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[2023] ZAECMKHC 125
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S v Ngqeza (CC26/2022) [2023] ZAECMKHC 125 (6 February 2023)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION
-
MAKHANDA)
CASE
NO: CC26/2022
In
the matter between:
THE
STATE
and
KHULULEKANI
JUSTIN NGQEZA
ACCUSED
JUDGMENT
Smith
J
Introduction
[1]
The accused, a 33-year-old male, has been charged
with seven counts of rape in contravention ,of section 3 of the
Criminal Law (Sexual
Offenses and Related Matters) Amendment
Act, 32 of 2007, one count of attempted rape in
contravention of section 55 (a) read with section 3 of the same Act,
and 14 counts
of trafficking in persons in contravention of section
4(1) of the Prevention and Combatting of Trafficking in Persons Act,
7 of
2013 (the Act). In the alternative, it is alleged that he has
attempted to commit the crimes mentioned in section 4(1) of the Act.
The state was represented by Ms Turner and Mr Solani appeared for the
accused.
[2]
He
pleaded not guilty to
all
counts
and
elected not
to provide a
plea
explanation. At the
end of the state case he was acquitted in respect of count 14, which
related to
alleged trafficking in
contravention of section 4 (1) of the Act.
[3]
The state alleges that the accused fraudulently pretended on social
media to be a photographer for a company, namely
Raw Talento Models
(RT Models) with connections to clothing brands and that it was
looking for models and brand ambassadors. Interested
candidates were
required to send a WhatsApp message to the photographer (being the
accused), attend an initial photo-shoot and
pay a sum in excess of
R100 per photo-shoot. A candidate who introduced at least two other
potential models to the company, would
be entitled to a free third
photo-shoot.
[4]
He had allegedly also created the fiction through
social media that RT Models was a company of several people and that
he was an
employee of the company. The reality was, however, that he
was in fact the company, the photographer,
the
clothing brand and the Facebook persona on the various Facebook
pages, notwithstanding the fact that on
each
Facebook page different profile details were provided.
[5]
The
state
furthermore alleges that
the
accused had
no
photographic
expertise
or training and did not have a photographic studio. The WhatsApp
conversations
which were handed in as
evidence indicate that he did not conduct himself in a professional
manner: on occasion suggesting to a
complainant that she watched
pornography and asking others whether they were menstruating or were
virgins. He was in fact selling
candidates a fiction for which they
were required to pay. He did not issue receipts, no printed
photographs were ever produced
and in some instances photographs were
not even uploaded onto social media. The venue for the photo-shoots
were the streets, low
end bed-and-breakfast establishments, and
candidates were required to change in public toilets or behind
electrical transformer
boxes. He used different names or remained
anonymous,
and
aspiring
models
had
only
known
him
either
as
'the photographer', 'Buti' or 'Anele'. The
photographs which he held out as having been taken by a professional
photographer, may
as well have been taken on a cell phone. Those
photographs that were admitted as evidence indicated that he clearly
did not have
the capability of taking aesthetically pleasing or
professionally produced photographs of aspiring models. Instead his
intention
was to exploit the naivety and vanity of young women
tor
financial gain and sexual exploitation
in a predatory fashion.
[6]
While the statutory elements which the state has
to prove for convictions on the rape and attempted rape counts are
well established,
it is necessary for me to elaborate on those
required for a successful prosecution in respect of the crime of
trafficking in persons
created in terms of section 4(1) of the Act.
[7]
Shorn of irrelevant
provisions,
the section provides as follows: any person who delivers, recruits,
transports, transfers, harbours, sells, exchanges,
leases or receives
another person within or across the borders of the Republic by means
of fraud, or deception, aimed at either
that person or an immediate
family member of that person, for the purpose of any form or manner
of exploitation, is guilty of the
offense of trafficking in persons.
The term exploitation is defined to include sexual exploitation.
'Sexual exploitation' is in
turn defined in the Act as the commission
of any sexual offense referred to in Act 32 of 2007.
[8]
Having regard to the allegations against the
accused, the state is required to prove beyond a reasonable doubt
that the accused
recruited the complainants, either by way of fraud
or deception, for the purpose of sexual exploitation. In this regard
the state
is required to prove that the accused recruited the
complainants through social media by way of deception, namely holding
out to
them that they were being recruited for paid modelling jobs
when in fact his intention was to lure them into situations where he
would either be able to rape or sexually take advantage of them in
some other manner. The manner in which the state has adduced
the
evidence against the accused means that the determination of his
guilt in respect of the rape and attempted rape counts are
inextricably linked to a consideration of the evidence in respect of
the trafficking counts. Ms. Turner has correctly submitted
that a
finding that some of the complainants had indeed been raped or that
there had been an attempt to rape one of them, will
for the purposes
of section 4 (1) of the Act, also establish the element of the
intention to exploit them sexually. The state contends
that such a
finding will be reinforced by the strikingly similar modus operandi
employed by the accused on each occasion.
[9]
The state elected not to adduce evidence in
respect of the counts sequentially. To a large extent, this was due
the fact that a
number of the complainants and other witnesses were
either writing or preparing for exams. Ms Turner has also deemed it
necessary
to group some of the complainants together in order to
establish a pattern of behaviour on the part of the accused or to
emphasize
the respects in which their testimonies overlapped or
corroborated each other. In consequence my summary of the witnesses'
testimonies
will also not be chronological.
[10]
In addition to the complainants in the various
counts, the state has also called several other witnesses, including
persons to whom
first reports were made and police officers, who,
amongst others, testified regarding the circumstances of the
accused's arrest,
cell phone records which placed him in Salt River,
Cape Town, in the vicinity of the bed and breakfast establishment
where he had
allegedly raped three of the complainants, and
corroborating the testimony of one the complainants regarding
attempts to contact
the accused telephonically. Although I
have had regard to all those testimonies, I refer
to them only insofar as they may be relevant to
my
findings.
The evidence adduced on
behalf of the state
[11]
The state alleged that during May 2020, the
complainant in counts 21 and 22, namely S[…] K[…], a 17
year old girl,
was recruited by the accused by means of fraud or
deception for the purposes of sexual exploitation,
and
on 18 May 2020 and at or near Warner Street, Komani, she was
unlawfully and intentionally sexually penetrated by the accused,
without her consent and against her will.
[12]
Ms K[…] testified that she had responded to
the RT Models advertisement on Facebook for an audition in Komani.
