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[2011] ZAKZPHC 23
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Ndokwane v S (AR 591/2010) [2011] ZAKZPHC 23; 2012 (1) SACR 380 (KZP) (27 May 2011)
1
REPORTABLE
IN THE KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO. AR 591/2010
In the matter between:
QONDA SIBUSISO
NDOKWANE
…...................................................................
Appellant
and
THE STATE
…................................................................................................
Respondent
__________________________________________________________________
JUDGMENT
__________________________________________________________________
GORVEN J:
The appellant was
charged with one count of rape, alleged to have been committed in
2003 on a five year old female, N.M. (“N”).
He was
represented at the trial, pleaded not guilty and elected not to
disclose the basis of his defence. He was convicted as
charged.
Sentence was imposed in the High Court because the regional
magistrate did not, at the time, have the requisite jurisdiction
to
impose the sentence prescribed by
s 51
of the
Criminal Law Amendment
Act No. 105 of 1997
. In the High Court he was sentenced to life
imprisonment. The appeal against both conviction and sentence comes
before us with
leave of the High Court.
N testified that she was
playing with her siblings at a neighbour’s house when the
appellant grabbed her hand. He then took
her behind the house,
pushed her to the floor, told her he would give her sweets, raped
her and threatened on pain of death that
she should not tell her
mother. During the rape she felt pain in her vagina. He thereafter
put his penis in her mouth and then
made her lie on her stomach and
put his penis into her anus. At home, before she bathed, her mother
noticed blood on her panties
and asked her what had happened. N told
her what had happened and that the appellant, whom she named Qonda,
had done it. She
knew the appellant as a neighbour and a friend of
the family who came to the house to play dice. She knew that he
worked at the
taxi rank. She demonstrated, with the use of dolls,
the positions that she and the appellant had occupied and the
movements he
had made during the rape and the incident where he had
placed his penis in her anus. She also described the positioning of
his
and her clothing at the time. The demonstration and description
were consistent with the manner in which acts of rape and anal
penetration could occur.
The mother of N
materially confirmed those aspects of which she had knowledge.
Counsel for the appellant submitted that there
were discrepancies
between their evidence. The mother said, for example, that when she
called N to the bath, N ran away. N made
no mention of this, saying
only that her mother had noticed blood on her panties whilst
undressing her for her bath. This was
not a discrepancy since N was
not asked what had happened prior to presenting herself for her
bath. Her further evidence, which
corroborated that of N, was that
the incident, including the identity of the appellant, was reported
to the police that day and
that N was taken to see a doctor either
that day or the following day. The doctor’s evidence was that
there was a small
tear in N's rectum, blood in her faeces and that
her vagina admitted one and a half fingers which was suggestive of
penetration.
The doctor said that what she saw was consistent with
N’s version. None of this evidence was challenged. All that
was relied
on by the appellant in argument in this regard was the
concession by the doctor that the tear in the rectum could have been
caused
by constipation.
The appellant was the
only witness for the defence. He confirmed that he was a neighbour,
his name was Qonda, he used to play
dice at N’s home and that
he worked at the taxi rank. The first inkling as to the nature of
his defence was given in cross-examination.
It was put to N that he
would say that he had been at work at the time. A different version
was put to N’s mother to the
effect that he was not working
that day but had gone to see one of the taxi conductors. In his
evidence, however, he departed
from both of these versions, becoming
more elaborate as time went by. He began by saying that he was ‘not
necessarily working’
that day as someone else was filling in
for him. He then stated in cross examination that it was his day
off. It then emerged
that he was not employed full time but did
temporary work. He finally stated that another boy was working with
his taxi so that
day he had worked with another taxi in Raisethorpe.
This is a far cry from his having had the day off. He also clearly
became
inventive regarding a potential motive for N's mother to
untruthfully implicate him. He claimed that she had suggested
conducting
a covert sexual relationship with him one month prior to
the incident and that, when he refused, she had said that she would
get him because he was smart. This was not put to her when she gave
evidence. Without going into any greater detail, it is clear
that
the learned regional magistrate correctly dismissed his evidence as
being false beyond reasonable doubt.
In the heads of argument
and during the hearing of the appeal, counsel for the appellant
raised a number of issues. Two main issues
relating to the content
of the evidence given were raised. The first was that there was an
issue as to whether or not N had been
raped. When it was pointed out
to counsel for the appellant that the appellant had in evidence
conceded that the rape had taken
place, he did not labour the point.
