High Court issues stern warning on prosecution practices in rape cases
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The Pietermaritzburg High Court has issued a stern warning to prosecutors in rape cases, cautioning against the common practice of submitting a medical report (J88) without calling the medical expert to testify in court.
This warning followed the court’s decision to overturn a life sentence and acquit a man who had been convicted by the Esikhawini Regional Court for the alleged rape of a 10-year-old girl in April 2022.
The man was accused of threatening the child and giving her small sums of money (between R2 and R10) after each incident. After his sentencing, he approached the high court to appeal both his conviction and sentence.
In a judgment delivered by Judge Murray Pitman, with Judge Mbuzeni Mathenjwa concurring, the court 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 identified a critical weakness in the regional court’s reasoning, noting that neither the court nor the prosecution could clearly interpret the medical expert’s findings.
They referred to the magistrate’s ruling, where she stated: “The evidence of the doctor contains conclusive proof of sexual violation,” describing this as the first major 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,” Pitman said.
The high court accepted that the complainant’s testimony was the only direct evidence against the accused. However, Pitman emphasised that the regional court failed to properly assess whether the charges had been proven beyond a reasonable doubt, particularly by ignoring significant inconsistencies in the child’s account.
The judge further noted that the magistrate did not adequately consider the probabilities surrounding the complainant’s version of events. The child had stated that she continued to meet the accused after the first incident, during which she was allegedly 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 properly evaluate both probabilities and inconsistencies was identified as another misdirection. Pitman added: “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.”
The magistrate was also criticised for not recalling State witnesses after two defence witnesses, including the complainant’s sister, testified that they had only spoken to the defence lawyer on the day they appeared in court.
In concluding the matter, the high court found 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 stressed that the ruling should not be interpreted as a declaration of the accused’s innocence. He noted that it was unfortunate to have to make this clarification, 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.”