S v Ncube

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Dosio J
• Judgment Date: 15 September 2023
• Citation: 2023 JDR 3514 (GJ)
• Hearing Date: 14 September 2023
• Docket Number: SS26/2023
• Court: Gauteng Local Division, Johannesburg

Dosio J:

Introduction

[1]

The accused is arraigned on the following counts of

(a)

Contravention of section 4(1) read with sections 1, 2, 3, 11, 13(a), 14, 29, 30 and 48 of the Prevention and Combatting of Trafficking in Persons Act 7 of 2013 and read with sections 94, 256, 257, 261A(1) and (2) and

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Dosio J

270 of Act 51 of 1977 and read with the provisions of section 51(1) of schedule 2 of the Criminal Law Amendment Act 105 of 1997 as amended (counts 1, 8, 15, 18, 21 and 24);

(b)

Rape as contemplated in section 3 read with sections 1, 55, 58, 59 and 60 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 read with sections 92, 94, 256, 257, 261 and 281 of the Criminal Procedure Act 51 of 1977 and further read with section 51 (1) of the Criminal Law Amendment Act 105 of 1997 (counts 5, 6, 9, 11, 19 and 22);

(c)

Sexual Assault as contemplated in section 5(1) read with sections 1, 55, 58, 59 and 60 and 94 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 read with sections 92, 94, 256, 257, 261 and 281 of the Criminal Procedure Act 51 of 1977 (counts 2, 3, 7, 16, 25 and 27);

(d)

Assault with the intent to cause Grievous Bodily Harm (count 12)

(e)

ssault (counts 10, 23 and 26);

(f)

Kidnapping (count 13);

(g)

Contravention of the provision of section 68(1) read with the provisions of sections 1, 5(2) and 29 of the South African Police Services Act No 68 of 1995. Impersonating a member of the South African Police service (count 4, 14, 17 and 20).

[2]

Prior to the accused pleading, the court apprised the accused of the provisions of the minimum prescribed sentence of life imprisonment in respect to counts 1, 5, 6, 8, 9, 11, 15, 18, 19, 21, 22 and 24.

[3]

The accused pleaded not guilty to all 27 counts and did not give a plea explanation in terms of Section 115 of the Criminal Procedure Act.

[4]

Admissions in terms of Section 220 of the Criminal Procedure Act were made and confirmed by the accused. The admissions are as follows that:

(a)

Otis Sithandiwe Salitya is a male with date of birth 17 November 2002;

(b)

Professional Nurse, Refiloe Joyce Chabalala, conducted a Medico Legal Examination on Otis Salityi on 25 September 2018;

(c)

Professional Nurse Refiloe Joyce Chabalala recorded her findings on a J88 marked as Exhibit “B”;

(d)

The facts and findings on Exhibit “B” are correct;

(e)

Tshepang Meketu is a male with date of birth 10 June 2002;

(f)

Dr M Hassan conducted a Medico Legal Examination on Tshepang Meketu on 22 April 2018;

(g)

Dr Hassan recorded his/ her findings on a J88 marked as Exhibit “C”;

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Dosio J

(h)

The facts and findings on Exhibit “C” are correct;

(i)

Bonke Biyela is a male with date of birth 22 October 2005 as indicated on his birth certificate which is attached as Exhibit “D”;

(j)

Sibongakonke Ngcezu is a male with date of birth 7 July 2005 as indicated on his birth certificate which is attached as Exhibit “E”;

(k)

Professional Nurse, Nozipho Ngubane, conducted a Medico Legal examination on Sibongakonke Ngcezu on 8 February 2022 and recorded her findings on a J88 marked as Exhibit “F”;

(l)

The facts and findings of Exhibit “F” are correct;

(m)

Odwa Chempe is a male with date of birth 4 September 2007;

(n)

Professional Nurse, Refiloe Joyce Chabalala, conducted a Medico Legal examination on Odwa Chempe on 6 March 2022;

(o)

Professional Nurse Refiloe Joyce Chabalala recorded her findings on a J88 marked as Exhibit “G”;

(p)

Tumelo Terrence Malinga is a male with date of birth 7 January 2007 as indicated on marked Exhibit “H”;

(q)

Kutlwano Divine Motlhako is a male with date of birth 26 May 2011 as indicated on exhibit “J”;

(r)

Professional Nurse, Refiloe Joyce Chabalala, conducted a Medico Legal examination on Kutlwano Malinga on 6 March 2022;

(s)

Professional Nurse Refiloe Joyce Chabalala recorded her findings on a J88 marked as Exhibit “K”;

[5]

The state called the following witnesses;

Otis Salitya; Tshepang Meketu, Mmalerato Motshobi, Tebogo Modise, Bonke Biyela, Nonkwenkwenzi Pelem, Sibongakonke Ngcezu, Ndodomzi Mesani, Odwa Chempe, Tumelo Malinga, Refiloa Chabalala,Kutlwano Motlhako, Jabulani Moyo and Sibusiso Ngqwebu. The State closed its case. The accused came to testify and the defence called police officer Lenyai in respect to the statement of Bonke Biyela and police officer Mpiko in respect to the statement of Sibusiso Ngqwebu.

