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[2021] ZAGPPHC 889
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S v Obono (CC65/2020) [2021] ZAGPPHC 889 (26 April 2021)
Last amended version 14
June 2024.
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case No: CC 65/2020
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHERS
JUDGES: YES
(3) REVISED
SIGNATURE:
DATE:
26/04/21
In the matter between:
THE STATE
and
AUGUSTINE
OMINI
OBONO
ACCUSED
JUDGMENT
MOGALE AJ
INTRODUCTION
[1]
The accused was indicted on a multiplicity of
charges before the Regional Court, Pretoria.
The
trial commenced on the 11
th
July 2018 before the Regional Court Magistrate,
Mr. Mokone Eagleton Moloto.
Evidence of
several witnesses was led in the main trial and before the conclusion
of the State's case, the Regional Magistrate died.
The
State submitted Exhibit "A2", which is a certified copy of
a Death Certificate confirming the death of Mr. Mokone
Eagleton
Moloto.
[2]
At the
beginning of these proceedings, the State brought an application in
terms of section 215 that the trial starts
de
novo
in
the High Court.
The
State's application was based on the provisions of section 214(a)(v)
of the Criminal Procedure Act
[1]
which reads as follows:
"the evidence of any
witnesses recorded at a preparatory examination –
(a)
Shall be admissible in evidence on the trial of
the accused following upon such preparatory examination, if it is
proved to the
satisfaction of the
court:
…
(v) that the evidence
tendered is the evidence recorded before the magistrate or, as the
case may be, the regional magistrate, and
if it appears from the
preparatory examination record or it is proved to the satisfaction of
the court that the accused or, as
the case may be, the State had a
full opportunity of cross-examining such witness."
[3]
The State further submitted the following reasons
why the matter was transferred from the Regional to the High Court.
Firstly, the offence was committed in 2016 and it
took four years for the matter to start in the lower courts due to
the roll congestion.
Secondly, the State
argued that it would be in the interest of justice and of the accused
that the matter is speedily finalized.
[4]
The accused did not oppose the application, and
the court granted the application that the matter start
de
novo
.
[5]
The State put the same charges to the accused and
the accused pleaded.
The charges are as
follows:
CHARGES
[6]
Count
1 -
Contravention
of Section 4(1) of Criminal Law (Sexual Offences And Related Matters)
Amendment Act
[2]
read with the
Prevention and Combating of Trafficking in Persons Act
[3]
further read with the provisions of Section 51(1) of the Criminal Law
Amendment Act,
[4]
further read
with the provisions of Section 1,50(2)(A) of the Criminal Law (Sexual
Offences And Related Matters) Amendment Act
and further read with the
provisions of section 1 and 120 of the Children's Act.
[5]
Trafficking
of a Person
-In
that during the period commencing on 03 September 2016 up to and 01
December 2016 and at or near Derdepoort and in Sunnyside,
Pretoria,
in the district of Pretoria, the accused trafficked Miss L, a 12 year
old
female
by means of fraud or deception to wit: the said victim was told that
she was accompanying a certain unknown coloured female
to Sunnyside
to spend a night
with
the said coloured female and thereafter she would give Miss L taxi
money to return home to Mamelodi the following day, whereas
in truth
and in fact the purpose for the visit was to hand over the said
victim to the accused for the purpose of sexual exploitation
and or
to be used as a prostitute in or around Sunnyside, Pretoria.
[7]
Count
2
-Contravention
of
Section
15(1)
of
Criminal Law
(Sexual
Offences and Related Matters) Amendment Act read
with Section 1,56A, 57, 58, 59 and 261 of the Criminal Procedure Act.
Statutory Rape
-In
that upon or about the 04 September up to and including 01 December
2016 and at or near Devenish Court, Sunnyside, Pretoria
in the
district of Pretoria, the accused unlawfully and intentionally
committed an act of sexual penetration with the complainant,
to wit,
Miss L, a 12-year old female by inserting his penis into her vagina
on diverse occasions without the consent of the said
complainant.
ALTERNATIVELY
[8]
Contravention of Section 15(1) of Criminal Law
(Sexual Offences and Related Matters) Amendment Act read with the
provisions of section
1, 56A, 57, 58,59, 60 and 261 of the Criminal
Procedure Act.
Statutory Rape by a
common purpose
- In that upon or about
the 04 September up to and including 01 December 2016 and at or near
Devenish Court, Sunnyside, Pretoria
in the district of Pretoria, the
accused unlawfully and intentionally committed an act of sexual
penetration with a child despite
the consent of the child to the
commission of such an act, to wit: the accused had sexual intercourse
with the complainant, to
wit, Miss L, a 12-year old female child.
[9]
Count
3
-
Contravention
of
Section
3
of
Criminal
Law
(Sexual
Offences
And Related Matters) Amendment Act read with
Section 51(1) of the Criminal Law Amendment Act.
Rape
by a common purpose
-In that upon or
about the 04 September up to and including 01 December 2016 and at or
near Devenish Court, Sunnyside, Pretoria
in the district of Pretoria,
the accused unlawfully and intentionally committed an act of sexual
penetration with a child despite
the consent of the child to the
commission of such an act, to wit: the accused caused several unknown
men to have sexual penetration
with the complainant, to wit, Miss L,
a 12- year old female child.
[10]
Count 4 -
Benefiting
from the sexual exploitation of a child
-In
that upon or about the 04 September up to and including 01 December
2016 and at or near Devenish Court, Sunnyside, Pretoria
in the
district of Pretoria, the accused unlawfully and intentionally
received financial or other rewards, favour or compensation
from the
commission of a sexual act with, a complainant to wit Miss L, a
12-year-old female child, namely an undisclosed amount
of money from
unknown clients for sexual intercourse with the said victim with or
without her consent.
[11]
Count
5
-
Being
involved
in
Sexual
Exploitation
of
a
child
-
In
that
upon
or about the 04 September up to and including 01 December 2016 and at
or near Devenish Court, Sunnyside, Pretoria in the district
of
Pretoria, the accused is a person (A) who unlawfully and
intentionally offered the service of a child complainant (B) to a
third person (C) with or without the consent of (B), for financial or
other rewards, favour or compensation to A, B or another person
–
(i)
For the purpose of the commission of a sexual act
with B by C;
(ii)
By inviting, persuading, or inducing B to allow C
to commit a sexual act with B;
(iii)
By participating in, being involved in, promoting,
encouraging, or facilitating the commission of a sexual act with B by
C
(iv)
By making available, offering, or engaging B for
purposes of the commission of a sexual act with B by C or
(v)
By detaining B, whether under threat, force,
coercion, deception, abuse of power or authority, for purposes of the
commission of
a sexual act with B by
to wit, the accused
offered the service of Miss L, a 12-year-old female child for the
commission of sexual acts by other men with
the said victim and or by
detaining the said victim to force or coerce her to have sexual
intercourse or acts with the unknown
men with or without the consent
of the child complainant for financial or other rewards, therefore
the accused is guilty of an
offense of being involved in the sexual
exploitation of a child.