The concession was clearly correct. What was pressed upon us at the
hearing of the appeal
was that, since the date on the J88 form
relating to the medical examination reflected that it had been
completed one month after
the incident was alleged to have taken
place, this showed that the rape could not have taken place when N
or her mother said
that it had. This evidence was based on the
answer of the doctor to a leading question as to the date of the
examination. Both
the question and answer clearly relied on the date
appearing on the J88. It is clear that the date was filled in, not
by the
doctor who conducted the examination, but by someone else and
is clearly a slip in writing down the month. The writing differs
markedly from that of the doctor, who reflected on the form that the
last time that sexual intercourse had occurred was on the
date
alleged for the incident and indicated that it had been ‘without
consent’. N’s mother was not challenged
on her evidence
– likewise given in response to a leading question – as
to the date of the rape and the visit to
the doctor. In addition,
her evidence that it was in February is supported by the CAS number,
which was one for an incident which
had occurred in February.
Counsel for the appellant also submitted that the doctor’s
recording that ‘ever since the
episode she complains of
burning on micturation’ supported his contention since it
implied that a substantial period had
elapsed before the
examination. The reference to the pain of N ‘since the
episode’ does not, as was submitted, signify
that a
substantial period of time must have elapsed since the episode. The
only time that needed to have elapsed was sufficient
time for N to
have urinated. These submissions have no merit.
The second major
submission on the contents of the evidence was that, since swabs
were taken, the DNA evidence should have been
led since this could
have been decisive as to the identity of the appellant. All that was
said by the doctor was that swabs had
been taken from N. The
prosecutor indicated at one stage during the trial that he would
attempt to establish whether these had
been sent for testing.
Nothing further appears from the record. It certainly does not
appear that the evidence contended for
was available to the state.
No adverse inference can therefore be drawn from the fact that no
DNA evidence was led.
Apart from
considerations relating to the procedural points raised which will
be dealt with below, it is clear from a perusal
of the record and of
the judgement that there is no merit in the appeal against
conviction. The judgement of the learned regional
magistrate was
commendably cogent, comprehensive and convincing. I can find no
fault with the conclusions drawn or the reasoning
employed by him in
that regard.
At the time that she
testified, N was six years old. Due to her tender age, and the
nature of the offence, and without objection
from the appellant's
legal representative, the court determined that N would suffer undue
mental stress if she testified in open
court and an intermediary was
appointed in terms of
section 170A
the Criminal Procedure Act No. 51
of 1977 (“the Act”). There has been no attack on the
qualification of the intermediary
to act as such. The learned
regional magistrate conducted an enquiry to determine whether N
could understand the nature and import
of taking the oath and could
distinguish between truth and falsehood. He concluded that she did
not qualify to take the oath
but could distinguish between truth and
falsehood and this conclusion was entirely justified. It was
attacked in the appellant's
heads of argument but not pressed during
the hearing of the appeal. The attacks on the admissibility of N's
evidence were twofold.
First, that N was not a competent witness
since it did not emerge that she was aware that, if she gave an
incorrect answer she
would be deemed to commit perjury. Secondly
that because the intermediary was not sworn in, the evidence given
by N was inadmissible
and should have been excluded from
consideration. I will examine each of these submissions in turn.
The submission relating
to competence developed, in argument, along the following lines.
Section 162 of the Act requires all evidence
to be given under oath.
This means that the person testifying must understand the nature and
import of the oath. The learned
regional magistrate had not
satisfied himself that N understood the nature and import of the
oath. Therefore N was not a competent
witness and the evidence
should have been excluded as inadmissible. This line was pursued in
argument with some vigour.
The submission has more
than one flaw. On a factual level, no oath was administered. Section
162, requiring that evidence be given
under oath, is made subject to
the exceptions set out in ss 163 and 164. Of these, s 164 applies to
the present situation. That
section read as follows at the time of
trial in 2004:
‘
(1) Any person who, from ignorance arising
from youth, defective education or other cause, 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, the whole truth and
nothing but the truth.
(2)
If such person wilfully and falsely states anything which, if sworn,
would have amounted to the 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.’
1
The requirement for
implementing s 164(1) is that the witness does not understand the
import of the oath or affirmation. The submission
made by counsel for
the appellant in argument that this renders the evidence inadmissible
overlooks that the effect of this is
not to render the evidence of
the witness inadmissible, but to constrain the court to consider
whether, notwithstanding that fact,
the person concerned is a
competent witness. The evidence of such a witness is admissible if
the requirements of the section are
satisfied. There was no specific
reference to s 164(2) but it seems that the submission might
have been that, in order for
s 164 to be invoked, the witness
concerned must understand the provisions of s 164(2) concerning the
sanction attaching to ‘wilfully
and falsely’ stating an
untruth.
There
is a long line of cases dealing with the assessment of the
competence of a child witness. In essence there is a need to
establish whether or not the child is capable of distinguishing
between truth and falsehood.
2
There is no minimum age required for
a competent witness; it must be adjudged whether each witness meets
the requirement of competence.
