Prosecution fails to overturn acquittal of rape accused in Limpopo

14 December 2018 - 15:27 By Ernest Mabuza
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The Supreme Court of Appeal has turned down an appeal by the state against a man who was acquitted of rape in 2014.
The Supreme Court of Appeal has turned down an appeal by the state against a man who was acquitted of rape in 2014.
Image: Gallo Images/ IStock

The Supreme Court of Appeal (SPA) on Friday struck from the roll an appeal by the prosecution against the acquittal of a Limpopo man who had been accused of raping a 15-year-old girl.

This judgment shows how difficult it is for the National Prosecuting Authority (NPA) to appeal against acquittals.

The appeal court held on Friday that the trial court that heard the case had acquitted the accused on the facts and that there was no question of the law being misapplied.

The Criminal Procedure Act states that the prosecution can take a matter on appeal only when there is a question about the way in which the law was applied.

In the 2014 trial, the Tzaneen Magistrate’s Court acquitted the man accused of rape after saying the state had failed to prove that the man had penetrated the complainant or that his DNA matched a genital swab specimen taken from her.

But the director of public prosecutions (DPP) in Limpopo contended that the acquittal was based on a question of law, more specifically that the man should have been convicted of attempted rape.

The DPP asked the magistrate to state a case for the consideration of the high court, as envisaged in section 310 (1) of the act.

The act provides that when a lower court has given a decision in favour of the accused on any question of law, the prosecutor may require the judicial officer concerned to state a case for the consideration of the high court in that jurisdiction.

But the high court in Limpopo held that the man’s acquittal followed on factual issues only - there was no question of law decided in his favour. The high court struck the matter from the roll.

The DPP then applied for special leave to the Supreme Court of Appeal.

In its judgment on Friday, the appeal court said the high court dealt with the matter on the basis of the question as formulated by the state, namely whether all the incriminating evidence adduced by the state had been accounted for.

Writing a unanimous judgment for the full bench, judge Baratang Mocumie said the high court had weighed the forensic evidence against the complainant’s evidence, after which it made an adverse credibility finding against her.

"The high court concluded that the trial court had assessed the evidence before it holistically; and as already stated, found that the (man) was acquitted on the facts and that no question of law had been decided in his favour.

"In my view, that conclusion cannot be faulted," Mocumie said.

The judgment comes a day after the NPA indicated it intended to appeal the acquittal of a former school patroller at a Soweto school who was accused of multiple rapes and sexual assaults of young children.

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