[12]
Count
6
-
Kidnapping
-In
that
upon
or
about
the
04
September
up
to
and including
01
December
2016
and
at
or
near
Devenish
Court,
Sunnyside,
Pretoria
in the district
of Pretoria, the accused unlawfully and intentionally deprived Miss
L, a 12-year-old female victim of Human Trafficking
of her freedom of
movement by means of locking the said victim in the said flat at all
times and by physically guarding her when
she was outside the flat at
night, whilst seducing the potential clients for the purpose of
prostitution under duress to prevent
her from running away.
[13]
Count
7-
Keeping
a
Brothel
-In
that
upon
or
about
the
04
September
up
to and including 01 December 2016 and at or near Devenish Court,
Sunnyside, Pretoria in the district of Pretoria, the accused
unlawfully and intentionally keep or is deemed to have kept a brothel
at the said address on diverse occasions to wit:
(i)
By using the said premises for prostitution, and/
or
(ii)
By residing at and or in a brothel, and/ or
(iii)
Managing or assisting in the management of any
brothel, and / or
(iv)
Knowingly
receiving
the
whole
or
any
share
of
any
amounts
of
money taken in a brothel, and/ or
(v)
Being
the
tenant
or
occupier
of
any
house
or
place
knowingly
permits the same to be used as a brothel.
[14]
Advocate Roos and Advocate Van Deventer appeared
on behalf of the State and Advocate Mohlahlo appeared on behalf of
the accused.
[15]
The court warned the accused of the Provisions of
Section 51 of the Criminal Law Amendment Act and the impact thereof,
which the
accused understood.
[16]
The accused pleaded not guilty to all charges
against him and gave a plea explanation as follows:
16.1
The
accused
denied
kidnapping
the
complainant,
that
the
complainant
was brought
to
his
flat
by
a
person
called
Tchibuza
or
Tochukwu
further
that
the
said information
will
be
confirmed
by
Marcel
Onye
Barachi.
That
the
complainant came to his flat at her own volition,
asking for a place to stay as her parents chased her away.
16.2
He started having a love relationship with the
complainant after the complainant informing him that she was 19 years
of age.
The complainant looked older than a
16-year-old, she looked like a 19-year-old woman that's why the
accused didn't have a problem
being in a love relationship with the
complainant. People like Alister van Wyk, a caretaker at Devenish
flat, Refiloe and Lerato
knew that both the accused and the
complainant were boyfriend and girlfriend. During the period of their
relationship, the complainant
fell pregnant as a result of
the
consensual
intercourse
that
they
had.
16.3
The
accused
denied
forcing
the
complainant
to
take
drugs
which
were
also
confirmed
by
the
medical
certificate
provided,
the
complainant
tested
negative for
drugs
in her
system.
There
are also
pictures
showing both
the
accused and the
complainant
together
confirming
they
were
lovers.
The
complainant
was never
held
captive as
she
was
had a right
to
walk
freely
around and was
never
forced
to
prostitute
in
return
for
the
accused
to
get
the
money.
SUMMARY
OF
MATERIAL
FACTS
[17]
The victim Miss L was a young girl, 12 years of
age, who was residing with
her grandmother,
uncle, and brother in Mamelodi.
The
accused, a Nigerian citizen, was renting a flat at Devenish Court
Sunnyside, Pretoria and on 03 September 2016, both the victim
and the
accused were unknown to each other.
[18]
On 03 September 2016, the victim and her friends
travelled to Derdepoort for an outing.
In
the evening, the complainant and her friend lost each other and the
victim ended up being left behind at Derdepoort by her friends.
Seeing that her
friend
left her, she befriended a certain unknown coloured lady.
[19]
The coloured lady offered her a place to sleep for
the night and promised to give her money to go home the following
day.
The complainant travelled together
with the unknown coloured lady to Devenish Court, Sunnyside in
Pretoria where they both slept
in the same bed with the understanding
that she will return home the following day but when the victim woke
up in the morning the
coloured lady was gone and the accused was
seated on the bed next to her.
[20]
The accused assaulted and raped her repeatedly.
The accused further supplied her with drugs to
make her addicted to drugs to gain control over her and forced her
into prostitution.
The accused would make
her go out of the flat but guard her to prevent her from running
away, and make her seduce men for the purpose
of prostitution.
The complainant eventually succumbed and worked
for the accused as a prostitute and handed money she received to the
accused.
[21]
On 01 December 2016, the victim managed to escape
and travelled to Ga- Rankuwa, to her uncle Lazarus Mononyane to whom
she reported
the matter. The police were contacted and the accused
was arrested on the same day.
[22]
Several exhibits were handed in by consent and
were marked in the following order:
a.
Exhibit
"A1"
-
Original
copy
of
a
charge
sheet
from
the
Magistrate
Court where
the
accused
pleaded
on
11
July
2018;
b.
Exhibit "A2" - Certified Death
Certificate of Pretoria Regional Court Magistrate, Mr. Mokone
Eagleton Moloto whom it is
confirmed passed away on 31 July 2020;
c.
Exhibit
"B"
-
Admission
in
terms
of
Section
220
of
Act
51
of
1977
d.
Exhibit 'B1'-
The
evidence of Colonel A A Marais who testified on 12 September 2019
which is transcribed as per page 121-150 of the paginated
record
is
admitted;
e.
Exhibit "C" -
Medico-Legal
Examination Report of Lehlohonolo Ester Mononyane compiled by Doctor
L C Mogale on 01 December 2016.
This report
is also supplemented by her testimony delivered on 22 October 2019;
f.
Exhibit
"D"
-
E
M
Masebe
compiled
a
psycho-social
assessment
report regarding
Lehlohonolo
Mononyane,
which
is
hereby
admitted;
g.
Exhibit "E" - The updated report
compiled by Doctor Susan Verwayen, a Forensic Psychology. The report
is also supplemented
by her evidence delivered on 22
October
22;
Exhibit "F" -
Affidavit in terms of
section 212(1)
of the
Criminal Procedure Act 51
of 1977
;
h.
Exhibit "H" - Subpoena in Criminal
Proceedings of Marcelo Onyebalance.
