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[2009] ZAGPPHC 231
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S v Gaza and Another (A279/09) [2009] ZAGPPHC 231 (31 March 2009)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL
PROVINCIAL DIVISION’)
DATE:
31/03/2009
CASE
NO:A279/09
Magistrate
FOCHVILLE
Review
Case No: 56/2009
Supreme
Court Ref No: 647
THE
STATE vs MATSEKO ELIZABETH GAZA AND MAPAKISO MOTLOUNG
REVIEW
JUDGMENT
RAULINGA,
J
[a]
The two accused have been charged in the Magistrate court Fochville,
for the crime of assault (count 1- accused no 2) and assault
with
intent to do grievous bodily harm (count 2 - both accused)
[b]
It is alleged that accused 2 (Mapakiso Moutloung) on or about the
25
th
August 2007 and at or near Kokosi in the district of Fochville, did
unlawfully and intentionally assault
Christina
Matjala by hitting her with an open hand. It is further alleged on
count 2 that both accused (on the same date and place)
assaulted
Christina Matjala by hitting her with stones or similar objects with
the intent of causing her grievous bodily harm.
[c]
As the proceedings were in progress it transpired that the
complainant apparently experienced difficulty with her hearing. The
complainant indicated that she has a hearing problem but she is not
deaf, which may not necessitate a need for a sign language
interpreter. The complainant has already testified quite
substantially. She followed the proceedings up to the stage when the
Magistrate postponed the matter because in his view she was tired,
and not that she couldn't follow the proceedings.
[d]
It would appear that the complainant suffers from a hearing
impairment, but she is not deaf. This can be gleaned from the fact
that she managed to make a statement to the police. She could hear
the accusations which were hurled at her by the accused on a
daily
basis, and she could follow the
proceedings
during the trial despite the fact that she developed hearing
difficulties.
[e]
When the matter was adjourned to the 8
th
February 2008 the
complainant had indicated that she had a child who understood her
when she spoke and the said child could interpret
as she testifies.
Alternatively, as the Magistrate reiterated, the complainant had
already testified substantially, and it may
be in the interest of
justice that she continues with her evidence in chief without any
assistance. However, the Magistrate was
in doubt as to whether she
could be sworn in as an interpreter as "she does not use the
official sign language when communicating
to the complainant".
[f]
In S v Roux 2007 (1) SARC 369 (C) at 383 G-I, Williams AJ adequately
dealt with this aspect in a matter involving a child suffering
from
downs syndrome.
"Dit
is duidelik uit die vooropgestelde dat ons howe oor die jare die afle
van getuie 'vica voce' wyd interpreteer het. Ek
glo dus nie dat die
Wetgewer beoog het dat art 16 (2) van die Straf proses wet 'n numerus
clausus daarstel van die gevalle waar
die uitdrikking 'vica voce'
ander vorms van kommunikasie insluit nie. Dit is in elk geval my
mening dat strafhowe nie onnodiglik
deur nou interpretasies van
wetgewing en/of regbeginsels struikelblokke in die pad plaas by die
aanhoor van die getuienis van getuies
wat nie op normale wyse hul
getuienis kan voorle nie.
Die
oogmerk met hierdie subartikel sou na my mening reeds wees om te
verhoed dat getuienis bloot omdat dit nie op gewone wyse verstaanbaar
is vir die hof beskuldige en hofaptenare nie, uitgesluit word as daar
wel 'n manier is om die getuienis verstanbaar te maak"
[g]
In R v Ranikolo
1954 (3) SA 255
(0) Horwitz J elucidates this aspect
by referring to a case in which a deaf mute gave evidence with his
father acting as an interpreter.
[h]
It is indeed true that while superior courts have jurisdiction in
review or appeal cases, it will be slow to exercise the power
vested
in them, whether by mandamus or otherwise. They may however do so in
rare cases where grave injustice might otherwise result
- Wahlhaus
and Another v Additional Magistrate, Johannesburg and Another 1959
(3) 113 (A).
[i]
In casu, two approaches are available as solutions to this matter.
The first is that the magistrate may proceed with the matter
in the
ordinary manner. The second is that the complainant's daughter may be
sworn in as a special interpreter for the mother.
I say a "special
interpreter" because this situation is not ordinarily provided
for.
[j]
In the premises, the magistrate is directed to continue with the
trial proceedings in the ordinary manner, should the hearing
ability
of Ms Christina Matjala deteriorate, then alternatively her daughter
should be sworn in as a special interpreter, with
the necessary
cautionary rules applicable in the circumstances.
T.J.
Raulinga
[Judge
of the High Court]
I
agree
G.
Webster
[Judge
of the High Court]