A doctor whose “apparent lack of professional conduct” nearly sank the state’s case against two rapists may face a probe by the Health Professions Council of South Africa (HPCSA) after a judge said his attitude and report “left much to be desired”.
Dr SW Mukombe’s conduct came under scrutiny after a Western Cape High Court judgment dismissing a leave to appeal application by two brothers convicted and sentenced by the Paarl Regional Court for gang raping a young man, who was a minor at the time, in 2020.
The incident happened in Tulbagh, reports TimesLIVE.
“The (brothers) challenged their conviction of the rapes by contending the regional magistrate erred in finding the complainant’s evidence was satisfactory in all material respects.
“They also contended the regional magistrate failed to exercise caution in the evaluation of not only the evidence of the complainant … but also that of the evidence of his foster mother as the first report and … the shortcomings in the J88 report which they contended did not support the evidence,” said Judge Vincent Saldanha in summarising the men’s appeal bid.
The victim, who has lived with his foster mother since before he turned one, suffered from foetal alcohol syndrome disorder, with all of his childhood milestones being delayed, and leading to him dropping out of school at 11.
Two tests were done to assess his intellectual quotient.
“In respect of the test related to his individual scale for general scholastic aptitude, he obtained an aptitude score in the range of moderate intellectual disability. His test age was determined as six years and 11 months.
“His understanding of sexual matters was found to be limited…he was legally unable to give or to withhold consent to sexual intercourse.”
However, said the magistrate, the youth was able to understand the difference between right and wrong “and the importance of the truth despite his mental disability”.
The boy said he was accosted by the two brothers who assaulted him and took turns raping him before leaving him on the side of the road. When he eventually made his way home, his foster mother called the police and he was taken to see a doctor. He was bleeding from the attack.
On the J88 report, which was completed by Mukombe at Ceres Hospital, the state applied for “an exception to the best-evidence rule for the report to be accepted into evidence as Mukombe was not available to testify”.
The key document recording medical evidence that may be needed to obtain a conviction in an assault case is the J88 form – the most important written evidence of the medical indications that a rape may have taken place.
Saldanha detailed the challenges in trying to bring Mukombe in.
“Initially it appeared he was unable to attend court because his wife had given birth but he had since not been available at all. The prosecutor claimed he had stopped replying to e-mails from the state, which had also been unable to obtain an address to serve a subpoena.
“The prosecutor also sent e-mails requesting certain information but he was not forthcoming…the state had even motivated for an airline ticket for him to travel from the Eastern Cape. She claimed he had not responded at all.”
A Dr Crous eventually had to be called in to testify.
The report contained a litany of mistakes, Mukombe’s handwriting was illegible, and certain sections were left blank.
“In respect of the complainant’s mental health and emotional status, the abbreviation ‘NAD’ was noted which in medical terms referred to ‘no abnormalities detected’. In respect of clinical evidence of drugs and alcohol, Mukombe noted ‘none’,” Saldanha said, despite the victim admitting to taking drugs before the assault.
“When asked by the regional magistrate… whether there had been a proper digital examination by Mukombe of the complainant, the response from Crous was that she did not want to speculate but from the J88 report, it appeared to be unlikely.”
In their defence, the brothers testified they knew the victim to varying degrees. One claimed he had been assaulted by the victim some months before, while the other said he had briefly interacted with him earlier on the day. Both denied gang-raping the boy, claiming they were home on the night of the attack.
In his judgment rejecting the brothers’ application, Saldanha said he was “satisfied the regional magistrate had correctly rejected the version of the appellants as not being reasonably possibly true”.
He said he was “more than satisfied the state has proved beyond reasonable doubt the rape by each of the appellants”.
“They abused their power over him and sought to humiliate him in the most gruesome and brutal of ways by the sexual assault. The complainant remains scarred for life.”
Saldanha was scathing of Mukombe’s “apparent lack of professional conduct” and “poor quality” of his report. He said it was apparent from the J88 report submitted that “Mukombe had paid scant regard to the complainant in his examination”.
“The manner in which he filled in the J88 and his examination of the complainant at the hospital left much to be desired.
“He has seriously compromised the state’s case and had it not been for the credible and expert testimony of Crous, the state would have been left with little more than an unintelligible J88 filled in by Mukombe. He moreover failed and/or refused to attend court to testify.
“…the concerns raised about his conduct are of such a serious nature that the state is directed by this court to refer the concerns to the HPCSA for a thorough investigation. The court therefore directs that a copy of the J88 and this judgment and the record be provided to the [council] for their consideration and investigation of Mukombe’s conduct.”
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