SUMMARY
OF
EVIDENCE
[23]
Lehlohonolo Mononyane confirmed the evidence that
was recorded on 11
July 2018 and she
further confirmed to the court that she stands by her evidence where
she testified that she used to stay in Mamelodi
with her grandmother,
uncle, and her brother after the passing of her mother.
That
on 03 September 2016 she took a taxi and travelled to Derdepoort
where she gathered with her friends to enjoy themselves.
They
even smoked hubbly and consumed Russian beer.
Initially,
she was supposed to travel with her friends (Dipuo, Karabo, and
Pinelo) with the hired minibus, but they left her behind
in Mamelodi
and she then travelled alone. She confirmed that she did not go back
home with her friends that night as she and her
friends lost each
other at Derdepoort.
[24]
As a result, she met some new friends -an unknown
coloured female person, taller in height and light in complexion.
She requested from the said lady some money to go
home but the lady advised the complainant to accompany her to her
place in Sunnyside
as it was late, then she would only give her money
to go home the following day.
They
proceeded to Sunnyside and ended up in Devenish Court where they both
slept on the same bed. In the morning when she woke up,
the lady was
gone and she could only see the accused sitting on the bed next to
her.
She pleaded with the accused to allow
her to go home but the accused refused and started assaulting and
raping her until she bled.
The accused would leave her for some days
without food.
The other day he came back
with skimpy clothes and cheeky pants.
He
told the complainant that she should wear the clothes and start
making money for him as a prostitute, the complainant refused
and the
accused assaulted and raped her repeatedly.
[25]
The accused forced the complainant to smoke drugs.
He forced her to smoke cocaine mixed with a rock
and when the complainant refused to smoke the drug, the accused would
threaten
to assault her.
The accused would
put a drug in a pipe, light it and make the complainant inhale.
The complainant complied with the accused
instructions of smoking the drugs in fear of assault.
After
smoking the drug, the complainant would be high and ended up wearing
skimpy clothes that the accused bought for her to prostitute.
After wearing those clothes she was instructed to
go into the street, near Sunnyside Park, to sell her body.
At
all material times when the complainant
was
outside in the street selling her body, the accused would guard her
at the park to make sure that she does not escape.
The
complainant would get a client, an older man, and would then take the
client to the accused's flat to have sex with him. Thereafter,
the
client would pay the complainant either R50 or R100 depending on the
days.
[26]
The accused would also be at the flat when the
client was with the complainant waiting for them to finish and she
would hand over
the money paid by the client to the accused
immediately thereafter.
The complainant
used to sleep with more than five different men daily without using
any condom, for her to accomplish that,
the
accused
used
to
give
her
drugs
after
each
session
with
a
client.
During sexual
intercourse with those men, she felt nothing on her body as she was
always high due to drugs received from the accused.
The
complainant had her phone but the accused changed the sim card and
the phone was always in the accused's possession unless when
the
complainant was expecting a client to call or when she was talking to
a client.
She could not phone her family
because she could not remember their phone numbers and their numbers
were not stored on the new sim
card.
[27]
The complainant on 01 December 2016 had extra
money which she did not give the accused.
She
managed to sneak out of the flat by taking a taxi to Ga- Rankuwa to
her uncle's place.
Upon her arrival, the
uncle gave her food, she took a bath, and afterward, she reported the
incident to her uncle.
The uncle took the
complainant to Sunnyside Police Station to open a case.
The
police thereafter requested the complainant to show them the place
where the accused resided.
The complainant
pointed out a place and the accused who was subsequently arrested.
The complainant was taken to Steve Biko hospital
for medical
treatment where she tested positive for pregnancy, the said pregnancy
was later terminated.
The complainant
disputed that at any stage she discussed her age with the accused and
before the incident, she had never had any
sexual intercourse with
anyone. The complainant admitted that there were photos taken, some
by herself and some by
the accused, that at
that stage, she was highly drugged and was not even aware that she
was taking a photograph.
[28]
During cross-examination by the defence counsel,
the complainant admitted that she did not inform her grandmother that
she was going
to Derdepoort as she intended to inform her when she
came back.
She admitted that the coloured
lady took her to McDonald's, bought her some food, further that she
never saw the accused with the
coloured lady. The lady was gone in
the morning when she woke up, she never saw her again.
She
admitted that she met Lerato Malego and Refiloe Makoko who were also
prostituting in the street and further that Lerato taught
her how to
smoke rock and cocaine.
She also admitted
that she met Allister van Wyk and Marcelo Onyebalanchi.
It
never crossed her mind to request any help from passer-bys
at
the
street
or
try
to run away
because
most
of
the
time
she
was
high and
what
was
coming
to
her
mind
was
getting
a
client,
having
sex,
getting
paid, giving the accused money and be given drugs.
[29]
The complainant was confronted about the report of
Ms. Eugenia Masebe, a probation officer who consulted with her.
The complainant dispute that she informed the
officer that she and her grandmother are not on good terms and
further that she was
a rebellious child, the complainant contended
that her grandmother was not treating her and her brother well but
never fought with
her nor was she a rebellious child.
Her
grandmother would allow her to play with other children but the only
problem was when she came back home late at night.
She
disputed the allegations that she did not have a good relationship
with her grandmother and the fact that the friends that she
used to
play with had children.
The complainant was
adamant that when she was at the accused's place, she was not chased
away from home, further that her grandmother
would not have chased
her away at the age of 12 and if she could chase her away, she would
have gone to stay with people she knew,
not the accused, a person she
had never met before.
She also denied the
allegations that she came to stay with the accused voluntarily, that
she told the accused that her name was
Lerato Dlamini from Mamelodi,
and further that her family went to East London on vacation and they
would return in December.
The complainant
disputed that she consented to sexual intercourse that took place
between herself and the accused.
The
accused put a version which was denied that at some point the
complainant moved out from their place being pregnant to stay
at
Escape.
That the accused at some stage had
to request the assistance of the police to bring the complainant back
to him.
[30]
Lazarus Sidila Mononyane confirmed the evidence
that was recorded on 12 September 2019 and further confirmed to the
court that he
stands by his evidence where he testified that, around
September 2016, he received information that the complainant was
missing
and he went to Mamelodi Police Station to open a missing
person docket.
01 December 2016, he was at
his home in Ga-Rankuwa when the complainant arrived wearing skimpy
clothes, looking very pale, dilapidated
and dirty. The complainant
had the same hairstyle that he last did on her in September and it
was
in
a
state
of
a
mess.
The
complainant
made
a
report
to
her
that
she
was kidnapped, used as a prostitute, and forced to
use drugs.
