness in the flat during her
ordeal. She had not given consent to any of the perpetrators to have
sex with her.





[13]
In the morning of October 28, when it was light but before sunrise,
she returned to the Girls’ Hostel, got her dormitory key from
Karen, the Head girl, went to her dormitory and slept. After
breakfast, she reported to Maria Anyolo, her room-mate, about what
had been done to her and later reported to the headgirl as well as to
Elifas Iimene, the School Principal. Both Maria and Elifas are State
witnesses but Karen is not. Mrs Barry justifies the non-calling of
Karen as a State witness on the ground that the complainant told her
what she had told Maria and that there was thus no need for
repetition. Maria’s testimony is,
inter
alia
,
that the complainant looked disturbed when she narrated her story to
him. Elifas too confirms that the complainant looked confused and
scared as she narrated her story. Both Maria and Elifas attest that
the complainant told them she refused to have sexual intercourse with
Mateus when the latter proposed this to her in the storeroom and that
she was then threatened by him. Further, Elifas confirms the
complainant’s evidence that Mateus made a missed call in the
classroom. Contrary to the complainant’s evidence, however,
Maria and Elifas testify that the complainant told them (as she later
told the police) that Mateus had assisted the second person to have
sexual intercourse with her, whereas her testimony is that it was the
third person that Mateus assisted. When cross-examined about this
discrepancy, her response is that she was confused, adding that it is
human to make a mistake in such circumstances as she had found
herself. Despite rigorous cross-examination, she maintains her
testimony that it was not the second person but the third one that
Mateus assisted.





[14] Having
listened to (and read) the complainant’s evidence, it is
undeniable that she went through a harrowing experience during the
evening or the night of October 27, 2006. I find that the complainant
is sincere in her evidence and accept that she was in a state of
confusion when she referred to the second, rather than to the third
perpetrator, when she narrated her ordeal to Maria, Elifas and the
police. It is thus hardly surprising that she broke down at some
stage in the course of testifying about her traumatic experience
during the trial and the Court had to go into a short recess to
enable her to regain her composure. Although she has been subjected
to long and thorough cross-examination, she has remained steadfast in
her testimony.





[15] To
pick up Panduleni’s version from where it was left, at about
midnight of October 27, Tobias, Mateus, Fillipus and Festus (Accused
1, 2, 4 and 5, respectively, returned to their dormitory and Mateus
then aroused Panduleni and told him that they had “fucked”
JM. Panduleni knew who JM was and also understood Mateus’
reference to they as meaning Mateus and the other room-mates because
he had previously intimated to them that they were going to “fuck”
that person. Mateus told Panduleni about what they had done to J
without being prompted to do so. Some 12 to 15 minutes later, Petrus
(Accused 3) also arrived in the dormitory. This piece of evidence
tends to corroborate in no small measure the complainant’s
version that one of the perpetrators stayed behind when Mateus and
others exited the Benguella flat, the scene of the crime of rape.
After Mateus had told Panduleni about their sexual exploits, the five
accused then started charting among themselves saying such things as:





You
don’t know how to fuck.”


I
fucked her so many times.”





Panduleni
can’t remember who said what. He testifies that his
relationship with his roommates – all the accused – prior
to and since that date, has been and remains good: there are no
problems between him and any of them.





[16] On
October 29, the police came and arrested Panduleni’s roommates.
Panduleni was himself not treated as a suspect and this is confirmed
by Constables Simon Uusiku, Settykesria Kapembe and Sergeant Epafras
Tonata, all of Okatope Police Station. Like the complainant and other
State witnesses, Panduleni has been rigorously cross-examined.
Although a few shortcomings have surfaced during cross-examination,
such as whether Panduleni saw Petrus (Accused 3) talking with Paulus
L, et cetera, I do not regard those shortcomings as materially or
adversely affecting Panduleni's version of events that he witnessed
in the matter, contrary to Mr Namandje’s ardent submissions.
For instance, I do not accept Mr Namandje’s submission that
Panduleni wants to see the accused convicted at all costs.
Conversely, I see nothing in his evidence that even remotely suggests
that he wants convictions at all costs. In essence, I find him to be
a credible and trustworthy witness.





