Warning: This article contains graphic details
The Gauteng High Court in Pretoria has rejected Nicholas Ninow's claim that he acted impulsively when he raped a 7-year-old girl in the bathroom of a Dros restaurant in Pretoria last year.
Instead, Judge Mokhine Mosopa accepted the State's version that he followed her into the bathroom.
At the start of his trial, the State rejected Ninow's plea on the basis that his story contradicted the State's version.
A trial ensued and on Monday, Ninow was convicted of rape, the possession of an illegal substance and defeating the ends of justice.
He was acquitted of assault after Mosopa found that, while it was not in dispute that he used his belt to try to hit people who found him in the bathroom with the victim, he didn't actually hit anyone.
In his judgment, Mosopa said he rejected the version in Ninow's plea explanation and said the State's case - that it was his intention to target a child - had been proven beyond reasonable doubt.
"The only reasonable inference the court can draw is that the accused saw the victim playing in the play area, saw her going to the bathroom, followed her and then undressed and raped her," Mosopa said.
He added that Ninow gave no reasonable explanations for moving closer to the children's play area, or for choosing to use the women's bathroom.
Mosopa found that Ninow's actions were premeditated in that he came to the restaurant and changed his seat so that he could have a clearer view of the children's play area to stalk his victim and strike when the opportunity presented itself.
Ninow's rejected version
News24 previously reported that in Ninow's plea explanation, he said he went to the women's bathroom to take a drug called methcathinone (also known as CAT), hoping he would not get caught.
He lowered his pants to create the impression that he was urinating while snorting more of the drug that he was caught with when he was arrested on September 22, 2018 - the day when the rape occurred.
"While I was busy taking the CAT, the complainant pushed open the door," he said.
"The complainant indicated that she wanted to urinate, and I got off the toilet, pulled her pants down and put her on the toilet.
"In that moment, I acted impulsively, and took my penis and forced it into the complainant's mouth. Thereafter, I penetrated the complainant's vagina with my finger."
However, the victim, who previously testified in camera (behind closed doors) and via an intermediary, said she went to the bathroom and that Ninow entered after her.
State advocate Dorah Ngobeni told the court that the victim even recalled that she was on the toilet and urinating when Ninow entered the bathroom.
In his judgment, Mosopa recounted the victim's testimony that, she could not respond to her mother's calls for her because Ninow threatened to kill her if she spoke.
This testimony was not disputed by the defence, Mosopa added.
The victim eventually called out for her mom for help after, as her mother and employees at the Dros were trying to force the toilet door open. At that point, Ninow, who was trying to keep the door closed, yelled out that they should not "disturb" him.
National Prosecuting Authority spokesperson (NPA) Phindi Mjonondwane said they were happy with the judgment.
"We are satisfied with the court's decision to accept the State witness' version, especially the version of the minor, [about] how the sequence of events unfolded," Mjonondwane said.
"It is indeed what we wanted to achieve as the NPA. That was our goal; to place the court in a better position to make an informed decision."