She told him that the guy who
was staying with her used to rape her and other unknown men were also
raping her.
He immediately took the
complainant to Sunnyside Police Station to report the matter.
The police accompanied them to the flat where the
complainant was kept. Therein, the accused and two young girls who
also looked
drugged were found.
The accused
was subsequently arrested.
He confirmed
that the complainant went missing for three months not knowing her
whereabouts.
[31]
Mr. Mononyane testified that the complainant was
traumatized by the incident and had various symptoms including,
difficulty in sleeping,
fear and anxiety,
a
decline in academic performance, crying,
flashbacks, distress, avoidance to talk about the traumatic incident
that happened to her,
fear of being alone, inability to travel alone.
The witness had to be dropped off and be collect from school and
other places she
needed to go.
The witness
confirmed that the complainant was not
happy
about the school she was attending at Mamelodi but was not aware of
the abuse by the grandmother and the brother.
He
used to see the complainant
regularly as he
was the one taking care of her by buying food, clothing and even
assisting her with school work.
[32]
Dipuo Ida Maswangani testified that she had a
relationship with the complainant but they were not best friends.
She is two years older than the complainant and
they were in different grades and schools.
After
school and on some weekends, they would meet at the park and spend
some time together.
She doesn't know
anything about the complainant's situation at home because the
complainant never expressed herself or talked about
her family
situation.
On 03 September 2016, they had
an arrangement as a group of friends to travel to Derdepoort to have
some fun.
It was a norm that every first
week of September
each year, many youths
around the area would hire some minibus taxis and travel to
Derdepoort to have fun.
They would enjoy
themselves by drinking alcohol and smoking hubbly.
[33]
When they were about to leave Mamelodi, she
proceeded to the
complainant's
home
to
collect her,
unfortunately,
she
was
told
that
the
complainant was not home.
Their
meeting place for the departure was Melodie Park and the time for
departure was between 12h00-13h00.
The
complainant did not arrive at the meeting place and when the
departure time arrived, she called the complainant to enquire about
her whereabouts.
The complainant informed
her that she had already left with Dineo's group.
At
Derdepoort she only saw Dineo, she did not see the complainant and
never enquired with Dineo about the complainant's whereabouts.
Their
group went back home at night but did not travel back with the
complainant. She never saw the complainant again and after
a few
days, she saw a post at school that the complainant was missing.
She only saw the complainant when she came to her
homestead with the police.
[34]
Thabo Sithole, a police officer employed by South
African Police Service, stationed at Family Violence Child Protection
and Sexual
Offences, testified that he started being an investigating
officer in 2008.
He was given instructions
by Advocate Mphaga, the previous prosecutor who dealt with the
matter, to subpoena witnesses. The witness
Dipuo Maswangani was
traced with the assistance of the complainant and was able to be
subpoenaed.
Dipuo assisted them to trace
Dineo but her family is no longer residing where they rented a room
in Mamelodi, the landlord could
not assist with their present or
their new address.
Lerato Malego and
Marcelo Onyebalanci made statements to the previous investigating
officer using the same physical address and
telephone numbers.
When he was trying to contact Lerato, Marcelo
answered and informed him that Lerato is no longer staying with him
and
her present address is unknown.
He met Marcelo at Pretoria Magistrate Court and
served him with a subpoena to appear in court.
He
never saw the witness again and Marcelo is afraid of coming to the
court because he is thinking that the witness will arrest
him.
Mr. Sithole promised the court that he will try to
trace Marcelo again as he is no longer residing at the residential
address recorded
on his statement and bring him to court.
[35]
The witness found Refiloe Makoko on the street
prostituting and handed her a subpoena to come to court.
She
could not provide him with her residential address and as a result,
he was unable to collect her to come to court.
He
was told by the owner of Devenish Court that, Allister van Wyk, a
caretaker, was fired from his work and
he
went
back
to
his hometown,
Vereeniging,
he
could
not
be assisted
with
his present address.
The
officer tried to subpoenaed all witnesses from Devenish Court but
could not find them.
The owner of the
property confirmed that it would be difficult to trace witnesses
because, once a person is renting a flat from
the owner, he rents
it out to someone without the owner's knowledge or
consent.
[36]
Doctor Susan Verwayen confirmed the evidence that
is recorded on Exhibit E and she further confirmed to the court that
she stands
by her evidence where she testified that she is working as
a forensic psychologist, as a consultant to the
National
Prosecution Authority and the South African Police Service,
specifically working on cases of human trafficking.
Her
educational background is BA in criminology, psychology, and BA
Honours in criminology.
She testified that
she works mainly with trafficked victims and based on her experience,
exposure, and training she knows how to
explain the behaviour of
human trafficking victims. She confirmed that she consulted with the
complainant and her uncle on numerous
occasions and compiled a report
at the end of her assessment.
[37]
The doctor report summarily evaluated the
complainant's family background, that the sudden death of her mother
had a severe impact
on her.
That the
research finds that trafficked children often come from an
environment where they experience loss, deprivation, neglect,
or
different forms of abuse that affected their emotional development,
which contributes negatively to their ability to form satisfactory
and secure relationships, self-awareness, and self-esteem.
The
loss of her mother at a young age deprived her of the care and
guidance needed by a girl approaching adolescence, this lack
of
direction, supervision, and a sense of belonging made her vulnerable
to human trafficking and further contributed to her acceptance
and
compliance in the abusive relationship with the accused.
[38]
There was a lot of verbal abuse from the
grandmother and her brother and that was not conducive for a young
growing girl at the
age of 12.
The absence
of the father also contributed as the complainant indicated that
since the passing away of her mother, contact with
her father was
limited.
The father was a kind and caring
person but had a strange relationship with the primary caretaker, her
grandmother, and this contributed
to her vulnerability.
The
fact that she needed a father figure was confirmed by the fact that
after the escape, she went to the uncle, the only male authority
figure who treated her with respect and dignity.
The
complainant informed the witness that before she was trafficked, she
expressed her desire of staying with her uncle because
he used to
assist her with school work whereas the grandmother focused on her
performing household duties rather than her education,
but the
grandmother refused to allow her to stay with the uncle.
[39]
The witness further explained that victims of
trafficking at the beginning of
their
trafficking experience, are exposed to sexual violence or threats of
violence for them to comply, to accept that this is their
fate and
not to make any fuss.
It is also common
that trafficked children are changed names, their identity, for them
to accept their new life and the trafficker
to be able to keep them
in line and do exactly what
the trafficker
wants.
In many cases of human trafficking,
all the monies earned by the victim are handed over to the
trafficker.
The traffickers usually use
substance abuse to keep their targets under their control.
