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[2015] ZAKZPHC 16
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Mhlongo v S (AR272/14) [2015] ZAKZPHC 16 (27 February 2015)
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
AR
NO: 272/14
In
the matter between:
ZAMOKWAKHE
MHLONGO
..........................................................................................
Appellant
and
THE
STATE
.......................................................................................................................
Respondent
Order:
(i)
The appeal is accordingly upheld.
(ii)
The conviction and sentence is set aside.
(iii)
The matter is referred to the DPP KZN, to
consider whether the appellant should be prosecuted.
APPEAL
JUDGMENT
K
PILLAY J
(Chili J concurring)
[1]
On 6 January 2011 the appellant was convicted in the Regional Court
at Nongoma of Rape read with the provisions of Sections
51 and
Schedule 2 of the Criminal Law Amendment Act 105 of 1997 (CLAA) (as
amended) and sentenced to life imprisonment.
[2]
This appeal is pursuant to Sections 10 and 43 of the Judicial Matters
Amendment Act 42 of 2013 and is directed at both conviction
and
sentence.
[3]
The background facts giving rise to the conviction and sentence are
summarised as follows.
[4]
P[…] N[…], (P[…]) who was 12 years old at the
time of testifying, alleged that she was raped twice by the
appellant
who was known to her. He did so by threatening to cut her
throat as was done to her grandmother. It was the
same threat
that ensured her silence until the second rape occasion when a
relative M[…] N[…] with whom she bathed,
saw her blood
stained panty and drew its attention to her mother who, with a
certain amount of coaxing, elicited from the complainant
the accounts
of the two incidents of rape. Her mother and M[…] N[…]
supported her versions insofar as it related
to them. The appellant
denied any involvement in the commission of the offences.
[6]
The proceedings in the Court
a quo
are impugned on the basis that it is bedevilled by a number of
shortcomings which render the evidence of the complainant
inadmissible.
These shortcomings
inter
alia
are:
(i)
No application was made in terms of Section
170 A of the Criminal Procedure Act 51 of 1977 (the Act) for the use
of an intermediary.
(ii)
The intermediary’s qualification and
competency are not placed on record.
(iii)
No competency test was conducted in respect
of the complainant who was 12 years old prior to administering the
oath.
[7]
In order to consider these issues, a careful scrutiny of exactly what
transpired in the trial Court is required.
[8]
Prior to Pethelo’s evidence being adduced, she was asked by the
trial Magistrate:
Court:
Pethelo are you going to be able to understand the nature and import
of an oath?
Pethelo:
Yes your Worship.
Thereafter
the trial Magistrate says the following:
‘
The
witness understands the nature and import of the oath and the witness
may be sworn in please.’
[9]
The record then reflects that the witness was sworn in through the
intermediary and interpreter.
[10]
Section 170 A (1) provides:
‘
Whenever
criminal proceedings are pending before any court and it appears to
such court that it would expose any witness under the
biological or
mental age of eighteen years to undue mental stress or suffering if
he or she testifies at such proceedings, the
court may, subject to
subsection (4), appoint a competent person as an intermediary in
order to enable such witness to give his
or her evidence through that
intermediary.’
[11]
It is clear from the above that before an intermediary is appointed
the following pre-requisites have to be present.
(a)
The witness must be under the biological or
mental age of 18 years.
(b)
There must be sufficient details to enable
the court to conclude that the child witness will be exposed to undue
mental stress or
suffering if he/she had to testify in the normal
manner.
[12]
Both the accused and the prosecutor have a right to make in put
before any direction is made in terms of Section 170 A.
[13]
In this case, there appeared to be no objection by the defence to the
use of an intermediary, at any stage during the trial.
In
addition the qualifications of the intermediary were not placed on
record and no challenge as to whether the intermediary fell
into the
categories of persons who are determined by the Minister of Justice
in terms of Section 170 A (4) (a) to be completed,
was ever raised by
the defence.
[14]
The pivotal attack against the conviction is directed at the trial
Court’s failure to conduct a competency test prior
to the
complainant being sworn in. The complainant was 12 years old at
the time. It is submitted that the aforesaid
failure thus
rendered the complainant’s testimony inadmissible against the
appellant.
[15]
Section 162 (subject to
Sections 163
and
164
) of the
Criminal
Procedure Act prescribes
that no person shall be examined in criminal
proceedings unless he/she is under oath.
[16]
Section 163
provides for the making of an affirmation in lieu of an
oath if there is an objection to taking the oath.
Section 164
allows for the admonishment of a witness by a judicial officer to
speak the truth where it is found that such a witness did not
understand the nature of the oath or affirmation. The need for
evidence to be given under oath, affirmation or admonishment
was
summed up by the Constitutional Court in
DPP,
Transvaal v Minister of Justice and Constitutional Development
2009(2) SACR 130
at para 166 as
follows:
‘
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 precondition
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 violation of
s 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.’
[17]
It follows therefore that for a child witness to be considered a
competent witness, he or she must be able to demonstrate that
he or
she understands the difference between truth and lies.
[18]
In this case no attempt whatsoever was made by the trial Magistrate
to establish whether the child, who was 12 years old, knew
the
difference between truth and lies. He also failed to question
the child on whether she understood the nature and
import of an
oath. The child’s level of intelligence was not
canvassed. It is not clear whether she attends
school.
[19]
At no stage during the entire trial was the child’s competency
considered. The trial Court in my view misdirected
itself by
simply accepting the say so of the young complainant that she knew
what it meant to take the oath. In this regard
he clearly
ignored the statutory and evidentiary requirements concerning child
witnesses.
[20]
Whilst the need for flexibility regarding the establishment of
competence and the administration of the oath to a child witness
was
affirmed in Mangoma v S
[2013] ZASCA 205
it still requires at the
very least some enquiry into whether child witnesses understand the
meaning of telling the truth.
The absence of such an enquiry in
this case resulted, in the evidence being inadmissible and in
my view a failure of justice.
There is unfortunately no other
evidence implicating the appellant in the commission of the crime
[21]
However, that said, this aspect related to a procedural issue and the
interests of justice require that this matter be referred
back to the
DPP KZN, to consider whether the appellant should be prosecuted.
[22]
I accordingly make the following order:
(iv)
The appeal is accordingly upheld.
(v)
The conviction and sentence is set aside.
(vi)
The matter is referred to the DPP KZN, to
consider whether the appellant should be prosecuted.
___________________
K
Pillay J
__________________
Chili
J
Appearances
For
the Appellant: Irshaad Khan
c/o
PMB Justice Centre
Pietermaritzburg
3201
For
the Respondent: A Harrison
The
Director of Public Prosecutions
DURBAN
4000
Date
of Hearing: 19 February 2015
Date
of Judgment: 27 February 2015