S v Ncube (Sentence)

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Dosio J
• Judgment Date: 15 September 2023
• Citation: 2023 JDR 3515 (GJ)
• Hearing Date: 15 September 2023
• Docket Number: SS26/2023
• Court: Gauteng Local Division, Johannesburg

Dosio J:

Introduction

[1]

The accused was found guilty on the following counts:

(a)

five counts of contravening 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 (‘Act 7 of 2013’)

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and read with sections 94, 256, 257, 261A(1) and (2) and 270 of the Criminal Procedure Act 51 of 1977 (‘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 (‘Act 105 of 1997’) as amended, these are counts 1, 8, 15, 18 and 21. Section 13(a) of Act 7 of 2013 states that s4(1) of this Act is subject to s51 of Act 105 of 1997 and it states that a person convicted of such an offence is liable to a fine not exceeding R100 million or imprisonment, including imprisonment for life.

(b)

Five counts of 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 (‘Act 32 of 2007’) read with sections 92, 94, 256, 257, 261 and 281 of Act 51 of 1977 and further read with section 51 (1) of Act 105 of 1997 on counts 5, 9, 11, 19 and 22. Section 51 of Act 105 of 1997 states that a High Court shall sentence a person to life imprisonment.

(c)

Six counts of sexual assault as contemplated in section 5(1) read with sections 1, 55, 58, 59 and 60 and 94 of Act 32 of 2007 read with sections 92, 94, 256, 257, 261 and 281 of the Criminal Procedure Act 51 of 1977 on counts 2, 3, 7, 16, 25 and 27;

(d)

One count of assault with the intent to cause grievous bodily harm in count 12;

(e)

One count of assault on count 23;

(f)

One count of kidnapping on count 13;

(g)

Four counts of contravening s68(1) read with the provisions of sections 1, 5(2) and 29 of the South African Police Services Act No 68 of 1995 in respect to impersonating a member of the South African Police service on counts 4, 14, 17 and 20.

[2]

For purposes of sentence, this Court has taken into consideration the personal circumstances of the accused, the seriousness of the offences for which he has been found guilty and the interests of the community.

The personal circumstances of the accused

[3]

The accused is 38 years old and has two children aged 16 and 20 years old respectively. The accused was the breadwinner at home in that he was transporting school children earning R2600 per month and also transported adults earning R9000 per month. He is a first offender.

The seriousness of the offences

[4]

As regards the human trafficking counts, it is clear that the accused deliberately targeted these young boys who he believed he could easily exploit. The accused abused their

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vulnerability. Children believe a police man is there to protect them, not to sexually exploit them. He took advantage of the vulnerabilities of these boys due to their young age, social circumstances or economic circumstances.

[5]

The accused mobilized these young boys by moving them away from their homes and familiar environment into an unfamiliar environment thereby increasing their vulnerability. This mobilisation included the act of recruitment for sexual exploitation. In certain of the instances, in order to secure their vulnerability, the accused through the abuse of power induced further fear into these boys by pointing a firearm at them. Odwa was afraid to open up a case against the accused as he was afraid the accused would come with his police friends to threaten him.

[6]

It is clear that traffickers, like in this instance, target boys which have few economic opportunities, food or money. The accused in the matter in casu offered them financial and hardship relief.

[7]

Research indicates that poverty or the lack of income is a significant push factor in internal child trafficking in South Africa. Often victims of trafficking are not even aware that they have been trafficked and that they have the right to be seen and treated as victims. The high sentences imposed for trafficking is indicative that the trafficking of children in South Africa is rife and that the legislature has identified the necessity to create high sentences for this type of crime.

[8]

Otis Salitye, Tshepang Meketu, Bonke Biyela, Sibongakonke Ngcezu, Odwa Chempe and Tumelo Malinga were recruited, transported and harboured by the accused for the sole purpose of sexual exploitation. They did not realise that they were victims of trafficking. These children were all very young. Apart from recruiting boys himself, the accused also used Sibongakonke to recruit boys and threatened him that if he did not do as he was told he would kill his only living relative, namely his grandfather. The accused instructed Sibongakonke to recruit Bonke by means of deception.

[9]

Almost half of identified cases of child trafficking begin with some family member involvement. The role of people who were considered friends by the victim is also important in the initial phases of trafficking of children. During the trafficking process, as in the matter in casu, the children reported they were coerced through psychological abuse. What makes this case serious is that the accused trafficked these children for his own sexual pleasure.

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[10]

Victim impact reports were handed in for Otis Salityi (counts 1-7) (exhibit ‘BB’), Tshepang Meketu (counts 8-14) (exhibit ‘CC’), Bonke Biyela (counts 15-17) (exhibit ‘DD’), Sibongakonke Ncgezu (counts 18-20) (exhibit ‘EE’), Odwa Chempe (counts 21-23) (exhibit ‘FF’), Tumelo Malinga (count 25) (exhibit ‘GG’), and Kutlwano Motlhako (count 27) (exhibit ‘HH’).

[11]

As regards Otis Salityi he stated in the victim impact report that during all the oppression he felt like he was losing himself, he was embarrassed of being a boy who was forced to sleep and have sex with...