Iuze Mukube
An application for discharge in terms of section 174 of the Criminal Procedure Act by two men accused of raping, murdering and robbing a bank manager in Walvis Bay in 2023 has been successful.
The accused, Quanito van Vuuren and Moses Sam applied to be discharged on two counts of rape relating to the alleged rape of Vernon John Gavin (53) on 30 December 2023 in Walvis Bay.
Van Vuuren and Sam face charges including murder and two counts of rape and robbery with aggravating circumstances.
The State alleges that Gavin was at his Walvis Bay residence on 30 December 2023, in the company of the accused, where they were drinking beer and smoking cigarettes.
The State alleges that the accused overpowered Gavin and took turns raping him. They allegedly killed him by pushing a piece of cloth deep into his throat, causing him to suffocate and die at the scene.
It further alleges that the accused robbed Gavin of his property and acted in common purpose throughout the commission of the offences. At the close of the State’s case, the two applied to be discharged on the rape counts, arguing that the State failed in establishing the commission of the sexual acts alleged in the two counts. They also argued that there were no witnesses who directly identified them as the perpetrators of either sexual act.
The State, on the other hand, relied on medical findings of bruising and a loose anal sphincter.
The deceased’s nakedness and restraint, the cloth lodged in his throat and the accused’s associations with the scene and vehicle, and the evidence concerning property removed from the premises.
In the State’s submission, these circumstances were not to be dissected into isolated items but assessed cumulatively.
Investigation evidence established the discovery of Gavin’s body, which was found naked and bound in a shower, and the arrest of the accused following the recovery of his property.
Witness testimony pointed to beer bottles and cigarettes, suggesting the presence of more than one person at the time.
Medical evidence, on the other hand, established the cause of death, and observation of the anal region, showed a loose anal sphincter and bruising or reddish discolouration.
Such evidence considered penetration as possible, but no anal tear or cuts were observed but said absence also did not exclude penetration.
Forensic evidence in turn pointed to the testing of a rectal swab, which identified other samples submitted for DNA examination.
The test supposedly did not detect seminal fluid markers, but the negative result for human semenogelin on the rectal swab did not necessarily exclude the possibility that penetration had occurred. Additionally, the forensic examination did not yield any biological evidence identifying or linking either accused to the alleged sexual penetration of the deceased.
However, neither accused could be excluded as possible contributors to cigarette butts found at the scene, in the kitchen for Van Vuuren, and for Sam, both in the kitchen and the vehicle. Windhoek High Court Judge Philanda Christiaan on Friday found that the findings did provide independent circumstantial evidence associating Van Vuuren with the kitchen and Sam with both the kitchen and the vehicle.
However, she found that the forensic evidence did not establish when the biological material was deposited or the circumstances in which both accused were present at those locations.
She stated that the DNA comparisons concerned cigarette butts and not biological material recovered from the deceased’s anal region
“The findings therefore do not directly establish that either accused penetrated the deceased or participated in the sexual acts alleged in counts 2 and 3,” she added. She found, therefore, that although the evidence established possible penetration on the deceased and the accused’s association with the scene.
“No sufficient evidential foundation connected either accused to the alleged sexual acts.” She found also that the evidence failed to distinguish two separate acts of penetration. She also found that the State failed to present evidence upon which a reasonable court, acting carefully, might convict either accused on either count and discharged them on the two rape counts.
The matter was postponed to 30 November 2026 for continuation of trial on the remaining counts. Van Vuuren is represented by Albert Titus and Sam by Milton Engelbrecht and the State by Beata Hamunyela.
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