The accused
contacted her and she followed his instructions regarding
how to get to the photo shoot. As was the case with other
complainants,
the accused had told her in
his text messages about the so-called 'sexy facial expressions'
required to show that she was in the
'mood' and that he would help
her with the poses. She had had previous modelling experience and was
expecting to be shown by the
accused how to pose. She was also
interested in the lingerie shoot. She was late for the photo shoot
but there was still one candidate
present when she arrived at the
venue. After that candidate had left, only she and the accused
remained behind. She said that the
accused pretended that he wanted
to do a picnic photo shoot with her and for this purpose took her
into an area obscured from view
by bushes. He then spread a sheet on
the ground and instructed her to put on a T-shirt with the brandname
'Souty' emblazoned across
the chest. She
put
the T-shirt on, still wearing her underwear. The accused instructed
her to lie on her back and he then sat astride her, pretending
that
it was necessary for the purpose of taking photos. He then instructed
her to turn over on her hands and knees. He approached
her from
behind, pulled her panties aside and raped her. The penetration was
painful for her and she cried as a result. The accused
was, however,
unperturbed, and said that she looked beautiful when she cries and
that he wanted her to become his girlfriend. She
then pushed him away
and got to her feet. He hugged her and apologized. She then walked to
the taxi rank, followed by the accused.
The accused asked her what
she would say when others asked her why she did not pay for the shoot
and she said that she would tell
the truth. He then told her to go
straight home. She reported the rape to her friend, M[…] P[…].
On Mr P[…]'s
advice she went to the police station the
following day to report the rape and was thereafter
taken
to the hospital where she was medically examined. The medico-legal
report confirmed that she had redness in her genitalia
and an
abrasion of the
fossa navicularis.
Mr
P[…] also testified, corroborating her evidence that she had
told him that she had been raped by the photographer whom
she had
only known as Anele. He also confirmed that according to her the rape
occurred in the bush behind McDonalds. He said that
she was in an
emotional state and had clearly experienced a traumatic event. The
accused attempted to call her on several occasions
thereafter, but
she only replied to some of the calls. He also messaged her, saying
that she should not try 'anything funny' because
he had a video of
what had happened at the photo-shoot.
[13]
The accused was arrested shortly
thereafter. At the time of his arrest the photos taken of the
complainant were still on his camera
and provided corroboration for
her testimony as to how the rape had allegedly occurred. In some of
these photos the complainant
is depicted as lying on her back and in
others as lying on her stomach. Importantly, there was a gap of about
seven minutes between
some of the photos. The complainant, had
testified that during this time the accused had lifted her by the
waist, moved her underwear
to the side and had raped her vaginally
from behind. It is clear in some of the photographs that she was
emotionally upset.
[14]
As was the case with other complainants,
she was subsequently
threatened by the
accused that should she report the rape, he would upload a video on
social media showing what he had done to her.
The accused had,
however, been lying about the existence such a video and had used the
threat in an attempt to manipulate the complainant
into remaining
silent.
[15]
The complainant in respect of counts 16 and 17, L[…] F[…]
(aka N[…]), a 17 year old
girl was, according to the state,
recruited by the accused by means of fraud or deception for the
purpose of sexual exploitation
during the period February 2019 to
March 2020 and raped by him on 8 March 2020, at the Freedom
Guesthouse, Parliament Street, Gqeberha.
The state alleged that he
had raped her by inserting the tip of his penis, his finger and his
tongue into her vagina, without her
consent and against her will.
[16]
The
complainant
testified
that
she
had
also
responded
to
the
advertisement
on the RT
Facebook page for Uitenhage. She was studying at the Nelson Mandela
University at the time. The accused provided her with
the usual
instructions.
When she moved to Gqeberha,
she started communicating with him about the possibility of auditions
in that city. She attended one
photo-shoot and he invited her to a
second shoot a week later. She was uncertain of the proposed
venue and she and the accused agreed to meet at
Shoprite Checkers in town. He advised her that he wanted to take her
for an additional
photo-shoot, which would concentrate on seductive
facial expressions. He pretended that his boss wanted her to model
for a lingerie
shoot. In WhatsApp messages to her the accused
repeatedly used the plural when explaining what would happen for
example 'they will
just focus on the face, they wanted to test you,
they cannot give you a boys shirt, and I have to take pies of you
doing the sexy
facial expressions'. She was therefore under the
impression that other people, in particular representatives from Mr
Price stores,
would be present and that the accused would be taking
the photos in their presence.
[17]
They agreed to meet before the regular photoshoot
which was sche9uled for later that afternoon. She and the accused
walked to a
bed-and-breakfast establishment
where
he booked a room. The accused gave her a large T-shirt to wear and
instructed her to remove her underwear. She put the T-shirt
on but
did not take off her underwear.
He
commenced
taking photos of her standing
against the wall and then instructed her to move to the bed and lie
on her stomach. He said that he
was not satisfied with 'the poses and
told her to assume a 'dog-style' position with her head on
the
pillow
and
her
buttocks elevated.
After
taking a few
photos of
her in that
position, he
told her to close her eyes. He then approached her from behind and
executed thrusting motions against
her
genital area. He then took more photos before instructing her to open
her eyes. He moved her underwear aside and penetrated
her vagina with
his finger and tongue. He thereafter continued photographing her
before approaching her and penetrating her with
the tip of his penis.
She begged him to stop and jumped away. The penetration was
consequently brief and superficial. The accused
then suggested that
they take more photos of her posing against the wall. He then moved
closer to her and kissed her on her neck.
She, however, told him that
she no longer wished to continue with the shoot and wanted to go
home. The accused then left the room
and she got dressed. They
thereafter left for the group photo-shoot which had been scheduled
for that afternoon. She attended and
participated in the photoshoot
and thereafter took a bus home. Immediately upon her arrival at home
she sent a message to a friend,
A[…] M[…], telling her
that she might have been raped. She reported the rape to the police
the following day and
was admitted at the Dora Nginza Hospital where
she was medically examined. The resultant medico-legal report
indicated that there
were no injuries to her genital area. She said
that she was not surprised at this because the penetration was very
brief and superficial.
She also posted a story about her experience
on Facebook but did not reveal the name of the photographer. Ms M[…]
corroborated
her version and testified that Ms F[…] had told
her by Whatapp message on 8 May 2020 that she thought she might have
been
raped. She then Googled to ascertain the requirements
of
the crime and forwarded the results of
her
search
to
Ms
F[…],
who
confirmed
that
she
had
indeed
been
raped
by
a photographer
in Port
Elizabeth (Gqeberha).
