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[2017] ZASCA 71
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S v Pilane (1362/16) [2017] ZASCA 71; 2017 (2) SACR 154 (SCA) (1 June 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1362/16
In
the matter between:
THE
STATE
APPELLANT
and
NKOKETSANG ELLIOT
PILANE RESPONDENT
Neutral
Citation:
The
State v Pilane
(559/16)
[2017] ZASCA 71
(1 June 2017)
Coram:
Cachalia and Wallis
JJA and Molemela, Gorven and Mbatha AJJA
Heard:
3 May 2017
Delivered:
1 June 2017
Summary:
Witnesses
in criminal trial: administration of the oath: may be administered by
interpreter: s 165 of
Criminal Procedure Act 51 of 1977
ORDER
On
appeal from
North
West Division of the High Court, Mahikeng (Hendricks J and Djaje AJ
sitting on appeal from the regional court).
1 The appeal is upheld.
2 The order of the high
court is set aside.
3 The conviction and
sentence imposed by the regional court are reinstated.
4 The matter is remitted
to the high court for the appeal to proceed on the merits.
JUDGMENT
Molemela
AJA (Cachalia and Wallis JJA and Gorven and Mbatha AJJA concurring):
[1] Mr Nkoketseng Elliot
Pilane (the respondent) was convicted of rape in the Rustenburg
Regional Court (the regional court) and
sentenced to 10 years’
imprisonment. The respondent subsequently appealed to the North West
Division of the High Court (Hendricks
J and Djaje AJ) (high court).
The high court found that insofar as the oath taken by the three
witnesses for the state was administered
by the interpreter and not
the judicial officer, it had been done irregularly. It consequently
considered the evidence of such
witnesses to be unsworn and therefore
inadmissible. It held that by allowing the court interpreter to
administer the oath, the
regional court had committed an irregularity
that vitiated the proceedings. It consequently set aside the
conviction and sentence
imposed by the regional court.
[2]
Aggrieved by the high court’s decision, the Director of Public
Prosecutions (DPP) subsequently applied to this court for
special
leave to appeal, on a question of law in terms of s 311 of the
Criminal Procedure Act 51 of 1977 (CPA), against the high
court’s
judgment. Special leave to appeal was granted on a limited basis. The
point of law to be decided upon was identified
as ‘the
interpretation of s 165 of the CPA: the swearing in of witnesses by
an interpreter ─ does that constitute a
proper administration
of the prescribed oath?’
[3]
The crisp issue to be decided is whether the fact that the witnesses
testifying against the respondent were sworn in by the
interpreter at
the regional court constituted a proper administration of the
prescribed oath. If it did not, then the evidence
must be treated as
unsworn.
[4] In dealing with the
point of law raised in this matter, it is important to examine a few
applicable sections of the CPA. Section
161 provides that unless
otherwise provided in any other section of the CPA or in terms of any
other law, a witness shall give
evidence orally at criminal
proceedings. Section 162 requires a witness to testify under oath and
stipulates how the oath must
be administered. It provides as follows:
‘
162
Witness
to be examined under oath:-
(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.”
(2)
If any person to whom the oath is administered wishes to take the
oath with uplifted hand, he shall be permitted to do so.’
[5]
In terms of s 163, a witness who objects to taking the prescribed
oath or who does not consider it binding on their conscience
shall
instead make an affirmation prescribed in that section. Section 164
makes provision for a judicial officer to admit the evidence
of a
witness who is unable to understand the import of the oath or
affirmation if that judicial officer has admonished the witness
to
tell the truth.
[6] The key provision, s
165 of the CPA, provides as follows:
‘
Oath,
affirmation or admonition may be administered by or through
interpreter or intermediary
Where
the person concerned is to give his evidence through an interpreter
or an intermediary appointed under section 170A (1), the
oath,
affirmation or admonition under section 162, 163 or 164 shall be
administered by the presiding judge or judicial officer
or the
registrar of the court, as the case may be, through the interpreter
or intermediary
or
by the interpreter or intermediary in the presence or under the eyes
of the presiding judge or judicial officer, as the case
may be
.’
