Western Cape High Court Judge Diane Davis said she had intended to deliver judgment, but was concerned about evidence of at least three State witnesses.
The witnesses, the girl’s aunt and two others, testified that they were allegedly told about the rape by the girl, whose identity is withheld.
Judge Davis said in court the girl gave a watered-down version of what had happened.
“She should’ve confirmed their evidence, but didn’t,” said Judge Davis. She said ordinarily evidence of the three witnesses would be admissible as it didn’t coincide with the girl’s testimony. She said it would have amounted to hearsay.
Judge Davis added that there were strong suggestions that the girl did not repeat in court what she had told the witnesses because she was influenced by her mother not to reveal the truth.
The girl’s mother and Nkololo had a close relationship. During trial the court heard that on the same day the girl told her mother about the rape she (the girl) was forced to share the bed with Nkololo.
The three lived in a one-bedroom shack.
“It seems to me we may well be dealing with a situation where the girl was unable to testify as she was under duress and intimidation.
"She may have been deprived of her voice due to the conduct of her mother to protect the accused,” said Judge Davis.
The judge said the issue at hand was whether or not the court should admit evidence by the three witnesses in the interest of justice. She asked that both counsels submit arguments on the matter.
The girl is alleged to be Nkololo’s first rape victim. His alleged second victim, Iyapha Yamile, 4, was kidnapped, raped and murdered. Iyapha went missing while playing outside her aunt’s home.
Her body was found stuffed in a plastic bag the following day, April 30 last year, just a month after the first rape.
Nkololo was linked to the crimes by DNA evidence; semen, blood and hair strands. Both incidents occurred in Town Two, Khayelitsha.
Judge Davis postponed judgment to August 6.