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[2018] ZAKZPHC 17
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Ndaba v S (AR528/2017) [2018] ZAKZPHC 17 (18 May 2018)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
APPEAL
CASE NO:
AR528/2017
In
the matter between:
SPHELELE
PRINCE
NDABA
Appellant
and
THE
STATE
Respondent
APPEAL JUDGMENT
Delivered: 18 May 2018
MBATHA
J (Mnguni J concurring):
[1]
The appellant was arraigned in the regional court, Vryheid, on one
count of rape in contravention of s 3 of the Criminal Law
(Sexual
Offences and Related Matters) Amendment Act 32 of 2007 (the Sexual
Offences Act).
[2]
The appellant tendered a plea of not guilty. On 17 February 2017, he
was convicted of rape and sentenced to 15 years imprisonment.
The
appellant successfully petitioned this court for leave to appeal
against the conviction.
[3]
The appeal turns on whether the court a quo conducted an enquiry to
determine whether the complainant understood the nature
and
importance of the oath and whether the state was able to prove the
case against the appellant beyond a reasonable doubt.
[4]
It is trite that only admissible evidence can be accepted as evidence
in a court of law. It is therefore required of presiding
officers
when dealing with child witnesses to determine whether they have the
competency to testify. The court a quo was bound
to determine if the
complainant was able to distinguish between the truth and falsehood.
The approach by the court a quo was as
follows:
‘
Court:
What are the names of the child? Just repeat. (through
interpreter
and intermediary)
B:
B
…(inaudible)
Court:
B – just, what is her surname?
Witness:
Z., Your Worship.
Court:
How old are you, B?
Witness:
I am 11 years old, Your Worship
Court:
Where do you stay? Just repeat.
I think the volume is too loud, Your
Worship. I cannot hear the witness. I am – what was your
answer? I said during the year
2013, how old were you? --- I was
eight years old.
When do you celebrate your birthday?
--- It is on 7 July.
Where were you residing during
2012/2013? --- Here at Vryheid?
Where about here at Vryheid? --- At
Kwattas[?], Emakwattas[?].
Whom were you residing with? --- Aunt,
grandmother and uncle.
Were you schooling in 2013? --- Yes.
What grade were you doing? --- Grade
2.’
[5]
From then onwards, the learned magistrate went on to ask the
complainant about the incident which occurred during 2012 or 2013,
by
stating as follows:
‘
Please tell this Court what
happened or rather, do you still remember the exact date as to when
did the incident took place?’
[6]
The above extract from the record reflects that the court was aware
of the complainant’s tender age of 11 years before
requesting
her to relate what happened to her. Despite this, the magistrate
failed to conduct the competency test, which is the
precursor to
admonishing a child witness.
[7]
The competency test is often used in relation to child witnesses to
determine if they understand the difference between truth
and
falsehood. This is a prerequisite for the oath, affirmation and an
admonition in terms of s 164 of the Criminal Procedure Act
51 of 1977
(the CPA).
P
J Schwikkard
and S E van der Merwe Principles
of
Evidence
4 ed (2016) at 451 state as follows:
‘
Even very young children may
testify provided that they
(a)
appreciate the duty of speaking the truth;
(b)
have sufficient intelligence; and
(c)
and can communicate effectively.’ (Footnote omitted.)
Nowhere
in the record does it reflect that the learned Magistrate tried to
establish if she could distinguish between falsehood
and the truth.
[8]
Section 192 of the CPA, goes further to state that if a child does
not have the ability to distinguish between the truth and
untruth,
such child is not a competent witness. It is the duty of the
presiding officer to satisfy himself or herself that
the child can
distinguish between the truth and untruth. The maturity and
understanding of the child must be established
by the judicial
officer, who must ascertain the level of intelligence for the child
to give evidence in the trial proceedings.
[9]
The Supreme Court of Appeal in
Matshivha
v S
[1]
emphasised that it is necessary for the court, before it admonishes
the witness in terms of s 164 to establish whether the witness
is
able to distinguish between the truth and falsehood. In Matshiva the
court emphasised that the two enquiries should not be conflated,
to
establish the competency of the witness and the ability to understand
the nature and purpose of the oath.
[10]
It also turns out that having failed to establish if she could
differentiate between the truth and falsehood that the complainant
was not admonished at all. Section 162 of the CPA, requires
that all evidence be given under oath. The provisions of
s 162
to 164 of the CPA, specifically state that the witness will be
examined under oath, affirmation or admonishment to ensure
that the
evidence is reliable.
[11]
The person testifying must understand the nature and import of the
oath. Section 164 (1) of the CPA, as amended caters
for certain
exceptional circumstances and provides as follows:
‘
Any
person, who is found not to understand the nature and import of the
oath or 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.’
[12]
The provisions of s 164 of the CPA are peremptory as the words ‘
that
such person
shall
’
appears in the wording thereof. Such a failure to admonish the
child witness as conceded to by the state counsel render
the evidence
of the complainant inadmissible. It is trite that where there
has been failure to admonish the child witness,
such evidence should
be inadmissible.
[2]
[13]
The Constitutional Court in
Director
of Public Prosecutions, Transvaal v Minister for Justice and
Constitutional Development and Others
[3]
echoed
the same sentiments expressed above, in the following manner:
‘
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 a 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.
To my mind, it
does not amount to a violation of section 28(2) to exclude the
evidence of such a child. The risk of a conviction
based on
unreliable evidence is too great to permit a child who does not
understand what it means to speak the truth to testify.
This
would indeed have serious consequences for the administration of
justice.’
[13]
In
S v
Nedzamba
[4]
,
the court echoed the same trite principles that I have alluded to
above. It expressed the following:
‘
First,
the complainant was 14 years old at the time of the trial. She was a
child witness with whom care should have been taken
at the outset. No
thought was given to whether the child understood the nature and
import of the oath. It was not determined at
the outset whether the
child knew what it meant to speak the truth.’
It
went on to say that the ‘purpose is to ensure that the evidence
given is reliable. To admit the evidence of the child who
does not
understand what it means to tell the truth undermines the accused’s
right to a fair trial.’
[14]
It is my view that it is not necessary to canvas the merits of the
appeal as the irregularities are of such a nature that the
evidence
given by the complainant at the trial is inadmissible. Such a
fundamental misdirection lead to only one conclusion that
the appeal
against conviction should be upheld.
[15]
Accordingly, the following order is made:
1)
The appeal
is upheld.
2)
The
conviction and sentence imposed by the regional court magistrate
are quashed and set aside.
___________________
MBATHA
J
___________________
MNGUNI
J
Date
of hearing
: 18 May
2018
Date
delivered
: 18 May
2018
Appearances
:
For
the Appellant: Adv I Khan
Instructed
by: Justice Centre
Pietermaritzburg
For
the Respondent: Adv A Watt
Instructed
by: The Director of Public Prosecutions
Pietermaritzburg
[1]
Matshivha v S
(656/12)
[2013] ZASCA 124
;
2014 (1) SACR 29
(SCA);
[2014] 2 All SA 141
(SCA)
(23
September 2013)
[2]
S v B
2003 (1) SASV 52 (HHA).
[3]
Director of Public Prosecutions,
Transvaal v Minister for Justice and Constitutional Development and
Others
(CCT
36/08)
[2009] ZACC 8
;
2009 (4) SA 222
(CC);
2009 (2) SACR 130
(CC);
2009 (7) BCL 637 (CC) (1 April 2009) para 166
[4]
S v Nedzamba
2013 (2) SACR 333
SCA para 26