Two High Court judges have dismissed an appeal against the conviction and 20-year prison term of a Pakistani car dealer found guilty on charges of rape and human trafficking two years ago.
In an appeal judgement delivered in the Windhoek High Court on Friday, judge Naomi Shivute said the complainant in the trial of Pakistani national Farhan Khatri was still immature when she had sexual encounters with him and it was easy for her to be manipulated by him and two women who stood trial with him.
“The complainant was sexually exploited by [Khatri] and his co-accused,” Shivute said. “Money was even exchanged between [Khatri], the complainant and co-accused persons.”
Shivute said she was satisfied the magistrate who found Khatri guilty in May 2022 did not misdirect herself by defining “coercive circumstances” – a key part of the definition of the crime of rape in the Combating of Rape Act of 2000 – as including the fact that the complainant was exceptionally vulnerable due to her age.
The complainant was 16 years old when Khatri had intercourse with her on three occasions at Walvis Bay during May 2018.
He was employed as a manager at a vehicle import business at Walvis Bay at the time.
Khatri denied guilt during his trial in the Swakopmund Regional Court.
He admitted he had intercourse with the girl, but said this was with her consent and that he was not aware she was under the age of 18 years at the time.
The complainant told the court Khatri had intercourse with her on three occasions.
After the second occasion, he gave her N$800, and after the third encounter he gave her N$1 200, she said.
She also told the court she gave the N$800 to one of the women later charged with Khatri, Melody Ortner, and that Ortner then told her to increase the amount to N$1 200 when she had another encounter with him.
Khatri, who was 29 years old at the time of the incidents, admitted that he gave the complainant money, but said this was at her request.
Magistrate Gaynor Poulton convicted Khatri, Ortner and another accused, Jaezuruka Kamongua, on charges of trafficking in persons and rape after finding that Kamongua and Ortner arranged to have the girl sexually exploited by Khatri and that they shared in the financial proceeds of the exploitation.
The magistrate sentenced each of the three accused to an effective prison term of 20 years, with each receiving prison terms of 15 years on a charge of rape and five years on counts of trafficking in persons.
In the judgement on Khatri’s appeal against his conviction and sentence on the rape charge, Shivute noted that the magistrate concluded the complainant had been pressurised to take part in sexual acts with Khatri and that she was “exceptionally vulnerable” due to her age.
The Combating of Rape Act has done away with the previous definition of rape as intercourse without consent, Shivute said.
Under the Combating of Rape Act, the crime of rape is committed when a sexual act takes place under coercive circumstances, she also noted.
In Khatri’s case, the girl’s age of 16 made her “exceptionally vulnerable”, which constituted coercive circumstances that were proven by the state, the judge reasoned.
She also found that Khatri did not advance proper grounds to suggest the trial court misdirected itself with the sentence imposed on him.
Judge Philanda Christian agreed with Shivute’s judgement.
Lawyer Slysken Makando represented Khatri in the appeal. The state was represented by Constance Moyo.
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