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[2016] ZASCA 4
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Lubando v S (347/2015) [2016] ZASCA 4; 2016 (2) SACR 160 (SCA) (1 March 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
No: 347/2015
In
the matter between:
MZWANELE
LUBANDO
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation
:
Lubando
v The State
(347/2015)
[2016] ZASCA 4
(1
March 2016)
Coram
:
Maya AP, Swain and Dambuza JJA
Heard
:
24 February 2016
Delivered:
1
March 2016
Summary:
Application
for leave to appeal to High Court – conviction of rape –
reasonable prospects of success – failure
to call doctor to
explain gynaecological findings – absence of corroboration of
minor complainant’s evidence –
Criminal Law Amendment Act
105 of 1997
– minimum sentence – failure to prove
age of complainant.
Order
On
appeal from:
Eastern
Cape Local Division, Mthatha
(Dawood
and Mjali JJ, sitting as the court of appeal).
1
The appeal is upheld.
2
The order of the court a quo is set aside and replaced with the
following:
‘
The
applicant is granted leave to appeal to the Eastern Cape Local
Division, Mthatha against his conviction of rape and the sentence
imposed of 20 years’ imprisonment by the Mthatha Regional
Magistrates’ Court.’
JUDGMENT
Swain
JA
(Maya
AP and Dambuza JA concurring):
[1]
The
appellant, Mr Mzwanele Lubando, who was 28 years old at the time of
his trial, was convicted of the rape of a nine year old
girl by the
Regional Magistrates’ Court at Mthatha on 4 October 2013 and
sentenced to 20 years’ imprisonment. The appellant’s
application for leave to appeal to the Eastern Cape Local Division at
Mthatha was refused by the trial court on 19 November 2014.
A
subsequent petition in terms of s 309C of the Criminal Procedure Act
51 of 1977 (the Act), to the Eastern Cape Local Division
(Dawood and
Mjali JJ) for leave to appeal suffered the same fate on 15 December
2014.
[2]
A
further petition to this court for special leave to appeal in terms
of s 16(1)
(b)
of the Superior Court Act 10 of 2013, against the dismissal of the
appellant’s petition for leave to appeal by the court
a quo,
was however granted.
[3]
Accordingly,
the sole issue for determination is whether leave to appeal should be
granted to the appellant, to appeal to the court
a quo against his
conviction and the sentence imposed by the trial court. The
resolution of this enquiry requires a determination
of whether the
appellant possesses reasonable prospects of success in prosecuting an
appeal.
[1]
[4]
The
conviction of the appellant was based in large measure upon the trial
court’s finding that the testimony of the complainant
that the
appellant had raped her, was corroborated by the findings of the
doctor contained in the J88 form. This form which set
out the
findings and conclusion of Doctor N Noyawan who examined the
complainant on 2 June 2011, was handed in by the State without
objection by the defence in terms of s 212(4) of the Act. Accompanied
as it was by the requisite affidavit by Dr Noyawan its contents
were
prima facie proved.
[5]
Dr
Noyawan recorded under ‘clinical findings’ –
‘
No
hymen, . . . 20x20 mm. Redness around vaginal entrance, oozing yellow
offensive pus, no abrasion / bruise.’
The
recordal of the dimensions ‘20x20mm’ is explained by his
findings under the section headed ‘Gynaecological
examination’.
These are the dimensions of the complainant’s vaginal opening.
It was also noted that there were no fresh
tears and that the
complainant’s vagina only admitted the examining doctor’s
little finger. The remainder of the gynaecological
examination was
noted as ‘normal’, save for the discharge and the
presence of bruising.
[6]
Regard
being had to the evidence by the complainant that she never had
sexual intercourse before this incident, the conclusion by
Dr Noyawan
that ‘penetration has occurred’ required that he be
called to give evidence to explain his conclusion in
the light of his
findings that there were no fresh tears, or scarring and the vagina
of the complainant only admitted the passage
of his little finger,
albeit that the hymen was absent. This court has in the past
expressed its dissatisfaction with the growing
trend on the part of
the prosecution, particularly in cases of sexual assault of young
children not to call the medical expert
who examined the complainant
and compiled the medical report.
[2]
The routine approach by prosecutors seems to be to obtain an
admission from the accused of the findings in the report, or simply
to rely upon the affidavit by the examining doctor resulting in prima
facie proof of the contents of the report.
[7]
In
the present case where the complainant is a very young child and the
only witness implicating the appellant, her evidence must
not only be
treated with caution, but a degree of corroboration is required to
reduce the danger of relying solely upon her evidence
to convict the
appellant. To rely upon the cryptic findings and bald conclusion by
the doctor to provide the requisite corroboration
was unjustified. If
the doctor had been called his or her evidence could have had a
decisive effect upon the outcome of the trial.
As it is this court is
left with the doctor’s conclusion that penetration occurred,
which in certain respects appears to
be inconsistent with the
objective findings revealed during the gynaecological examination
referred to above.