[18]
Ms F[…] said that she was aware of the fact
that the accused was actually taking photos of her at the guesthouse,
because
she had seen one of the photos on his camera screen. However,
by the time the accused had been arrested all the photographs that
had been taken at the guest house had apparently been deleted,
leaving a gap of about 32 images. This was apparent when regard
was
had to the serial numbers of the photos. One of the state witnesses,
namely O[...] S[...], himself photographer, testified
that when
photographs are deleted after subsequent photos had been taken, the
deletion would be apparent because the serial numbers
would not be
chronological. The only conclusion to be drawn is that the accused
deleted the photographs
after he learned
that she had laid a
charge
against
him, because he knew that the photographs
would corroborate her version. His contention that
the police must have deleted the photos is unsustainable. It is only
logical
that the police would have wanted to preserve those photos to
be used as evidence against the accused.
[19]
It appears that the accused afterwards suspected
that the complainant intended to report the rape to the police. This
prompted him
to contact her by way of WhatsApp call and to inquire
about her whereabouts in a message. He lied to her that he was
outside her
residence in Kersten. When these strategies did not seem
to work, he threatened her as he did with Ms. K[…]. He also
suggested
in the WhatsApp messages that her statement that he had
offered to assist her with the sexy facial expressions, confirmed
that
she had consented to sexual intercourse in order to be turned
on. The latter's testimony regarding the unsuccessful attempts to
contact the accused was corroborated by the investigating officer,
Captain Makubalo.
[20]
The accused had also sent her a screenshot of an
email purportedly sent to him by his attorney. Ms Turner has,
however, correctly
pointed out that this purported email contains
extensive inappropriate use of capital letters in the middle of
sentences, the same
oddity that appears in all the accused's written
correspondence of which he admitted he was the author. In addition,
the email
did not refer to the name of the attorney nor of the
attorneys firm. The inference is therefore ineluctable that the
accused was
the author of the email and that he had sent it to Ms
F[…] to intimidate her.
[21]
It appears that he also attempted to intimidate
her by making repeated requests for the case number. Ms Turner
submitted that his
repeated failure to answer his phone when he was
called by the investigating officer, is a clear indication that his
request for
the case number was not a genuine desire to contact the
police, but instead also intended to intimidate Ms F[…].
[22]
In respect of counts 3,4,5,6, 12 and 13, the state
alleged that the accused had either trafficked or raped three young
girls in
Cape Town during 2018 and 2019 (the Cape Town complainants).
All three of them were allegedly taken by the accused to the Sleep
and Go bed-and-breakfast in Salt River, under the pretext that they
were attending a private lingerie shoot at which lingerie companies'
representatives would be present and the accused would be the
photographer. The accused gave each of them a short long-sleeved
blue
dress to wear for the photo-shoots.
[23]
The state alleged in particular that during the
period September to November 2018, the complainant in counts 3 and 4
namely N[…]
S[…], an 18 year old girl,
was
recruited by the accused by means of fraud or deception for the
purpose of sexual exploitation. And on 4 November 2018 she was
twice
raped per vaginam by the accused at the aforementioned
bed-and-breakfast.
[24]
Ms
S[…] testified
that she had also seen the advertisement by RT
Models
on its
Cape
Town
Facebook page.
She
had
expressed interest and
was contacted by
the accused. She subsequently attended two
photo-shoots. After the
second photo-shoot
the accused called her aside and told her that a lingerie brand was
interested in her photographs.
He
told
her
that
the brand required a 19-year-old model
but
that he
would do her a
favour because she was still under age. He told her not to tell
anyone about the photo-shoot and gave her money for
taxi fare. She
met the accused in town as arranged and they travelled together by
taxi
to the aforementioned
bed-and-breakfast where he booked a room. He then
gave her the same dress to wear and instructed her to remove her
underwear, which
she did. He then took photos of her. He was,
however,
not
satisfied
with
the
poses
because
according
to
him
they
were
not sufficiently
seductive.
He then instructed her to get
onto the bed and kneel on her hands and knees. After taking photos of
her in this position he approached
her from behind, instructed her to
lower her back and to open her legs. He then dropped his pants and
raped her vaginally. She
objected and told him that she wanted to
leave. He, however, insisted on
taking more
photos and instructed her to lie
on
her back and close her eyes. After taking more photos of her in that
position, he again opened her legs
and
raped
her.
After
she
got
dressed,
they
left
the
bed-and-breakfast
and
travelled to another venue where a group photo-shoot would take
place. The accused had offered her the sum of R40 for taxi fare
but
she had refused to accept. He then put the money in her pocket. She
said that she took part in the photo-shoot after the accused
had
raped her
in order to
complete the advertised requirements of RT
Models to qualify for a
modelling
contract. She did not attend any further photo-shoots.
When
during 2020 she saw photos of her friend, M[…] Z[…],
the complainant in Count 18,
on the
RT Models
Facebook
page,
she
contacted
her
to
warn
her
about
the accused and his agency. She also reported the
rape to the members of her modelling WhatsApp group, including Ms
S[…]
and Ms N[…], the complainant in count 13. Her
decision to report the rape was also prompted by the fact that she
had been
elected as a gender officer for the EFF student command and
decided to set an example herself.
[25]
The complainant in Counts 5 and 6, B[…]
G[…], a 19-year-old girl, was allegedly also recruited by
means of fraud or
deception for the purposes of sexual exploitation
and on 27 January 2019, raped by the accused per vaginam.
[26]
She
testified
that
she
was
introduced
to
the
RT
Models
Facebook advertisement
by
Ms S[…]. She subsequently
attended
several photo-shoots
in the latter's
company.
During the last photo-shoot
the accused told her that an agent was interested
in signing her as a model and during the early part of the following
year she
again attended
a photo shoot in
the company
of S[…]
B[…], the complainant
in count
7.
The accused told her
to
meet him the
following
day
and
said
that
he
would introduce
her to
the
manager
of the agency
that
was
interested
in
her.
He gave
her
R200 to
cover her transport
costs.
She travelled
to town by taxi, accompanied
by Ms B[…]. She met the accused at
the
Golden Acre Shopping
Center, and they
travelled together
by
taxi
to
a
bed-and-breakfast
establishment
next
to
a
traffic
circle
in
Salt River. Ms B[…]
remained
behind
and waited for
her
at
the Golden
Acre.
Upon their arrival
at
the
bed
and
breakfast,
the
accused
booked
a
room.
He
told
her
that
the manager
of the agency
had been
delayed
and they should
start
the photo-shoot.
He then gave
her
the same
dress
to
wear and instructed
her
to
remove
her underwear,
which
she
did.
He
then
took
photos
of
her
but
said
that
he
was
not
happy
with
her
facial
expression
and
urged
her
to
look
more
seductive.
He
then
approached
her, fondled
her
breasts
and
kissed
her
on
the
mouth.
She
was
frightened
and
started screaming.
