THE car in which a former magistrate gave a ride to a woman that he is accused of raping in Windhoek in January 2015 should be forfeited to the state, the Supreme Court has ordered.
Ex-magistrate Jaco Kennedy's car, with which he picked up a woman looking for transport to the Windhoek city centre and in which he later allegedly raped her, was an instrument that was used to commit the rape, and as a result could be declared forfeited to the state in terms of the Prevention of Organised Crime Act, three judges of the Supreme Court agreed in a decision handed down last week.
Based on the finding that Kennedy's Volkswagen Polo could be described as an instrumentality of the offence of rape, the court overturned a February 2017 judgement of the High Court, and ordered that the car be forfeited to the state.
In the High Court's judgement, deputy judge president Hosea Angula was not convinced that Kennedy's car was an instrumentality of one of the crimes of which Kennedy is accused, and as a result dismissed an application by the prosecutor general to have the car forfeited to the state.
The Supreme Court, in a judgement written by acting judge of appeal Theo Frank, did not agree with the deputy judge president's conclusion on the rape charge faced by Kennedy. Deputy chief justice Petrus Damaseb and appeal judge Elton Hoff concurred with judge Frank's ruling.
Having summarised the evidence on which the prosecutor general relied for her application to have the car forfeited to the state, and also Kennedy's response to it, judge Frank concluded that the PG showed on a balance of probabilities that the crime of rape was committed, and that it happened in the VW Polo.
With the hearing of the PG's appeal against the High Court's decision, Kennedy wanted to place a new statement that had allegedly been made by the complainant as additional evidence before the Supreme Court. In the statement, the complainant supposedly stated that as far as she could remember, Kennedy did not have intercourse with her or rape her, "because the police arrived at the scene whilst he was still beating me".
Judge Frank noted that the supposed new statement by the complainant raised questions about her reliability in respect of the details of the assault on her - but there was also evidence from witnesses who said they caught Kennedy in the act of raping the woman, while medical evidence indicated that there were injuries to the complainant's private parts.
On the evidence before the court, he remarked that Kennedy "at the least, soon after the complainant got into his vehicle, decided he would rape her".
The judge also stated: "He knew he could not do this where he picked her up and along the road into town with witnesses abounding, and that he had to take her to a more isolated location.
"She was in his car, and he would use this car to take her there (misleading her as to why he took this new route) to enable him to rape her. The car was thus the instrument he used to transport the complainant from where he found her to where he intended raping her and indeed raped her."
Kennedy is charged with counts of rape and kidnapping in connection with that incident, which took place on 3 January 2015.
He is also charged with kidnapping and rape in connection with a subsequent incident in which he allegedly picked up another woman, who was waiting by the side of a road in Windhoek for a taxi to take her to work, on 31 December 2015 and later allegedly raped her.
The case in which Kennedy is criminally charged has been pending in the Windhoek High Court since early last year.
Kennedy has been kept in custody since his second arrest, which took place at the end of January 2016.
Annerie Keulder and Hafeni Hamunyela represented the PG in the Supreme Court appeal. Kennedy was represented by Boris Isaacks.