[17] I
now turn to the evidence of police witnesses. I will start with
Const. Uusiku and Sgt. Tonata. Const. Uusiku received a report from
the complainant on October 29, 2006, whereupon he and Sgt. Tonata
visited the complainant’s school and approached Mateus who had
specifically been implicated by the complainant. On being asked who
had been with him in the evening of October 27, Mateus identified all
the four co-accused. All of them were then taken to a classroom where
Const. Uusiku allegedly explained their rights to them, questioned
them individually and, after they had given their statements, he
arrested them all for rape. Sgt. Tonata’s evidence is, however,
at variance with that of Const. Uusiku in that he says that the
accused, having been interviewed by Const. Uusiku, were all arrested
and only then were their rights explained to them. On account of that
material flaw in the State’s case, the resultant responses by
the accused persons were ruled inadmissible.





[18] In
a somewhat similar vein, when Const. Kapembe formally charged the
accused persons on October 31, she explained their rights to them but
omitted to say anything about their right to approach the Legal Aid
Directorate for legal representation! On that score, the ensuing
statements by the accused were similarly ruled inadmissible.





[19] With
regard to the police evidence of pointings out, this was admissible
as the requisite explanation of the accused’s rights had been
done before the pointings out could be made. Const. Uusiku testifies
that, following Mateus’ indication that they had used condoms,
he (Mateus) led them all to the Benguella flat in question where each
accused showed the police the whereabouts of their respective used
condoms. According to Const. Uusiku’s testimony, every accused
went and picked up two such condoms, with the exception of one of
them who picked up one condom only. Const. Uusiku is unable to recall
who picked up two condoms or who picked up one condom only. But Sgt.
Tonata can’t remember how many condoms were retrieved from the
bush.





[20] Thereafter,
both police officers, as well as all the accused, proceeded to
Okatope Police Station. On arrival there, the condoms which were in
Const. Uusiku’s possession, were handed over to, and left with,
an officer who was on duty in the charge office. The accused were
then detained.





[21] When
cross-examined about condoms, Sgt. Tonata’s response is that he
is not aware that Tobias (Accused 1) was asked on October 31, 2006,
to search for condoms or that Tobias picked up six condoms from a
waste paper container in Okatope Police Station’s charge
office. I find this piece of evidence inexplicable since the position
of Tobias and of the other co-accused, save Mateus, is that none of
them picked up any condoms at the Benguella flat.





[22] As
it is common cause that the condoms have not been produced in
evidence as exhibits, Mrs Barry is at plans to explain their
non-production. The import of her explanation is that the State’s
leading of the evidence on condoms is for the purpose of showing that
the accused know something about the Commission of the crime of rape.
With due respect, this explanation cuts no ice with me. It is
mind-boggling that the police, not to mention the State, failed to
appreciate the significance of sending the said condoms for forensic
examination the results of which could well have provided decisive
evidence for the State. Hence, those condoms were absolutely crucial
to the State’s case.





[23] The
case for the defence is one of denial of the crimes allegedly
committed in the matter. The position of Mateus is essentially
epitomized by his plea explanation previously referred to. A summary
of his evidence is that he did not conspire with any of the
co-accused to commit the crime of rape. In the evening of October 27,
2006, after dinner, he asked AH to call his girlfriend – the
complainant – to meet him at a classroom. This was done. When
they met, they charted together for sometime about love in a
storeroom within the classroom. Thereafter, he proposed to have
sexual intercourse with her and she agreed. This was when the Boys’
and Girls’ Hostels were about to close. Both of them left the
storeroom and the classroom. With no one else present, they headed
for the Benguella flat where they had previously had intercourse on
four separate occasions. To get to the flat, they avoided using a
school gate which was manned by a security guard by passing through a
drainage hole in the school fence. On arrival at the flat, at 10 pm,
he unlocked the door with his key which he used to use at weekends.
When they entered the flat, he took off his clothes, put on a condom,
the complainant too undressed herself and they had consensual sexual
intercourse. After finishing, they remained in bed for a little
while.





[24] After
that, Mateus got out of bed, dressed up and told the complainant that
he was going to Lubango Bar, which is about 80 – 100 metres
from the flat. Thereafter, he handed her the key to the flat and left
for Lubango Bar at about 11 pm.





