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[2017] ZAGPPHC 12
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S v Malesa and Another (A7/17) [2017] ZAGPPHC 12 (20 January 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
A7/17
20/1/2017
HIGH
COURT REF.: 3/17
Review
Case No: R/C2-104/2015
MAGISTRATE'S
SERIAL NO.: 32/16
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
THE
STATE
vs
PETROS
THABO KOKOBELA
MALESA First
Accused
PITSO
MARTIN DESPERADO
MOGWE Second
Accused
SPECIAL
REVIEW
JUDGMENT
VAN
DER WESTHUIZEN, AJ
1.
The regional Magistrate, Gauteng North Regional Division, Pretoria
North, referred this matter for special review on the following
grounds.
2.
The Accused are charged on two counts of rape (gang rape) and
kidnapping.
3.
The claimant, a minor girl, testified through an intermediary. The
claimant testified in Setswana mixed with Sepedi (North Sotho).
The
intermediary then testified in English. There was no official
interpreter involved as all parties, i.e. the accused, their
legal
representatives and the prosecutors were apparently conversant in the
language spoken by the claimant. Only the presiding
officer was not
so conversant and was dependant on interpretation into the English
language.
4.
The complainant did not complete her testimony on the first day of
the trial. On the second day of the trial use was made of
an
interpreter and the issue was raised by one of the legal
representatives of the accused whether the services of the
interpreter
was required in view of the fact that all the parties
including the accused were conversant in the language spoke by the
complainant.
The presiding officer became aware that no official
interpreter was involved during the first part of the complainant's
testimony.
5.
Neither the accused, nor their legal representatives had any problems
with the interpretation into English of the complainant's
testimony
by the intermediary.
6.
The presiding officer was of the view that an irregularity had taken
place under the aforementioned circumstances and sought
guidance from
the High Court as to the manner in which the case was to proceed.
7.
It is a requirement that the intermediary is to be conversant in the
language spoken by the complainant. The purpose being that
the
complainant and the intermediary are to understand each other fully.
The official interpreter is not present in the room where
the
complainant and the intermediary are seated during the trial.
8.
It is further customary that the intermediary translates the
testimony of the complainant into English. There is no requirement
that the intermediary has to be an official interpreter.
9.
The intermediary is conversant in the language of the complainant,
i.e. Setswana mixed with Sepedi, and the English language.
10.
In the present instance, no objection was raised by the accused or
their legal representatives in respect of the translation
of the
complainant's testimony into English. All understood the language of
the complainant, but for the presiding officer.
11.
The presiding officer requested the parties to address him on the
issue. It is common cause between the parties that whether
or not an
irregularity was committed, no problems were encountered in respect
of the complainant's testimony and the translation
thereof.
12.
In my view, no irregularity was committed and no special review is
required. The matter is to proceed before the presiding officer.
13.
However, it may be advisable in order to avoid any possible
misunderstanding and possible irregularity that the presiding officer
employs the services of an official court interpreter to assist in
the translation of testimony for the duration of the trial.
_____________________
C
J VAN DER WESTHUIZEN
ACTING
JUDGE OF THE HIGH COURT
I
concur and it is so ordered.
_____________________
A
J Bam
JUDGE
OF THE HIGH COURT