The
victim is not allowed freedom of movement and is kept in isolation
from all outside the cycle of the trafficking
situation.
The complainant was ashamed and fearful of going
back home, the
shame of what she had been
forced to do, and what would the family's reaction be in case she
escaped. The fact that the complainant
was physically assaulted and
denied food exposed her to an incredibly traumatically experience and
as a result, she submitted.
[40]
Doctor Marriam Kganya is a clinical psychologist
at George Mukhari
Academic Hospital.
Her qualifications being, Bachelor of Science,
Honours,
Masters, and Ph.D. in clinical
psychology.
She confirmed the evidence that
is recorded on Exhibit ( G ) and further confirmed to the court that
she stood by her evidence where
she testified that she received a
referral letter with full details from Advocate Mphaga to evaluate a
victim who had experienced
symptoms indicative of Post -Traumatic
Stress Disorder. For her to be able to compile a complete report,
she consulted with the complainant on various
occasions, the uncle, and the investigating officer and relied on the
information
they provided.
Initially, when
she met the complainant, she appeared depressed with the element of
anxiety, and her school performance deteriorated,
but that improved
as the sessions progressed.
[41]
During the doctor's evidence, she testified that
the complainant attended a trauma debriefing session to alleviate the
trauma experience
where she was also assisted to prepare for her
testimony in court.
Family therapy with the
uncle to work on the rules, the roles, the boundaries, and the
responsibility of every family member was
also conducted where the
complainant was encouraged to start working towards gaining her
independence by doing things on her own.
The
complainant also received psychotherapy to assist with the
psychological and emotional difficulties indicated.
She
will continuously and consistently be evaluated to assess the need
for psychiatric co-management.
[42]
Doctor Lerato Caroline Mogale's testimony together
with the Medico-Legal Examination Report of Lehlohonolo Ester
Mononyane compiled
on 01 December 2016 was admitted by the accused in
terms of
Section 220
of the Act.
Her
clinical evidence is that at the time she was examining the
complainant, she did not have signs that were suggestive of her
being
under the influence of drugs.
The doctor
did not use any instrument or collect any samples like urine or
saliva nor did she conduct tests to confirm or ascertain
if the
complainant was using drugs or not.
She was
not provided with a drug kit for her to take samples.
Concerning the development of the complainant, it
is true that she developed breasts and there were pubertal changes
noticed.
The complainant started early at
the age of 10 to see her menstrual periods and that is the reason why
she had developed breast
and pubertal changes.
The
fact that she was pregnant also correlates with the manner she had
developed when she sees her.
The
complainant, who was 12years 11months old because of this surrounding
circumstances made her be in tanner stage 4, two
years forward instead of being in tanner stage 3.
Due
to these early developments, the complainant was looking like a 14 or
15-year-old.
Concerning the evaluation of
sexual activity, there were no physical genital injuries but that
does not exclude that there was an
incident of sexual penetration.
There was a lack of hymen in this case considering
the complainant's history of sexual activity.
[43]
During cross-examination, the doctor disputed the
fact that the complainant looked like a 19-year-old.
She
was adamant that the complainant is in tanner stage 4 due to early
development in puberty stage and pregnancy but still looked
between
14 or 15 years old.
The fact that she did
not observe physical genital injuries does not
excludes
sexual penetration.
[44]
Eugenia Matshidiso Masebe compiled a psycho-social
assessment report relating to the examination of Lehlohonolo
Mononyane after
receiving a request to compile same.
Mrs.
Masebe has a BA degree in Social Work and Honours (Probation studies)
and has seven years of experience working in the NGO
as an
educational sector for sexual harassment educational projects and
victim empowerment coordinator.
During the
interview with the complainant, the complainant told her how her
grandmother used to ill-treat her and that resulted
in her becoming
rebellious and befriending older friends in the neighbourhood who
were not in school and had children.
According to her evaluation, the incident left
severely traumatizing effects which resulted in her inability to
trust humanity.
She was uncomfortable and a
bit withdrawn during the interview but because of her good memory,
she could articulate herself well
when explaining the details of the
incident.
[45]
The evidence of Colonel Andriaan Albertyn Marais
was that he was working
as a control
forensic analyst dealing with illicit drug analysis which is
scheduled in
the Drugs and Drug Trafficking
Act as well as those in Schedule 7 of the Medicines and Related
Substances Act.
He holds a Masters's degree
in chemical pathology, specifically toxicology.
When
the witness was confronted about the J88 findings compiled by Doctor
Mogale that there was no evidence of any drug use at the
time of
examination, the witness replied as follows: "The only
consistent evidence that one can have for exposure to a drug
is by
testing a bio substance, biofluids like blood or urine. Each has its
reason why you will test. If you want to show that someone
is
currently under the influence or that there is a drug circulating in
the person's
system, the biofluid that you
would select is blood because that indicates what is currently
circulating in the system meaning that
it has access to the brain so
that the drug can have its effect. If you want to indicate that the
exposure happened with a longer
time frame of detection then you
would select biofluid like urine. Drugs pass through your system and
get metabolized, it gets
detoxified by the liver and get excreted in
the urine but also derivatives of the drug formed by the liver will
also
be excreted in the urine. Those
derivatives are commonly known as metabolites, so drug testing in
urine by looking at the metabolites
is the established methodology to
show exposure to a drug because it gives the certainty that the drug
passed through the system
by the formation of the metabolites. But it
also gives a longer time frame to detect whether the drug was present
or not."
[46]
The witness further testified that drug detection
cannot be concluded by clinical assessment unless a person is still
under the
influence of drugs where dilated pupils or increased blood
pressure or some other physiological symptom might indicate that the
drug is present.
Once the active phase of
the drug passes and it is starting to eliminate whether exposure
occurred depend on the dosage form.
[47]
Affidavit
in terms of Section 212(1) compiled by Kenneth Ndou, an employee at
the Department of Home Affairs, indicated that the
accused did appear
on the National Immigration Information system as an Asylum seeker in
the South African Republic.
The
Asylum seeker permit was granted until 09 March 2017.
The
Asylum application was rejected as manifestly unfounded in terms of
Section 24(3) (b) of Refugee Act
[6]
,
the Refugee Status Determination Officer rejected the application as
manifestly unfounded, abusive, or fraudulent.
DEFENCE CASE
[48]
Augustine Omini Obono testified that he is the
accused in this matter and can explain his defence to the court.
He is a Nigerian Citizen who came to South Africa
on 24 March 2013 and used to stay in Devenish Court, Sunnyside where
he was sharing
a flat with one Marcelo Ombanasher.