[25] At
Lubango Bar, Mateus joined his four co-accused. There were other
students there as well as non-students. He bought soft drinks which
he shared with the co-accused and they played pool. Later on, at
about 11:40 pm, Tobias proposed that they should leave as it was
getting late. They all returned to the Boys’ Hostel and managed
to gain access thereto as the lock was defective. This is contrary to
P’s evidence to the effect that Petrus (Accused 3) returned to
their dormitory about 12 – 15 minutes after the other
co-accused had arrived. Mateus avers that the complainant could not
get back to the Girls’ Hostel as it had been locked (at 9 pm).





[26] Mateus
denies having threatened the complainant in the classroom, having
forced her to go with him to the flat or having raped her. He further
denies the presence of anyone else, besides the two of them, outside
the classroom,. According to Mateus, upon their return to the
dormitory, they did not discuss anything as it was late; neither did
they discuss about having fucked the complainant or that some did not
know how to fuck. Also denied is the complainant’s evidence
that he raped her, that he helped a perpetrator to have sexual
intercourse with her or that he kidnapped her.





[27] With
regard to the condom he had used during the evening of October 27,
2006, Mateus went to a certain shrub where he had thrown the used
condom, picked it up and put it into a plastic bag provided by Const.
Uusiku. He denies that any of his co-accused picked up any condoms
outside the flat.





[28] Tobias
(Accused 1) confirms in his evidence that he and his co-accused, as
well as P, shared the same dormitory at Onehale Senior Secondary
School. He, however, denies that he was present when the alleged plan
to fuck LP took place because he was studying. He did not even get to
hear about such plan.





[29] According
to Tobias’ evidence, on October 27, 2006, after studies which
ended at 8:30 pm, he, Petrus (Accused 3), Fillipus (Accused 4) and
Festus (Accused 5) went to Okalunga Bar, about 100 metres from the
school. Some other students too were there. They went there at about
9:30 pm to drink. Fillipus told him and the other two co-accused of a
telephone call he had received from Mateus indicating that he should
find them at Lubango Bar, some 80 metres away from Okalunga Bar. The
four of them then proceeded to Lubango Bar.





[30] When
Mateus joined the four co-accused at Lubango Bar, he bought them some
cold drinks which they finished drinking at 11:30 pm. Thereafter,
Tobias told the other co-accused that they should all returned to the
dormitory. They did so and, on arrival, found Panduleni asleep.
According to Tobias, nobody awakened Panduleni up. They then went to
sleep in their respective beds.





[31] On
October 29, 2006, Tobias saw Mateus come in the company of the
police. He and the other co-accused were subsequently arrested on
that day. He denies having had sexual intercourse with the
complainant at the flat. He did not go to, or enter any flat at the
Benguella flats during the evening of October 27, 2006. He did not
hear anyone talk about fucking LP or plan to fuck the complainant.
Further, he never heard Mateus say that he had found JM (complainant)
to be fucked neither did he hear anyone tell someone that such and
such person did not know how to fuck. He did not know the complainant
until he saw her at Okatope Police Station.





[32]
When the police took Tobias and the other co-accused to Benguella
flat, four of them remained in the police motor vehicle while Mateus
went out of the vehicle with the police and then proceeded to a
certain shrub where he picked up one condom and handed it over to the
police. Neither he nor any other co-accused (apart from Mateus)
picked up any condoms as alleged by the police.





[33] Petrus,
Fillipus and Festus (accused 3, 4 and 5, respectively) all
corroborate the evidence of Tobias as well as that of Mateus in all
material respects, in so far that such evidence relates to them. It
is, therefore, unnecessary to restate their evidence in any detail.





[34] Petrus
knows LP who was his schoolmate at Onehale Senior Secondary School.
They had been schoolmates from Grade 1 to Grade 12 and had together
been in a relationship as girlfriend and boyfriend for four years. On
October 27, 2006, both were still in that relationship.





[35] Petrus
denies having heard any of the co-accused ever planning to fuck L or
the complainant in a chain form. He further denies having raped the
complainant at the flat on October 27, 2006, as alleged or picked up
any used condom at that flat.





[36] Although
Fillipus (Accused 4) knew the complainant as a schoolmate at Onehale
Senior Secondary School, he never heard any of his co-accused plan to
have sexual intercourse with her or with LP in a chain form. He
further denies having raped the complainant at the Benguella flat on
October 27, 2006, neither did he visit that flat on that day, as
alleged. Like Tobias and Petrus, he denies having picked up any
condom or condoms at that flat on October 29, 2006, as alleged. He
admits, however, that he was a roommate of all the co-accused as well
as of Panduleni and that, in the evening of October 27, he was in the
company of Tobias, Petrus and Festus at Okalunga Bar and that they
were later joined by Mateus at Lubango Bar. When they returned to
their dormitory, he did not hear anyone talking about someone not
knowing how to fuck or that someone had fucked the complainant so
many times.





