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[2019] ZAKZPHC 8
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Sangweni v S (AR 220/2018) [2019] ZAKZPHC 8; 2019 (1) SACR 672 (KZP) (1 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
REPORTABLE
CASE
NO:
AR
220/2018
In the matter between:
SANDILE
MBUYAZWE GXABA SANGWENI
Appellant
and
THE
STATE
Respondent
ORDER
The
appeal succeeds and the conviction and sentence are set aside.
JUDGMENT
Delivered
on:
01
March 2019
PLOOS VAN AMSTEL J
(GYANDA J concurring)
[1]
The appellant in this matter was found guilty by a regional
magistrate of rape in
contravention of section 3 of the Criminal Law
(Sexual Offences and Related Matters) Act 32 of 2007, and sentenced
to imprisonment
for life. The appeal before us is in respect of both
the conviction and sentence.
[2]
The basis of the charge was that during the period 2012 to 2015 the
appellant had
committed acts of sexual penetration with a young girl,
who was born on 6 March 2003. I shall refer to her as ‘the
complainant’.
The evidence was that the appellant was related
to the complainant’s father, and from time to time visited them
to have tea
and watch television in a separate rondavel occupied by
her and her brother. It was alleged that on some occasions he would
switch
off the light in the rondavel so as to create the impression
that he had left, but would then get under the blankets with the
complainant
and have sexual intercourse with her. She was nine years
old when this happened for the first time. She also described an
incident
(the last one) where the appellant entered a room where she
was helping with the laundry. She said he threw her on the bed,
unzipped
his pants and had sexual intercourse with her. He warned her
not to tell anyone and threatened to kill her if she did.
[3]
The complainant later went to Johannesburg and stayed with a
relative. By then she
was 12 years old. She wrote a letter to her
sister and told her what the appellant had done to her. The relative
who she was staying
with, who was the appellant’s cousin,
discovered the letter amongst the complainant’s clothes. She
took her to a doctor
to be examined and reported the matter to the
police. This led to the appellant’s arrest. I should add that
in his evidence
the appellant admitted that he used to visit the
complainant’s family, but denied that he ever interfered with
her.
[4]
Counsel for the appellant submitted that the complainant’s
evidence was inadmissible
as it had not been established that she was
a competent witness. The basis for this submission was that the
magistrate had failed
to establish that she understood the difference
between the truth and lies, and the consequences of telling lies.
[5]
The context here is section 164(1) of the
Criminal
Procedure Act
[1]
,
which provides as follows: ‘Any person, who 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’.
[6]
In
DPP v
Minister of Justice and Constitutional Development
[2]
Ngcobo J said it is
implicit, if not explicit, in the proviso that the person must
understand what it means to speak the truth.
If the child does not
understand what it means to speak the truth, the child cannot be
admonished to speak the truth and is therefore
an incompetent witness
and cannot testify. In
S
v V
[3]
Rose Innes J said a witness cannot be admonished to speak the truth
unless she comprehends what it is to speak the truth and to
shun
falsehood in her evidence.
[7]
The complainant was 13 years old when she testified. The magistrate
asked her whether
she knew what it meant to take the oath and whether
she knew the consequences of taking the oath. She replied that she
knew the
oath, but did not know what the consequences would be ‘after
taking the oath’. The magistrate then asked her whether
she
knew the difference between telling lies and telling the truth. She
answered ‘Yes’. He then proceeded to admonish
her to tell
the truth.
[8]
I am satisfied that the magistrate was correct in not administering
the oath to the
complainant. The question however is whether he did
enough to establish that she understood the difference between
telling the
truth and telling lies, and the potential consequences of
telling lies.
[9]
In
The
South African Law of Evidence
[4]
the learned authors say there is no particular age beyond which
children are competent to give evidence on oath. They refer to
a
judgment in which the court said this ‘depends upon the sense
and reason they entertain of the danger and impiety of falsehood,
which is to be collected from the answers to questions propounded by
the court’.
[5]
In S v
QN
[6]
Gorven J, writing for a Full Court, said in essence there is a need
to establish whether or not the child is capable of distinguishing
between truth and falsehood. He added that the court must be
satisfied that the witness understands that an adverse sanction will
generally follow the telling of a lie.
[10]
In
DPP
Ngcobo J said
[7]
the practice
followed in courts is for the judicial officer to question the child
in order to determine whether the child understands
what it means to
speak the truth. He explained that the reason for evidence to be
given under oath or affirmation or for a person
to be admonished to
speak the truth is to ensure that the evidence given is reliable.
Knowledge that the child knows and understands
what it means to tell
the truth gives the assurance that the evidence can be relied upon.
It is in fact a pre-condition for admonishing
a child to tell the
truth that the child can comprehend what it means to tell the truth.
The evidence of a child who does not understand
what it means to tell
the truth is not reliable. It would undermine the accused’s
right to a fair trial were such evidence
to be admitted.
[11]
The single question by the magistrate whether the complainant knew
the difference between telling
lies and telling the truth, without
more, was not enough to establish that she understood what it means
to speak the truth, that
it is important to speak the truth and that
it is wrong to tell lies. The result is that she could not have been
admonished to
speak the truth, and was not a competent witness. Her
evidence was therefore inadmissible, and the conviction cannot stand.
[12]
The appeal succeeds and the conviction and sentence are set aside.
Ploos
van Amstel J
Appearances:
For
the Appellant
:
P Mkumbuzi
Instructed
by
: Durban
Justice Centre
c/o Pietermaritzburg
Justice Centre
For
the Respondent
: J Sibanyoni
Instructed
by
:
The Director of
Public Prosecutions
:
Pietermaritzburg
Date
of Judgment
:
01 March 2019
[1]
Act 51 of 1977
[2]
DPP v Minister of Justice and
Constitutional Development
2009
(4) SA 222
(CC) para 163
[3]
S v V
1998 (2) SACR 651
(CPD) at 652 h-i
[4]
The South African Law of Evidence
3
rd
ed, Zeffert and Paizes, at 935.
[5]
R v Brasier
(1779) 1 Leach 199, 168 ER 202.
[6]
S v QN
2012 (1) SACR 380
(KZP) para 11.
[7]
Fn 2 para 164 and 165