Sun, 16 Jun 2019

The Khayelitsha man sentenced to three life terms for the rape and murder of 4-year-old Iyapha Yamile and the rape of another child, has been refused leave to appeal in the Western Cape High Court.

Odwa Nkololo applied for leave to appeal on Tuesday and his application was partly based on arguments relating to the veracity of a child's testimony.

Yamile went missing in Khayelitsha on Easter Sunday in 2017 and, after a massive search, her body was found in a plastic bag in the road near her parents' house. After Nkololo was arrested for her murder, it emerged that he had also been charged with the rape of a 7-year-old child.

On August 28, the Khayelitsha man was sentenced to two life terms for the rape and murder of Yamile, plus an additional life term for the rape of the 7-year-old girl.

He later instructed his attorney Susanna Kuun to appeal both the conviction and sentence.

In the application, it was submitted that Acting Judge Diane Davis had erred in convicting Nkololo by not adhering to Section 164 (1) of the Criminal Procedure Act, which relates to the testimony of a child witness.

The section states that, if somebody is not capable of understanding the nature and import of the oath or affirmation, they may give evidence on condition they are admonished by the presiding judge or judicial officer to speak the truth.

Kuun contended that the judge did not investigate or find that a child witness who testified in the trial understood the nature of the oath she had to take.

"The evidence of a child who does not understand what it means to tell the truth should not be admitted," read the leave to appeal application.

The attorney also submitted that the court relied on "hearsay" regarding the rape of the 7-year-old girl and disregarded the evidence of the young complainant that he had "merely touched her with his hands".

It had also not been proven beyond reasonable doubt that there was penile penetration, the court heard.

In papers, Nkololo's attorney also questioned the use of evidence of a semen sample, found on the older girl's panties, against her client.

He had only found out after his trial that the hearsay evidence and the DNA semen report would be used against him and contended that this rendered his trial unfair.

Nkololo claimed that he had nothing to do with Yamile's rape and murder, insisting that he and a friend had gone to buy cigarettes at the time that she went missing. The next morning, he discovered that his blue refuse bag, in which Yamile's body was found, had been stolen.

With regard to the sentences, Kuun submitted that Davis "overemphasised the seriousness of the crime and the element of deterrence", and submitted that the sentence should be more lenient.

The reasons given include that he has to support his two children, that he was kept in custody for more than a year awaiting trial and that he should be a good candidate for possible rehabilitation over a shorter period of incarceration.

However, the application was refused.

Kuun has been instructed to petition the Supreme Court of Appeal for leave to appeal.

Nkololo is in custody.

The case made history for being part of a new approach to track down suspects.

The men were asked by authorities if they would volunteer for DNA testing to help police narrow down their search for those who had killed Yamile.

During the voluntary DNA sample collections, somebody tipped police off that Nkololo was giving them the slip. They narrowed their focus to him and eventually arrested him.

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