[8]
The
need for reliable medical corroboration of the complainant’s
allegation is heightened by the evidence of the complainant’s
mother. She stated that she was in a relationship with the appellant
who had shared her bed on the day in question, together with
the
complainant and another young child, who slept on the bed in the
opposite direction. In the morning she had gone outside to
prepare a
fire to boil water to enable the complainant to bath before going to
school. It was during her absence that the complainant
alleged she
had been raped by the appellant. The mother said that on her return
there was nothing about the complainant’s
behaviour that
indicated she had been raped. She was happy, did not complain of any
pain when she was bathed and left for school
walking, as her mother
put it, like a normal person. She also expressed the view that if
somebody was not sexually active and was
raped, there would be
bleeding. There was however no evidence of bleeding when she bathed
the complainant. It was only after school
on the following day that
she noticed a discharge from the complainant’s private parts.
When she asked her what had happened,
the complainant replied that
‘she did not know’.
[9]
On
the following day she took the complainant to the clinic where they
were informed ‘that this child had been raped’.
She was
not present when the complainant was examined by the doctor. The
entry in the J88 form is instructive in this regard which
reads as
follows:
doctors
‘
Brought
in by mom that ^ suspects rape. Child: admits having sexual acts with
mom’s boyfriend.’
The
doctor’s evidence of how this issue was raised and discussed
with the complainant was of vital importance. The caution
expressed
by the authors Zeffertt and Paizes is particularly relevant:
‘
In
sexual cases, for example, a child who is prompted by leading
questions when he or she first makes a complaint is quite likely
to
believe that things which were suggested to him or her really
happened.’
[3]
[10]
A
further aspect of the J88 form which required explanation by Dr
Noyawan is that it is recorded that the examination took place
on 2
June 2011. The complainant’s mother however said she took the
complainant to be examined two days after the incident,
being 27 May
2011. An explanation of this disparity could have been of vital
significance in assessing the apparent absence of
serious injuries to
the complainant.
[11]
The
complainant’s mother said that on the way home from the
hospital, the complainant would not tell her the truth but she
did
not suspect anybody because the complainant had walked to school
normally. It was only when she threatened to call the police
that the
complainant implicated the appellant.
[12]
The
trial court also found that the appellant’s alibi was false,
because the complainant’s mother had quite clearly
stated that
he had spent the night with her on 25 May 2011 and the witnesses he
called to prove his alibi did not support him.
However, even if the
appellant was untruthful with regard to his alibi this must not be
considered in isolation but in the context
of all of the evidence.
[4]
[13]
It
is not however the function of this court to determine the guilt or
otherwise of the appellant, but simply to decide whether
the
appellant has reasonable prospects of success in an appeal to the
court a quo. For the reasons set out above reasonable prospects
are
present.
[14]
I
turn to the sentence imposed of 20 years’ imprisonment. In
terms of Part 1 of Schedule 2 to the
Criminal Law Amendment Act 105
of 1997
the minimum sentence prescribed in terms of
s 51(1)
in the
case of the rape of a person under the age of 16 years, in the
absence of substantial and compelling circumstances, is life
imprisonment. Although the trial court did not expressly find these
circumstances to be present, it appears the trial court impliedly
did
so and sentenced the appellant to 20 years’ imprisonment.
[15]
The
State however never proved the age of the complainant, relying solely
upon the hearsay evidence of the complainant that she
was nine years
old at the time of the incident, and 11 years old at the time she
gave evidence. It is trite that the age of the
complainant could be
proved by the evidence of her mother, or someone else present at her
birth or by the production of her birth
certificate.
[5]
The age of the complainant had to be proved beyond a reasonable
doubt, because it was a vital element in the determination by the
trial court of whether a prescribed minimum sentence had to be
imposed.
[6]
The appellant
accordingly possesses reasonable prospects of success in relation to
the sentence imposed in an appeal to the court
a quo.
[16]
It
is ordered that:
1
The appeal is upheld.
2
The order of the court a quo is set aside and replaced with the
following:
‘
The
applicant is granted leave to appeal to the Eastern Cape Local
Division, Mthatha against his conviction of rape and the sentence
imposed of 20 years’ imprisonment by the Mthatha Regional
Magistrates’ Court.’
K G
B Swain
Judge
of Appeal
Appearances:
For
the Appellant:
Z Z Matebese
Instructed
by:
Sabelo
Lubando & Associates, Mthatha
Webbers, Bloemfontein
For the Respondent:
M F Mzila
Instructed
by:
National
Director of Public Prosecutions, Mthatha
National
Director of Public Prosecutions, Bloemfontein
[1]
Greenwood v S
[2015] ZASCA 56
para 3.
[2]
Madiba v S
[2014] ZASCA 13
;
2015 (1) SACR 485
(SCA) para 8;
NS
v The State
[2015] ZASCA 139
para 15.
[3]
D T Zeffertt and A
P Paizes
The
South African Law of Evidence
2 ed (2009) at 972.
[4]
S v Van der
Meyden
1999 (2) SA 79
(W) at 82D-E, cited with approval by this court in eg
S
v Heslop
[2006] ZASCA 127
;
2007 (4) SA 38
(SCA) para 11.
[5]
Zeffertt and
Paizes supra at 438.
[6]
Zeffertt and
Paizes ibid at 438 note 339 and authorities there cited.