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[2015] ZAGPPHC 496
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S v Maloma (A376/2015) [2015] ZAGPPHC 496 (11 June 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: A376/2015
DATE: 11 JUNE 2015
In the matter of
THE STATE
Vs
J M S MALOMA
REVIEW JUDGEMENT
BAM J
1.This matter, accompanied by a
comprehensive memorandum, was submitted on special review, in terms
of section 304(4) of the Criminal
Procedure Act, Nr. 51 of 1977,
("CPA"), by the regional court magistrate of Lydenburg.
2.The issue turns upon the question
whether it is correct in law that an interpreter in a criminal trial
may administer the oath
to witnesses. For obvious reasons the
adjudication of this issue is of cardinal importance to all criminal
courts.
3.In the matter under review the oath
was administered to the witnesses by the interpreter in the presence
of the judicial officer.
4.The presiding regional court
magistrate requested this Court to rule upon the question whether
this procedure constituted an irregularity
as found in a recent
(presently unreported) decision of the full bench of the North West
Division of the High Court, Pilane v The
State; CA 10/2014, delivered
on 5 March 2015. This case came before that Court on appeal from a
regional court where the issue
in question was specifically raised.
5.Concerning this question it however
appears from the judgment that the Court was called upon to only
consider section 162 of the
Criminal Procedure Act, Nr. 51 of 1977,
("CPA"). In this regard paragraphs [5] and [6] of that
judgment, reflecting the
appellant's contentions, read as follows:
[5]"The Appellant contends that
the manner in which the oath was administered constitutes an
irregularity that vitiates the
proceedings." (Added to this
Section 162 of The CPA was quoted
verbatim.)
[6]"Furthermore, the oath must be
administered by a judicial officer and not the interpreter. In the
event the oath is not
administered by the judicial officer as
prescribed by section 162, the witnesses were not properly sworn in
and there evidence
is therefore inadmissible."
6. In paragraph [8] of the judgment,
the Court indicated that it relied on Matshiva v The State (656/12)
[2013] ZASCA 124
(23 September 2013) in which case it was stated that
in terms of the provisions of section 162 of the CPA "it is
peremptory
for all witnesses in criminal trials to be examined under
oath."
7.Obviously, and with the necessary
respect, it is trite and abundantly clear, and indeed peremptory, in
terms of the mandatory
provisions of section 162, subject to the
provisions of sections 163 and 164, that the oath has to be
administered to every witness.
8.In conclusion the North West Court
agreed with the appellant's contentions and found that if the oath
was not administered by
the presiding judicial officer in compliance
with Section 162 of the CPA, the evidence of the particular witness
to whom the oath
was administered by the interpreter was inadmissible
and an irregularity vitiating the entire proceedings.
9.What, however, the North West Court,
with respect, did not consider, are the provisions of section 165.
This may be due to the
fact that counsel appearing for the appellant
and the State, for an unknown and inexplicable reason, failed or
neglected to draw
the Court's attention to that section, and for that
matter, the country wide long standing practice of the application
thereof
in all our criminal courts.
10.For the sake of completeness and
easy reference the applicable sections are quoted.
Section 162: Witness to be examined
under oath (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 be the presiding
judicial officer or,
in the case of the 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.
Section 163: Affirmation in lieu of
oath
(1) Any person who is or may be
required to take the oath and-
(a) who objects to taking the oath;
(b) who objects to taking the oath in
the prescribed form;
(c) who does not consider the oath in
the prescribed form to be binding on his conscience; or
(d) who informs the presiding judge or,
as the case may be, the presiding judicial officer, that he has no
religious belief or that
the taking of the oath is contrary to his
religious belief, shall make an affirmation in the following words in
lieu of the oath
and at the direction of the presiding judicial
officer or, in the case of a superior court, the presiding judge or
the registrar
of the court:-
"I solemnly affirm that the
evidence that I shall give, shall be the truth, the whole truth and
nothing but the truth".
(2) Such affirmation shall have the same
legal force and effect as if the person making it had taken the oath.
(3) The validity of an oath duly taken
by a witness shall not be affected if such witness does not on any of
the grounds referred
to in subsection (1)
decline to take the oath.
Section 164: When unsworn or unaffirmed
evidence admissible
(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.
(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.
Section 165 Oath, affirmation or
admonition may be administered by or through interpreter or
intermediary Where the person concerned
is to give his evidence
through an interpreter or an intermediary appointed under section
170A (1), the oath, affirmation or admonition
under section 162, 163
or 164 shall be administered by the presiding judge or judicial
officer or the registrar of the court, as
the case may be, through
the interpreter or intermediary or by the interpreter or intermediary
in the presence or under the eves
of the presiding judge or judicial
officer, as the case may be. (Emphasis added.)
11. Interpreters are usually officially
appointed by the Department. It goes without saying that any
interpreter must be duly sworn
in.
12. Subsequently, in the matter of
Machaba and Another v The State (20401/2014)
[2015] ZASCA 60
(8 April
2015), the Supreme Court of Appeal, in paragraphs
[8] and [9] of the judgment, with
reference to Piiane, confirmed that it is peremptory in terms of
section 162 that either the presiding
judge, or the registrar in the
case of a superior court should administer the oath to witnesses. The
question whether it was justified
in law that the interpreter was
empowered to administer the oath, was not addressed and the Court was
clearly not called upon to
consider Section 165. The Court merely
referred to the provisions of section 162. Accordingly the decision
in Machaba, with respect,
did not solve the problem.
13. It follows, with respect, that the
North West Division's conclusion, whilst the Court did not consider
Section 165, cannot be
supported.
14. What really concerned the regional
magistrate, arises from the application of that part of the doctrine
of stare decisis providing
that all lower courts are bound by
decisions of any High Court of the country on a specific point of law
where no decision of the
Constitutional Court, the Supreme Court of
Appeal, or of the High Court of its own division, exists. (In view
thereof that the
doctrine is trite and that it has been referred to
and discussed in several decisions of the Constitutional Court and
the Supreme
Court of Appeal, it is not deemed necessary or expedient
to discuss or refer to it in any detail. See Camps Bay Ratepayers and
Resident's Association v Harrison
2011 (4) SA 42
CC, paragraphs [28]
and [29]; and True Motives 84 (Pty) Ltd v Mahdi and Another
2009 (4)
SA 179
, paragraphs [78] to [81].)
15. It follows, in view thereof that
the decision in Piiane is the only High Court decision concerning the
issue that could be located,
all lower courts in this division, and
for that matter in all other divisions, are bound by the said ruling
until the Constitutional
Court or the Supreme Court of Appeal
overturns it, or another High Court delivers a different decision.
16. Accordingly, in conclusion, it is
found that the administration of the oath by the interpreter in this
matter was consistent
with the provisions of section 162, read with
section 165, and that no irregularity was committed.
17. The comment furnished by the
representatives of the Director of Public Prosecutions, Advocates
Roos and Meintjes SC, supporting
the aforesaid conclusion, is
appreciated.
Order.
The oaths administered to the witnesses
by the interpreter in case SHL108/10, Lydenburg, was correct in law,
consistent with the
provisions of sections 162 and 165 of the
Criminal Procedure ^cQJMr. 51 of 1977.
AJBAIVT JUDGE
I concur,
DM LAM BO
I concur,
S POTTERILL 27 May