Man wins appeal over roadside rape

Three years after he was convicted of rape and sentenced to 17 years imprisonment, Salom Pendapala Nakale can taste freedom again after his rape conviction was overturned on appeal.

Oshakati High Court appeal Judges Herman January and Johanna Salionga upheld Nakale’s appeal against the rape conviction on 21 June 2017 last week in the Oshakati High Court.

Nakale, who was a taxi driver before his conviction and incarceration, was convicted of raping a passenger he was transporting from Eenhana to Oshikango.

It was alleged by the State that he raped the woman who may not be identified in his car next to the road between Eenhana and Oshikango on their return from buying fruit.

The complainant in the matter testified that she hired Nakale’s taxi to take her to Oshikango to buy fruit and back to Eenhana for N$35 each way.

After shopping and while they were driving back, the complainant said, Nakale asked her to be his girlfriend, but she refused as she had an eight-month-old baby who was still breastfeeding.

She further said that Nakale then drove off the road between Onhuno and Okatope and locked the doors of his vehicle, undressed her and himself and raped her.

She further stated that she was overcome with fear and just lay still and let him finish.

They th e n returned to Eenhana where Nakale first stopped at her house to offload some of the boxes and then took her to her stall.

Nakale on the other hand claimed he and the complainant were in a romantic relationship and that the intercourse was consensual.

According to him, the intercourse did not happen inside his car as the complainant claims, but outside in the bushes, as he told her it was bad luck to have sex in the car.

It was further testified that after the intercourse, the complainant texted her sister saying she was raped and when they arrived at Eenhana, the sister and other people confronted him about the alleged rape. Nakale testified that he then decided to go to the police station to inform them about the incident and not to as the magistrate put it “coverup when he realised, he committed an evil deed”.

Judge January who wrote the judgment with Judge Salionga concurring, said that he found it strange that the complainant was so at ease with her so-called rapist that she first directed him to her house and then to the market. He asked: “If she really felt threatened, why did she not ask to be dropped at the marketplace f i rst where there were a lot of people to come to her rescue?” Th e judge went on to say that there was insufficient grounds for holding that the version given by the complainant was true and that of Nakale was false and nothing in the evidence of the appellant which is basically improbable or suggesting that he was an unreliable witness.

“I am of the view that this evidence should have raised doubt in the magistrate’s mind,” January stated. He further said that he is of the view that the State did not discharge its onus of proving beyond reasonable doubt that Nakale raped the complainant and the conviction is accordingly to be set aside.

Nakale was represented by Grace Mugaviri and prosecution by Taudi Gaweseb.