I have found no cases requiring that,
in order to invoke s 164, a witness must appreciate that a
punishment similar to that for
perjury will follow if they ‘wilfully
and falsely’ state an untruth. Neither do I regard it as
necessary. At most
the importance of truthfulness is generally
covered, as was done in the present matter, by an enquiry satisfying
the court that
the witness understands that an adverse sanction will
generally follow the telling of a lie. In this matter when a direct
question
did not elicit this response, the learned regional
magistrate asked: ‘Do your parents ever give you a hiding?’
to
which N replied: ‘Yes. My mother assaults me if ever I am
naughty at home.’ The magistrate continued: ‘. . .
What
do you mean naughty?’ to which N replied, ‘My mother
gives me a hiding when I am telling lies.’ This was
followed
by the question, ‘So is it a good or a bad thing to tell
lies?’ to which the reply was given, ‘It’s
a bad
thing, Your Worship’. I can see no basis for requiring a
judicial officer to go any further than this in arriving
at the
conclusion that a witness is competent. Indeed, there are many cases
where the courts have stopped far short of such an
enquiry.
In
S v B,
3
prior to the amendment of s 164(1),
the court set out the correct approach in the following terms:
‘
[15]
Dit is duidelik dat art 164 'n bevinding vereis dat 'n persoon weens
onkunde voortspruitende uit jeugdigheid, gebrekkige opvoeding
of
ander oorsaak nie die aard en betekenis van die eed of die
bevestiging begryp nie. Soos in die geval van 'n aantal vroeëre
uitsprake, het die Hof a quo beslis dat die feit dat 'n bevinding
vereis word, noodwendig inhou dat 'n ondersoek die bevinding
moet
voorafgaan (sien
S
v Mashava
( supra op 228 g - h );
S
v Vumazonke
2000 (1) SASV 619 (K) op 622 f - g ).
Na
my mening is dit 'n te enge uitleg van die artikel. Die artikel
vereis nie uitdruklik dat so 'n ondersoek gehou word nie en 'n
ondersoek is nie in alle omstandighede nodig ten einde so 'n
bevinding te maak nie. Dit kan byvoorbeeld gebeur dat, wanneer gepoog
word om die eed op te lê of om 'n bevestiging te verkry, dit
aan die lig kom dat die betrokke persoon nie die aard en betekenis
van die eed of die bevestiging verstaan nie. Die blote jeugdigheid
van 'n kind kan so 'n bevinding regverdig. Na my mening word
niks
meer vereis as dat die voorsittende regterlike amptenaar 'n oordeel
moet vel dat 'n getuie weens onkunde voortspruitende uit
jeugdigheid,
gebrekkige opvoeding of ander oorsaak nie die aard of betekenis van
die eed of bevestiging begryp nie. Hoewel verkieslik,
word geen
formele genotuleerde bevinding vereis nie (sien
S
v Stefaans
1999
(1) SASV 182 (K) op 185 i ).
[16] Die Hof a quo was
ook van mening, weer eens in ooreenstemming met 'n aantal gewysdes,
dat indien 'n persoon nie die aard en
betekenis van die eed of die
bevestiging verstaan nie, ook vasgestel moet word of hy kan onderskei
tussen die waarheid en onwaarheid,
alvorens hy ingevolge art 164
gewaarsku kan word om die waarheid te praat (sien
S v L
1973
(1) SA 344
(K) op 347H - 349B;
S v N
( supra op 229 e - g );
S
v Vumazonke
( supra op 622 g - h )). (In
S v L
is gehandel
met die vereistes van art 222 van die Strafproseswet 56 van 1955, die
voorloper van art 164. Die bewoording van art
164 verskil egter
aansienlik van die van art 222.) Of so 'n ondersoek gehou moet word
hoef egter nie deur ons beslis te word nie,
aangesien die Hof a quo
bevind het dat dit wel gedoen is en die vraag of dit wel gedoen moet
word nie deur die voorbehoue regsvrae
geopper word nie.’
In
the present matter, after conducting an enquiry, the learned
regional magistrate stated the following: ‘The Court is
satisfied that the witness, due to her age, will not understand the
nature and import of the oath. However the Court is satisfied
that
she is a competent witness.’ No objection was made to these
findings at the time. The court conducted an enquiry,
made a finding
that N could not understand the nature of the oath, made a further
finding that N was a competent witness in understanding
the
difference between truth and falsehood and had her admonished to
tell the truth, the whole truth and nothing but the truth.
