A stern warning has been issued to the prosecution to not relay on medical expert reports when it comes to rape cases. The Pietermaritzburg High Court has advised that medical experts should be called to provide oral evidence
Image: Pexels
The Pietermaritzburg High Court has delivered a sharp rebuke to the prosecution in rape cases, cautioning against the routine practice of merely submitting a medical report (J88) without calling the medical expert to provide oral testimony.
This significant warning followed the high court’s decision to overturn a life sentence and discharge a man convicted by the Esikhawini Regional Court for the April 2022 rape of a 10-year-old girl.
The man was alleged to have threatened the victim and given her small amounts of money (between R2 and R10) after each encounter. After being sentenced the man approached the high court to appeal his conviction and sentence.
In his judgment, Judge Murray Pitman, sitting with Judge Mbuzeni Mathenjwa, highlighted a “growing dissatisfaction of the courts with the increasing tendency of the prosecution, particularly in cases of sexual assault, not to call the medical expert who examined the complainant and compiled the medical report”.
The judges pointed out a key flaw in the regional court’s reasoning that neither the court nor the State could definitively explain the meaning of the medical expert’s findings.
They referred to the magistrate’s judgment, where she concluded that: “The evidence of the doctor contains conclusive proof of sexual violation,” as the first significant misdirection.
“In the absence of the oral testimony of the doctor, the entries on the J88 do not, in my judgment, (give) conclusive proof of the alleged penile penetration rape. Counsel for the State conceded,” Judge Pitman said.
The high court accepted that the girl’s testimony was the only direct evidence against the man. However, Judge Pitman stressed that the regional court failed in its obligation to determine if the rapes were proved beyond a reasonable doubt, specifically by overlooking material inconsistencies in the victim’s evidence.
The Judge further said it did not appear that the magistrate considered probabilities on the version of the victim, who, amongst others, said she followed the accused whenever he called her after the first rape, where she was threatened with a knife in the bushes.
“Her version was that she went each time because she was scared by his threats. But that, in my view, is improbable with her behaviour of spending the money, and as she said, on one occasion returning the change to her mother’s purse,” Judge Pitman said.
This failure to consider probabilities and inconsistencies holistically was cited as another misdirection. Judge Pitman said: “In my judgment, considering the complainant’s evidence holistically required a finding, against the application of the cautionary rule, that her evidence was not satisfactory in all material respects.”
Further criticism was leveled against the magistrate for not recalling State witnesses after two witnesses, including the victim’s sister, testified for the defence, stating they had only spoken to the defence lawyer on the day of testimony.
Concluding the review, the high court held that the evidence, when “weighed up holistically, objectively and rationally, did not establish the appellant’s guilt beyond a reasonable doubt and the magistrate erred in concluding”.
Judge Pitman was careful to emphasise that this ruling was not a finding of the accused’s innocence. He commented that it was unfortunate that he had to make this statement, adding that, “had the lower court ensured that the proceedings proceeded in accordance with justice as it was obliged to do, the result may have been different.”
nomonde.zondi@inl.co.za