Brief Summary

Criminal Law — Rape — Appeal against conviction and sentence — Appellant convicted of rape of a minor and sentenced to life imprisonment — Appellant contending trial court failed to properly assess complainant's competency to testify and the evidence presented — Complainant, a child, lacked formal education and was not properly admonished regarding the oath — Court held that failure to assess the complainant's understanding of the oath rendered her testimony inadmissible, impacting the conviction — Appeal upheld, conviction and sentence set aside.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an appeal to the High Court of South Africa, Eastern Cape Division, Makhanda, arising from criminal proceedings in the Regional Court, Queenstown. The appellant, Asanda Ngxabazi, had been tried together with a co-accused on a charge of rape in contravention of section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, read with section 51(1) of the Criminal Law Amendment Act 105 of 1997 (minimum sentence provisions). He was convicted and sentenced to life imprisonment.

The appeal was initially directed against sentence only, relying on the appellant’s automatic right of appeal. The appellant thereafter filed an amended notice of appeal extending the appeal to include the conviction.

The dispute concerned the admissibility and competence-related formal validity of the evidence of two child witnesses (including the complainant) and, consequentially, whether the remaining evidence could sustain the conviction. The appeal further implicated issues of fair trial compliance in the manner the child witnesses’ evidence was received.

2. Material Facts

The complainant, NS[...], was a child who had not attended school and was illiterate. No birth certificate was produced, but it was admitted that she was between 13 and 14 years old at the time of the alleged offence. At the time she testified, her age was recorded as being calculated at about 16 (the trial court later sought clarity on her age, and she stated she was born in 1999 but did not know the date).

On the early evening of 1 May 2012, NS[...] went to a tavern (“Molly’s place”) looking for her grandmother and aunt. She found them drinking and later accompanied them to another location where they continued drinking at a house. As it grew dark, she indicated she wanted to go home, but the grandmother and aunt refused to leave and instructed NS[...] to carry a box of wine home. She left alone carrying it.

On her way, she encountered the appellant with a group of young men. On the complainant’s version, the appellant grabbed her, she screamed, and he assaulted her with a pipe and dragged her while the other young men insulted her. She was taken to a house where a girl, ZM[...], opened. NS[...] was made to sit and drink wine, and she was assaulted when she did not comply.

According to NS[...], once intoxicated she was pulled towards a bedroom where the appellant raped her. Other young men entered, and one was instructed by the appellant to have sexual intercourse with her, which occurred. NS[...] described being scared and unable to resist.

Afterwards she dressed, encountered ZM[...] sleeping, and later left. On the way home she met her grandmother and aunt who were looking for her and she reported what had happened. A police van passed, was stopped, and the matter was reported, leading to a case being opened.

A doctor, Dr Mabele, examined NS[...] on 2 May 2012. The J88 medical report was handed in by consent. It recorded no trauma to the body or bones but recorded bruising on the genitals. The conclusion was that the findings were consistent with sexual activity and forceful vaginal penetration. A DNA sample was also taken.

A DNA forensic analysis was also admitted by consent. The analyst confirmed that the DNA sample obtained from NS[...]’s underwear matched the appellant.

Two important features of the evidentiary record were treated by the appeal court as material to the outcome. First, the appellant did not testify. Second, the trial court declared a young man who accompanied the complainant partway home a hostile witness, and his evidence was disregarded by the trial court.

The appeal court treated as dispositive that both the complainant and ZM[...] were minor children, that they were sworn in to testify, and that the record did not reflect the legally required enquiry into their competence and ability to take the oath (or, if appropriate, the basis for admonition).

3. Legal Issues

The central legal questions were whether the trial court complied with the statutory requirements governing the reception of evidence from child witnesses, specifically whether it properly ensured that the complainant and ZM[...] were validly placed under oath (or properly admonished) in accordance with the Criminal Procedure Act 51 of 1977.

This raised a question primarily of law and procedure—namely the legal effect of non-compliance with the peremptory provisions regulating oaths, affirmations, and admonitions, and whether such non-compliance renders testimony inadmissible and devoid of the status of evidence.

