Williams v S (CA143/2008) [2009] ZAECPEHC 55; 2010 (1) SACR 493 (ECG) (19 November 2009)

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[2009] ZAECPEHC 55
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Williams v S (CA143/2008) [2009] ZAECPEHC 55; 2010 (1) SACR 493 (ECG) (19 November 2009)

FORM
A
FILING
SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT
PARTIES
:
Case
Number:
CA
143/2008
High
Court:
Grahamstown
DATE
HEARD:
16
November 2009
DATE
DELIVERED:
19
November 2009
JUDGE(S):
Jones,
Chetty and Pillay JJ
LEGAL
REPRESENTATIVES –
Appearances:
for
the Appellant(s):
Adv
Cilliers
for
the Respondent(s):
Adv
Swanepoel
Instructing
attorneys:
Plaintiff(s):
Defendant:
CASE
INFORMATION -
Nature
of proceedings
:
Appeal
Topic:
Key Words:
Criminal
Procedure – Evidence – Witnesses – Calling, examination and
­­­­­­­­­­refutation
of - The
Oath – Admonition to speak the truth – Mere youthfulness can
justify finding that witness did not understand nature
and import of
oath or affirmation due to ignorance arising from youth, defective
education or other cause – Complainant’s evidence
admissible –
Appeal dismissed
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE, PORT ELIZABETH)
Case No: CA 143/2008
In the matter between:
JOSEPH WILLIAMS Appellant
AND
THE STATE Respondent
Coram:
Jones,
Chetty and Pillay JJ
Date Heard:
16
November 2009
Date Delivered:
19
November 2009
Summary:
Criminal
Procedure – Evidence – Witnesses – Calling, examination and
­­­­­­­­­­refutation
of - The
Oath – Admonition to speak the truth – Mere youthfulness can
justify finding that witness did not understand nature
and import of
oath or affirmation due to ignorance arising from youth, defective
education or other cause – Complainant’s evidence
admissible –
Appeal dismissed
________________________________________________________________
JUDGMENT
________________________________________________________________
CHETTY,
J
[1] The appellant was arraigned for
trial in the court below before Van der Byl AJ on charges of rape and
indecent assault. He was
duly convicted on the charge of rape and
sentenced to imprisonment for life. He was found not guilty and
acquitted on the indecent
assault charge by reason of an
insufficiency of evidence which proved the commission of the offence
charged as a separate and distinct
act. The appeal is before us with
leave of the Supreme Court of Appeal on a limited basis, the issue
circumscribed as –
“
Whether in the light
of the applicable constitutional principles and the decisions in S v
B
2003 (1) SA 552
(SCA) and DPP, KwaZulu –Natal v Mekka
2003 (4) SA
275
(SCA), the evidence of the complainant was properly admitted at
the trial of the appellant; and, if not, whether there was sufficient

evidence to sustain the conviction; and, if not, what the appropriate
order should be.”
[2] The Constitution guarantees an
accused the right to a fair trial and implicit therein is the
overriding requirement that evidence
adduced in a criminal trial must
strictly conform thereto. Thus section 35 (5) of the Constitution
requires any evidence to be
excluded if its admission would render
the trial unfair. As Kriegler J pointed out in
S
v Dlamini;
S
v Joubert;
S
v Skietegat;
S
v Dladla
1
–
“
Under the
Constitution the more pervasive and important question is whether the
admission of the resultant evidentiary material
would impair the
fairness of the trial. If it would, the evidence ought generally to
be excluded”
[3] At the same time there may be
occasions where evidence, though technically irregularly received
would nonetheless be admissible
where its exclusion would otherwise
be detrimental to the proper administration of justice. As Kriegler J
himself adverted to in
Key
v Attorney- General, Cape of Good Hope Provincial Division
2
“
[13] In any
democratic criminal justice system there is a tension between, on the
one hand, the public interest in bringing criminals
to book and, on
the other, the equally great public interest in ensuring that justice
is manifestly done to all, even those suspected
of conduct which
would put them beyond the pale. To be sure, a prominent feature of
that tension is the universal and unceasing
endeavour by
international human rights bodies, enlightened legislatures and
courts to prevent or curtail excessive zeal by State
agencies in the
prevention, investigation or prosecution of crime.
It
is that endeavour, in the context of our history of executive
hegemony and the pervading abuse of its power, that inspired the