That
on 03 September 2016, while he was at the flat watching television,
one Tuchuku another name Chibuzu, Marcelo's friend, arrived
with the
complainant.
He saw both Tuchuku and
Marcelo talking but did not hear what they were saying as they were
speaking the Ibo language.
Marcelo told him
that he must ask the complainant whether she wants to be his
girlfriend or not, if she doesn't agree he must tell
her to leave but
if she agrees, she must stay.
They both
left and he remained with the complainant.
They
started talking,
the
complainant
told
him that
she
was
Lerato
from
Mamelodi
and
she
was 19years old.
They
ended up staying together as boyfriend and girlfriend whereby
consensual intercourse took place on various occasions.
He
used to take care of the complainant by buying her clothing, food,
and a smartphone.
The complainant became
pregnant with his child and they were happy about the pregnancy.
Marcelo was not happy to see him taking care of
the complainant and he chased him out of the flat.
He
left alone, leaving the complainant behind to stay at Allister van
Wyk.
[49]
After some weeks he received a phone call from the
complainant that she moved out from Marcelo's place and was presently
staying
at Escape's place.
He was not happy
about her decision but accepted as the complainant informed him that
she would only stay with him once he found
them a place to stay.
The accused mended things with Marcelo and moved
back to the flat, the complainant ended coming back with the
assistance of the
police after having some fight with Escape. They
stayed together at Marcelo's place until the end of November when
they rented
a flat at Allister's place.
The
accused mentioned that there was a day in which the complainant left
for a day and only came back the following day.
Upon
her arrival, she mentioned that she went home and her parents
travelled to East London and would only come back in January.
Then on 01 December, the complainant told him that
she wanted to visit her home.
She took some
clothes, her phone and he gave her R500.
The
complainant was clean when she left and there was nothing wrong
between them.
Later in the day, the
complainant arrived with the uncle and the police to arrest him.
He denied that there were young girls who were
drugged in the flat when they arrived, he also denied that he raped
the complainant
or made her sleep with other male persons for his
benefit.
[50]
During cross-examination, it was put to the
accused that he is illegal in the country as per Exhibit F and that
he raped and trafficked
the complainant for his sexual benefit.
The accused could not explain why the uncle would
testify that the complainant came home being a state of a mess while
his testimony
is that she left the flat clean.
The
accused maintained that the trauma that the doctors testified about
was caused by her family members who used to molest or abuse
her at
her homestead.
He maintained that he
believed the lies told by the complainant that she was 19 years and
looking at her development, he believed
her.
The accused witnesses
[51]
Officer Thabo Sithole testified that his efforts
of tracing the defence witnesses failed.
He
used his phone to call Marcelo and requested the accused to assist by
talking to him, asking him to come to court but the accused
refused.
The accused also confirmed that he refused to
assist the police in tracing his witnesses as it was not his duty to
assist the police
to do its work.
The court
afforded the accused another opportunity to assist in tracing his
witnesses.
Marcelo was contacted but he was
reluctant to come to court to testify.
Exhibit
H was handed in, a subpoena proving that Marcelo was served on 30
March 2021 to appear in court.
A warrant
for his arrest was issued out.
The defence
closed its case without calling any
witnesses.
TOTALITY OF EVIDENTIAL
MATERIAL
[52]
It is a common cause that the complainant
travelled with an unknown
coloured lady
from Derdepoort to Sunnyside on 03
rd
September and never return home till the 01
st
December 2016.
That she
was taken to the accused's place and the accused had sexual
intercourse with her between that period.
It
is common cause that the complainant became pregnant while staying at
the accused's place.
It is a further common
cause that the complainant was a 12-year-old child during that
period.
[53]
The fact in dispute is whether the physical
development of the complainant proved that she was a 19year old
child.
Whether the complainant was
trafficked and used as a prostitute to benefit income for the
accused.
BEYOND REASONABLE DOUBT
[54]
The
onus of proof in a criminal case is discharged by the State.
It has
to establish the guilt of the accused beyond a reasonable doubt.
Furthermore,
the accused's version cannot be rejected solely on the basis that it
is improbable, but only once the trial court has
found on credible
evidence that the accused explanation is false beyond a reasonable
doubt see
S
v V
.
[7]
The
corollary is that the accused is entitled to be acquitted if it is
reasonably possible that he might be innocent.
[55]
Proof
of the guilt of the appellant beyond reasonable doubt and the
question
of
whether the appellant's version is reasonably possibly true is not
separated and independently tested as stated by Nugent JA
in
S
v Van der Meyden
.
[8]
APPLICATION OF THE
PROVISIONS OF SECTION 208 OF THE CPA
[56]
The
provisions of Section 208 of the CPA provide that an
accused
person may be convicted of any offense on the single witness of any
competent witness.
In
S
v Sauls and Others,
[9]
it was
held that there is no rule-of-thumb test or formula to apply when it
comes to the consideration of the credibility of a single
witness.
The
trial court should weigh the evidence of the single witness and
should consider its merit and demerits and having done so, should
decide whether it is satisfied that the truth has been told despite
shortcomings or defects or contradictions in the evidence.
[57]
Cautionary
rules in terms of
S
v Chabalala
[10]
the
Supreme Court of Appeal pointed out that the correct approach in
evaluating evidence is to weigh up all the elements that point
towards the guilt of the accused against all the elements that are
indicative of his or her innocence, taking proper account of
inherent
strength and weaknesses, probabilities and improbabilities on both
sides and having done so, to decide whether the balance
is so heavily
in favour of the State that it excludes any reasonable doubt about
the accused's guilt.
IDENTITY OF THE ACCUSED
[58]
The identity of the accused is not in dispute.
The complainant pointed out the accused during the
arrest and in court.
The accused also
confirmed that he spent three months staying in the same house with
the complainant who was his girlfriend.
CORROBORATION
[59]
The evidence of the complainant that she was taken
from Derdepoort on the 03
rd
September and never returned home until 01
st
December 2016 was
corroborated
by the complainant's uncle who testified that seeing that the
complainant went missing, he went to Mamelodi Police
Station and open
a missing person file. This evidence was also corroborated by Dipuo
that the complainant was in Derdepoort but
did not return home with
them on the 03 September.
[60]
It is common cause that the complainant's
grandmother and the brother were abusing her, that her mother died,
and further that she
did not have a relationship with her father.
Meeting the unknown coloured lady at Derdepoort and the promises she
made, made her
to believe her and trusted that she would assist her.
The complainant's behaviour was corroborated by
Doctor Verwayen, that children who often come from an environment
where they experience
loss, deprivation, neglect, or different forms
of abuse that affected their emotional development that contributes
negatively to
their ability to form satisfactory and secure
relationships, self- awareness and self-esteem.