(My emphasis.)
[7]
The high court did not refer to s 165 in its judgment. Counsel for
the respondent pointed out that the text of s 165 that was
referred
to the high court during the appeal hearing was as set out in a
leading text-book which, at the time, had omitted the
words
‘
or
by the interpreter or intermediary in the presence or under the eyes
of the presiding judge or judicial officer, as the case
may be.
’
Once s 165 is read
with the inclusion of the words ‘
or
by the interpreter or intermediary in the presence or under the eyes
of the presiding judge or judicial officer, as the case
may be’,
it
is plain that this is a procedure expressly authorised by the CPA
.
It also accords with long-established practice in criminal courts at
all levels throughout South Africa.
[8] It is common cause
that in this case the oath was administered to the witnesses by the
interpreter in the presence of the judicial
officer, as appears from
the following passages in the record:
‘
Court
:
Full names and surname?
Witness
:
….
Court
:
Let her take the oath.
Interpreter
:
Sworn in, Your Worship.’
The part relating to the
complainant’s resumption of her evidence after an adjournment
is captured as follows in the transcript:
‘
Court
:
The witness is still under oath.
Interpreter
:
Confirmed, Your Worship.’
The
same procedure was followed in respect of the other witnesses.
[9]
Counsel
for the respondent contended that the high court had correctly relied
on this court’s judgment in
Matshivha
v The State
[1]
in concluding that the oath had not been properly administered.
Matshivha
dealt
with the admissibility of the evidence of a young witness. This court
dealt comprehensively with the interpretation of s 162
read with s
164
.
No
reference whatsoever was made to s 165 or to the involvement of an
interpreter in the swearing in of a witness in that judgment.
Matshivha
is thus distinguishable. The high court’s reliance on that
judgment was therefore misplaced.
[10]
The respondent’s counsel also submitted that the administration
of the oath can only take place in the presence of the
judicial
officer if the latter is aware of the content of the oath being
administered by the interpreter. He argued that before
the oath is
administered, the responsibility resting on the shoulders of the
judicial officer is to satisfy himself or herself
that the witness
who is about to testify does not fall into the category of those who
may, instead of being sworn in, affirm in
terms of s 163 or are
admonished as contemplated in s 164. This, so the argument went,
could be done by posing certain questions
to the witness. He further
submitted that the judicial officer must first ask the witness
whether they have any objection to taking
the prescribed oath and
then enquire whether they regard the oath as binding on their
conscience.
[11]
The difficulty with this interpretation is that it imposes a burden
on the judicial officer that is not a requirement in the
CPA. Section
163(1) of the CPA contemplates that it is the witness who will raise
an objection they may have to taking the oath.
In the absence of
objection, the oath may simply be administered and the court accepts
that the witness regards the oath as binding
on their conscience.
None of the provisions of the CPA stipulate that the administration
of the oath must ordinarily be preceded
by any enquiry on the part of
the judicial officer. The enquiries suggested by counsel are
sometimes made before the oath is administered,
but it is not a
defect in the proceedings if they are not made.
[12]
Another contention advanced by the respondent was that s 165 enables
the judicial officer to administer the oath through the
interpreter,
but does not authorize the judicial officer to instruct the
interpreter to administer the oath on his own. This contention
lacks
merit, as it simply disregards the words ‘or by the
interpreter’ in the last part of s 165. It was also submitted
that an interpretation that accepted that an interpreter has the
authority to administer the oath is flawed, as it is tantamount
to
the judicial officer abdicating his responsibility to an interpreter.
As authority for this submission, counsel relied on the
following
remarks made by this court in
Motsisi
v The State:
[2]
‘
The
duty to ensure that a witness has properly taken the oath,
affirmation or admonition is imposed on a presiding judicial officer.