She
pushed
him
away
and
he
placed
his
hand
over her
mouth,
muffling her screams. He then pushed her onto the
bed, pulled down his pants and raped her. After ejaculating he
apologized, saying
all human beings make mistakes. She then got
dressed, left and took a taxi home. He thereafter again invited her
to a photo-shoot
but she
told
him
that
she
was
not
interested.
She
reported
the
rape
to
Ms
S[…]
the
following
year. This was after Ms S[…]
had asked her why she did not attend further photo-shoots
with
the accused.
[27]
Ms G[…]'s testimony was corroborated in
certain material respects by S[…] B[…], who had
accompanied her to
the Golden Acre Center where she was supposed to
meet the accused before the regular photoshoot on 27 January 2019.
She said that
Ms G[…] had told her that it would be a private
shoot. She left in the company of the accused and returned about an
hour
later. According to Ms B[…] she was not herself when she
returned and it was clear that something was bothering her.
[28]
The other Cape Town complainant, Y[…] N[…], (the
complainant in counts 12 and 13) a-19 year
old girl, was allegedly
also trafficked by the accused for the purpose of sexual exploitation
during the period September 2018
to August 2019 and during August
2019 was raped by him per vaginam at the same bed-and breakfast.
[29]
She testified that she was recruited by the accused in the same
manner as the others after she had seen the
Facebook advertisement
for RT Models for the city of Cape Town. She had also followed his
instructions and afterwards attended
three photo-shoots together with
other candidates. The accused then contacted her and pretended that a
lingerie and swimwear company
was interested in signing her as a
model. He told her that he had concealed her age as she was not yet
21 years old. He also told
her that a test photo-shoot would be
required.
[30]
She took a taxi to town where the accused had arranged to meet her.
They then travelled together by taxi
to the same bed-and-breakfast
where he booked a room. He gave her the same dress to wear and
commenced with taking photos. He said,
however, that he was not
satisfied with her poses. He then touched her on her thighs under her
dress. He pulled her onto the bed
and pushed her down forcing her to
lie on her back. He then lowered his pants, climbed on top of her,
opened her legs with his
knees and raped her. He then left the room
and locked the door. She got dressed and upon his return she
moved past him and left. He had instructed her to
wait for him while he withdrew money for her taxi fare, but she
ignored him and
left. She did not initially report the incident but
later informed her cousin and her mother. She had also learned about
Ms S[…]'s
experience. She did not report the rape to her
family, because she did not want to bother her mother who was
struggling to cope
with her brother's drug problem at the time. She
was also busy preparing for her final Matric exams for which she set
in September
2019. She reported the rape to
Ms S[…] when the latter called her in 2022 to inquire about
her experience with the accused.
[31]
During cross-examination it was put to all the Cape Town complainants
that they had conspired falsely to
implicate the accused with
encouragement from the police because they were disgruntled by the
fact that someone else had been chosen
as a brand ambassador. They
all denied that this was the case.
[32]
The complainants in counts 1, 2, 8, 9, 10 and 11 (the East London
complainants) were all allegedly trafficked
by the accused for sexual
purposes, and in the case of the complainant in count nine, was raped
by the accused. He had allegedly
also attempted to rape the
complainant in count two. The rape and attempted rape incidents
allegedly took place took place at the
Thule Bed-and-Breakfast in
Oxford Street in East London.
[33]
The state alleged that the complainant in counts 1 and 2, N[…]
M[…], a 15 year old girl, was
also recruited by the accused
for the purpose of sexual exploitation in East London during 2018. On
28 December 2018 and at the
above-mentioned bed and-breakfast
establishment,
the accused had allegedly
attempted to rape
her.
[34)
Ms M[…] testified that the accused had
informed her via WhatsApp during December 2018 that she had been
selected for a lingerie
shoot even though she was still under age. On
28 December 2018, she attended a photo-shoot at the usual location
but could not
locate the other models. She then managed to contact
another model who told her to wait at the Windmill Roadhouse. The
accused
eventually met her there and told her that she would be going
for a private photo-shoot in Oxford Street. They then travelled
together
by taxi to the aforementioned bed-and-breakfast where the
accused booked a room and gave her a 'Souty' T-shirt to wear. She put
the T-shirt on but did not remove her underwear. She was wearing what
she described as boy style panties. The accused told her
to stand
against the door and do 'horny' poses. As was the case with the other
complainants, the accused told her that he was dissatisfied
with the
poses and indicated that he would assist her. He then approached her
and kissed her. He thereafter instructed her to assume
a 'dog-style'
position with her chest on the bed and her buttocks elevated. The
accused attempted to penetrate her from behind
but was unable to do
so because of the type of underwear she was wearing. She thereafter
left in a hurry, still wearing the high-heeled
shoes
that she had put on for the shoot. The accused had also given her
money for the taxi fare. She said that she did not report
the
attempted rape, because she felt that she had made a mistake and was
desperate to obtain her ambassadorship. She, however,
attended the
two subsequent photo-shoots in the company of a friend to ensure that
there was no repetition of what had happened.
She laid a charge on 8
May 2021, after she had spoken to one l[…] M[…], who
told her that a police officer was investigating
the case. She
obtained the contact details of the officer and eventually contacted
him to make a statement.
[35]
The complainant in counts 10 and 11, L[…] K[…], a 15
year old girl, was allegedly recruited
for
sexual
purposes by means of fraud or deception by the accused in East London
during June 2019. It was also alleged that during July
2019 and at
the aforementioned bed-and-breakfast the accused had raped per
vaginam.
[36]
Ms K[…] testified that she was in grade 10 when she met the
accused through the RT Models Facebook
page during the school
holidays in June 2019. After she had attended a photo-shoot at the
East London Beachfront, he told her that
a lingerie company was
interested in her but that they were really looking for an 18 year
old girl. As she was only 15 years old,
he had lied to the company
about her age on her behalf. He had also asked her whether she was
menstruating and if she would be
able to do 'horny poses'. The
accused had wanted her to attend the private photo-shoot directly
after the second main shoot, but
because it was too late for her to
travel home alone, they arranged for the shoot to take place the
following day. He then also
gave her money for taxi
fare.
[37]
The following day they met at the City Hall in Oxford Street, East
London and walked together to the bed-and-breakfast
establishment.
She, like the other complainants, had expected representatives of the
lingerie company to be present at the photo
shoot. She was also given
a T-shirt to wear and instructed to remove her underwear. She put on
the T-shirt but did not take off
her underwear. The accused then
instructed her to stand against the door and do 'horny poses' with
her eyes partially closed. He
told her that she appeared
uncomfortable and said that he would help her. He then came closer
and kiss her. He thereafter instructed
her to lie on the
bed
on
her stomach and close
her
eyes.
