The Supreme Court of Appeal has upheld an appeal of convicted rapist Tshimbudzi. Tshimbudzi won his appeal based on numerous errors in the lower courts, revealing basic errors relating to criminal procedure and basic rights of accused persons, especially those of a constitutional nature. The court record was also riddled with large sections of “inaudibles” which means that the case cannot be redirected back to the lower courts for re examination.
The combination of these errors left the Supreme Court no other choice. Under the Criminal procedure Act, section 51 (1) read with part 1 evidence needs to be produced to indicate the complainants age, evidence was produced via a doctors report, however the court rejected this evidence as insufficient, besides the doctor would have to testify as to the authenticity of the report, unless, as what happened in this case the accused allowed admission of this evidence. Which begs the question, was his attorney awake? anyway.
To compound the errors above, the complainant herself before testifying was not sworn in properly. According to section 162 of the CPA a young witness may be sworn in or warned to tell the truth and the court should also question the witness so as to ensure he or she understands the importance of telling the truth. This was not done.
Errors of this kind need to be avoided, not only from a judicial perspective but also to instil a sense of confidence in the the judiciary as an impartial and professional institution.
see the judgement here
Click the link on the right hand side of the page and access saflii and check out the supreme court tab under November 2012.