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[2018] ZANCHC 47
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National Director of Public Prosecutions v Regional Court Magistrate and Others (1721/2017) [2018] ZANCHC 47 (15 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE HIGH COURT, KIMBERLEY)
Case
no: 1721/2017
HEARD
ON: 07-05-2018
DELIVERED:
15-06-2018
In
the matter between:
The
National Director of Public Prosecutions
Applicant
And
Regional
Court Magistrate:
Memory
Qomoyi
1
st
Respondent
Edward
Vuyisili Tshibidi
2
nd
Respondent
Lethlogonolo
Christopher Kgakane
3
rd
Respondent
CORAM:
WILLIAMS ADJP et OLIVIER J
J
U D G M E N T
WILLIAMS
ADJP
1.
This is a review application in which the
applicant, the National Director of Public Prosecutions (NDPP), seeks
relief in the following
terms:
“
(1)
Reviewing and setting aside the proceedings of the 14
th
and 15
th
March 2017 in case number RCZ 310/2016;
(2)
Reviewing and setting aside the ruling of the 1
st
respondent that the complainant is not a competent witness;
(3)
That the criminal trial should start de novo before a different
magistrate;
(4)
That the respondents be ordered to pay the costs of this application
if it is opposed.
2.
The review application is not opposed by any of
the respondents. Mr Van Tonder however appeared for the 2
nd
respondent in support of the review.
3.
The 1
st
Respondent is Ms Qomoyi, the regional magistrate presiding over the
criminal trial in which the 2
nd
and 3
rd
respondents face charges of rape and kidnapping. It is alleged
in the indictment that the 2
nd
and 3
rd
respondents unlawfully and intentionally deprived the 16 year old
female complainant of her freedom by taking her from the street
into
a shack where they took turns raping her.
4.
The trial commenced in the Regional Court,
Kimberley on 14 March 2017. The 2
nd
and 3
rd
respondents who were both legally represented pleaded not guilty to
the charges. The 2
nd
respondent gave a plea explanation alleging consent, whereas the 3
rd
respondent invoked his right to remain silent.
5.
The first witness called by the state was the
complainant, who by then was 17 years of age. The issues
arising in this review
stem from the 1
st
respondent’s enquiry into the competency of the complainant to
give evidence and the subsequent ruling on 15 March 2017 that
she was
not a competent witness.
6.
The applicant’s grounds for review are to
be found in
section 22(1)
(c) and (d) of the
Superior Courts Act, 10
of 2013
which read as follows:
“
22
Grounds for review of proceedings of Magistrates Courts
(1)
The grounds upon which the proceedings of any Magistrates Court may
be brought under review before a
court of a Division are –
(a)
. . .
(b)
. . .
(c)
Gross irregularity in the proceedings; and
(d)
The admission of inadmissible or incompetent evidence or the
rejection of admissible or competent evidence.”
7.
The ground of gross irregularity in the
proceedings relate to the manner in which the 1
st
respondent conducted the enquiry to determine the complainant’s
competency to testify
inter alia
the manner of questioning the child witness, the failure to consider
the appointment of an intermediary and the involvement of
the 2
nd
and 3
rd
respondents’ legal representatives in the enquiry.
8.
The ground under
section 22(1)
(d) is
self-explanatory and relates to the 1
st
respondent’s rejection of the complainant’s “
competent
evidence”.
9.
It needs to be mentioned from the outset that s
192 of the Criminal Procedure Act 51 of 1977 (the Act) declares
generally that all
persons shall be competent and compellable to give
evidence in criminal proceedings unless expressly excluded by the
Act.
Young children are not so excluded.
10.
Evidence may be given in three ways – under
oath, under affirmation or under admonition, as regulated by sections
162, 163,
and 164 of the Act. Section 163 deals with evidence
under affirmation, which has little relevance
in
casu
and I therefore reproduce only sections
162 and 164.
Section
162 provides as follows:
“
Witness
to be examined under oath
162
(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.”
and
Section
164 the following:
“
When
unsworn or unaffirmed evidence admissible
164
(1) 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.