This
clearly meets the requirements of s 164 of the Act. This was far
more than was done in the matter of
Director
of Public Prosecutions, KwaZulu-Natal v Mekka
4
where the court, after confirming the
correctness and binding nature of the approach in
B’s
case, said the following:
5
‘
The fact that the magistrate, after having
established the age of the complainant, proceeded to enquire whether
she understood the
difference between truth and lies and then warned
her to tell the truth is, in my view, a clear indication that she
considered
that the complainant, due to her youthfulness, did not
understand the nature and import of the oath. In her additional
reasons
the magistrate confirms that to have been the case. The
magistrate did, therefore, make a finding that the complainant was a
person
who, from ignorance arising from her youthfulness, did not
understand the nature and import of the oath. The magistrate saw and
heard the complainant and this Court is in no position to question
the correctness of her finding.’
These words find echo in
the present matter. I can see no reason to find that N was not a
competent witness or that the correct
procedure was not followed
before s 164 was applied.
The
second submission, relating to the intermediary not having been
sworn in, was first raised during argument. Although no mention
was
made of the case by either counsel, the underlying reasoning for the
submission was the proposition that the function of
an intermediary
is similar to that of an interpreter as was held to be the position
in
S v Motaung
6
and
S
v Booi & Another.
7
In order to evaluate this submission,
it will be necessary to analyse the scheme introduced by S 170A of
the Act and it is therefore
useful to set out certain of its
provisions. These read as follows:
‘
(1) 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.
(2) (a) No examination, cross-examination or re-examination of any
witness in respect of whom a court has appointed an intermediary
under subsection (1), except examination by the court, shall take
place in any manner other than through that intermediary.
b) The said intermediary may, unless the court directs otherwise,
convey the general purport of any question to the relevant witness.
(3) If a court appoints an intermediary under subsection (1), the
court may direct that the relevant witness shall give his or
her
evidence at any place-
(a) which is informally
arranged to set that witness at ease;
(b) which is so situated that any person whose presence may upset
that witness, is outside the sight and hearing of that witness;
and
(c) which enables the court and any person whose presence is
necessary at the relevant proceedings to see and hear, either
directly
or through the medium of any electronic or other devices,
that intermediary as well as that witness during his or her
testimony.
(4) (a) The Minister may by notice in the Gazette determine the
persons or the category or class of persons who are competent to
be
appointed as intermediaries.
. . .
(5) (a) No oath,
affirmation or admonition which has been administered through an
intermediary in terms of section 165 shall be
invalid and no evidence
which has been presented through an intermediary shall be
inadmissible solely on account of the fact that
such intermediary was
not competent to be appointed as an intermediary in terms of a
regulation referred to in subsection (4) (a),
at the time when such
oath, affirmation or admonition was administered or such evidence was
presented.
(b) If in any proceedings
it appears to a court that an oath, affirmation or admonition was
administered or that evidence has been
presented through an
intermediary who was appointed in good faith but, at the time of such
appointment, was not qualified to be
appointed as an intermediary in
terms of a regulation referred to in subsection (4) (a) , the court
must make a finding as to the
validity of that oath, affirmation or
admonition or the admissibility of that evidence, as the case may be,
with due regard to-
(i) the reason why the intermediary concerned was not qualified to be
appointed as an intermediary, and the likelihood that the
reason
concerned will affect the reliability of the evidence so presented
adversely;
(ii) the mental stress or
suffering which the witness, in respect of whom that intermediary was
appointed, will be exposed to if
that evidence is to be presented
anew, whether by the witness in person or through another
intermediary; and
(iii) the likelihood that
real and substantial justice will be impaired if that evidence is
admitted.
. . . .’
It does not appear from
the record in the present matter that the intermediary was sworn in
prior to functioning as such. The
point was not raised before the
learned regional magistrate or in argument in the application for
leave to appeal. No grounds
of appeal raising the point formed part
of the record. The learned regional magistrate had therefore not had
an opportunity to
deal with the factual situation. An enquiry was
accordingly directed to him after the appeal was heard and with the
consent of
the parties, as to whether the intermediary had been
sworn in and as to the manner in which the intermediary had
functioned whilst
N testified. The response of the regional
magistrate, furnished with commendable promptness and clarity, was
to the effect that
the intermediary had not been sworn in, either at
the trial or generally. She was however a person who regularly acted
as an
intermediary in that court. The interpreter could hear what
the intermediary conveyed to N relating to the questions posed. The
intermediary, whose first language was Zulu, did not have the
questions interpreted to her before conveying them to N, which
she
did in Zulu. In other cases involving that same intermediary heard
by the learned regional magistrate, if the interpreter
was of the
view that the intermediary had not conveyed the question accurately,
the interpreter intervened although this had
not been necessary in
the present matter. The attorney representing the appellant was
himself Zulu speaking and could at any
stage have challenged the
manner in which the question was conveyed. It is clear from the
record that he did not do so at any
stage. The response interpreted
by the interpreter was that given by N herself, without any
involvement of the intermediary.
