- The prosecutor gave an incorrect date to a medical witness, which undermined the State’s medical evidence.
- The trial court relied on evidence from the complainant’s mother that should not have been admitted and overlooked important inconsistencies.
- The accused’s appeal petition sat unattended in the registrar’s office for more than eight years.
A life sentence and a 20-year prison term have been set aside by the High Court in Pietermaritzburg after judges found that serious mistakes by the prosecution undermined the case against a man convicted of raping a teenage girl.
Judge RG Mossop, with Acting Judge DMB Bond agreeing, found that the State had not proved Sibonginhlanhla Kiza Radebe’s guilt beyond reasonable doubt. Radebe was convicted in the Ixopo Regional Court of raping the same girl on two occasions, when she was 13 and 14 years old.
He was given 20 years in prison for the first count and life imprisonment for the second, with the sentences to run at the same time.
The prosecutor put an incorrect date on the medical witness
One of the most significant failures involved the evidence of Dr Bana, the district surgeon who examined the complainant on 5 November 2015. The doctor recorded fresh injuries to the complainant. But the alleged rapes had happened in October 2014 and June 2015, which meant the last alleged incident took place about five months before the examination.
During the doctor’s testimony, the prosecutor asked whether the fresh injuries were consistent with the complainant being raped in October. The doctor agreed, but the question pointed to an incident in October 2015, not October 2014.
Judge Mossop found that the prosecutor had put an incorrect question to the doctor, even though the correct dates were on the J88 medical examination form.
The judge said the medical findings pointed to a crime much closer to the examination date. However, there was no allegation that Radebe raped the complainant in October 2015. The regional magistrate was also criticised for not correcting the misleading question before the doctor answered.
Material inconsistencies in complainant’s testimony
The complainant’s evidence raised more concerns when she was confronted with her police statement during cross-examination. The statement included claims that Radebe had covered her mouth with brown Sellotape and threatened her with a knife and a gun. But she had not mentioned these details in her main evidence.
When asked about these omissions, she repeatedly said she had forgotten the incidents. Judge Mossop found these omissions significant because they involved serious threats and situations that would normally be remembered.
The judge disagreed with the regional magistrate’s view that the complainant had been a reliable witness who was not shaken during cross-examination.
Mother’s evidence wrongly admitted
The prosecution also relied on the complainant’s mother, who repeated what her daughter had told her about the alleged rapes. However, the complainant had first told a friend, referred to in the judgment as Ms N, who was never called to testify.
Judge Mossop found that the mother repeating her daughter’s account was simply a previous consistent statement, which is not allowed as evidence. Still, the regional magistrate relied on the mother’s evidence to support the complainant’s credibility, suggesting that this disclosure showed the complainant had not made up the allegations.
The High Court rejected that reasoning, finding that simply repeating an allegation does not prove it is true. The judgment also noted that the complainant’s mother testified that police were at first unsure whether Radebe was responsible. The prosecutor did not ask about the significance of that uncertainty.
Magistrate blamed police for contradictions
Judge Mossop criticised the regional magistrate for blaming inconsistencies in the complainant’s evidence on the police officer who took her statement. The magistrate pointed to grammatical and spelling errors in the statement and suggested these differences were because of poor police note-taking.
However, the complainant confirmed the statement was hers and admitted she had forgotten details when she testified. Judge Mossop found the contradictions could not be blamed on the police officer. The regional magistrate had also failed to properly consider how important they were when deciding if the complainant’s evidence was reliable.
Appeal petition left unattended for eight years
The appeal also revealed a separate administrative failure in the High Court registrar’s office. After the regional magistrate refused Radebe permission to appeal his sentence on the first charge in February 2017, he prepared a petition asking for leave to appeal.
The registrar confirmed the petition was received on 30 July 2018. But there was no record that it had been given to judges or looked at. Judge Mossop called this discovery “shocking” and said Radebe might not have stayed in prison for the next eight years if the petition had received proper attention. The High Court later granted the petition, allowing both convictions to be considered on appeal.
State criticised for poor preparation
In a strongly worded assessment, Judge Mossop said, “The State’s case was poorly prepared and presented and was not understood by the prosecutor.”
The judge added that the facts were fairly simple, but neither the prosecutor nor the regional magistrate seemed to understand them properly. Judge Mossop emphasised that the State has a duty to present sexual offence cases professionally and competently to make sure that those responsible are convicted and punished.
The judgment said, “The State failed in that duty in this matter.” The court found that Radebe’s guilt had not been proved beyond reasonable doubt. It upheld both appeals, set aside the convictions and sentences, and replaced them with verdicts of not guilty.
The registrar was also told to look into the conduct of staff who handled Radebe’s appeal petition and decide if any action should be taken.
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