[Sub-s.
(1) substituted by s 68 of Act No. 32 of 2007.]
(2)
If such person wilfully and falsely states anything which, if sworn,
would have amounted
to the offence of perjury or any statutory
offence punishable as perjury, he shall be deemed to have committed
that offence, and
shall upon conviction, be liable to such punishment
as is by law provided as a punishment for that offence.”
11.
Section 164(1) allows a court to allow a person, who does not
understand the nature or the importance of an oath or a solemn
affirmation, to give evidence without taking an oath or making an
affirmation. However the proviso to the subsection requires
the
presiding officer to admonish the person the speak the truth.
It is implicit if not explicit, in the proviso that the
person must
understand what it means to speak the truth.
The
practise 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. See
DPP v Minister of Justice and
Constitutional Development, and Others
2009(2) SACR 130 (CC) at
186 (b - e).
12.
In order to fully grasp the complaints raised by
the applicant
in casu,
it is unfortunately necessary to reproduce the complete exchange
between the 1
st
respondent and the complainant (who shall be referred to as BK),
after she had entered the witness box.
HOF
:
Volle name en van vir die rekord, asseblief?
BK
:
BK.
HOF
:
Hoe oud is u?
BK
:
17.
HOF
:
BK, voor u kan getuig in ‘n hof moet die hof u insweer, met
ander woorde u moet die eed aflê. Can you
interpret? Weet u wat
dit behels om die eed af te lê?
BK
:
No.
COURT
:
Okay, I am going to do the competency test. I will conduct it in
English, then you can interpret to her. Are you still
at school?
BK
:
Yes.
COURT
:
In which grade are you?
BK
:
10.
COURT
:
Do you know what it is to tell the truth?
BK
:
Ja.
COURT
:
Tell me what it means to tell the truth?
BK: Dit beteken as jy
praat, dan moet jy die hele waarheid sê.
COURT
:
Can you tell me what it is to tell a lie? Or when does a person tell
a lie?
BK
:
As jy geskrik is en as jy nou nie weet wat om te sê nie.
COURT
:
Okay, what is it to tell a lie? I want to know from you if you know
the difference between a truth and a lie. Can
you tell me in your own
words what is the truth and what is a lie?
BK
:
Ek sal nie dit kan antwoord nie.
COURT
:
What is the truth?
BK
:
As jy ‘n persoon, as jy miskien nou iets gesteel het by ‘n
persoon en die persoon bel miskien nou die
Polisie en dit moet nou op
‘n statement kom en jy miskien die waarheid kom praat voor die
hof.
COURT
:
Meaning when you come and tell the truth, what does that mean? What
do you do?
BK
:
Jy sweer voor die magistraat.
COURT
:
Why do you swear?
BK
:
Om die waarheid te vertel.
COURT
:
And when does a person tell the truth? Or what do you mean when you
say that the person will swear to tell the truth?
What is a lie?
BK
:
Leuens, as jy nou leuens vertel vir iemand wat nou niks sin maak nie
of enigiets wat jy van praat.
COURT
:
What is a lie? You can sit down.
BK
:
Ek sal nie kan hierdie question antwoord nie.
COURT
:
The difference between truth and a lie or a falsehood. What is the
difference between the truth? What is the difference
between the two?
BK
:
Waarheid.
COURT
:
What is the difference between the truth and a lie.
BK
:
Dit ...(tussenkoms).
COURT
:
Between telling the truth and telling a lie, which is the correct
thing to do? Look at me.
BK
:
Die waarheid.
COURT
:
Why do you say so?
BK
:
Want dit is beter om die waarheid te praat in ‘n hof in.
COURT
:
Why?
BK
:
As wat jy moet leuens vertel.
COURT
:
Why? Just speak louder.
BK
:
Want ‘n mens weet nooit wat gebeur as jy gaan leuens vertel.
COURT
:
What happens if you tell a lie?
BK
:
Jy word gestraf.
COURT
:
So what is a lie?
