Johannesburg - Police and prosecutors might just have failed a rape survivor, by handling and presenting the DNA samples drawn from vaginal swabs shoddily to the court.
Mthetho Khauta, a man who was arrested for a 2015 rape and handed a life sentence by the Bloemfontein Regional Court two years ago, has walked free after successfully appealing against his conviction and sentence.
Judge Philip Loubser ruled in favour of Khauta’s appeal at the Bloemfontein High Court last week. He appealed on grounds that the DNA evidence that convicted him was compromised.
The judge upheld Khauta’s appeal against the count of rape, two counts of robbery with aggravating circumstances and one of attempted murder.
The case related to a shocking rape that happened on the night of September 27, 2015.
Two assailants took turns raping a woman, found parked at a secluded spot with her boyfriend. The boyfriend managed to flee after being shot in the stomach during a scuffle.
After raping the woman in the car, the rapists disappeared with two cellphones belonging to the couple.
The couple could not identify the attackers because it was dark.
Khauta, a 38-year-old taxi driver, was arrested almost 12 months later and charged with rape on grounds that DNA evidence linked him to the vaginal swabs drawn from the rape survivor. He was also found in possession of one of the stolen cellphones.
But police evidence on the cellphone was flawed because it did not indicate the dates he was found with the stolen property, Judge Loubser ruled.
“We do not know whether he was in possession a few hours after the incident or only some months afterwards.
“On its own, the evidence relating to the cellphone therefore falls short of proving anything against the appellant,” Judge Loubser said.
Next to fall was the State’s major purported evidence against Khauta: the DNA results.
The DNA was presented to court in the form of an affidavit by Warrant Officer Eloise Reynolds, a forensic analyst from the Forensic Science Laboratory in Pretoria.
Judge Loubser found in favour of Khauta’s arguments that the DNA did not inspire confidence that it had been handled properly, nor that it was drawn from him and the rape survivor.
“In the absence of any further evidence, and in the absence of any further admissions made by the defence in the (regional) court, it is evident there are no indications whatsoever as to the identity of the persons from whom the forensic samples were obtained, under which numbers those respective samples were sealed, and how the sealed bags with the samples ended up in the hands of Warrant Officer Reynolds,” said Judge Loubser.
“Despite these glaring shortcomings, the trial magistrate found in his judgment that the DNA evidence had placed the appellant ‘right at the scene of the crime’. In this respect, the findings of the magistrate were wrong. As already indicated, it is not even known whether the one sample came from the complainant, and the other sample from the appellant.”
Judge Loubser cited a precedent-setting judgment, which stressed that holes in DNA chain evidence affected its integrity.
“The State must establish the name of each person who handled the evidence, the date on which it was handled and the duration,” Acting Judge Tebogo Djadje said, in her 2016 judgment.
Judge Loubser said: “I fully agree with the sentiments expressed by the learned acting judge. It follows that the conviction of the appellant, on all four counts, cannot stand.”
The Star