Two judges of the High Court reduced the 30-year sentence a man received in the Katima Mulilo Regional Court for rapes.
Windhoek High Court Judges Christi Liebenberg and Herman January found that the sentence of 30 years is disproportionate to the moral blameworthiness of the accused. They set aside the sentence, and replaced it with a sentence of 15 years on each rape conviction, but ordered that 10 years on the second rape conviction run concurrently with the sentence on the first rape conviction. This leaves an effective sentence of 20 years.
Hofeni Lupandu was convicted in September 2021 in the Katima Mulilo Regional Court of the rape of a then 13-year-old girl. Not satisfied, he lodged an appeal against both convictions and sentence. Judge Liebenberg, who wrote the judgement, with Judge January concurring, however, had a problem with the manner in which the judgement by the trial court was presented. He said the judgement covers nine pages only, with more than seven pages devoted to the evidence adduced.
"The court's reasoning and conclusions reached are condensed in only half-a-page from which, as counsel submitted, it is evident that the trial court did not properly evaluate the evidence and failed to apply its mind as regards to the application of the law to the facts". They further said that besides stating that the State's case stands and falls on the evidence of the complainant, the court summarily found that the complainant was consistent in her testimony, and that the court had no reason to doubt her report. The complainant testified that Lupandu waylaid her while she was on her way to relieve herself in bushes near her residence, and had sexual intercourse with her against her will. She also testified that she did not scream as the accused is a grown person, and she complied with his demands. She added that after the first incident, he gave her N$20 and told her not to say anything.
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The second time, she said, he loaded her into his vehicle and drove to a secluded spot where he again had intercourse with her. He then gave her N$110, and repeated his warning that she must not tell anyone. However, on her return home, her mother wanted to know why she took so long and found the money on her, which led to her telling her mother what had happened. Judge Liebenberg found that although the trial court did not give compelling reasons for the conviction, he was satisfied that the victim was telling the truth. With regards to the sentence, he said the accused's contention that the circumstances of the offence amount to substantial and compelling factors which justify a lesser sentence, is incorrect. According to the judge, the fact that no weapons were used and that the complainant did not sustain physical injuries are of no consequence. However, he said, a sentence of 30 years is disproportionate to the accused's blameworthiness, and a sentence of 20 years would not derogate from the seriousness of the crimes committed.
Lupandu was represented by Khadila Amoomo, and the State by Palmer Khumalo.