It is worth noting that N gave
evidence on 15 July 2004, well before
Booi
was decided. In
his judgment the learned regional magistrate stated that, when N
testified, she sat in a room adjacent to the
courtroom and separated
from it by only a panel of glass, which became a one-way glass when
the lights in the courtroom were
dimmed. She was visible to
everybody inside the courtroom. The questions the intermediary put
to her after they had been posed
by the prosecutor, counsel for the
appellant or the court and N’s responses to them were clearly
audible inside the courtroom
via a speaker situated in the
courtroom.
The
submission of the appellant must be viewed against this factual
backdrop. In accepting that the position of an intermediary
under s
170A of the Act is analogous to that of an interpreter, the
following was said in
Motaung
:
8
‘
The
oath or affirmation will ensure that the intermediary appreciates the
need to convey properly, accurately, and to the best of
his or her
ability the witness's evidence to the court, and, where necessary, to
convey the general import of what is said to and
by the witness. An
intermediary performs a similar function to that of an interpreter.
It is recognised that, although there is
no statutory direction in
the Supreme Court Act 59 of 1959 or the
Magistrates' Courts Act 32 of
1944
or the
Criminal Procedure Act 51 of 1977
, that an interpreter be
sworn in, a failure to swear him in constitutes an irregularity which
may amount to a fatal irregularity
(
S
v Naidoo
1962 (2) SA 625
(A)). The administration of an oath to an interpreter
is governed by practice and the rules of admissibility of evidence,
and is
now formalised by Uniform
Rule 61(1)
and (2) and Magistrates'
Courts
Rule 68(1)
- (5). In my view, the same rules of practice
require that an oath or affirmation be administered to an
intermediary in every case
as a matter of course, unless
intermediaries in full-time employment of the State are required to
take a general oath in the same
way as full-time interpreters.’
The
submission in the present matter saw as decisive this first stage of
the enquiry in
Motaung,
which was to the effect that the
failure to swear in an intermediary amounts to an irregularity.
Booi
held similarly although it was held
that no case had been made out that intermediaries should be
appointed in that matter and it
is arguable that this finding was
therefore
obiter
.
9
No submissions were made as to the
second stage, viz whether the irregularity caused prejudice to the
appellant, resulting in a
failure of justice.
10
In
Motaung
Jones J concluded that it did not,
dealing with it in the following terms:
‘
The
complainant gave evidence after being properly sworn in as a witness
by the magistrate himself, unlike in the
Naidoo
case
supra where the oath was ineffective because it was administered by
an unsworn interpreter. Here, the complainant's evidence
is not
inadmissible. As I understand the magistrate's reasons and as I read
the record, the intermediary did not fulfil the role
of interpreter.
The magistrate is correct that she was merely a conduit. The
complainant's evidence was conveyed through the intermediary,
but was
audible through the closed- circuit television system. It was
recorded as part of the record and was interpreted to the
court
directly by the interpreter. On the facts there is no suggestion
anywhere of any impropriety or any irregularity involving
the
presentation of evidence or its admissibility which operated to the
detriment of the accused and which arose because the intermediary
did
not take an oath.’
Booi
and
Motaung
both relied on
S
v Naidoo
,
11
which held that testimony given in
court through an unsworn interpreter is unsworn testimony, the
production of which to a court
constitutes an irregularity. If no
conviction should have followed without that evidence, that
irregularity results in a failure
of justice.
Naidoo
dealt with this situation at a time
when there was no legislation providing for, or regulating the
procedure for, the use of interpreters
in courts in South Africa.
This has since been remedied by Rule 61 of the Uniform Rules and
Rule 68 of the Magistrates’
Courts Rules of Court read with
s
6(2)
of the
Magistrates’ Courts Act, No 32 of 1944
. At the
time there were administrative procedures for the appointment of
permanent interpreters after satisfying the requirements
of an
examination board and of casual interpreters who did not have to
meet that requirement. These administrative procedures
were set out
in the Codified Instructions issued by the Department of Justice
which provided that both categories should take
an oath prior to
interpreting in court. Williamson JA held that the interpreter was a
witness and, therefore, if he or she had
not been sworn, his or her
testimony was unsworn, and therefore inadmissible, evidence. A
previous approach, not followed in
Naidoo
,
was that such evidence was inadmissible because it amounted to
hearsay. This was raised by way of the following example:
‘
The
principle there involved is clear. If a witness states in Court that
a person, an accused for instance, previously made a statement
to him
in a language which the witness did not understand but which was
interpreted to him, then that witness' evidence as to what
was said
is, by itself, hearsay and not admissible as proof of what was said.
When, however, in addition the person who interpreted
is called to
testify on oath that he correctly interpreted what was said, there is
a completed chain of sworn testimony as to the
terms of the prior
statement and this testimony can be accepted as proper proof of such
terms; for example see
Rex
v Mutche
,
1946 AD 874
and
Rex
v Makubesi
,
1952 (2) SA 75
(T)’.