He
then
pulled her up
by
the
waist,
pulled
her underwear
down and raped her vaginally from behind, using a condom.
[38]
When she subsequently asked him whether he
did the same thing to other models, he threatened her that he would
tell everybody that
she was a slut and that she was the one who
seduced him. As a result of this threat and the fact that her mother
had disapproved
of her taking part in a swimwear photo-shoot, she had
decided to remain silent. However, when she saw a post by Ms
G[…]regarding
her experience
with
the RP Modeling photographer,
she contacted
her through WhatsApp. Ms G[…]i gave her the contact details of
the investigating officer and she eventually
made a statement on 8
May 2021.
[39]
The complainant in counts 8 and 9, V[…]
H[…] A[…], an 18 year old girl, was allegedly also
recruited by the
accused by means of deception or fraud for the
purposes of sexual exploitation during the period March to April 2019
and on 6 April
2019 was allegedly raped by the accused per vaginam.
[40]
She
testified
that
after
attending
normal
photo-shoots,
she
was
also
told
by
the accused that a
lingerie company was interested in her and that she was required to
attend a private photo-shoot. The private
shoot was to take place on
6 April 2019, directly after the main shoot. She and the accused
travelled together by taxi to Oxford
Street where they alighted and
went to the bed-and-breakfast establishment. She had also expected
that representatives of the lingerie
company would be present. The
accused gave her a short blue long-sleeved dress to wear, which was
the same style of dress that
the Cape Town complainants had
described. She was also instructed to pose against the door and to
make 'sexy faces' before being
instructed to get onto the bed and
kneel down with her hands on her thighs. He then took photos of her
in that position. She was
facing away from the accused as he pushed
her down on her stomach. He then climbed on top of her, kissed on the
ear, moved her
panties aside and raped her. He afterwards offered to
give her R10 for taxi fare but she refused to accept it and instead
walked
to Oxford Street where she took a taxi home. Upon her arrival
at home she sent a message to her boyfriend, O[…] S[…],
and the following day told him what had happened. He was aware that
she was attending a private photo shoot on that day. She told
him the
following day that she had been raped by
the
accused. She
also
contacted the
RP
Models Facebook page
to
complain. She had apparently believed the fiction
created by the accused, namely that he was a photographer working for
a modelling
company run by others.
[41]
As mentioned earlier, Mr S[…] also testified and corroborated
Ms A[…]'s testimony that she
had told him that she was raped
by the accused at the place she had been taken to under the pretext
that she was to pose for a
lingerie photo-shoot. He testified that
she seemed sad and withdrawn when she made the report. He also
confirmed that she had contacted
the RT Models Facebook page as she
had showed him the text messages. The response she had received was
to the effect that she and
the accused had consensual sexual
intercourse and that he did not rape her.
[42]
She thereafter posted warnings on her Facebook page stating that
young girls should rather walk away from RT Models
and 'not look
back' because the photographer was not to be trusted. She did not
state on social media that she had been raped nor
did she mention the
name of the photographer. She laid a charge against the accused on 20
April 2021 after l[…] M[…]
had told her that the police
were investigating the matter and that the complainants were
encouraged to make statements.
[43]
The complainant in count seven, S[…] B[…],
a 19 year old girl, was also allegedly
recruited
by
means
of
fraud
or
deception
for
the
purpose
of
sexual
exploitation during the period January to February 2019. She
testified that she was introduced to the accused by Ms G[…].
She subsequently
attended two photo-shoots
during January and March 2019 in the Strand and at the Cape Town
Gardens, where the accused took photos
of her wearing different
outfits, including a swimsuit. He subsequently invited her via
WhatsApp to attend a private photo-shoot.
The accused told her that
she 'owed' him. She, however, decided not accept the offer after
discussing it with her mother, who was
not comfortable with her
attending a photo shoot alone.
[44]
The complainant in count 15, A[…] D[…],
a 21-year-old woman, was allegedly also recruited for the purpose of
sexual
exploitation
by the accused by means
of fraud or deception during the period March 2019 to January 2020.
She testified that she had attended
two photo-shoots with the accused
during March 2019 before receiving a message from him about 2 to 3
weeks later that a lingerie
company was interested in her after
seeing her pictures. He also asked her whether she could do 'sexy
poses'. When she replied
that she could not, he offered to help her.
He also said that she cannot present for the lingerie shoot while she
was on her periods.
She decided, however, not to attend the
photo-shoot because she did not trust the accused. During January
2020 she received a further
communication from him advising her that
the lingerie company was still interested in her. He also suggested
that she should try
a nude photo-shoot. When the complainant
indicated that she wished to discuss the matter with her mother, the
accused suggested
that she did not tell her mother when she had lost
her virginity. As a result of these inappropriate messages
she
decided
to
block
his
cell
number.
She
had
subsequently
sent
a message to her friend, Ms F[…], after the
latter had posted on Facebook that she had also been raped.
[45]
The accused allegedly also recruited the
complainant in count 18, M[…] Z[…], an 18 year old
girl, by means of fraud
or deception for sexual exploitation during
April 2020, at Komani. She testified that she attended a photo-shoot
on 9 May 2020
where they were required to change outfits behind an
electrical transformer box. She confirmed that Ms N[…], the
complainant
in count 19, also attended the shoot. The accused had
also asked her to take part in a lingerie shoot. He followed the
invitation
by a WhatsApp message inquiring whether she was still a
virgin. She was upset about those type of personal questions and
advised
him that she was not interested in the lingerie shoot. She
was subsequently in touch with Ms S[…], whose experiences
reinforced
her decision not to attend further photo-shoots with the
accused.
[46]
The complainant in count 19, S[…] N[…],
a 17 year old girl, was allegedly recruited by the accused for sexual
purposes
in Komani during the period April to May 2020. She testified
that she also attended the photoshoot on 9 May 2020 where Ms Z[…]
was also present. After the latter had left, she remained behind for
the private shoot. The accused wanted her to do a test shoot
for a
'camouflage brand' even though he had told her that she was still too
young. He took her to the same place where he had allegedly
raped Ms
K[…], telling her that the photographs required a green
background. He also gave her a lime green T-shirt to wear
and told
her
to do
a
'horny poses'. He
said that
he
would show
her how to look 'horny'.
He
then tried to kiss
her but she pushed him away. She was cross and told him that what he
was
doing
was
not
right.
She
then
took
off
the
T-shirt
and
left.
He
also
tried
to encourage her
to be part of the 'sexy ads campaign' and wanted her to attend
another photo-shoot
on 18 May 2020. She
refused to
attend any further
shoots
because she was not comfortable with his demands for her to do
'
sexy
poses'.