[6]

This court will deal with the State witnesses in a chronological order according to the counts upon which the accused has been charged and not necessarily in the order they testified.

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Counts 1-7

[7]

These counts include on (count 1) trafficking in persons, namely Otis, from 2014-2018, (count 2) sexual assault in 2014 where the accused forced Otis to masturbate the accused, (count 3) sexual assault in 2014 whereby the accused placed his penis between the thighs of Otis and masturbation, (count 4) that during 2014-2018 the accused pretended to be a member of the South African Police Service, (count 5) rape in that in 2014 the accused raped Otis by placing his penis into the anus of Otis, (count 6) that in 2015 the accused raped Otis by placing his penis into the anus of Otis and (count 7) sexual assault in 2016 where the accused forced Otis to masturbate the accused.

[8]

Otis Salitya testified that he started knowing the accused in 2014 when he was in grade 6 and 12 years old. The accused would play games with him and Jabulani (‘Jabu’) who is the accused’s son and he became friends with Jabu. As a result, he started sleeping over at the accused’s house. Jabu would go to sleep but the accused would remain with Otis showing him pornographic videos. This witness divulged his dire financial situation at home to the accused as his mom was unemployed and she had 4 kids and received a government grant which was insufficient for all their needs. In comparison, at the accused’s house there was everything he needed. The accused started brushing his thighs, bum and genitalia and then would offer Otis money.

[9]

As regards count 2, Otis stated this happened one day when the accused was taking him home. The accused stopped the car in the bushes, told Otis he loved him and then pulled down his trousers, took the hand of Otis and made him touch the accused’s penis and masturbate him, causing the accused to ejaculate. The accused gave Otis R20. Otis did not tell anyone of this ordeal.

[10]

As regards count 3, whilst Otis was visiting the house of the accused and once Jabu was asleep, the accused would invite Otis to his bed and make Otis take off his own trousers and then the accused would insert his penis between the thighs of Otis and make up and down movements.

[11]

As regards count 4, Otis was informed by Jabu that his father was a police officer in Krugersdorp. Otis himself saw that the accused had clothes which had the police emblem on them and papers in the police vehicle with the police emblem. In fact, Otis believed the accused was a police right up to when he was told that the accused was not a police officer.

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Dosio J

[12]

As regards the two rape counts (Counts 5 and 6), Otis stated that the accused did penetrate his anus with his penis and when Otis cried due to the pain, the accused pulled his penis out and then tried to insert it again. The accused then gave him money. Otis stated that he took the money because it was the only way to pay himself. He stated that he felt destroyed when the accused would do these things to him and he started to spend more time with girls than boys. Even though the accused was doing these things to him he kept going back as the circumstances at his own home were tough. As he grew older he realised that he had to stop this from happening

[13]

As regards count 7, he stated that this happened in the bushes where he was asked by the accused to masturbate him and that the previous incident in 2014 had happened at block 2 in Swaneville.

[14]

Otis stated he only told his mother in 2018 as the accused kept phoning him to come and visit him and he didn’t want to. When his mother asked him why he did not want to go to the accused he told her why. The following day his mother went to the Kagiso court to get a protection order against the accused.

[15]

Otis only reported this matter when he heard that the accused had been arrested and that he was not the only victim.

[16]

Otis stated that he also saw Tshepang, (the complainant on counts 8-14) at the accused’s house. He did not know Bonke (the complainant on counts 15-17) or Sibongakonke (the complainant on counts 18-20) or Tumelo (the complainant on 24-26) or Kutlwano (the complainant on count 27). He did know Odwa (the complainant on counts 21-23) as Odwa was schooling with him.

[17]

During the cross-examination of Otis, he stated that when the incidents happened in the house, Jabu was also asleep on the bed with the accused and himself. He repeated that he continued to visit the accused at his house as the financial situation at his own house was dire and he was in need of the money that the accused gave him. His mother also allowed him to go and stay at the accused’s house. He stated that he could not tell anyone as his only relative was his mother who has since passed away in 2020 as a result of a brain tumour. He agreed that he should have told his mother earlier, however he has learnt a lesson. He stated that on the two occasions when the accused did penetrate him, Jabu was not in the room. He stated

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Dosio J

that even though the accused never told him he was a policeman, Otis did go with the accused to Krugersdorp where he saw that the accused was investigating...