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

1 Greenwood v S [2015] ZASCA 56 para 3.

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

2 Madiba v S [2014] ZASCA 13; 2015 (1) SACR 485 (SCA) para 8; NS v The State [2015] ZASCA 139
para 15.

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.

3 D T Zeffertt and A P Paizes The South African Law of Evidence 2 ed (2009) at 972.

[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

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.

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

5 Zeffertt and Paizes supra at 438.
6 Zeffertt and Paizes ibid at 438 note 339 and authorities there cited.

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