[47]
The complainant in count 20, namely Ms V[…],
a 19 year old woman, was allegedly also recruited by the accused by
means of
fraud or deception for the purposes of sexual exploitation
during the period October 2019 to May 2020. She testified that she
attended
a photo shoot on 18 May 2020. She also confirmed that they
were required to change outfits behind a transformer box. That same
afternoon she received an invitation from the accused to attend a
lingerie shoot, which she declined. The following day she was
visited
by the police with the result that she did not attend any further
photo-shoots with the accused. That concludes my summary
of the
evidence adduced on behalf of the state and I now turn to summarize
the accused's testimony.
The accused's testimony
[48]
The accused, in his testimony, maintained that his
company, RT Models, is a bona fide photographic business established
for the
purpose of recruiting and promoting talented young girls to
establish careers in modelling. He started out manufacturing clothing
and eventually branched out into photography. He denied having
trafficked any of the complainants for sexual purposes, and that
he
had raped or attempting to rape any of them. He said that the false
allegations against him were all driven by an overzealous
Komani
prosecutor and
disgruntled aspiring models.
[49]
He denied having seen Ms M[…] on 28
December 2018 at all. He said that she attended a
photo-shoot
on 4
December
2018 and
after the
photos
had been taken, she had left
with the others. There
was
another
photo-shoot
on 28 December
2018 but
he had been told by others attending the shoot that Ms M[…]
got lost and was waiting at the Windmill Roadhouse.
He decided to
go and fetch her but on his way there he received
a call informing him that his stepfather was seriously ill. In fact
the latter
had passed away two days later. He accordingly denied that
he had
accompanied
Ms
M[…] to the bed
and
breakfast
or
that he
had
attempted
to rape
her
as alleged. He only saw her again during March and July 2019 at
subsequent photo shoots.
[50]
In respect of Ms S[…], the complainant in counts 3 and 4, he
denied that he had accompanied her to
a bed-and-breakfast and that he
had spoken to her about a lingerie photo-shoot. He said that during
2018 he had not yet launched
a lingerie campaign in Cape Town. He
admitted having seen her at other photo-shoots and on one occasion,
which was at the second
photo-shoot, she came running to him and
hugged him. He as surprised but hugged her back. One of the other
aspiring models had
told him that Ms S[…] wanted to know why
he was only hugging her and said that she wanted to hug him. He said
that he had
hugged her because he did not want 'the thing to become
funny'.
[51]
When he was asked why she would falsely implicate him, he suggested
that she was probably disgruntled about
the fact that someone else
had been announced as a paid brand ambassador. According to him, this
could be the only reason why she
had joined a campaign on Facebook
badmouthing his company.
[52]
Regarding the complainant in counts 5 and 6 namely, Ms G[…],
although admitting that she did attend
some photo-shoots, he said
that on 27 January 2019 he had a photo shoot in the Strand and could
therefore not have accompanied
her to the
bed-and-breakfast. When he
was asked why
she would falsely implicate him, he said that during his bail
application he was advised by an attorney that certain
persons,
including Ms G[…], had commenced a campaign on social media
badmouthing him. He assumed that the campaign was started
after
rumours had spread about his arrest.
[53]
He also denied that he had met Ms B[…], the complainant in
count 7, at a photo shoot on 6 December
2018.
He said he had seen her for the first time on 3 March 2019 at a photo
shoot at Strand Beach. She thereafter came to another
photo-shoot on
27 March 2019. He did not have any interaction with her before 3
March 2019.
[54]
He also testified that he had no knowledge of the allegations by Ms
A[…], the complainant in counts
8 and 9. She had attended a
photo-shoot on 26 March 2019 and he had met her for the first time on
that day. After the photo-shoot
he rushed to the Windmill Roadhouse
from where he had to catch a bus to Cape Town. He did not see
her
again
thereafter.
He
suspected
that
she
falsely
implicated
him
and badmouthed his company so that her boyfriend's
photography company could be advantaged.
[55]
Regarding Ms K[…], the complainant in count
13, he said that he met her at a photo-shoot on 28 June 2019, when
she was accompanied
by her grandmother. He did not see her again
after that. He thereafter left for Johannesburg and only returned on
27 July 2017.
He
could
not proffer any reason why she would falsely implicate him.
[56]
In respect of Ms N[…], the complainant in
count 12, he denied that he had seen her at all during 2019. She had
told him that
she was busy doing her Matric. He admitted, however,
that he had seen her at photo-shoots during 2018.
[57]
He said that Ms D[…], the complainant in
count 15, had attended three photo shoots during 20 9. the last
one being either
late 2019 or early 2020. He had only communicated
with her regarding the dates for the photo-shoots and the outfits to
be worn.
He did not see her again after the third photo-shoot.
[58]
Regarding Ms F[…], the complainant in
counts 16 and 17, he said that she indicated that she was interested
in joining the
lingerie campaign. He had told her that the
photo-shoots for the campaign could not be done in public for obvious
reasons. They
agreed to do the lingerie photo-shoot before the next
scheduled shoot. They had arranged to meet at Shoprite Checkers in
town on
8 March 2020. He arrived early and waited for her. Upon her
arrival she hugged him. He had asked her why she hugged him and she
said that she was just greeting him. They then started walking
towards Lincoln Park. On their way there her phone rang and he joked
about the fact that she had
kept
it
in her
bosom.
They
thereafter
conversed
about
the
photo-shoot.
He explained to
her
that they were going to
a
bed-and-breakfast establishment where the
photo-shoot would take place. He encouraged her to tell him if she
felt uncomfortable,
in which event they could cancel the shoot. She,
however, assured him that she was happy to proceed.
[59]
After
they
had
entered
the
room,
he
gave
her
the
keys
and
told
her
to
lock
while he
went
outside,
waiting
for
her
to
change.
He
thereafter
commenced
taking
photos
of
her
posing
against
the
wall.
She
told
him
that
she
had
done
research
about
sexy
facial expressions
but was still unable to do it properly. He then showed her how to do.
To assist her he
asked her what she
understood by the
term
lingerie.
She said
that
it
was underwear worn by a woman to seduce
her partner. He then told her to pose as if her partner was in the
room. She tried her best
but still could not do it properly. He then
told her to pose on the bed. He asked her to kneel and he
photographed
her from behind.
He
then asked her to move
towards
the
door.
He
again
told
her
that
she
should
tell him if she were uncomfortable in which event they would
immediately stop. She was, however, still happy to proceed.
Because
it was close to the time of the next shoot they had to stop. They
thereafter left and walked back to town together. In
support of his
assertion that nothing untoward had happened at the bed and
breakfast, he said that she quite happily participated
in the
photo-shoot in town.