12
Williamson JA accepted
the correctness of this example but questioned whether this applied
to evidence given in court in the following
terms:
‘
The
hearsay rule obviously comes into consideration when a witness tells
a Court that an accused or other person made a specific
prior
statement to him, if in fact all he knows of that statement is what
an interpreter told him it contained; but it is a little
difficult to
understand how the hearsay rule is involved in the case when an
interpreter in Court is telling the Court directly
what the sounds
being made by a witness in Court mean in the language understood by
the Court. It seems much more logical to accept
the passage in which
Wigmore describes the interpreter as 'a kind of witness'. That, on
analysis, is what he really is. The witness
being examined is saying
something not perhaps understood by the Court or the Court recorder;
a species of expert witness is telling
the Court in a language
understood by the Court (and by any recorder) what it is the witness
is actually saying. What the expert
or interpreter tells the Court
becomes the actual evidence in the case put before the Court and
recorded. If that is not on oath,
the evidence so given or recorded
is unsworn testimony. Hence the requirement for swearing such an
interpreter, for only sworn
testimony can generally be placed as
evidence before a Court. . . .’
13
It
can therefore be seen that the crucial aspect of the function of the
interpreter is that the witness has given his or her evidence
in a
language not intelligible to the court resulting in the need for the
interpreter to give evidence of what the witness has
said in his or
her evidence. The interpreter’s evidence, like that of any
witness, must be given under oath so the interpreter
must be sworn.
14
The interpreter testifies of what
constitutes the evidence of the witness and is the sworn testimony
of the witness, albeit given
in a language not understood by the
court. In order for the evidence to be placed before the court
properly it must not only
be spoken by the witness but also
interpreted accurately by the interpreter. It is obviously important
for the interpreter also
to interpret the questions to the witness
but a failure to do so would, at least in most instances, become
apparent by answers
that are at odds with the questions posed. The
questions, whilst eliciting evidence, do not constitute evidence.
Whilst it is
not practical to thus dichotomise the role of the
interpreter, the underlying reasoning of
Naidoo
clearly relates to what is said by
the witness. This has a bearing on the issue before us.
Although
both
Booi
and
Motaung
concluded that an intermediary should
be sworn in because she or he functioned in a way similar to an
interpreter, neither analysed
the precise role of the intermediary
introduced by
s 170A.
The test for whether an intermediary should be
appointed in a particular case is a useful starting point. The test
is clear.
A court must conclude that testifying would expose a
witness to undue mental stress or suffering. This shows that the
object
of the intermediary is to function in a way calculated to
minimise the mental stress or suffering of the witness by enabling
the witness to give their evidence through the intermediary. The
only other provision in
s 170A
that sheds light on the manner in
which the intermediary is to perform this function is contained in
s
170A(2)(b).
This is permissive rather than prescriptive and allows
an intermediary, instead of conveying the actual question to the
witness,
to convey its general purport. This may be done unless the
court directs otherwise. It must be accepted, therefore, that the
usual manner in which she or he functions includes conveying the
general purport of a question to the witness where he or she deems
it appropriate. It may, of course, not be appropriate such as when
dealing with factual and non-stressful questions such as the
name
and age of the witness. It has been held, correctly in my respectful
view, that the proper functioning of an intermediary
does not
curtail appropriate cross-examination of the witness.
15
Dealing with the constitutionality of
the provision, whilst also giving insight into the role of the
intermediary, the following
was stated in
K
:
16
‘
There
are sound reasons why the conveyance of the general purport of the
question might enable a child witness to participate properly
in the
system. Questions should always be put in a form understandable to
the witness so that he or she may answer them properly
(see
S
v Gidi (supra
at 540E)). Where the witness is a child, there is the possibility
that he may not fully comprehend or appreciate the content of
a
question formulated by counsel. The danger of this happening is more
real in the case of a very young child. By conveying ‘the
general purport’ of the question, the intermediary is not
permitted to alter the question. He must convey the content and
meaning of what was asked in a language and form understandable to
the witness. From the articles and the evidence put before us
it is
quite apparent that it is in the interests of justice for questions
to be posed to children in a way that is appropriate
to their
development. This furthers the truth-seeking function of the trial
court without depriving the accused of his right to
cross-examine.
Moreover the Judge or magistrate who presides at the trial controls
the proceedings and is able to see to it that
the intermediary
carries out his function properly and without prejudice to the
accused’.