BK
:
Jy mag nooit iemand leuens vertel wat altyd die waarheid ken nie.
COURT
:
Can you explain that to me?
BK
:
Ek sal nie kan nie.
COURT
:
If I do not know the truth and I ask you to tell me the truth, does
it mean you can lie to me?
BK
:
Nee.
COURT
:
So why do you say that you cannot lie to somebody who knows the
truth? Can you lie to somebody who does not know the
truth?
BK
:
Nee.
COURT
:
Are you allowed to lie at all?
BK
:
Nee.
COURT
:
What is wrong with lying? Why can I not just lie?
BK
:
Ek sal nie kan antwoord nie.
COURT
:
You have to tell me. I am not going to proceed before you tell me.
You must answer all my questions before we proceed,
otherwise we will
be unable to proceed. So please answer all my questions. Remember you
said when you come to Court you take an
oath – that is what
you said – to tell the truth.
BK
:
Ja.
COURT
:
So what did you mean? How will you take the oath if you cannot tell
me what it means to tell the truth?
BK
:
Ek sal dit nie kan ...(interjection).
COURT
:
Okay. What subjects do you take?
BK
:
Physics, Jogs, History, Maths Lit and Life Science.
COURT
:
Which are your favourite subjects?
BK
:
History and Jogs.
COURT
:
Do you do any languages?
BK
:
Nee.
COURT
:
You do not do English, you do not do Afrikaans?
BK
:
Ek doen dit, ja.
COURT
:
Why did you say no when I asked you if you are doing any languages?
BK
:
Ek het gedog daar was ander soorte tale wat u van praat.
COURT
:
Do you partake in sports?
BK
:
Nee.
COURT
:
If I say that you are 15 years old, will I be telling the truth or
will I be lying?
BK
:
Nie die waarheid nie.
COURT
:
Why do you say so?
BK
:
Because it will not be my age.
COURT
:
Okay, if I say that you are in Grade 12, will I be telling the truth
or will I be lying?
BK
:
Nie die waarheid nie.
COURT
:
Why do you say so?
BK
:
Want ek is nie in daai graad nie.
COURT
:
If I say that you are a girl child, will I be telling the truth or
will I be lying?
BK
:
‘n Waarheid.
COURT
:
Now why did you say I will be lying if I say you are 15 years old?
BK
:
Want dit is nie my age nie en ek is nie daai ouderdom nie.
COURT
:
So what is a lie? If you say I am lying if I say so, what is a lie?
BK
:
‘n Leuens is as jy miskien by die skool is en jy het iets
aangevang en ‘n Juffrou vra jou miskien wat
het jy gedoen en jy
sê nou nie miskien die waarheid nie, dit meen dat jy die
Juffrou gelieg het en dat sy die meneer ...(tussenkoms).
COURT
:
Speak up, everybody must hear you.
BK
:
As jy miskien by die skool is en die Juffrou roep jou en die Juffrou
vra jou wat het aangevang of vra waar is jy en
jy sê miskien
nou leuens vir die Juffrou en jy sê nou miskien die Juffrou
moet jou ma roep en jy roep nie jou ma nie
en dan vra die Juffrou
waar was jou kind of wat het sy gedoen by die huis en jou ma sê
nou miskien die waarheid.
COURT
:
And what is the truth? What do you mean when your mother will be
telling the truth? What is it to speak the truth?
BK
:
Is om altyd die regte goete te praat.
COURT
:
Speak up?
BK
:
Dit is om altyd die regte goete te praat en die waarheid te sê
wat gebeur het.
COURT
:
What is it to tell a lie? Speak up.
BK
:
As jou ma miskien vir jou vra waar was jy die weekend en dan lieg jy
miskien vir jou ma om te sê jy was by ‘n
vriend se huis.
COURT
:
So what is it to tell a lie? Do not give me an example. I have got
your example. Just tell me what it is. You have
told me now what it
is to tell the truth. Now tell me what is it to tell a lie. You have
given me an example, now I just want you
to explain in your own words
what it is.
