Stern warning to prosecutors when presenting evidence in rape trials

03 August 2020 - 12:46 By ERNEST MABUZA
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The full bench of the high court in Johannesburg said the calibre of case presentation in the prosecution of a rape case before it was unacceptable in a case of such seriousness.
The full bench of the high court in Johannesburg said the calibre of case presentation in the prosecution of a rape case before it was unacceptable in a case of such seriousness.
Image: 123RF/SEBNEM RAGIBOGLU

A full bench of the high court in Johannesburg has asked the director of public prosecutions (DPP) in Gauteng to ensure correct training for prosecutors to enable them to present proper evidence in cases involving rape victims.

This follows a judgment on Friday in an appeal by a man who was sentenced in connection with three counts of rape and one of kidnapping by the Soweto regional court.

Thabang Molaza was sentenced to life imprisonment for each of the three rape charges. .

On Friday, one judge set aside two of the three counts of rape and the count of kidnapping, and substituted the sentence for one count of rape with a 10-year jail term.

However, two judges of the full bench set aside the convictions and sentence for rape, and replaced it with a finding that Molaza was convicted on one count of rape.

Molaza was sentenced to life imprisonment for that one conviction.

In the case, the complainant testified that on February 25 2012 Molaza approached her in the company of four of his friends.

He told the woman in front of his friends that she was his girlfriend. She denied this.

Molaza then forced her to accompany him and his friends to a filling station.

At the station, she asked a man named Vusi for help, and she got into his car.

Molaza pulled the woman out of Vusi’s car and took her to his home, where he raped her three times. She escaped when Molaza fell asleep and then alerted the police.

In the minority judgment, acting judge of appeal Altus Joubert said he was satisfied Molaza had raped the complainant.

"The question is, was the appellant, on the evidence, correctly convicted on three counts of rape?"

He said the state presented no evidence as whether the acts took place within a short space of time or, if this was the case, how short the space of time was.

"In my opinion, the state proved one act of rape, but not two or three. In consequence the convictions and sentences on counts four and five should be set aside.

In a majority judgment written by judge Ingrid Opperman, and with which judge Mahomed Ismail agreed, she said the difficulty in the case was not the quality of the complainant’s evidence, but rather the sufficiency thereof.

Opperman said although the woman had testified that she had been raped three times, the facts underpinning those conclusions were not placed on record with sufficient particularity.

Opperman said the complainant was not adequately led on those events because she was never questioned about the time period between each rape.

"The calibre of the case presentation for the prosecution was unacceptable for a case of this seriousness. A prosecutor cannot present a case by just pouring out a jumble of conclusions of law," Opperman said.

Opperman said victims of rape, as a class of vulnerable people in society, ought to have a reasonable expectation that their cases were taken seriously enough to be properly presented.

Opperman said Molaza ought to have been convicted on one count of rape and sentenced on a finding that two acts of rape had been committed.

Opperman ordered the director of public prosecutions to draw the content of the judgment to the attention of the prosecutor who led the evidence of the complainant.

She also urged the DPP to enable proper training for prosecutors generally to "prevent a repeat of the situation which arose in this matter".

TimesLIVE


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