Rape appeal backfires, jail time increased

By: WERNER MENGES

AN Omaruru resident’s attempt to appeal against a conviction on a rape charge and a jail term of seven years which flowed from that backfired in the High Court in Windhoek last week.

Not only was Wigberth Kapindi’s appeal against his conviction dismissed by Acting Judge Kobus Miller and Judge Elton Hoff on Thursday, but the judges also decided to increase his sentence from an effective seven years’ imprisonment to ten.
The reason for the increase in the sentence is that Kapindi had been given a ten-year prison term, of which three years were conditionally suspended – something which the Combating of Rape Act does not allow a court to do, the two judges ruled.
Kapindi was accused of having raped a woman at Omaruru on December 7 2008.
According to the complainant the alleged crime was committed when Kapindi, who had entered the room where she lay sleeping, pulled down her trousers and put a finger into her private parts.
Kapindi denied the charge during his trial in the Swakopmund Regional Court.
At the end of the trial he was found guilty, and on June 21 2010 he was sentenced to an effective seven years behind bars.
Part of the evidence before the court was testimony from witnesses who supported the version of the complainant about the circumstances in which Kapindi had been found at her room after she had raised the alarm, Acting Judge Miller recounted in the court’s judgement.
Kapindi denied having been found in the room by the witnesses who testified that they had found him there, the judge noted.
Acting Judge Miller found that the Regional Court magistrate’s conclusion that the prosecution had proven Kapindi’s guilt could not be faulted.
“The bare denial by the accused that he had touched the complainant coupled with his further denial that he was not found at the scene flies in the face of persuasive and acceptable evidence to the contrary,” Acting Judge Miller stated.
On the sentence, he noted that the magistrate had found that there were no compelling and substantial circumstances which, in terms of the Combating of Rape Act, would have allowed the court to impose a lesser sentence than the ten-year prison term prescribed by the Act.
The Act also stipulates that if a minimum sentence as prescribed by the law is applicable in respect of a convicted person – that is, in the absence of substantial and compelling circumstances which would justify the imposition of a lesser sentence –  no part of the sentence may be suspended.
Defence lawyer Mese Tjituri represented Kapindi in the appeal. The State was represented by Shakwa Nyambe.

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