- S v Thabani Luthuli Case no: AR 106/2020 High Court in Pietermaritzburg, KZN (KZP)
Mr Thabani Luthuli, the accused, was convicted before the regional court in Ixopo in KZN (“the trial court”) of count 1, housebreaking with the intent to rape, and, count 2, rape. On count 1 the accused was sentenced to three years’ incarceration, and on count 2 he was sentenced to life incarceration by virtue of the fact that the victim of the rape was raped more than once. Both sentences were ordered to run concurrently with each other.
The complainant in this matter was a 53-year-old lady who lived at Ophepheni in southern KZN.
On appeal by the accused against both his convictions and sentences before the High Court in Pietermaritzburg (“the court of appeal”), the court of appeal - in paragraph  of its judgment - remarked that there was no evidence implicating the accused in the offences concerned. Accordingly, the State/prosecution before the trial court, proceeded its case against the accused solely on the basis of DNA evidence that it acquired. In the result, the court of appeal held that it is accordingly necessary to carefully scrutinise the DNA evidence in fine detail.
The DNA sample taken from the complainant
In paragraphs  to  of its judgment, the court of appeal stated as follows (with a few trifling alterations by Pollex), namely –
“ As stated, a DNA sample was taken from the complainant by Dr Mjali after the attack on the complainant.
 Dr Mjali testified that she received a sealed DNA sample kit with the outside seal having the number 14D1AC2334JJ. Dr Mjali stated in her evidence that this seal number was recorded at the top of the J88 form that she completed.
 A perusal of the J88 form, received by the trial court as exhibit ‘A’, reflects that the serial number of the seal that she received actually had the number 14D1AC2334. The last two letters of the sequence to which Dr Mjali testified, namely ‘JJ’, did not form part of the serial number that she recorded on the J88 form. Each subsequent witness that testified regarding this sample confirmed the seal number without the letters ‘JJ’. It appears that Dr Mjali was mistaken in her evidence, particularly in view of the fact that she completed the J88 form contemporaneously with her examination of the complainant.
 Dr Mjali testified that after obtaining the DNA sample, she resealed the kit with a new seal which had the number PAD001307586. She handed that sealed kit to Sgt B P Edwards.
 Sgt Edwards was never called to testify. Yet, her sworn statement appears in the record, marked as exhibit ‘D’. There is no record of it ever being handed in as an exhibit. The exhibit ‘D’ to which reference is made in the record is a receipt from the Forensic Science Laboratory. This failure was never addressed at any stage and remains unexplained.
 Const G Magubane testified that he received the exhibit from Sgt Edwards and was requested by her to take it to the Forensic Science Laboratory at Amanzimtoti. He stated that the external seal had the number PA300062554. This was not the same seal number referred to by Dr Mjali. Inside the bag (which was transparent) with that seal number were bags bearing seal numbers PAD001307586 and 14D1AC2334. These accord with the numbers referred to by Dr Mjali. How the seal number PA300062554 came to be applied is unexplained by the State.
 Const Magubane handed the bag in at the Forensic Science Laboratory. W/O Samantha Joan van der Bijl, who is employed at the Forensic Science Laboratory testified that she received a bag with seal number PA3000625554, within which was an inner bag with seal number PAD0013075586 and kit number 14D1AC2334. She later interpreted the results of the tests run on the samples taken from the complainant and the accused.”
And in the ensuing paragraphs  to  of its judgment, the court of appeal stated as follows in respect of the DNA sample taken from the accused, namely –
“ Doctor Nancy Martinez Curbelo who works at the Thuthuzela Care Centre at the Port Shepstone Hospital was requested to take a buccal swab* from the accused on 23 September 2015.
 Dr Curbelo testified that the kit that she received had two seal numbers. The first was 13DBAB4661. The second seal number was PA5002254909. Her section 212(4) of the Criminal Procedure Act 51 of 1977 (‘the CPA’) statement was received by the court as exhibit ‘C’. This was the second exhibit ‘C’ received by the trial court: the first was a statement by Const Gigaba. The trial court appears to have lost track of the numbering of the exhibits that it received. On exhibit ‘C’, Dr Curbelo recorded that the DNA kit had the seal number 13DBAB4661 and that after taking the sample she sealed the kit with seal number PA5002254909.
 The seal number PA5002254909 is never mentioned again by any of the State’s witnesses. What became of the bag with that seal number is accordingly a mystery. The State made absolutely no attempt to clarify this aspect and the trial court itself asked no questions in this regard. Indeed, it seems to have gone completely unnoticed.
 Dr Curbelo stated that she handed over the sealed bag to Const Gigaba. Const Gigaba testified that he received the exhibit from Dr Curbelo and that the seal number on it was 13DBAB4661. He made no reference whatsoever to the seal number PA5002254909. He was not asked any questions in this respect by the State to clarify the position. He took the exhibit back to his office and placed it in a steel filing cabinet that he locked. When he was to send the sample through to the Forensic Science Laboratory, he packed it in another bag with seal number PA5000262423G.
 A number of statements were received by the trial court from Const Gigaba. One related to the receipt by him of the sample from Dr Curbelo. The statement makes no reference to the seal number PA5002254909. It only references seal number 13DBAB4661.
 Const Gigaba handed the sample to Sgt Pillay for conveyance to the Forensic Science Laboratory. Sgt Pillay testified that he had taken a bag with evidence seal number PA5000262423G to the Forensic Science Laboratory for which he received a receipt. The receipt was received as an exhibit by the trial court as exhibit ‘D’.
 The receipt recorded that what was received by the Forensic Science Laboratory bore evidence seal number PA5000262423G.
 W/O Van der Bijl testified that she received an evidence bag with seal number PA5000262423G with kit number 13DBAB4661. The results of the analysis of the sample in this bag were compared with results of the analysis of the sample taken from the complainant.”