[60]
He said after it had become clear that she was
falsely accusing him of having raped her, he had to devise a strategy
to force her
to tell the truth. He then decided to tell her that he
had taken a video of what happened at the bed-and-breakfast, and that
the
video would prove that he was merely assisting her with 'sexy
poses'. He also asked her for the case number because he wanted to
go
to the police station to inquire about the case. She, however, told
him that the police were aware of the fact that he did not
force
himself on her. She afterwards gave him a landline number to call in
order to
inquire about the case number. He
did call the number but the person who answered said that the
complainant should know what the
case number was. When he
communicated
this to her she told him to
invent a case number. After that he was unable to contact her because
she had blocked his cell number.
[61]
Regarding the complainant in count 18, namely Ms
Z[…], he said that she contacted him in the usual manner after
reacting
to the Facebook advertisement. She attended a photo-shoot on
9 May 2020 and photos were taken of her in two outfits. After that
he
had told her about the next photo-shoot which would have been on 19
May 2020. She, however, did not attend. He did not have
any
interaction with her except for that
pertaining
to the
dates and requirements for the
photo-shoots.
[62]
He said that the complainant in count 19, Ms N[…], had also
attended a photo-shoot on 9 May 2020.
She had reacted to an
advertisement for the 'sexy ads campaign'. He, however, told her that
he did not take photos of women in
lingerie who were unknown to him
and that she first had to attend a 'Souty' photo-shoot, which had
been scheduled for late in April.
She told him that she would be
turning 18 that year. He
had seen her again
on 9 May after she had agreed to participate in the auditions. After
the usual photoshoot they went to another
area where he gave her
T-shirt and asked her to change. She called him after she had
finished and he took photos of her doing 'sexy
facial poses'. Because
he had to travel to King Williams Town, he could only take a few
photos. He then left her to change back
into her own clothing. She
returned the T-shirt to him and they both left. She took a taxi home
and he took one to King Williams
Town. He did not see her thereafter.
He could also not proffer any reason why she would falsely implicate
him.
[63]
Regarding Ms V[…], the complainant in count
20, he testified that she had also reacted to the Facebook posting
during October
2019. He had seen her for the first time at a
photo-shoot on 18 May 2020. After the photos were taken of her in two
outfits, she
paid and left. He did not see her again thereafter. He
also denied that there was any other interaction between him and Ms
V[…]
other than that pertaining to
the
dates and requirements of the photo-shoots.
[64]
In respect of the complainant in counts 21 and 22,
Ms K[…], he said that she had contacted him in the usual
manner saying
that she was interested in the 'sexy ads campaign'. She
eventually came to a photo-shoot at Komani on 18 May 2020. He had
explained
to her the previous day the type of background that was
required for the sexy ads photo-shoot. She also agreed to wear a
T-shirt.
They then went to a spot near a church where he gave her a
T-shirt and asked her to change. He then placed a sheet on the ground
and asked her to pose while lying on her back. He took a few photos
and showed it to her. They both agreed that the sexy facial
expressions
were not satisfactory. He took
about 4 to 5 more photos and asked her to change into a kneeling
position and he took about 2 to
3 photos of her facing him. The
photo-shoot was, however, interrupted when he received a call. She
then put on her own clothing
and handed the T-shirt back to him. They
walked together to the taxi rank where she told him that she would be
going to her aunt's
place. He gave her taxi fare and they parted. He
denied that he had raped her or that he acted in any other untoward
manner. That
then concludes my summary of the evidence.
Discussion
[65]
The state has urged me not to consider the
accused's conduct as desperate acts of criminality but rather as
parts of an overall
scheme to recruit and lure naïve
young girls into situations where he could exploit
them financially and sexually. This is indeed the correct approach to
be adopted
in the evaluation of evidence adduced in a criminal trial.
It is trite that the burden is on the state to prove the guilt of the
accused beyond a reasonable doubt. If on the conspectus of all the
evidence there is a reasonable possibility that the accused's
version
might be true, he should be acquitted. In determining whether this
onus had been discharged, the evidence implicating the
accused must
be considered in its totality and not in isolation. This is also how
the exculpatory evidence adduced by the accused
should be looked at.
(S v Van den Meyden
1999 1 SACR 447).
I have also been mindful of the
dangers inherent in the testimonies of the various single witnesses
and, as will be apparent below,
I have treated their evidence with
the requisite caution.
[66]
Ms Turner has argued that RT Models was not a bona
fide photographic company, but rather an enterprise set up as a ruse
and vehicle
for the accused to achieve his aforementioned nefarious
objectives. This is a very compelling argument indeed. It was
obvious,
even to the untrained eye, that the photographs submitted
into evidence were not taken in a professional manner. There was no
effort
to ensure that the aspiring models were posing against
aesthetically pleasing backgrounds, no attention was given to
composition
and none of the most basic photographic techniques had
been employed. For example, in some of the so-called 'sexy poses'
photos,
the models were made to lie on plastic bags as makeshift
cushions and their expressions were anything but sensual, ranging
from
confused, apprehensive and in one case, the model appeared to be
terrified. It is thus manifest that the photos were not taken for
the
purpose of submission to prospective clients, but rather as a ruse
for some other degenerate purpose. Even though the accused,
on his
version, had no formal training in photography, it is clear from the
poor quality of the photos that he did not even make
an effort to
produce the quality of photos that the aspiring models
would
have required to build up a portfolio, reinforcing the compelling
inference that he had an entirely different objective..
[67]
That his objective was not to produce visually
appealing photographs required by the aspiring models to secure paid
modelling jobs,
is borne out by the evidence.
All
the complainants testified how they were initially enticed into
attending seemingly bona fide photo-shoots. The accused would
then
lose no time to test the waters regarding the candidates' suitability
for sexual exploitation. He would send inappropriate
Whatsapp
messages, amongst others enquiring whether they watch pornography,
their menstrual cycles and whether they were virgins.
They were also
treated in a very unprofessional manner, being required to undress in
public toilets, bushes or behind electricity
boxes.
[68]
It is against the backdrop of these incontrovertible facts that the
complainants' versions should be evaluated.
[69]
In my view the evidence against the accused was compelling and
overwhelming. The Cape Town complainants corroborated
one
another in all material respects. They all gave the same description
of the dress that the accused gave them to wear. They also
each
individually pointed out the bed and breakfast in Salt River where
they were allegedly raped to a police photographer. And
as Ms Turner
correctly argued, any suggestion that they conspired to make up their
stories is dispelled by the fact that Ms G[…]
did not know the
name of the street where the bed and breakfast establishment was
situated, but was able to point it out, using
a traffic circle as her
landmark. Their versions were further corroborated by the evidence of
the accused's cell phone records
which established that he had been
in the area immediately after the rape of Ms F[…], when he had
travelled to Cape Town.