The
loss of her mother at a young age deprived her of the care and
guidance needed by a girl approaching adolescence, this lack
of
direction, supervision, and a sense of belonging made her vulnerable
to human trafficking and further contributed to her acceptance
and
compliance in the abusive relationship with the accused.
There
was a lot of verbal abuse from the grandmother and her brother and
that was not conducive for a young growing girl at the
age of 12. The
absence of the father also contributed as the complainant indicated
that since the passing away of her mother, contact
with her father
was limited.
The father was a kind and
caring person but had a strange relationship with the primary
caretaker, her grandmother and this contributed
to her vulnerability,
and the fact that she needed a father figure was confirmed by the
fact that after the escape, she went to
the uncle, the only male
authority figure who treated her with respect and dignity.
[61]
The complainant version that the accused started
by assaulting her, denying her food and water for days when she was
refusing to
prostitute for him, changing
her
name to Lerato, making her take drugs, as a result of that intake,
she would do anything the accused instructed her to do, mainly
prostitution. Aftrewards, the accused
would
take
the
money
she
made
from
clients.
This
evidence
was
corroborated by Doctor Verwayen that the victims who are being
trafficked are exposed to sexual violence or threats of violence
for
them to comply, to accept that this is their fate and not to make any
fuss.
It is also common that trafficked
children are changed names, their identity, for them to accept their
new life and the trafficker
is then able to keep them in line and do
exactly what the trafficker wants.
In many
cases of human trafficking, all the monies earned by the victim are
handed over to the trafficker.
The
traffickers usually use substance abuse to keep their targets
under their control.
[62]
Lazarus Mononyane testified that the complainant
was depressed, unable to sleep because of anxiety, was afraid to go
to school or
stay alone at home as she was afraid that she would be
kidnapped again.
At some stage, due to the
complainant's condition, he came to court without her and he was in
trouble with the court.
This evidence was
corroborated by Doctor Kganye who evaluate the complainant and
observed that she had experienced symptoms indicative
of Post -
Traumatic Stress Disorder.
When she met the
complainant, she appeared depressed with the elements of anxiety, and
her school performance deteriorated but that
improved as the sessions
progressed.
[63]
Doctor Mogale conducted a clinical observation
when consulting with the complainant and concluded that she was not
under the influence
of any substance. She did not conduct any
examinations by either taking samples to test whether there were
drugs in the complainant's
system or not.
The
evidence of Colonel Marais is that, I quote, "the only
consistent evidence that one can have for exposure to a drug is
by
testing a bio substance, biofluids like blood or urine. Each has its
reason why you will test. If you want to show that someone
is
currently under the influence or
that there
is a drug circulating in the person's system, the biofluid that you
would select is blood because that indicates what
is currently
circulating in the system meaning that it has access to the brain so
that the drug can have its effect. If you want
to indicate that the
exposure happened with a longer time frame of detection then you
would select biofluid like urine."
Therefore,
I find that the fact that the State did
not
submit
any
forensic
prove
that
there
were
drugs
in
the
system
of
the
complainant, does not exclude the fact that the complainant was
drugged, but that, no substance was taken from the complainant
to be
tested.
[64]
The complainant corroborated the accused version
regarding the photograph that was taken depicting them in the
bedroom.
The complainant explained that
when it was taken, she was highly drugged.
CONTRADICTIONS
[65]
It is a common cause that the complainant
contradicted herself as to how she left her parental place until
Derdepoort and the reasons
why she ended up traveling with the
unknown coloured lady.
She informed the
court that she left with a taxi alone to Derdepoort, Dipuo testified
that she left with Dineo's group and she told
Ms. Masebe that she
left with her boyfriend from Mamelodi to Derdepoort.
She
further informed the court that she didn't have money to go back home
when she met this unknown coloured lady and after the
lady promised
to give her shelter and money to go home the following day, she
travelled with her.
But she told Ms. Masebe
that she did not want to go home at night as she was afraid that she
will be punished for coming home later.
I
find these contradictions to be immaterial, they do not affect
the elements of the offense which the accused has
been charged with.
I also accept that the
complainant is a 12-year-old child who had a difficult upbringing and
I
believe that that changed her behaviour.
The evidence of how she travelled to Derdepoort is
not consistent, this might also be contributed by the behaviour and
that she
does not want the family to know how she travelled to
Derdepoort.
There are no contradictions on
her evidence as to how she travelled to Derdepoort up until she
travelled to Ga-Rankuwa.
[66]
The accused in his plea explanation, it was
admitted that Lerato and Refiloe (whom it was alleged were the
complainant's friends)
were prostitutes, but during his evidence, he
disputed knowing such.
The accused in his
evidence testified that after Tuchuku and Marcelo left him with the
complainant, they started having a conversation
about her age, name
and that she was willing to be his girlfriend.
But
it was put to the complainant that she told the accused that she was
homeless and
that
she
was
chased
away
from
home
by
her
parents.
When
the
accused
was confronted
with
these
contradictions,
the
accused
failed
to
give
a
reasonable explanation
to the contradictions.
IMPROBABILITIES
[67]
The accused is adamant that the complainant told
him that she was 19years old and when looking at her body, the way it
developed,
he believed that she was 19 years old.
Looking
at Exhibit C, Medico-Legal Examination report, Doctor Mogale noted
that because the complainant started her menstruations
earlier, at
the age of 10, automatically that made her two years ahead of her
age, she was in tanner 4, her breast development
was also in tanner
4, not yet fully developed, pubic hair, tanner 4 not yet fully
developed.
In essence, her testimony was
that the complainant's body was not yet fully developed for one to
conclude that she was an adult.
The accused
had girlfriends who were between 20-25 years and had sexual
intercourse with them. Considering the evidence presented
relating to
the complainant's age and the evidence of the doctor, I find it to be
improbable that the accused could not see that
the complainant was
still a child.
The accused was a
well-educated adult male of 36 by then, I find it to be improbable
that he was unable to hear that the complainant
was a young child
even when they were having a conversation.
[68]
It is improbable for this court to believe that
the accused was taking care of
the
complainant, buying her clothes and that everything was fine between
them
when she left on the 01Decemmber to
her uncle's place whereas the uncle testifies that when the
complainant arrived at his home
she was wearing skimpy clothes,
looking very pale, dilapidated and dirty. She was still having the
same hairstyle that he did on
her in September and it was also in a
state of a mess.
According to the accused,
there was a day in which the complainant travelled to Mamelodi and
spent a night there without telling
him and the complainant returned
the following day.