BK
:
Dit is nie mooi om leuens te praat nie, as wat jy moet die waarheid
praat.
HOF
:
Wat is leuens? You can interpret that. Wanneer vertel ‘n mens
‘n leuen?
BK
:
As jy nou geskrik gaan is as jy gaan praat met iemand.
HOF
:
As jy geskrik is dan vertel jy ‘n leuen?
BK
:
Ja.
HOF
:
En wat is ‘n leuen? Wat is dit om ‘n leuen te vertel? Wat
beteken dit om te lieg? BK, wat beteken dit
om te lieg? I am waiting
for an answer.
BK
:
Ek het nie een nie.
COURT
:
What is the colour of the dress you are wearing or the top?
BK
:
Swart en wit.
COURT
:
What is the colour of the dress the lady there is wearing?
BK
:
Dit is ‘n kleurvolle rok.
COURT
:
What is the colour of the top the gentleman is wearing.
BK
:
Ligte blou.
COURT
:
If I say you are wearing a pink top, will I be telling the truth or
will I be lying?
BK
:
Leuens.
COURT
:
If I say the gentleman there is wearing a blue top, will I be telling
the truth or will I be lying?
BK
:
Waarheid.
COURT
:
Why would you say that I would be lying if I say that you are wearing
a pink top?
BK
:
Want ek het nie ‘n pienk top aan nie, ek het ‘n swart en
wit top aan.
COURT
:
Do you go to church.
BK
:
Ja.
COURT
:
Do they teach you about telling truth or lies?
BK
:
Om die waarheid te praat.
COURT
:
What do they say?
BK
:
Hulle sê altyd ...(tussenkoms).
COURT
:
Speak up.
BK
:
Hulle sê altyd as jy in ‘n kerk, voor in ‘n kerk in
staan, jy moet altyd die waarheid praat as wat
jy moet die leuens
gaan sê.
COURT
:
Did they tell you what is the truth or what it is, what it means to
tell the truth?
BK
:
Nee.
COURT
:
At school?
BK
:
Ja.
COURT
:
What do they say?
BK
:
Hulle sê ons altyd ons moet nooit lieg vir ‘n onderwyser
nie.
COURT
:
Why?
BK
:
Want dit is nie mooi om te lieg nie.
COURT
:
What are your views? Is this a competent witness or not?”
(Hereafter
the 1
st
respondent
entertained a lengthy discussion with the legal representatives on
their views of the competence of the complainant).
13.
It is clear from the above that the questioning by the 1
st
respondent had gone way beyond an enquiry as to whether the witness
could distinguish between the truth and a lie. That fact
had
been established early on during their exchange. The 1
st
respondent herself acknowledged this during her discussion with the
legal representatives where she stated that:
“
So
she understands the concept of the truth and she did indicate to the
court that the correct thing to do is to tell the truth
and not to
tell –and not to lie. And she did say that when you tell
a lie you will be punished. Meaning that
she is aware of the
consequences of telling a lie. And then I asked her several questions
to establish if she knows what is truth
and what is a lie and she
answered all those questions correctly.”
14.
The above quoted extract encapsulates all that was required for a
finding of competency. However the 1
st
respondent’s inordinate questioning of the child witness, her
unfortunate insistence that the witness be able to define the
abstract concepts of truth and lies with even more particularity than
what she did and the unfortunate involvement of the legal
representatives in the issue of competence, especially the legal
representatives for the 2
nd
and 3
rd
respondents, who took advantage of the situation by climbing on the
bandwagon to discredit the complainant, resulted in the situation
where the wrong test was eventually applied.
15.
In
DPP v Minister of Justice and
Constitutional Development (supra)
Ngcobo J,
as he then was said at paragraph 167 thereof:
“
The
purpose of questioning a child is not to get the child to demonstrate
knowledge of the abstract concepts of truth and falsehood.