drafters of the Constitution to opt for a constitutional democracy
with a detailed and fully justiciable chapter of rights. That
is
manifest in chap 3 of the Constitution, especially when read in
conjunction with the Preamble and Postscript. It was also the

inspiration for many of the specific rights enunciated in the
chapter. Thus s 8(1), the very first of the array of rights, speaks

of 'equal protection of law'. A principal aim of the chapter was to
protect the individual against the State. This is apparent
from s 11
(freedom and security of the person), s 13 (privacy), s 16 (assembly,
demonstration and petition) and especially s 25,
which affords
detained, arrested and accused persons a formidable array of
safeguards against invasion of their basic right to
fair treatment.
But none of that
means sympathy for crime and its perpetrators. Nor does it mean a
predilection for technical niceties and ingenious
legal stratagems.
What the Constitution demands is that the accused be given a fair
trial. Ultimately, as was held in
Ferreira
v Levin
,
fairness is an issue which has to be decided upon the facts of each
case, and the trial Judge is the person best placed to take
that
decision.
At times fairness
might require that evidence unconstitutionally obtained be excluded.
But there will also be times when fairness
will require that
evidence, albeit obtained unconstitutionally, nevertheless be
admitted.”
[4] The appellant’s conviction
flowed largely from the trial court’s acceptance of the
complainant’s direct testimony that
the appellant had raped her.
The learned judge found corroboration for such evidence in the
testimony of the complainant’s mother
and the medical evidence. It
is common cause that the complainant’s evidence was not however
tendered under oath, a clear infraction
of the peremptory provisions
of section 162 (1) of the
Criminal
Procedure Act
(the Act)
3
which provides as follows –
“
(1) Subject to
the provisions of sections 163 and 164, no person shall be examined
as a witness in criminal proceedings unless he
is under oath, which
shall be administered by the presiding judicial officer or, in the
case of a superior court, by the presiding
judge or the registrar of
the court, and which shall be in the following form:
'I
swear that the evidence that I shall give, shall be the truth, the
whole truth and nothing but the truth, so help me God.'.”
[5] What in fact occurred appears from
the transcript of the proceedings as follows –
“
HOF
:
U naam is Marinda Wewers, is dit reg? --- My naam is Marinda Wewers.
Weet u dat u vandag
by ‘n hof is? Ek kan nie hoor wat sy sê nie, dra asseblief
vir my oor wat sy sê? --- Sy sê
sy ken nie die plek se
naam nie.
Ek hoor nog steeds
nie, wat sê u nie? --- Sy sê sy ken nie die plek se naam
nie.
ME SWANEPOEL:
Mevrou kan u dalk die volume so bietjie harder stel? --- Is dit
beter?
HOF:
Kan ek maar vir u sê? Marinda, jy is vandag hier by ‘n hof.
---Ja.
Weet
u hoekom u hier is? --- Ja mevrou.
Gaan u skool? ---
Ja mevrou.
In watter standerd
is u? --- Graad 3.
Ek kan nie hoor
nie? --- (Graad 3 meneer)
Weet u wat dit
beteken om die waarheid te vertel? --- Ja.
En weet u wanneer
‘n mens ‘n leuen vertel? --- Ja.
Nou goed, u moet
alles wat u vandag hier vir my sê, moet die waarheid wees.
Verstaan u? --- Ja.
HOF:
Goed
sy is gewaarsku om die waarheid te praat.”
[6] It will be gleaned from the
aforegoing that the admonishment to the complainant that she speak
the truth was done pursuant to
the provisions of section 164 (1) of