Life continued as normal
and the complainant informed him that her parents went to East London
and would be back in January.
Police did
not come to
arrest him nor did they receive
any complaint from the complainant's family.
On
01 December, the complainant informed the accused that she wanted to
go home and he agreed, gave her money, accompanied her to
the taxi
and travelled home.
Later in the afternoon
she came with the police to arrest him.
I
find the submission by Mr. Mohlahlo that
the
complainant
had
to
lie
to
her
uncle
because
she
left
home
for
three
months
without informing her parents of her whereabouts improbable and
without any substance.
The parents,
according to the accused, were in East London and only coming back in
January.
As such, there was no reason for
the complainant to lie.
[69]
The complainant had some money on her which the
accused was not aware of and she found an opportunity for the first
time to run
away.
When the accused left the
butler door open, she took the opportunity and ran away to her
uncle's place.
I find the accused's version
as to how the complainant ended up at his flat and how Tuchuku just
appear from nowhere with the complainant
and dropped her there
without saying anything to the accused to be improbable.
FACTUAL FINDINGS
[70]
The accused indicated to the court that he had
witnesses to confirm his evidence that the complainant was his
girlfriend, that she
told them that her name was Lerato, and also
that she told them she was 19 years of age.
The
accused refused to provide the investigating officer with the
information as to how he could trace them.
He
even refused to be assisted to make a phone call to Marcelo who was
previously served to appear in court to inform him about
how his
evidence is of importance to the court.
Refiloe
and Lerato are prostitutes and could not be traced
to
come testify on behalf of the accused as they moved from one place to
another.
I find that Marcelo did not want
to come to court to testify because he knew that the accused
committed the offenses that he has
being charged with.
I
find that just like Refiloe and Lerato who were prostituting for the
accused's friends, the complainant was also used to generate
money as
a prostitute for the accused.
[71]
The count of trafficking involves recruitment,
movement, exchange, and receiving.
I find
that the coloured lady recruited the complainant from Derdepoort by
making some promises to her and delivered her to the
accused who
received her in Sunnyside, intending to sexually exploit her.
The accused continuously raped the 12-year-old
minor without her consent.
[72]
I find that the only way for the accused to
control the complainant was to instil fear in her by assaulting her
and by not giving
her food, by changing her name, by dragging her,
and by guarding her all the time making sure that she did not escape.
That made
it easy for the accused to rape her on a number of
occasions. .
[73]
I also find that for the complainant to be able to
generate money for the accused, the accused needed to drug her,
control her and
allow her to make use of his place as a Brothel to
sleep with various men daily.
I find that
the State managed to prove that the accused exploited the complainant
and also benefited from that exploitation.
[74]
The
fact
that
there
is
no
forensic
report
that
drugs
were
found
in
the
complainant's system does not mean that she was not telling the
truth, the evidence is that the samples were never taken for
analysis.
The fact that the medical report
shows that there were no injuries sustained on her genital, does not
exclude rape, the fact that
the complainant was violated for three
months by five to six men daily and further that she was pregnant,
shows that she was sexually
active.
[75]
In totality, I accept the evidence of the State
that the complainant was trafficked from Derdepoort to Sunnyside, the
accused received
her as a slave that would generate money for him,
that to succumb to the accused's instruction, the accused had to
instil fear
in her and drug her.
I also
accept the complainant's evidence that she was exploited or used to
generate money for the accused and the accused kept her
at his place
for three months against her will.
It is a
proven fact that the complainant was a 12-year-old child.
[76]
I reject the accused version in totality as false
that he believed that the complainant was 19 years old by looking at
her physical
development, further that
the
complainant stayed with him willingly.
I
also reject his version that the complainant was his girlfriend, that
sexual intercourse was consensual, that he never allowed
her to have
sexual intercourse with other male persons in his flat and that he
gave her drugs with the intention of controlling
her as false.
[77]
In the premises, there is no doubt in my mind that
the accused committed all the counts as per the indictment and there
are many
improbabilities in his version. I find that the State
succeeded to prove the guilt of the accused beyond a reasonable
doubt.
The version of the accused person is
not reasonably possibly true and is rejected.
[78]
Accused stand up:
1.
Count 1 - I find you guilty of contravention of
section 4(1) of the Prevention and Combating of Trafficking in
Persons Act 7 of
2013 read with
section 51(1)
of the
Criminal Law
Amendment Act 105 of 1997
, which is trafficking in persons;
2.
Count 2 - I find you guilty of contravention of
section 3
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
read with
section 51(1)
of the
Criminal Law
Amendment Act 105 of 1997
, which is the rape of a 12-year-old child;
3.
Count 3 - I find you guilty of contravention of
section 3
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
read with
section 51(1)
of the
Criminal Law
Amendment Act 105 of 1997
, rape by common purpose of a 12-year-old
girl;
4.
Count 4 - I find you guilty of contravention of
section 17(4)
of
the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007
, which is
benefiting from the sexual exploitation of a child;
5.
Count 5 -
I find you
guilty of contravention of
section 17(2)
of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007
, which is the
exploitation of a child;
6.
Count 6 - Kidnapping;
7.
Count 7 - Contravention of the provisions of
section 2 of the Sexual Offences Act 23 of 1957 and further read with
the
Criminal Procedure Act 51 of 1977
, which is keeping a Brothel.
K MOGALE
ACTING JUDGE OF THE HIGH
COURT
GAUTENG DIVISION OF
THE HIGH COURT, PRETORIA
Delivered: This judgment
was prepared and authored by the Judge whose name is reflected and is
handed down electronically by circulation
to the Parties/their legal
representatives by email and by uploading it to the electronic file
of this matter on CaseLines. The
date for hand-down is deemed to be
26 April 2021.
APPEARANCES
Counsel
for the State:
ADV.
VAN DEVENTER & ROOS
Instructed
by:
THE
DIRECTOR OF PUBLIC PROSECUTIONS,
JOHANNESBURG
Counsel
for the Defence:
ADV.
MOHLAHLO
Instructed
by:
JUDICARE
PRACTITIONER, PRETORIA
Date
of hearing:
12
April 2021
Date
of judgment:
26
April 2021
[1]
51 of
1977
[2]
32 of
2007.
[3]
7 of
2013.
[4]
105
of 1997.
[5]
38 of
2005.
[6]
130
of 1998.
[7]
2000(1)
SACR 453(SCA) at 455 B.
[8]
1999
(1) SACR 447
(W) at 488 f-I.
[9]
1981
(3) SA 172
(A) 180.
[10]
2003
(1) SACR 134
(SCA).