Lubando v The State

The appellant, Mzwanele Lubando, was convicted in the Mthatha Regional Magistrates’ Court of raping a nine-year-old girl and sentenced to 20 years’ imprisonment. His applications for leave to appeal against conviction and sentence were refused by the trial court and subsequently by the Eastern Cape Local Division. He petitioned the Supreme Court of Appeal (SCA) for special leave to appeal. The conviction was based primarily on the complainant’s evidence and a J88 medical report indicating penetration, submitted without the doctor testifying. The complainant’s mother’s evidence raised concerns regarding lack of immediate complaint, absence of bleeding, and inconsistencies about when the medical examination occurred. The State also relied on hearsay evidence to establish the complainant’s age for purposes of applying the minimum sentence regime under the Criminal Law Amendment Act 105 of 1997.

The appeal was upheld. The order of the Eastern Cape Local Division was set aside and replaced with an order granting the appellant leave to appeal to the Eastern Cape Local Division, Mthatha against both his conviction for rape and the sentence of 20 years’ imprisonment.

The case reinforces the importance of proper medical corroboration in sexual offence trials involving child complainants and criticises the prosecutorial practice of relying solely on J88 reports without calling medical experts. It also underscores that the age of a complainant must be proved beyond reasonable doubt when minimum sentence legislation is relied upon. The judgment affirms cautious evidentiary standards in cases resting primarily on the evidence of a single young witness.