Instead of serving at least 66 years before being eligible for parole, serial rape convict Ralph Mzuvukile Mtshibe’s sentence was reduced in the Namibian Supreme Court to 66 years.
Even though the State succeeded in overturning an acquittal in the High Court into a conviction in the Supreme Court, it still lost out as one of the 45-year sentences imposed on a rape conviction was ordered to run concurrently with the 45-year sentence imposed on a second rape conviction. Supreme Court Acting Judge of Appeal Sylvester Mainga with Chief Justice Peter Shivute and Deputy Chief Justice and Judge President Petrus Damaseb concurring said that in relation to the two rape charges he was convicted of in the High Court, they happened on the same day, probably at spaced intervals.
Judge Mainga, who wrote the judgment, said the trial judge should have considered ordering the sentences to run concurrently or a portion of the sentence on the one conviction of rape to run concurrently with the sentence imposed on the second rape conviction.
“What is crucial is that he received the minimum sentences, i.e. 45 years as Section 3 of the Act dictates,” the judge stated. He further said that the success of the State on the acquittal of Mtshibe on the further count of rape, the order to run the sentences concurrent, which he described as “a minor success for lack of a better word”, is of little comfort to Mtshibe as they were bound to impose another 45 years for that conviction.
According to Judge Mainga, he found nothing in the circumstances to deviate from the mandatory minimum sentence as prescribed in the Act.
“As the trial court correctly pointed out, the respondent (Mtshibe) lacks respect for women and is a false Samaritan,” he said and added “the community of Lüderitz is crying for protection. Aggravating against the respondent is the fact that he showed no remorse.”
Mtshibe was sentenced in March 2013 to two consecutive 45 year prison terms in 2013 for raping a woman twice on the same day in 2006 and 12 months additional for assaulting her.
He was however acquitted on another count of rape that occurred in December of 2003 and two counts of kidnapping.
The State then lodged an application to the Supreme Court to appeal the acquittal and Mtshibe lodged a counter-appeal on the sentence of 90 years on the two rape convictions, calling it appallingly inappropriate. Both appeals succeeded and Mtshibe was convicted on the rape on appeal and sentenced to 45 years of which 25 years were ordered to run concurrently with one of the 45-year sentences he received in the main trial.
His appeal on the sentences he received also succeeded partially since the two 45-year sentences he received in the main trial were ordered to run concurrently.
This means he received an effective jail term of 66 years making him eligible for parole after he served two thirds of his sentence.
During the sentencing in the High Court Judge Naomi Shivute who presided at the trial called Mtshibe a devious monster who goes around targeting young women in the guise of a good Samaritan. Judge Shivute said that while Mtshibe poses as a good Samaritan, he plans to take these vulnerable ladies who are new in his hometown of Lüderitz to secluded places in order to rape them to satisfy his sick sexual desires.
“The accused is a callous rapist, and from the evidence I conclude that the complainants must have had a terrifying experience,” the judge remarked.
In the case of the first rape wherein Mtshibe was acquitted, the Supreme Court ascertained Judge Shivute misdirected herself when she decided to give Mtshibe the benefit of the doubt on the rape count.
There was corroborative evidence from the State witnesses that proved the guilt of Mtshibe. The evidence from the State witnesses totally contradicted the testimony of Mtshibe who was found not to be a credible witness.
But the court should have considered the similarities in the versions of the two rape victims. Both complainants were young women, new in Lüderitz and stranded at night and in both cases Mtshibe offered to take them home and the complainants both testified that they agreed to go with the respondent because he appeared to be a gentleman.
Both victims testified he took them up a mountain and raped them.
According to Judge Mainga, both victims testified that Mtshibe wielded a knife to subdue them and the trial court accepted the evidence of one of the complainants that Mtshibe had a knife and made similar threats to her as to his first victim. But, he said, although the trial judge did not say so, he assumed she rejected that evidence.
That, Judge Mainga said, was an oversight on the part of the trial court and should have been considered as proof that Mtshibe did threaten the victim and raped her as charged.