the Act which, provided as follows –
“
(1) Any person, who,
from ignorance arising from youth, defective education or other
cause, is found not to understand the nature
and import of the oath
or the affirmation, may be admitted to give evidence in criminal
proceedings without taking the oath or
making the affirmation:
Provided that such person shall, in lieu of the oath or affirmation,
be admonished by the presiding Judge
or judicial officer to speak the
truth, the whole truth and nothing but the truth.”
What the learned judge however
omitted to do was to either conduct an investigation or make a
finding on the question whether or
not the complainant understood the
nature and import of the oath or affirmation due to ignorance arising
from youth, defective
education or other cause as prescribed by the
section aforesaid. Earlier decisions held that such an omission
rendered the evidence
inadmissible
4
.
It is now settled law that such an investigation and finding
thereanent, though preferred, is not required. In
S
v B
5
,
Streicher JA, stated the legal position thus –
“
[15] Dit is
duidelik dat art 164 'n bevinding vereis dat 'n persoon weens onkunde
voortspruitende uit jeugdigheid, gebrekkige opvoeding
of ander
oorsaak nie die aard en betekenis van die eed of die bevestiging
begryp nie. Soos in die geval van 'n aantal vroeëre
uitsprake,
het die Hof
a
quo
beslis
dat die feit dat 'n bevinding vereis word, noodwendig inhou dat 'n
ondersoek die bevinding moet voorafgaan (sien
S
v Mashava
(
supra
op
228
g
-
h
);
S
v Vumazonke
2000
(1) SASV 619 (K) op 622
f
-
g
).
Na my mening is dit 'n te enge uitleg van die artikel. Die artikel
vereis nie uitdruklik dat so 'n ondersoek gehou word nie en
'n
ondersoek is nie in alle omstandighede nodig ten einde so 'n
bevinding te maak nie. Dit kan byvoorbeeld gebeur dat, wanneer
gepoog
word om die eed op te lê of om 'n bevestiging te verkry, dit
aan die lig kom dat die betrokke persoon nie die aard
en betekenis
van die eed of die bevestiging verstaan nie. Die blote jeugdigheid
van 'n kind kan so 'n bevinding regverdig. Na my
mening word niks
meer vereis as dat die voorsittende regterlike amptenaar 'n oordeel
moet vel dat 'n getuie weens onkunde voortspruitende
uit jeugdigheid,
gebrekkige opvoeding of ander oorsaak nie die aard of betekenis van
die eed of bevestiging begryp nie. Hoewel
verkieslik, word geen
formele genotuleerde bevinding vereis nie (sien
S
v Stefaans
1999
(1) SASV 182 (K) op 185
i
).”
In a further judgment clarifying his
earlier order he held that –
“
[3]. . .
1. . . .
Die afwesigheid van
'n bevinding, uitdruklik of stilswyend, deur 'n verhoorhof dat 'n
getuie weens onkunde voortspruitend uit jeugdigheid,
gebrekkige
opvoeding of ander oorsaak, nie die aard en betekenis van die eed of
die bevestiging begryp nie, het noodwendig die
effek dat die
getuienis wat daarna, nadat die getuie gewaarsku is om die waarheid
te praat, nie as getuienis beskou kan word nie
maar nie dat dit by
beoordeling van die meriete van die saak ingevolge art 52(3) van die
Strafregwysigingswet 105 van 1997 geheel
en al buite rekening gelaat
moet word nie. Die afwesigheid van 'n ondersoek om te bepaal of dit
die geval is het egter nie noodwendig
daardie effek nie.'”
[7] The full court of the Supreme
Court of Appeal confirmed the correctness of its judgment in
S
v B
in
Director
of Public Prosecutions, Kwa-Zulu Natal v Mekka
6
where the full court was invited to revisit and depart from the
decision encapsulated in the aforementioned paragraph of the judgment

