The State on Friday argued that the High Court misdirected itself when it acquitted psychiatrist Pieter van der Westhuizen (64), accused of raping one of his patients at his consulting rooms at Swakopmund.
“If many aspects of the victim’s testimony were corroborated before and after the act, how is she not a credible and/or reliable witness when it comes to the sexual act?” questioned State prosecutor Palmer Khumalo.
The prosecution is seeking to be granted leave to appeal High Court judge Eileen Rakow’s August verdict.
Khumalo argued that the victim, who was the State’s only witness, gave a detailed description of what transpired in Van der Westhuizen’s consulting rooms.
“At all material times, the State was obligated to prove a prima facie case. Looking at the evidence presented, the State had a strong prima facie case which could not be disregarded,” he submitted.
According to him, a different court, if presented with the same facts, would arrive at a different conclusion than the one reached by Rakow.
In her judgement, Rakow acquitted Van der Westhuizen on three counts of rape, a charge of indecent assault and a charge of attempted murder, alternatively using drugs to overpower a woman so that he could have unlawful intercourse with her. The incident allegedly occurred on 7 November 2015.
According to Rakow, there was no evidence before the court on which he could be convicted. The court ruled that according to medical witnesses who testified, the victim’s allegations might have been the result of a false memory. Furthermore, Van der Westhuizen had erectile dysfunction in 2015, and it would not have been possible for him to have penetrative intercourse at the time of the alleged incident.
Van der Westhuizen, through his lawyer Stephen Farell, is opposing the State’s application.
According to Farell, the court considered the totality of evidence, and not snippets of it.
“It is clear from the judgement that the court considered the totality of the evidence, which renders the sexual misconduct unbelievable that it cannot holistically constitute a prima facie case,” argued Farell.
He said the State has no prospect of winning in the Supreme Court if they are granted leave to appeal.
The court will give a ruling on 7 December.