A man who was handed a life sentence for repeatedly raping a 10-year-old girl has been freed and his conviction overturned because a doctor was not called on to give expert evidence during the trial.
According to judge Murray Pitman, while the evidence weighed up holistically, objectively and rationally did not establish Mbongeleni Mtshali’s guilt, it did not mean he was innocent either.
“I emphasise that this is not a finding that the appellant is innocent of the crimes, however,” he said.
Mtshali was found guilty for rape in the regional court in Esikhawini in 2024, but the Pietermaritzburg overturned the conviction and sentence.
This was after it was found that he had raped the girl “more than once” in 2022 and was alleged to have threatened her.
He was found to have given between the girl R2 and R10 after every rape encounter. However, Mtshali - who had pleaded not guilty to the crime - appealed the conviction at the Pietermaritzburg high court.
He later won the appeal, resulting in the court setting aside the conviction after finding that the trial court erred and misdirected itself in concluding that the evidence on record established that the alleged rapes had taken place.
In his judgment, Pitman said had the trial court ensured that the proceedings were in accordance with justice, the result may have been different.
Pitman said the evidence was required to have proven Mtshali’s guilt beyond a reasonable doubt.
“The appellant had no onus to establish his alibi or his innocence. If his defence was reasonably possibly true, he should have been given the benefit of the doubt.”
Pitman said the state conceded that the medical doctor who completed the J88 form should have been called upon as a witness to explain his findings.
However, the state could not explain what the medical doctor’s findings actually meant.
“On the issue of expert medical evidence in matters such as this, there is what has been referred to as 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.
“In the circumstances it was considered vital to have called the medical practitioner to explain her conclusion and exclude any reasonable possibility that the physical evidence was equally consistent with consensual sexual intercourse.”
Pitman said in the absence of the oral testimony of the doctor, the entries on the J88 do not evidence “conclusive proof” of the alleged penile penetration rape.
“In the result, the court misdirected itself in then concluding that the only issue was who the perpetrator of ‘the alleged crimes’ was. There was, in fact, an additional obligation to determine whether, beyond a reasonable doubt, the alleged rapes had been proved to have taken place at all.”
Pitman said the trial court also correctly accepted that the only direct evidence implicating Mtshali was the evidence of the complainant.
He said the magistrate had also accepted that there were contradictions in the child’s evidence - the first being the contradiction regarding the alleged coming from school on 2 May 2022 but that it was a public holiday that day.
The child had also said she received R10 from Mtshali which she threw away on the first occasion, but later said she had used that money.
“The magistrate regarded these ‘contradictions’ as being of inconsequential effect, however. This the magistrate based on a conclusion that the child was young and initially had no intention of reporting the incidents and was probably making an error.
“But that justification by the magistrate is inconsistent with what the magistrate later says about the complainant as a witness as follows: ‘she was an intelligent, honest and a reliable child seeking no desire to implicate any person in the commission of these crimes’. In my view, those were not, however, the only material contradictions in the evidence of the complainant.”
Pitman said there were other contradictions which the magistrate did not consider.
Pitman then set aside the conviction, saying, “the appellant is found not guilty and discharged”.
Sowetan
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.