[37] As
regards Festus (Accused 5), he too echoes the testimonies of his
co-accused in so far as they relate to him. He was his co-accused’s
room-mate as well as that of Panduleni. He knew the complainant and
LP prior to October 27, 2006, as schoolmates at Onehale Senior
Secondary School.





[38] Festus
denies having planned to have sexual intercourse with LP or with the
complainant, neither did he hear any of the co-accused planning to
fuck L or the complainant. In addition, he denies having raped the
complainant on October 27, 2006, at the flat. He did not visit that
flat on that day, neither did he pick up used condoms outside the
flat on October 29, 2006. He avers that, in the evening of October
27, he, Tobias, Petrus and Fillipus (accused 1, 3 and 4 respectively)
were at Okalunga Bar before they relocated to Lubango Bar where they
were joined by Mateus. Upon their return to their dormitory, they
found Panduleni, their room-mate, asleep and they did not discuss
anything about who does not know how to fuck or how many times any of
them had fucked the complainant.





[39] From
the foregoing resumé of the evidence, it is apparent that
Mateus’ defence is that he had consensual sexual intercourse
with the complainant, his then girlfriend, and thus lacks any
criminal involvement against the complainant. The other co-accused
distance themselves from any criminal planning or practical activity
against the complainant. In other words, the defence perspective is
that the State witnesses, in particular, the complainant and
Panduleni are not credible witnesses, with the result that the State
has failed to discharge its burden of proof beyond a reasonable
doubt.





[40] On
the contrary, the State urges the Court to find that, although there
are some shortcomings in the evidence of its witnesses, such
shortcomings are not material and that, as such, the evidence adduced
is credible and should thus result in convictions of all accused
persons as follows: two counts on rape against Accused 1, i.e Counts
1 and 6; two counts of rape against Accused 2, i.e Counts 2 and 7;
and one count of kidnapping, i.e Count 14; one count of rape against
Accused 3, i.e. Count 3; two counts of rape against Accused 4 and 5,
i.e, Counts 4 and 8 and Counts 5 and 9, respectively. The State
concedes that the kidnapping count has been proved only against
Accused 2 but not against Accused 1, 3, 4 and 5.





[41] Having
given due consideration to the evidence before me, I am satisfied
that, notwithstanding some shortcomings here and there in the
evidence adduced by the State, the truth has been told, especially by
the principal State witnesses, namely, JM, the complainant, and
Kandjambanga Panduleni, on whose evidence the case for the State
rests. I accept their evidence as substantially true.





[42] To
put in motion the execution of the plan against the complainant,
Mateus used Helena Alfeus, another schoolmate of his, to invite the
complainant to meet him at the Grade 12B classroom. Both Alfeus and
the complainant responded positively but, shortly afterwards, Alfeus
left Mateus and the complainant alone. Thereafter, Mateus engaged the
complainant up to a point that he asked her to have sexual
intercourse. The complainant declined to do so. It seems Mateus
persisted with his request but to no avail. Mateus then resorted to
threats of violence and kidnapping. When he apparently realized that
the Girls’ and Boys’ Hostels were about to close, he
indicated to the complainant that they should relocate to the
familiar Benguella flat. I believe the complainant’s evidence
that when they left the storeroom, they found the steel door of the
classroom locked and that Mateus signaled someone, by means of a
cellphone, who came and unlocked the door. It is likely that this was
done by Mateus’ room-mate. I accept the complainant’s
testimony that Mateus pulled her by the hand and told her to move
fast as they headed towards the drainage hole in the school fence, en
route to the flat.





[43] I
further accept that when they got into the flat, Mateus told the
complainant that they should have sexual intercourse; she undressed,
lay on bed, Mateus put on his condom and they had sexual intercourse.
When they finished, Mateus left the flat and went outside while the
complainant remained in bed. Someone, whom the complainant believed
to be Mateus, entered the flat and began to have sexual intercourse
with her. When he was about to finish, the complainant realized this
was a stranger and, at the same time, noticed two people at the
window and one at the door. Had she not thought that the stranger was
Mateus, she would not have had sexual intercourse with him.





