North Gauteng High Court Judge Papi Mosopa is due to deliver judgment on the case in the Gauteng High Court Pretoria on Monday.
Even if the judge accepts Ninow’s explanation as to how he came to be in the women’s bathroom of the Dros restaurant in Silverton on September 22 last year when, he says, the child came in to use the toilet, he still faces a hefty sentence.
While Ninow claims he went there to avoid detection while he took the drug Cat, the State has presented evidence that Ninow followed the girl into the toilet where he raped her.
She was 7 years old at the time.
During an earlier appearance in the magistrate’s court, Ninow entered a plea of not guilty, but when he appeared this week in the high court for his trial, his appointed legal representative, Herman Alberts, began by reading his client’s guilty plea.
In it, Ninow said he did not use the men’s toilet as he feared detection by restaurant management.
However, when the girl’s mother and a number of restaurant staff went looking for her, and found her half naked in the toilet cubicle, he lashed out at them and ran to hide in the men’s side.
The State called a number of witnesses, including a child-minder on duty on the day, the waitress who served Ninow, and a man who sat drinking with him.
Then came the damning evidence from the girl’s mother and even the young victim was called to testify in camera.
At the end, State prosecutor Dorah Ngobeni called on the court to conclude that Ninow had every intention of raping the girl, and had followed her into the bathroom where she was on the toilet.
“The court should, therefore, find that he followed the girl into the bathroom, undressed her, threatened her and proceeded to rape her,” Ngobeni said. She said the court should reject Ninow’s sequence of events and accept hers.
Alberts agreed it was the court’s responsibility to convict his client by his own admission of guilt, but he rejected allegations of premeditation on the part of Ninow.
Professor Dial Ndima, from Unisa College of Law, said the idea behind the State pushing for premeditation was because it wanted the judge to impose the harshest sentence possible on the accused. “If the State is able to prove without a doubt that he had the intention, as it appears in this matter, then it will be telling to the court that he has a crooked mind.”
Ndima said the judge also had to consider that Ninow had pleaded guilty to the charges, and therefore did not want to waste the resources of the State on a drawn-out trial.
But there were strong aggravating circumstances against him, such as the young age of the victim.
When deciding on judgment and sentencing, the courts must take into account the gravity of the offence, the circumstances of the offender and, finally, the public interest.