The
purpose is to determine whether the child understands what it means
to speak the truth. Here the manner in which the child
is questioned
is crucial to the enquiry. It is here where the role of an
intermediary becomes vital. The intermediary will ensure
that
questions by the court to the child are conveyed in a manner that the
child can comprehend and that the answers given by the
child are
conveyed in a manner that the court will understand.”
16.
The 1
st
respondent
in essence found (amongst others) that since the complainant
responded to her questions about when a person tells lies
with
answers like “
when you are shocked and
scared”
and “
to
somebody who does not know the truth,”
that
the complainant could not be relied upon to tell the truth in court.
Or in the words of the 1
st
respondent, the complainant lacked the “
understanding
and appreciation to act in accordance with that knowledge of the
difference between the truth and a falsehood.”
17.
This finding by the 1
st
respondent in fact relates to the potential credibility of the
complainant as a witness (completely unfounded and based on responses
to improper questioning) and not on competence to testify, which is
merely a determination whether a person can distinguish between
truth
and lies and realise that it is wrong to tell lies. If such a
person should then, after being admonished to tell the
truth, go
ahead and tell lies during her evidence, s 164(2) of the Act provides
the appropriate sanction.
18.
Mr Van Tonder raised a further irregularity in the proceedings - that
is that no enquiry was held to determine whether the complainant
understood the nature and import of the oath. In
S
v Matshiva
2014(1) SACR 29 (SCA) it was held
as follows at 34 g to 35 a (paragraph 11).
“
Section
164(1) is resorted to when a court is dealing with the admission of
evidence of a witness, 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. Such
a witness must
instead of being sworn in or affirmed, be admonished by the judicial
officer to speak the truth.
It
is clear from the reading of s 164(1) that for it to be triggered
there must be a finding that the witness does not understand
the
nature and import of the oath. The finding must be preceded by some
form of enquiry by the judicial officer, to establish whether
the
witness understands the nature and import of the oath.
If the judicial officer should find after such an enquiry that the
witness does not possess the required capacity to understand
the
nature and import of the oath, he or she should establish whether the
witness can distinguish between truth and lies
3
and if the enquiry yields a positive outcome, admonish the witness to
speak the truth.”
19.
In casu
the exchange
between the 1
st
respondent and the complainant reveals only a perfunctory question as
to whether the complainant understood what it meant to take
the
oath. After the complainant answered in the negative, no
further enquiry was held and no finding was made in this regard
before the 1
st
respondent proceeded with the competency test.
20.
In
S v B
2003(1) SACR
52 (SCA) at 63 b-d thereof, it was held however that one should guard
against a too narrow interpretation of section
164 since it does not
expressly require an enquiry to be held before the finding can be
made that a witness does not understand
the nature and import of the
oath (or affirmation) and that in certain instances such as the mere
youthfulness of a witness the
court would be justified in making such
a finding without an enquiry.
21.
In casu
however there
was no reason for the 1
st
respondent to proceed with a competency test without a proper enquiry
relating to the complainant’s knowledge and understanding
of
the import of the oath. The complainant was 17 years old at the
time and in grade 10. She was obviously not an ignorant
youth
and what is more, appeared during the course of the questioning by
the 1
st
respondent
to know what it meant to take the oath. Had a proper enquiry
been done, the miscarriage of justice which followed
could have been
prevented.
22.
In the circumstances I am of the view that the irregularities
referred to above justify interference on review and that the
proceedings of 14 and 15 March 2017 should be set aside.
The following orders are
made:
a)
The proceedings of 14 and 15 March 2017
under case no RCZ 310/16, including the ruling that the complainant
is not a competent witness,
are set aside.
b)
Should the Director of Public
Prosecutions, Northern Cape be of the view that the criminal trial be
reinstituted, the proceedings
are to commence
de
novo
before a different magistrate.
________________________
CC
WILLIAMS
ACTING
DEPUTY JUDGE PRESIDENT
I
concur
______________________________
CJ
OLIVIER
JUDGE
For
Applicant
Ms
Mankuroane
Office of the State
Attorney
For
1
st
Respondent:
Mr A Van Tonder
Legal
Aid SA