2
REPUBLIC OF NAMIBIA
REPORTABLE
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
CASE NO: CC 19/2011
In the matter between:
THE STATE
and
CHARLES NAMISEB ACCUSED 1
EDWIN TOUROB ACCUSED 2
Coram: SIBOLEKA J
Heard on: 10, 11, 12, 15, 16, 17, 18, 19, 29, 30 July 2013; 18, 19, 20, 24, 25, 26, 27, 28, 31 March 2014; 1, 2 April 2014; 15, 17, 20, 21, 22, 23 July 2015; 2, 7, 9, 10 September 2015; 20, 26 October 2015; 19, 24, November 2015;
Delivered on: 29 February 2016
Neutral citation: S v Namiseb (CC 19/2011)[2016] NAHCMD 45 (29 February 2016)
Flynote: Criminal law: In instances where there are no eyewitnesses; the victims do not know or are unable to identify their assailants, credible circumstantial evidence may safely still result in a conviction.
Summary: An elderly couple of Uis had just cashed a cheque at a nearby shop, preparing for a trip to Henties Bay, when two unknown male persons intruded their residence, attacked, tied them up. Two firearms, ammunition and other items were stolen. They fled in the victim’s car and when they defied a police road block accused 2 was shot in the buttocks, later tracked down from the deserted car and arrested. Accused 1 was later picked up in Swakopmund.
Held: The requirements for a conviction on circumstantial evidence have been satisfied.
Held: In the result both accused are convicted as follows:
Accused 1: Guilty on counts 1, 2, 6, 7, 8 and 9.
Accused 2: Guilty on counts 3, 4, 5, 7, 8 and 9
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VERDICT
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In the result accused 1 and 2 are convicted as follows:
Accused 1: Guilty on counts 1, 2, 6, 7, 8 and 9.
Accused 2: Guilty on counts 3, 4, 5, 7 8 and 9.
Counts 1 to 8: Guilty as charged.
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JUDGMENT
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SIBOLEKA J
[1] The accused are arraigned before this court on the following counts:
Count 1 (Only in respect of accused no. 1)
Contravening section 2(1)(a) read with sections 1, 2, (2), 3, 5 and 6 of the Combating of Rape Act, 8 of 2000 – Rape
In that on or about 3 October 2010 and at or near Uis in the district of Omaruru, the accused, Charles Namiseb hereinafter called the perpetrator did unlawfully and intentionally commit a sexual act with Maria Catherina Jacoba Balt (the complainant) by inserting his finger into the vagina of the complainant under coercive circumstances and the coercive circumstances are that:
The perpetrator applied physical force to the complainant and or by words or conduct threatened to apply physical force to the complainant. That presence of accused no. 2 Edwin Tourob was used to intimidate the complainant.
Count 2 (Only in respect of accused no. 1)
Contravening section 2(1)(a) read with sections 1, 2, (2), 3, 5 and 6 of the Combating of Rape Act, 8 of 2000 – Rape
In that on or about 3 October 2010 and at or near Uis in the district of Omaruru, the accused, Charles Namiseb hereinafter called the perpetrator did unlawfully and intentionally commit a sexual act with Maria Catherina Jacoba Balt (the complainant) by inserting his penis into the vagina of the complainant under coercive circumstances are that:
The perpetrator applied physical force to the complainant and or by words or conduct threatened to apply physical force to the complainant. That presence of accused number 2 Edwin Tourob was used to intimidate the complainant.
Count 3 (Only in respect of accused no. 2)
Contravening section 2(1)(a) read with sections 1, 2, (2), 3, 5 and 6 of the Combating of Rape Act, 8 of 2000 – Rape
In that on or about 3 October 2010 and at or near Uis in the district of Omaruru the accused Edwin Tourob hereinafter called the perpetrator did unlawfully and intentionally cause the first perpetrator Charles Namiseb to commit a sexual act with Maria Catherina Jacoba Balt (the complainant) by inserting his finger into the vagina of the complainant under coercive circumstances and the coercive circumstances are that:
The perpetrator applied physical force to the complainant and or by words or conduct threatened to apply physical force to the complainant.