Ms G[…]'s version that she was taken
to the bed and breakfast by the accused was also corroborated by Ms
B[…], who
had accompanied her to the Golden Acre Shopping
Center. She had also given a reasonable explanation why she did not
report the
rape to Ms B[…] upon her return from the bed and
breakfast.
[70]
To my mind it is understandable in the circumstances why they, like
the other complainants, did not immediately
lay charges against the
accused. All of them were naive young girls who had clearly been
traumatized and appeared to have been
desperate to obtain paid
modelling jobs. Even though it must have been clear to them at that
stage that the accused did not have
the bona fide intention of
helping them to obtain modelling jobs, they were still naively and
desperately
clinging to the unrealistic
expectation that
something good would come
out of their suffering.
[71]
The East London complainants similarly corroborated one another in
respect of the modus operandi adopted
by the accused. All of them
also independently pointed out the bed and breakfast where the
accused had raped them to the police
photographer. They were all
excellent witnesses and the defence was unable to point to any
inconsistencies or improbabilities in
their evidence.
[72]
Ms K[…]'s testimony was corroborated by the
photos found on the accused’s camera in the respects which I
have previously
alluded to. She had also reported the matter to her
boyfriend soon after the incident. She also was an excellent witness
and the
defence has not been able to proffer any cogent reasons why
her evidence should not be accepted.
[73]
Ms F[…]'s testimony was also corroborated in material respects
by the extensive Whatsapp exchanges
between her and the accused. She
had reported to her friend and the police the same day. Her repeated
calls to one U[…]
M[…], to seek advice and assistance
were clearly the acts of a desperate and traumatized woman. Regarding
the criticism
that she had incongruously
attended
the photoshoot at the City Hall after the alleged rape, she had
explained that she was desperate for a paying modelling
job to
supplement her meagre student allowance in terms of the NSFAS scheme.
To my mind, there is also no reason why her evidence
should not be
accepted.
[74]
Although the complainants in respect of the rape counts were single
witnesses, they corroborated one another regarding
the pattern of
behaviour adopted by the accused on each occasion and some of them
were corroborated by first reports made soon
after the alleged rapes.
They all described in consistent detail how they were sexually
penetrated by the accused without their
consent and against their
will. And as Ms Turner has correctly submitted, having regard to the
geographical distances between complainants
and their different
backgrounds and personalities, it is improbable that they could have
conspired falsely to fabricate such an
intricate and accurate web of
criminal behaviour.
[75]
I am accordingly satisfied that the evidence
presented by the state in respect of the rape counts and, in the case
of Count 2, the
attempted rape count, established a strong and
compelling prima facie case which required of the accused to proffer
an explanation
that could be regarded as
reasonably
possibly true.
[76]
All of the complainants in the trafficking counts
were also impressive witnesses. Their testimonies' were consistent
and without
any improbabilities. There is also no reason why their
testimonies should not be accepted. And as Ms Turner has correctly
submitted,
a finding that the accused had raped the other
complainants would compel the inference that he also acted with the
requisite intention
to exploit them sexually. Their testimonies must
therefore be considered in the light of those given by the
complainants in the
rape counts. Those complainants had all been
raped after accepting an invitation from the accused to participate
in the lingerie
photo-shoots. It is manifest from their testimonies
that the accused had used that campaign as a pretext to recruit young
girls
and lure them into situations where he could exploit them
sexually. The inference that he had harboured the same intentions in
respect of the complainants in the trafficking counts is thus
ineluctable.
[77]
It must have been apparent from my summary of the
evidence that the accused was a very bad witness. He proffered the
most improbable
reasons why the complaints would have conspired to
accuse him falsely, relying on an alleged comment by a prosecutor in
Komani
that he would not be so lucky to escape a conviction as he did
in Pretoria. He also purported to rely on information given to by
an
attorney at a bail hearing, the name of whom he had conveniently
forgotten. He claimed that the attorney gave him a printout
of a
Facebook page which confirmed the extent of the conspiracy to
implicate him falsely, and proffered some contrived explanation
for
his inability to produce it. It was clear that he was not unamenable
to fabricating evidence when it suited him. He also had
great
difficulty in explaining the damning Whatsapp conversations between
him and Ms F[…], and often resorted to ascribing
improbable
and patently contrived meanings to incriminating phrases in the
texts. By way of example, he suggested that the word
'muffing' which
in the context it was used in the messages clearly referred to oral
sex, really meant to 'assist'. He also contrived
to ascribe an
asexual meaning to the phrase 'turning on' used in messages he had
sent to Ms F[…].
[78]
While testifying
that he
had given models a T-shirt to wear during the 'sexy facial
expression'
shoots so that they could
pretend they were wearing lingerie, he was unable
to
provide
a plausible
reason
why they could
not just
as well have pretended in their own clothes, and
why some models were taken to a bed-and-breakfast while others were
photographed
outdoors.
Findings and verdict
[79]
In my view the evidence established beyond a reasonable doubt that
the accused was engaged in fraud and deception.
He has exploited the
fantasies of young women who desperately required paid modelling
jobs, notwithstanding the fact that many
of them clearly were not cut
out for such a career. His only purpose and intention was sexually to
exploit the young women who
reacted to the RT Models Facebook
advertisements, mislead them into believing that a lingerie company
was interested in them, and
lure them to bed and breakfast
establishments and other isolated places where he would sexually
assault them.
[80]
I am accordingly satisfied, not only that there is no possibility of
his version being true, but also that
it must be rejected as patently
contrived and false.
[81]
I am consequently satisfied that the state has proved beyond a
reasonable doubt that the accused had raped
the complainants in
counts 4, 6, 9, 11, 13, 17 and 22 and that he attempted to rape the
complainant in count 2. He is accordingly
found guilty as charged in
respect of all those counts.
[82]
In respect of counts 1, 3, 5, 7, 8, 10, 12, 15, 16, 18, 19, 20 and
21, I am satisfied that the state has
proved beyond a reasonable
doubt that the accused has trafficked those complainants in
contravention of section 4 (1) of Act 7
of 2013. He is accordingly
also found guilty as charged in respect of all those counts.
JE
SMITH
JUDGE
OF THE HIGH COURT
Counsel
for the State
Adv.
N.C. Turner
Office
of the Director of Public Prosecutions
High
Street
Makhanda
6139
Counsel
for
the
Accused
Mr.
T. Solani
Legal
Aid, South Africa
Makhanda
6139
Judgement
Delivered
06
February 2023