An elderly man thought to be 70-years old appealed in the Windhoek High court against his 12-year jail sentence for the rape of a seven-year-old girl based on the reason that he did not break her hymen, among others submitted in his head of arguments.
He had spent 6 years in custody awaiting his trial.
Joseph Theron through his council, attorney Siambango submitted that the state still needs to prove that a sexual act happened given that the complainant’s hymen was not “touched”.
However, the court said the charge sheet clearly reads that the victim and the perpetrator had bruises and abrasions on their sexual organs.
The state also referred back to the Combating of Rape Act of 2 000 which explicitly states that a sexual act means insertion of the slightest degree of the penis in the vagina, anus or mouth of another person.
“Bruises were sustained on the vagina of the victim. If the hymen is still intact, it does not mean that there was no sexual act. Nothing shows that the court misdirected itself in convicting the appellant,” argued attorney Kanyemba who is representing the state.
However, the defence pointed it to the court that there had not been a proper identification of the assailant given that the accused, also known as Ben was not the only one in the area with the same name.
The defence also said the examination report did not clearly state whether the bruises on the accused’s organs were fresh or old and that there was a possibility that he could have sustained them from a sexual act with another person.
Siambango also said the other Ben should also have been examined of his male organs to properly ascertain which of them could have committed the rape.
“My Lord and my Lady give the appellant the benefit of the doubt. The court needs to ascertain was the penetration really by the accused,” he said.
The state submitted that this particular Ben was well known to the witnesses and there was no doubt about his identification.
“The girl was called, taken to the bushes and sexually assaulted and was told not to tell anything to anyone. She had no reason to lie. Elders noticed her limping and she suffered abdominal pains,” said Kanyemba.
Meanwhile, Theron appeared in the Otjiwarongo Regional Court on the charge of rape in contravention of section 2(1)(a) as read with sections 1,2,3,4,5,6 and 67 of the Combating of Rape Act, Act 8 of 2 000.
The judge has in the meantime reserved judgment on the matter and postponed it to the 31st of August.