Count 4 (Only in respect of accused no. 2)
Contravening section 2(1)(b) read with sections 1, 2, (2), 3, 5 and 6 of the Combating of Rape Act, 8 of 2000 – Rape
In that on or about 3 October 2010 and at or near Uis in the district of Omaruru, the accused Edwin Tourob hereinafter called the perpetrator did unlawfully and intentionally cause the first perpetrator Charles Namiseb to commit a sexual act with Maria Catherina Jacoba Balt (the complainant) by inserting his penis into the vagina of the complainant under coercive circumstances and the coercive circumstances are that:
The perpetrator applied physical force to the complainant and or by words or conduct threatened to apply physical force to the complainant. His presence was used to intimidate the complainant.
Count 5 (Only in respect of accused no. 2)
Contravening section 2(1)(a) read with sections 1, 2, (2), 3, 5 and 6 of the Combating of Rape Act, 8 of 2000 – Rape
In that on or about 3 October 2010 and at or near Uis in the district of Omaruru, the accused, Edwin Tourob hereinafter called the perpetrator did unlawfully and intentionally commit or continue to commit a sexual act with Maria Catherina Jacoba Balt (the complainant) by inserting his penis into the vagina of the complainant under coercive circumstances and the coercive circumstances are that:
The perpetrator applied physical force to the complainant and or by words or conduct threatened to apply physical force to the complainant. The presence of accused no. 1, Charles Namiseb was used to intimidate the complainant.
Count 6 (Only in respect of accused no. 1)
Contraveing section 2(1)(b) read with section 1, 2, (2), 3, 5 and 6 of the Combating of Rape Act, 8 of 2000 – Rape
In that on or about 3 October 2010 and at or near Uis in the district of Omaruru, the accused, Charles Namiseb hereinafter called the perpetrator did unlawfully and intentionally cause the perpetrator Edwin Tourob to commit a sexual act with Maria Catherina Jacoba Balt (the complainant) by inserting his penis into the vagina of the complainant under coercive circumstances and the coercive circumstances are that:
The perpetrator applied physical force to the complainant and or by words or conduct threatened to apply physical force to the complainant. His presence was used to intimidate the complainant.
Count 7 (In respect of accused no. 1 and 2)
Robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977
In that on or about 3 October 2010 and at or near Uis in the district of Omaruru, the accused 1 Charles Namiseb and accused 2 Edwin Tourob did unlawfully and with the intention of forcing them into submission assault Maria Catherina Jacoba Balt and/or Jan Coenraad Balt by hitting them with a spade on their heads and/ face and/or tying their hands with an electric cable with intent to steal from them goods as per annexure A, the property of or in the lawful possession of the said Maria Catherina Jacoba Balt and/or Jan Coenraad Balt.
And that the aggravating circumstances as defined in section 1 of Act 51 of 1977 were present in that the accused and/or accomplice was/were before, during or after the commission of the crime wielding a dangerous weapon to wit a spade and/or a knife and/or inflicting grievous bodily harm to the said Maria Catherina Jacoba Balt and/or Jan Coenraad Balt.
Count 8 (In respect of accused no. 1 and 2)
Attempted Murder
In that on or about 3 October 2010 and at or near Uis in the district of Omaruru, the accused 1 Charles Namiseb and accused 2 Edwin Tourob did wrongfully and unlawfully assault Jan Coenraad Balt by hitting him with a spade on his head and face with intent to murder the said Jan Coenraad Balt.
Count 9 (In respect of accused no. 1 and 2)
Attempted Murder
In that on or about 3 October 2010 and at or near Uis in the district of Omaruru, the accused 1 Charles Namiseb and accused 2 Edwin Tourob did wrongfully and unlawfully assault Maria Catherina Jacoba Balt by hitting her with a spade on her head and face with intent to murder the said Maria Catherina Jacoba Balt.