It
is the judicial officer who has to be satisfied that the witness
comprehends what it means to speak the truth. The fact that
a
judicial officer may utilise the services of an interpreter or an
intermediary or a registrar of the court to communicate with
a
witness does not relieve the judicial officer of the duty to perform
this function, but what it does is that it provides the
judicial
officer with a means of utilising the assistance of these
functionaries to perform his or her functions. Their vital role
is
limited to ensuring, because of their skill,
“
that
questions by the court to the child [witness] are conveyed in a
manner that the child [witness] can comprehend and that the
answers
given by the child [witness] are conveyed in a manner that the court
will understand”’.
[13]
Those remarks pertained to the enquiry that a court must embark upon
prior to admonishing a witness as contemplated in s 164.
When read in
their proper context, they do not support the respondent’s
argument. The provisions of s 164 are not applicable
in this matter.
To the extent that counsel also purported to rely on this court’s
judgment in
S
v Machaba & another
,
[3]
that case dealt with the provisions of s 162. The provisions of s 165
were not referred to at all in that matter. Counsel’s
reliance
on o
biter
dicta
made in a different context is equally misplaced.
[14]
Where a witness testifies through the interpreter, the interpreter is
empowered to administer the oath if the judicial officer
so prefers
and if the interpreter does so in the presence or under the eyes of
such judicial officer. In doing so, judicial officers
are not
abdicating their responsibilities; they are doing what is permissible
in terms of the CPA. The phrase ‘in the presence
or under the
eyes of the presiding judge or judicial officer’ reflects the
legislature’s intention to ensure that the
process unfolds
under the observation of the judicial officer. As correctly mentioned
in
S
v Mahlaba & others,
[4]
s 165
complements s 162 by extending the authority to administer the oath,
affirmation and admonition to sworn interpreters
[5]
and intermediaries, if witnesses that are about to be examined
testify through them. The swearing in of witnesses under those
circumstances constitutes a proper administration of the prescribed
oath.
[6]
[15]
For all these reasons, it follows that the appeal must succeed. The
merits of the appeal were not considered by the high
court, as it
took the view that there was no admissible evidence. Consequently,
the conviction and sentence imposed by the regional
court must be
re-instated and the case remitted to the high court for a hearing of
the appeal on the merits.
[16] In the result, I
grant the following order:
1 The appeal is upheld.
2 The order of the high
court is set aside.
3 The
conviction and sentence imposed by the regional court are reinstated.
4 The matter is remitted
to the high court for the appeal to proceed on the merits.
____________________
M
B Molemela
Acting Judge of Appeal
Appearances:
For Appellant: N J
Carpenter (prepared heads)
J
Neveling (appeared)
with
him D G Jacobs)
Instructed by: National
Director of Public Prosecutions, Mmabatho
National
Director of Public Prosecutions, Bloemfontein
For Respondent: J
Engelbrecht SC (with him M Augoustinos)
Instructed by: S C Mosito
Attorneys
c/o
D C Kruger Attorneys, Mahikeng
Symington
& De Kok Attorneys, Bloemfontein
[1]
Matshivha v The
State
[2013] ZASCA 124
;
2014 (1) SACR 29
(SCA).
[2]
S v Motsisi &
others
(513/11)
[2012] ZASCA 59
(2 April 2012) at para 15.
[3]
S v Machaba &
another
[2015]
ZASCA 60
;
2016 (1) SACR 1
(SCA) at para 8 & 9.
[4]
Unreported
judgment of FSHC, Case No 42/2015, delivered on 24 May 2016.
[5]
Interpreters who
are in the employ of the Department of Justice are sworn in upon
taking their appointment. Rule 61 (1) of the
Uniform Rules of Court
provides that evidence be given in a language which the court or a
party or its representative does not
understand must be interpreted
by a competent interpreter who has taken an oath ‘to interpret
faithfully and to the best
of his ability in the languages
concerned.’ The oath for interpreters who execute their
functions at the Magistrates’
Court is provided for in Rule 68
of the Magistrates Courts’ Rules. Evidence of a witness who
testifies through an interpreter
that has not been sworn is
inadmissible. See
S
v Naidoo
1962 (2) SA 625
(A);
S
v Kwali
1967 (3) SA 193
(A).
[6]
S v
Maloma
(No A376/2015)
[2015] ZAGPPHC 496 (11 June 2015)
.