A further factor which
is of importance in understanding how an intermediary should
function emerges from the kind of persons
who qualify to act as
intermediaries. The Minister, acting in terms of
s 170A(4)(a)
has
determined that medical specialists in paediatrics and psychiatry,
family counsellors with specific qualifications and experience,
certain educators, social workers, and clinical or counselling
psychologists qualify. In broad terms, therefore, it is those
people
who are most appropriately qualified to understand how best to
communicate with a vulnerable witness covered by the section.
This
is entirely consonant with the dictum in
K
set out above.
It
is also important to note that, although the section talks of
testifying ‘through’ an intermediary, it envisages
that
the witness will give her (or less frequently his) own answer which,
if not given in the language of the court, is interpreted
by the
interpreter. In my view the section does not provide for the
intermediary to convey what is said ‘by the witness’
as
was stated in the passage in
Motaung
referred to above.
17
The purpose of the section is met by
mediating the questions put, not the answer given. I can see no
reason for an intermediary
to become involved in the answers given
by the witness. It is not as if the witness will be unduly stressed
if the answer is
not conveyed by the intermediary. Neither is it the
case that the court would require the answer to be phrased in a way
that
it understands. If the intermediary was to convey an answer
given by a witness and a challenge was raised, the court would in
any event have to construe the original answer.
The analogy between an
interpreter and an intermediary breaks down when one considers the
situation where a case is conducted
in English, with an English
speaking accused, a child witness whose home language is likewise
English and an English speaking
presiding officer and lawyers. There
is then no question of interpretation. A question is posed and where
appropriate the intermediary
reformulates it for the child in
non-threatening language. The child then answers. All of this is
done in a language common to
all the participants in the process. On
what basis in that case can it be said that the intermediary must be
sworn? Clearly there
is no reason for that to be done. The
‘requirement’ that this be done cannot therefore flow
from anything inherent
in the role of the intermediary. Once it is
recognised that the witness must give her own answers to questions,
however and by
whom they have been formulated, the intermediary is
not conveying the evidence to the court as does an interpreter.
These examples
illustrate the point that the analogy between the two
is a false one. It can only be valid if the intermediary is
permitted to
supplant the role of the interpreter in conveying the
evidence of the accused to the court and that was not done in the
present
case.
Viewed in the light of
the purpose of the section there are other clear indications that
the role of intermediary differs significantly
from that of an
interpreter. First, if the witness is testifying in a language other
than that of the court, an interpreter is
in a position to intervene
if the question is incorrectly or misleadingly framed by the
intermediary. Where the witness testifies
in the language of the
court, this intervention will be by the judicial officer. Secondly,
if the question has not been correctly
framed and the interpreter
has not performed his or her duty to intervene, the answer will
almost invariably elicit an answer
which shows that the question was
not accurately conveyed. The most fundamental difference, however,
remains that the intermediary
is not involved in conveying to the
court what emerges from the mouth of the witness. None of these
situations applies to the
position of an interpreter. It may be so
that, if there is an officer of the court present who speaks the
language in question,
the interpretation can be challenged but this
is not an invariable situation as in the case of an intermediary.
There is, in addition, a
difficulty in principle with the approach adopted in
Motaung
that the intermediary performs a function similar to an interpreter
and must, for that reason, be sworn in. On
Naidoo’s
reasoning, evidence interpreted by an unsworn interpreter amounts to
unsworn evidence and is thus inadmissible. If this reasoning
applied
to intermediaries, the second stage of the enquiry adopted in
Motaung
must be incorrect. The only enquiry possible in those
circumstances is whether, if that evidence is excluded, there
remains sufficient
evidence on which to convict. In
Motaung
however, the evidence was taken into account on the basis that it
was reliable despite the failure to swear in the intermediary.
This
cannot be based on equating the intermediary with an interpreter.
The enquiry undertaken in
Motaung
is inconsistent with the
two standing on the same footing. In the absence of a basis for
likening the function of an intermediary
to that of an interpreter
there is no foundation for the conclusion that the failure to swear
in an intermediary amounts to an
irregularity. I can see no basis
for such a conclusion. As indicated above, the evidence given is
that of the witness, interpreted
if necessary. That evidence is
neither unsworn nor hearsay and is not, on either basis,
inadmissible.
This approach is lent
more force by further analysis of the section. In the first place,
despite the provisions relating to interpreters
having been
clarified by
Naidoo
and now having received legislative
attention, the lawmaker did not see fit to include a corresponding
provision for intermediaries.
Not only this, but
s 170A(5)
specifically renders admissible evidence given through an
incompetent, but appointed, intermediary. On the reasoning of
Naidoo,
evidence given through an unqualified interpreter is
not admissible since an interpreter functions as an expert witness
and is
relied on by the court to correctly express the evidence of a
witness. It seems clear from this that the legislature does not see
the functions of the two as comparable.