LIST OF STOLEN GOODS
Annexure “A”
1. Toyota Corolla with registration number N6669S
2. N$6 000
3. .22 Revolver with serial number 14244
4. 9mm Pistol with serial number 168766
5. Watch
6. Engagement ring
7. Eternity ring
8. Ammunition
9. Electric shaver
TOTAL N$78 900
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SUMMARY OF SUBSTANTIAL FACTS IN TERMS OF SECTION 144 (3)(a) OF THE CRIMINAL PROCEDURE ACT (NO. 51 OF 1977)
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On 3 October 2010 the accused visited the residence of the complainants in count 1 at Uis in the district of Omaruru pretending to be in need of assistance. They assaulted the 72 year old Jan Coenraad Balt (complainant 1) with a spade on his head unconscious. They pulled him inside the house and assaulted the 69 year old Maria Catherina Jacoba Balt (complainant 2) with a spade in her face, where after she started bleeding profusely from her forehead. They tied the hands of both complainant with an electrical cord behind their backs and demanded money. They were taken to the bedroom and the accused tied the feet of complainant 1 together. They searched the room whilst demanding money. They took turns to rape complainant 2 with the assistance and in the presence of the other in the manner as set out in count 1 and 2 in the indictment whilst threatening her with a knife. They stole the property as listed in Annexure “A” in the indictment and fled the scene with the Toyota Corolla stolen from the complainants.
The accused acted with common purpose at all material times.
[2] Accused 1 pleaded not guilty to counts 1, 2, 6, 7, 8 and 9 respectively. In his plea explanation he denied raping the complainant Maria Jacoba Balt. In respect of count 7 the accused denied that he acted in common purpose with accused 2 to rob the complainant. Assaulting the complainant in anyway or stealing any of her property as alleged in Annexure A is denied. In respect of count 8 and 9 the accused denied that he assaulted the two complainants with a spade on their heads and faces, and neither did he make any attempt to murder them.
Accused 2 pleaded not guilty to counts 3, 4, 5, 7, 8 and 9 that relate to him. In his plea explanation he denied all the allegations levelled against him in the said charges. He however indicated that he knows his co-accused no. 1 Charles Namiseb as they are related. He also knows the two complainants in his capacity as their former employee. He worked for them on a casual basis for six months during 2008. He became known to them as Axarob or simply Edwin. According to him, if it was him who committed the offences both complainants would have exposed his identity from the onset, which they did not do.
[3] I will now look at the evidence of the prosecution.
[4] Jan Coenraad Balt testified that Maria Catherina Jacoba Balt is his wife and they lived together at 13, 4th Street Avenue, Uis. He does not know the two accused before court. He is 75 years old. They were packing and preparing to go to Henties Bay, when two unknown young men came in talking nicely, asking to see him apart, from his wife. He walked to one side with them and inquired what they wanted. They said they wanted money for bail to come out of prison. He told them he has money which he was going to use for some of the work at Henties Bay. He further told them he cannot just give money like that. They walked with him to the house, one went to the garage and took a spade. They asked for cold water, his wife gave them. From here one of them beat him unconscious with a spade on the head he cannot remember what happened. From the blood spots which he later observed, it appeared he was pulled inside the house to the bedroom.
[4.1] When he regained his conscious he was inside the bedroom. He saw one of the assailants making up and down movements on the bed with his wife busy raping her. He may have forgotten to mention it in his statement, but it happened, he saw it. His hands were tied behind his back and his feet tied together. They were persistently asking for the money she got from the shop to use at Henties Bay. He gave them direction where to get safe keys and the money and they got it. They took two pistols out and they said that is all what they wanted. In the safe was cash ± N$3 000, the wife’s ring, watch and jewelries. They walked out of the house only to come back, and beat his wife twice with a spade. One also hit him with a spade on the ear damaging and rendering it dysfunctional to date. When they left, his wife managed to untie herself first and then came to untie him as well. His wife called Joyce, Else and Jab to come and help her. When they arrived they stopped the bleeding from the wound where her skin went off.
[4.2] The compiled list of goods was given to the police. In all, they missed a Toyota Corolla, wife’s engagement ring, wedding rings, eternity ring, bullets, electric shaver, N$5 000 cash, loaded firearms a revolver and a pistol, a watch. Basel Carrets took them by car to hospital in Swakopmund that same day. Mr Balt conceded during cross-examination that if the two men wanted to kill him and his wife, they would have done so. The assailants did not hide their faces during the attack. He cannot recall his former employee’s name because different names are usually furnished.