Brief Summary

Criminal Procedure — Testimony of minors — Compliance with sections 162, 163, 164, and 170A of the Criminal Procedure Act 51 of 1977 — Appellant convicted of rape of a 12-year-old boy — Appeal against conviction and sentence based on alleged procedural irregularities during the trial, including failure to properly appoint an intermediary and to ensure the complainant understood the nature of the oath — Court found that the trial court did not conduct the necessary inquiries regarding the complainant's competency or potential mental stress from testifying, leading to a failure in compliance with statutory requirements — Appeal upheld and conviction set aside.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a criminal appeal in the High Court of South Africa, Northern Cape Division, Kimberley, against both conviction and sentence imposed by the Kuruman Regional Court. The appellant, Poloko Makumu, had been convicted of rape and sentenced to ten years’ imprisonment. The respondent was the State.

The appeal was heard by Olivier J and Mamosebo J, with judgment delivered by Mamosebo J. Leave to appeal had been granted by the Regional Magistrate, Mr BB Mbalu.

A significant aspect of the procedural history was that, when the appeal record initially served before Williams J and Olivier J, those judges raised concerns mero motu regarding compliance with statutory provisions governing (i) evidence through intermediaries and (ii) the administration of an oath/affirmation or admissibility of unsworn evidence. On 13 September 2013, they directed that the notice of appeal be amended to include specified irregularities and postponed the appeal sine die to obtain further reasons/comments from the trial magistrate. The magistrate only responded on 5 March 2014. The appeal ultimately proceeded and was determined on the basis of those alleged procedural irregularities.

The general subject-matter of the dispute concerned whether the trial proceedings were rendered unfair and invalid by failures to comply with section 170A and sections 162 to 164 of the Criminal Procedure Act 51 of 1977, in circumstances where the complainant was a child witness who testified through an intermediary and was not sworn in but merely admonished.

2. Material Facts

The appellant was charged in the Kuruman Regional Court with rape, it being alleged that on 9 February 2011, at or near Bankara in the Kuruman district, he unlawfully and intentionally committed an act of sexual penetration with the complainant, KD, a 12-year-old boy, by penetrating the complainant’s anus with his penis without consent. The appellant was convicted and sentenced to ten years’ imprisonment.

The complainant testified through an intermediary. On appeal, it was treated as common cause (and supported by the magistrate’s response) that the trial court did not conduct a prior enquiry into whether testifying in open court would expose the complainant to undue mental stress or suffering as contemplated in section 170A(1) of the Criminal Procedure Act. It was also common cause that the intermediary was not appointed by the presiding magistrate in the proceedings in question.

It further appeared from the record that, before the complainant testified, the magistrate questioned him briefly about his name, age, schooling, and whether he knew what it meant to tell the truth or an untruth, and then admonished him to speak the truth. The court record did not reflect a preceding finding that the complainant did not understand the nature and import of the oath or affirmation as contemplated in section 164(1), which is a statutory prerequisite to admitting unsworn evidence upon admonition. The record was also not clear as to any proper enquiry into the complainant’s competency as a witness.

The grounds of appeal included challenges to the intermediary procedure, the administration of the oath, the proof of identity, and proof of the offence beyond reasonable doubt. However, the appellate court’s determination turned on the procedural irregularities concerning the intermediary and the reception of the complainant’s evidence.

3. Legal Issues

The central legal questions concerned the lawfulness and validity of the trial proceedings in light of statutory requirements regulating the reception of evidence from child witnesses. The appeal required the court to determine whether there had been proper compliance with section 170A(1) of the Criminal Procedure Act regarding the use of an intermediary and whether there had been proper compliance with sections 162, 163, and 164 regarding the oath, affirmation, or admonition.

The dispute was primarily one of law and the application of law to the record: whether the statutory prerequisites had been met, and if not, whether the resulting defects constituted an irregularity of such seriousness as to vitiate the proceedings. The court’s task involved evaluating what the record disclosed (or failed to disclose) and determining the legal consequences of those omissions.

Although the notice of appeal also raised factual issues (identity and proof beyond reasonable doubt), the judgment addressed the matter through the lens of procedural compliance and trial fairness, concluding that the irregularities were dispositive.

4. Court’s Reasoning

The court emphasised that section 170A(1) permits evidence to be led through an intermediary only where it appears to the court that a witness under eighteen would be exposed to undue mental stress or suffering if required to testify in open court, and then only if the court appoints a competent person as intermediary. The judgment treated the statutory language as requiring a judicially controlled process, not an informal assumption based purely on the witness’s age or preparatory steps undertaken outside the court record.