As will have become
clear, I respectfully differ from the approach taken in
Booi
and
Motaung
to the role of the intermediary and the finding
that, if an intermediary is not sworn in, this amounts to an
irregularity. Having
said this, I do not wish to denigrate the
practice that has grown up since
Booi
and
Motaung
of
swearing in an intermediary. The function of the intermediary is
extremely important. That function, as I have said, is to
minimise
the mental stress or suffering of the witness by employing her or
his specific expertise whilst the witness gives evidence.
Requiring
an intermediary to discharge this function under oath seems to me a
salutary practice. I only differ in the finding
that, if this is not
done, an irregularity occurs. No form of any such oath has been
prescribed. If an oath is administered it
should be to honestly and
faithfully and to the best of her or his ability discharge the
function of an intermediary.
Even if I am wrong in
this regard and the failure to swear in the intermediary constituted
an irregularity, if one employs the
test for the second stage in
Motaung
it cannot be said that a failure of justice resulted
in the present case. It was submitted that the learned regional
magistrate
unfairly protected N during cross examination. I
disagree. As mentioned above, the interpreter heard what was put to
N by the
intermediary, as did the appellant’s legal
representative. Neither of them saw fit to intervene in order to
correct any
inaccuracies. The interpreter interpreted the answers
given to the questions by N without the involvement of the
intermediary.
The record nowhere indicates any incongruity between
the questions put and answers given which may support an inference
that
the intermediary did not perform her function adequately.
For these reasons, the
appeal against the conviction of the appellant must fail.
This leaves the appeal
against sentence. This was not dealt with at any great length in
argument, save for the submission that
the age of the appellant was
not adequately determined and that Hemraj AJ therefore should not
have applied the provisions of
s 51
of the
Criminal Law Amendment
Act. Leaving
aside that point for the moment, it is clear that no
other misdirections were made, including the finding that no
substantial
and compelling circumstances existed which warranted a
departure from the prescribed sentence of life imprisonment. It can
also
hardly be said that the sentence is so startlingly
inappropriate as to induce a sense of shock. As regards the point
concerning
the age of the appellant, it was stated on his behalf in
argument that he was 20 years old at the time of the commission of
the
offence and also 20 years old at the time of sentencing. The
issue therefore did not arise on the record. However, on the day of
the appeal, an appeal from another conviction and sentence of the
same appellant was dealt with. The issue of the appellant’s
age arose in that matter. There was confusion in the record as to
his age at the date of commission of those offences and a
possibility that, at that time, he was under the age of 18 years.
Since this offence was committed prior to the offences in that
matter, it seems appropriate in the interests of justice to adopt
the course adopted in that matter. This requires that the sentence
be set aside and the matter remitted back to the learned acting
judge so as to determine the age of the appellant at the time
he
committed this crime and to consider a sentence thereafter.
In the result I propose
that the following order be made:
The appeal against
conviction is dismissed.
The appeal against
sentence succeeds. The sentence of life imprisonment is set
aside and the question of sentence is
referred back to the High
Court for reconsideration after a proper determination of the
age of the appellant at the
time he committed this crime.
GORVEN J
WALLIS J – I agree
NGWENYA AJ – I
agree
GORVEN J – it is so
ordered.
DATE OF HEARING : 4 May
2011
DATE OF JUDGMENT : 27 May
2011
FOR THE APPELLANT : Adv
SB Mngadi
FOR THE RESPONDENT : Adv
J du Toit
1
S
164(1)
has since been substituted by
s 68
of Act 32 of 2007 to read
as follows: ‘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 an 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
S
v L
1973 (1) SA 344
(C);
R v Umhlahlo
(1904) 25 NLR 264
at 270;
S v N
1996 (2) SACR 225
(C)
3
2003
(1) SA 552
(SCA) para 15 and 16
4
2003
(4) SA 275
(SCA)
5
Para
11
6
2007
(1) SACR 476 (SE)
7
2005
(1) SACR 599
(B)
8
Para
7
9
Paras
25, 26 & 29
10
Para
8
11
1962
(2) SA 625
(A)
12
At
631H-632B
13
At
632F-H. Approved in
S v Mpopo
1978 (2) SA 424
(A) at 426 F-G;
Tshabalala v Lekoa City Council
1992 (3) SA 21
(A) at 32F-G
14
It
would seem to follow that if the interpreter’s sole function
is to convey to the accused in his or her own language what
is being
said in court that does not require the interpreter to be sworn
because what the interpreter is saying is not evidence.
15
K
v Regional Court Magistrate NO & others
1996 (1) SACR 434
(E) at 448
e-f
16
At
445
c-f
17
Para
7. Mogoeng JP (as he then was), held to similar effect in
Booi
,
para 25, when he said the following: ‘An intermediary must
specifically undertake to convey correctly and to the best
of his or
her ability the general purport of what is being said to and by the
witness, before she or he begins to help the witness.’