A consequential question of application of law to fact was whether, once the evidence of the two child witnesses was treated as inadmissible, the remainder of the evidence (including the aunt’s testimony, the J88 medical report, and DNA evidence) was sufficient to support the appellant’s conviction beyond reasonable doubt.

Although the appeal papers also attacked the sentence of life imprisonment as inappropriate, the determinative issue became whether the conviction itself could stand. Once that failed, the sentence necessarily fell away.

4. Court’s Reasoning

The court began by setting out the statutory framework in the Criminal Procedure Act 51 of 1977. It emphasised that, while section 192 establishes general competence and compellability (subject to section 206), and section 193 obliges a court to decide competence and compellability when in issue, the giving of testimony is ordinarily regulated by the peremptory requirement in section 162 that witnesses be examined under oath, subject to the exceptions in sections 163 and 164.

The court reiterated the settled principle (supported by authority cited) that testimony from a witness who has not been properly sworn in, has not properly affirmed, or has not been properly admonished under the statutory scheme, lacks the status and character of evidence and is inadmissible. It treated compliance with the statutory machinery as essential because the oath is intended to ensure an appreciation of the seriousness of testimony and to provide a sanction against untruthfulness, but these purposes cannot be achieved where the witness lacks the necessary capacity.

A core part of the analysis concerned section 164(1), which permits evidence without oath or affirmation where a witness, due to youth, limited education, or other cause, is found not to understand the nature and import of the oath/affirmation, provided the witness is admonished to speak the truth. The court emphasised that the words “is found” have been interpreted to require a proper enquiry to determine whether the witness understands the oath, and (as distinct inquiries) whether the witness can distinguish between truth and falsity (competence) and whether the witness understands the nature and import of the oath (whether oath/affirmation is appropriate versus admonition).

Against this legal background, the court rejected the State’s submission that the appeal court was not positioned to question the trial court’s approach because the trial court saw and heard the complainant and because her account was said to be clear. The court treated the existence of a clear narrative as not determinative of whether the required statutory enquiries were conducted and properly reflected.

The court considered differing views in the authorities about whether an investigation is always required before administering an oath to a child witness, but relied on more recent authority, including Tshimbudzi v The State, which held that given the complainant’s minority, it was essential for the presiding officer to make enquiries to satisfy himself that the child understood the distinction between truth and lies and, if so, whether the child understood the nature and import of the oath; the failure to conduct these enquiries rendered the complainant’s evidence inadmissible.

Turning to the record, the court held that it did not substantiate the proposition that the trial court had satisfied itself that NS[...] understood what it meant to tell the truth or understood the nature and import of the oath. The record reflected the trial court’s awareness of the complainant’s minor status and, from the outset, her lack of schooling and illiteracy, yet it contained no reflection of the requisite enquiries under sections 162 and 164.

The court treated this as a serious misdirection: the trial court effectively assumed that an illiterate minor child understood the nature and import of the oath. The court further noted that the same problematic approach had been followed in relation to ZM[...], also a minor child witness, whose ability to take an oath was similarly not assessed on the record. On that basis, and following the cited authority, it concluded that the testimonies of both NS[...] and ZM[...] should have been ruled inadmissible because they lacked the character and status of evidence.

The court then addressed whether the conviction could nonetheless be sustained on the remainder of the evidence. It dealt with the aunt’s evidence that NS[...] reported the incident at the first reasonable opportunity and appeared distressed, noting that section 58 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act concerns the admissibility of previous consistent statements by a complainant in sexual offence proceedings. However, the court reasoned that, absent admissible evidence from NS[...] herself, the aunt’s evidence carried no probative weight in the proceedings (as framed by the court’s analysis), and the medical report was said to be not substantiated by salient facts in the absence of admissible viva voce testimony by the complainant. The court therefore found that the remaining evidence did not support the conviction.