[44] The
question that arises is: whether Mateus and the complainant had
consensual sexual intercourse, as he (Mateus) alleges and is backed
by Mr Namandje’s submission, or it was rape, as the complainant
claims and is supported by Mrs Barry’s submission.





[45] The
complainant maintains that she believed that she was still under
Mateus’ threat. She, in any event, could not have gone back to
the Girls’ Hostel as it had been locked, a reality that at
least Tobias, Mateus and Petrus have testified to.





[46] Mr
Namandje argues that the sexual intercourse could only have been
consensual since the last threat had been issued inside the
classroom. Mr Namandje’s submission overlooks the complainant’s
testimony that, apart from the threats, Mateus pulled her by the hand
as he told her to hurry up. Further, it is to be recalled that the
threats and the pulling featured in the complainant’s reports
to Maria, Elifas (the school principal), Johannes Angula (the
supervising teacher), as well as in her statement to the police. The
threats and the pulling were indeed authentic. I believe the
complainant’s testimony that the said threats were still
operating on her mind when Mateus had sexual intercourse with her.
Consequently, he made himself guilty of rape and kidnapping.





[47] Tobias,
Petrus, Fillipus and Festus (Accused 1, 3, 4 and 5) have all pleaded
alibi, claiming that they were at Okalunga Bar during the time they
are alleged to have raped the complainant. They all deny having
visited the Benguella flat during the evening of October 27, 2006.





[48] In
my judgment, I am satisfied, on the evidence of Panduleni that, on
October 25, 2006, Festus conceived a plan for all the accused to have
sexual intercourse in a chain form with L, who turned out to be
Accused 3’s girlfriend. Thereafter, efforts by Accused 3 to
make L available for such sexual intercourse were unfruitful
whereupon Mateus stepped in to make the complainant available. Mateus
subsequently prevailed upon the complainant by means of threats and,
after having had sexual intercourse with her, other co-accused did
likewise by taking turns, one of whom was assisted by Mateus. Then,
Mateus, Tobias, Fillipus and Festus returned to their dormitory
leaving Petrus behind. On their return, Mateus aroused Panduleni and
told him they had fucked the complainant. Shortly afterwards, Petrus
also returned and comments were then made about the sexual experience
they had just had.





[49] In
the circumstances, I find that the evidence of Tobias, Petrus,
Fillipus and Festus, supported by Mateus, to the effect that there
was no scheme to have sexual intercourse in a chain form with L or
the complainant and that they neither had sexual intercourse with the
complainant nor visited the Benguella flat cannot reasonably possibly
be true: it is false and is dismissed as such. I am satisfied that
the only inference that reasonably flows from the circumstances of
this case is that all the accused were sexual perpetrators against
the complainant.





[50] Although
the complainant’s evidence shows that after the initial acts of
rape, she was again repeatedly raped, there is no evidence to suggest
that all the accused or which of them did that. In the premises, it
would not be safe to convict any of them of a second crime of rape,
besides Mateus who assisted the third perpetrator.





[51] As
Mrs Barry has properly submitted in relation to count 14
(Kidnapping), Mateus alone is guilty on the said count.





[52] In
conclusion, I make the following order:






Accused 1
is convicted of rape on Count 1; but he is acquitted on Counts 6 and
14: (rape and kidnapping, respectively).







Accused 2
is convicted of rape on Counts 2 and 3; and of kidnapping on Count
14; but he is acquitted on Counts 7, 10, 11, 12 and 13 (rape).







Accused 3
is convicted of rape on Count 3; but he is acquitted on Count 14:
(kidnapping).







Accused 4
is convicted of rape on Count 4; but he is acquitted on Counts 8 and
14: (rape and kidnapping, respectively).







Accused 5
is convicted of rape on Count 5; but he is acquitted on Counts 9 and
14: (rape and kidnapping, respectively).








_____________________


SILUNGWE,
AJ














COUNSEL
ON BEHALF OF THE STATE:


Adv.
Barry





Instructed
by:
Office
of the Prosecutor General








COUNSEL
ON BEHALF OF THE ACCUSEDS:


Mr
Namandje





Instructed
by:
Sisa
Namandje & Co.