On the facts before it, the court held that there was no discernible enquiry on record as to whether the complainant would be exposed to undue mental stress or suffering if he testified in open court. The magistrate’s later explanation—that he assumed the issue had been dealt with by a court preparation officer and that the defence did not oppose the intermediary—did not cure the absence of a court-driven enquiry reflected in the proceedings. The court further held that it was common cause the intermediary had not been appointed by the presiding magistrate as required by section 170A(1), and that the intermediary had also not been sworn in in the proceedings.

Turning to the reception of the complainant’s evidence, the court relied on the statutory scheme in sections 162 to 164. It noted that, subject to narrow exceptions, the Criminal Procedure Act requires witnesses to be examined under oath (section 162), or by affirmation (section 163). Section 164 allows a witness to testify without oath/affirmation only if the witness is found not to understand the nature and import of the oath or affirmation, in which case the witness must be admonished to speak the truth.

Relying on Matshiva v S [2014] 2 All SA 141 (SCA), the court reiterated that it is peremptory for witnesses in criminal trials—save for those properly falling within sections 163 or 164—to testify under oath. In this case, the court held that the magistrate failed to establish, as required by section 164, that the complainant did not understand the nature and import of the oath or affirmation. The brief questions recorded (about understanding truth and untruth and a promise to tell the truth) were regarded as insufficient to justify proceeding by admonition under section 164.

The court also referenced Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development and Others 2009 (2) SACR 130 (CC) to underscore the importance of properly directed questioning of child witnesses in order to assess whether they understand what it means to speak the truth, and the centrality of appropriately used intermediaries in safeguarding trial fairness. The Constitutional Court passages quoted in the judgment were used to explain that the enquiry is not about a child’s grasp of abstract concepts, but about whether the child can be satisfied to speak the truth, with questioning conducted in a manner the child can comprehend.

The State conceded that the failure to conduct an enquiry into undue stress before resorting to an intermediary was an irregularity, with reference to S v Booi and Another 2005 (1) SACR 599 (B). The court considered the failure to appoint and swear in the intermediary properly, coupled with the failures relating to the complainant’s oath/admonition, to constitute a gross irregularity. It stressed that presiding officers in the lower courts are creatures of statute and must implement the legislation as required.

Applying S v Felthun 1999 (1) SACR 481 (SCA), the court concluded that the irregularities were of such gravity that they vitiated the entire proceedings. The result was that the conviction and sentence could not stand, irrespective of the remaining grounds of appeal, because the foundational procedure for receiving the complainant’s evidence had not complied with mandatory statutory safeguards.

5. Outcome and Relief

The High Court upheld the appeal.

The appellant’s conviction and sentence were set aside. The court further stated that the State was at liberty to pursue the matter again if it elected to do so.

The judgment as provided did not include a distinct costs order in relation to the appeal.

Cases Cited

Matshiva v S [2014] 2 All SA 141 (SCA)

Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development and Others 2009 (2) SACR 130 (CC)

S v Booi and Another 2005 (1) SACR 599 (B)

S v Felthun 1999 (1) SACR 481 (SCA)

Legislation Cited

Criminal Procedure Act 51 of 1977 (sections 162, 163, 164, and 170A)

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the trial court failed to comply with section 170A(1) of the Criminal Procedure Act because there was no proper enquiry on record into whether the child witness would suffer undue mental stress if required to testify in open court, and because the intermediary was not properly appointed (and was not sworn in) as required by the statute.

The court further held that the complainant’s evidence was not received in accordance with sections 162 to 164 of the Criminal Procedure Act because the court admonished the complainant to speak the truth without first making the necessary finding that the complainant did not understand the nature and import of the oath or affirmation as required by section 164(1).

These defects were treated as a gross irregularity that vitiated the entire proceedings, leading to the setting aside of the conviction and sentence, with the State remaining free to reinstitute proceedings.

LEGAL PRINCIPLES

The judgment applied the principle that, in criminal proceedings, the examination of witnesses under oath is peremptory, subject only to the statutorily defined exceptions permitting affirmation or the admission of unsworn evidence upon admonition where the court makes the requisite finding under section 164(1).

The judgment applied the principle that the use of an intermediary under section 170A(1) is not automatic merely because a witness is under eighteen. The trial court must conduct an enquiry and must be satisfied that testifying in open court would expose the witness to undue mental stress or suffering, after which the court may appoint a competent intermediary in accordance with the statute.

The judgment further applied the principle that failures to comply with these statutory safeguards—particularly where they bear directly on the admissibility and reliability of a child complainant’s evidence—may constitute a gross irregularity that undermines the fairness of the trial and vitiates the proceedings, justifying the setting aside of conviction and sentence.

Makumu v S (CA&R49/2013) [2016] ZANCHC 86 (23 September 2016)