Lubando v The State

The appellant, Mzwanele Lubando, was 28 years old when convicted of raping a nine-year-old girl by the Regional Magistrates' Court at Mthatha on 4 October 2013. He was sentenced to 20 years' imprisonment. The complainant alleged she was raped by the appellant on 25 May 2011 while in bed with her mother (who was in a relationship with the appellant) and another child. The mother had gone outside to prepare a fire to boil water. On her return, the complainant showed no signs of distress, pain or bleeding, and walked to school normally. Two days later, the mother noticed a discharge from the complainant's private parts and took her to the clinic. Dr N Noyawan examined the complainant and completed a J88 form noting absence of hymen, a 20x20mm vaginal opening, redness around vaginal entrance with offensive yellow pus, no fresh tears, no abrasions/bruises, and that the vagina admitted only the doctor's little finger. The doctor concluded 'penetration has occurred'. The J88 form was admitted without objection under s 212(4) of the Criminal Procedure Act. The doctor was not called to give evidence. The appellant raised an alibi which the trial court found to be false. His application for leave to appeal was refused by the trial court and on petition to the Eastern Cape Local Division. He then petitioned the Supreme Court of Appeal for special leave.

• Whether leave to appeal should be granted based on reasonable prospects of success
• Whether medical evidence from a J88 form admitted under s 212(4) of the Criminal Procedure Act, without calling the examining doctor, is sufficient corroboration of a child complainant's rape allegation
• Whether the evidence of a young child complainant requires corroboration
• Whether the State proved the age of the complainant beyond reasonable doubt for purposes of applying the prescribed minimum sentence under the Criminal Law Amendment Act 105 of 1997
• The effect of a false alibi on the overall assessment of guilt

The appeal was upheld. The order of the court a quo was set aside and replaced with an order granting the applicant 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.

The binding legal principles established are: (1) In sexual assault cases involving young children, where the child is the sole witness implicating the accused, medical evidence from a J88 form admitted under s 212(4) of the Criminal Procedure Act without calling the examining doctor is insufficient corroboration where the doctor's findings require explanation or appear inconsistent with the conclusion of penetration. (2) Evidence of a very young child complainant must be treated with caution and requires corroboration to reduce the danger of convicting solely on the child's evidence. (3) The age of a complainant in rape cases, when it is a material element for determining the application of prescribed minimum sentences under the Criminal Law Amendment Act 105 of 1997, must be proved by the State beyond reasonable doubt through admissible evidence (such as testimony of someone present at birth or production of a birth certificate), and cannot be established through hearsay evidence from the complainant alone. (4) Leave to appeal should be granted where there are reasonable prospects of success, which exist where there are material procedural or evidentiary deficiencies that could affect the outcome on appeal.

The court made important obiter observations expressing dissatisfaction with the 'growing trend' by prosecutors, particularly in cases of sexual assault of young children, not to call the medical expert who examined the complainant and compiled the medical report, instead taking a 'routine approach' of obtaining admissions or relying on affidavits for prima facie proof. The court also observed that a false alibi must not be considered in isolation but in the context of all the evidence, citing S v Van der Meyden and S v Heslop. The court noted with concern the potential for contamination of child evidence through leading questions, citing academic authority that '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.' The court also noted it was not its function to determine guilt or innocence but simply to decide whether reasonable prospects of success existed for an appeal.

This case is significant in South African criminal law and procedure for several reasons: (1) It reinforces the principle that in cases of sexual assault of young children, prosecutors cannot routinely rely on admission of medical reports without calling the examining doctor, particularly where the medical findings require explanation or appear inconsistent with conclusions drawn. (2) It emphasizes that evidence of very young child complainants requires not only cautious treatment but also corroboration, especially where the child is the sole witness. (3) It confirms that the State must prove age beyond reasonable doubt when age is a material element for determining prescribed minimum sentences under the Criminal Law Amendment Act 105 of 1997, and cannot rely on hearsay evidence from the complainant. (4) The judgment serves as a strong warning to prosecutors about the inadequacy of relying on J88 forms admitted under s 212(4) of the Criminal Procedure Act without calling the doctor in child rape cases. (5) It contributes to the jurisprudence on when leave to appeal should be granted based on reasonable prospects of success, particularly in cases involving procedural and evidentiary deficiencies at trial.