Although not treated as the dispositive ratio for setting aside the conviction, the court also expressed concern about the manner in which the children testified. It noted from the record that both child witnesses were uneasy, that at points they were emotionally distressed, and that the matter raised concerns about the protective purpose of section 170A of the Criminal Procedure Act (intermediary measures to prevent undue mental stress or suffering). Relying on constitutional and other authority, it stated that in every case involving a child witness the court is required to enquire into the desirability of appointing an intermediary, and it criticised the “haphazard” manner in which the children’s evidence was obtained, including that they initially testified in open court without intermediary assistance or closed-circuit television.

These findings led the court to conclude that the appeal against conviction and sentence had to succeed.

5. Outcome and Relief

The court upheld the appeal.

It set aside both the appellant’s conviction and sentence.

It further ordered that the immediate release of the appellant be expedited.

No separate costs order was recorded in the order as set out in the judgment.

Cases Cited

S v Matshiva 2014 (1) SACR 29 (SCA).

Henderson v S 1997 (1) All SA 594 (C).

S v Bezuidenhout 2002 (4) All SA 230F.

S v Pienaar 2001 (1) SACR 39 (C).

S v Malinga 2002 (1) SACR 615 (N).

S v N 1996 (2) SACR 225 (C).

S v B 2003 (1) SACR 52 (SCA); 2003 (1) SA 552.

Tshimbudzi v The State (137/2012) [2012] ZASCA.

SJ v S (CA&R 26/21) [2022] ZAECBHC 44; 2023 (1) SACR 380 (ECB) (6 December 2022).

S v M 2018 (2) SACR 573 (SCA).

Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development and others 2009 (2) SACR 130 (CC).

S v Elton Lenting and 19 others (Case no: CC08/2019, unreported judgment delivered on 14 September 2023).

Legislation Cited

Criminal Procedure Act 51 of 1977 (sections 162, 163, 164, 170A, 192, 193, 206, 309(1)(a)).

Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (sections 3 and 58).

Criminal Law Amendment Act 105 of 1997 (section 51(1)).

Criminal Law Amendment Act 12 of 2021 (referenced in relation to amendments to section 170A of the Criminal Procedure Act 51 of 1977).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that the trial court failed to conduct and reflect on the record a proper enquiry to determine whether the complainant and another child witness understood the distinction between truth and falsity and, if competent, whether they understood the nature and import of the oath. Because the statutory requirements governing oath/affirmation/admonition were not complied with, the testimony of both child witnesses lacked the status of evidence and was inadmissible.

The High Court further held that, once the inadmissible evidence was disregarded, the remaining evidence did not sustain the conviction. The appellant’s conviction and life sentence were therefore set aside, and his release was ordered to be expedited.

LEGAL PRINCIPLES

Evidence in criminal proceedings must ordinarily be given under oath as required by section 162 of the Criminal Procedure Act 51 of 1977, subject to the statutory exceptions permitting affirmation or admonition.

Where a witness, due to youth, limited education, or other cause, does not understand the nature and import of the oath or affirmation, section 164(1) permits the witness to testify without oath/affirmation only if the witness is properly admonished to speak the truth. The statutory language requiring that the witness “is found” not to understand the oath/affirmation indicates that a proper enquiry must be conducted to determine whether oath, affirmation, or admonition is appropriate.

An enquiry into whether a child witness can distinguish between truth and falsity is a competence enquiry, whereas whether the witness understands the nature and import of the oath/affirmation is a distinct enquiry determining the appropriate form in which evidence may be received (oath/affirmation versus admonition).

If a witness is not properly sworn in, has not properly affirmed, or has not been properly admonished in terms of the Criminal Procedure Act, the testimony lacks the status and character of evidence and is inadmissible, with potentially decisive consequences for the sustainability of the conviction.

In trials involving child witnesses, section 170A of the Criminal Procedure Act 51 of 1977 is directed at preventing undue mental stress or suffering, and authority cited in the judgment supports that courts should raise and consider the need for intermediary assistance where a child is to testify, even if not raised by the prosecution.

Ngxabazi v S - Appeal (CA&R 188/19) [2023] ZAECMKHC 124 (7 November 2023)