in
S v B
(
supra
).
Writing for the full court, Streicher JA resisted the invitation,
holding that
S v B
(
supra
)
was correctly decided. The factual matrix which preceded the
magistrate’s admonishment to the complainant in
Mekka
(
supra
)
to speak the truth is analogous to those in
casu
.
The transcript of the proceedings indicates the following exchange
between the magistrate and the complainant –
“
[4] . . .
Court:
M,
how old are you?
.
. .
M:
I'm
nine years.
.
. .
Court:
Do
you go to school?
M:
Yes.
Court:
What
standard are you in or class?
M:
Standard
2.
Court:
You're
a clever girl. All right, do you know the difference between truth
and lies?
M:
Yes.
Court:
What
happens to you at school if your teacher finds out you're telling
lies?
M:
You
get punished.
Court:
All
right, its very important you tell us the truth today in court and
you're warned to tell the truth.'”
[8] As adumbrated earlier the
complainant was ten years of age when she testified. Prior to the
judge ordering that her evidence
be tendered through an intermediary
in terms of section 170A of the Act he had heard the evidence of a
social worker Ms.
Phillips
,
who had interviewed the complainant shortly after the incident as a
prelude to compiling a psycho-social assessment report, admitted
in
evidence as exhibit “A”. Following upon an intensive and
painstaking process at establishing trust between her and the
complainant the latter disclosed fully what had befallen her. Ms.
Phillips
concluded that the complainant
“.
. . is able to distinguish between the truth and a lie. She is able
to distinguish between right and wrong and knows what it
means to
tell a lie. She is able to relate what had happened to her and she is
able to testify with the assistance of an intermediary.
She is a
reliable witness.”
[9] When the complainant was called
upon to testify the uncontroverted evidence of Ms.
Phillips
that the complainant had the intellectual capacity to differentiate
between the truth and a falsehood had already been led and
must
obviously have weighed heavily with the judge. Consequently it is
axiomatic that the judge’s admonishment that the complainant
speak
the truth, flowed directly from his conviction that by reason of her
youth the complainant did not understand the nature
and import of the
oath. Experience shows that even in cases where witnesses are much
older than the complainant the word “oath”
remains a nebulous
concept whereas the invocation to speak the truth is more readily
appreciated and understood. The transcript
demonstrates unequivocally
that the judge was satisfied that the complainant comprehended the
difference between truth and falsehood
and his admonishment that she
speak the truth was in my view sufficient to render the complainant’s
evidence admissible. As
Streicher JA stated in
Mekka
(
supra
)
at para [11] –
“
[11] The fact
that the magistrate, after having established the age of the
complainant, proceeded to enquire whether she understood
the
difference
between truth and lies and then warned her to tell the truth is, in
my view, a clear indication that she considered that
the complainant,
due to her youthfulness, did not understand the nature and import of
the oath. In her additional reasons the magistrate
confirms that to
have been the case. The magistrate did, therefore, make a finding
that the complainant was a person who, from
ignorance arising
from
her youthfulness, did not understand the nature and import of the
oath. The magistrate saw and heard the complainant and this
Court is
in no position to question the correctness of her finding.”
[10] The appeal is dismissed.
­­­­­­­­_______________________
D.CHETTY
JUDGE OF THE HIGH COURT
Jones J,
I agree.
_______________________
R.W.J
JONES
JUDGE OF THE HIGH COURT
Pillay J,
I agree.
_____________________
R
PILLAY
JUDGE
OF THE HIGH COURT
Obo
the Appellant: Adv Cilliers
Obo
the Respondent: Adv Swanepoel
1
[1999] ZACC 8
;
1999 (4) SA 623
(CC) at para
[98]
2
[1996] ZACC 25
;
1996 (4) SA 187
(CC) at para
[13]
3
Act No 51 of 1977
4
See S v Mashara
1994 (1) SACR 224
(T) at 228g-j; S v Vumazonke
2000
(1) SACR 619
at para [10]
5
2003 (1) SA 552
(SCA) at para [15]
6
2003 (4) SA 275
(SCA) at para [11]