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[2009] ZAGPJHC 69
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Bakos v S (5/5376/07) [2009] ZAGPJHC 69; 2010 (1) SACR 523 (GSJ) (1 December 2009)
REPUBLIC OF SOUTH AFRICA
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
Reportable
Magistrate Serial Number: 03/2008
Case Number: 5/5376/07
Reference Number JHS 2008/0041
In the
matter between:
TREVOR
BAKOS
and
THE
STATE
___________________________________________________________
JUDGMENT
MOKGOATLHENG
J
(1) This matter came to me by way of review in terms of
section
304(2)
of the
Criminal Procedure Act 51 of 1977
.
The accused
legally unrepresented, was arraigned and convicted on a charge of
assault in the Johannesburg Magistrate Court. He was
sentenced to a
fine of R2 000.00 or 4 months imprisonment, wholly suspended for a
period of 5 years on certain conditions.
(2) After the closure of the state’s case, the Magistrate, in
apprising the accused of his procedural rights, adviced him
that he
had a choice to either testify under the prescribed oath, call
witnesses, or close his case if he so desired. The Magistrate
in
asking the accused if he wanted to testify under oath, engaged him in
the following discourse. The accused:
“I cannot take the
oath because it is against my religious beliefs but I can only speak
honestly and truthfully out of my
mouth….”
The
Magistrate: “
do you want to testify under oath or you do
not”.
The accused: “
No your Honour.
” The
Magistrate : “
You are satisfied so it is your case.”
The accused “
I have got nothing more to add,………”
The Magistrate: “
do you understand what I am saying,
you understand the explanation I gave you?
The accused: “
I
understand your honour
”.
(3) The Magistrate again explained to the accused that he may adduce
evidence under oath, or call witnesses to testify in his defence.
The
accused:
“If I call a witness can he stand next to
me….unless he (the accused’s witness) does not object to
taking the
oath himself.”
The Magistrate:
“Let us
try to understand one another. Do you want to give evidence or you do
not”.
The accused:
“I cannot take the oath myself
your honour but if he (the accused’s witness) has got no
objection, well that is his
side not my own side.”
The
Magistrate: “
So you do not want to testify.
The accused:
“No I cannot your honour.”
(4) The accused, after emphatically stating that he was not prepared
to take the prescribed oath and testify thereunder, called
a witness
who testified under oath in his defence. After the conclusion of the
witness’ evidence the accused closed his case.
(5) In his judgment, the Magistrate stated:
“it was clear
and evident that the accused was so afraid….to go into the
witness box because he was going to concede
certain aspects during
cross examination by the prosecutor.”
Notionally or
conceptually, from the interaction between the accused and the
Magistrate, there appears to be no factual basis or
justification
this conclusion.
(6) It is patent that the Magistrate laboured under the
misapprehension that because the accused refused to take the
prescribed
oath, and had stated that he cannot testify under the
prescribed oath, the accused had elected not to testify in his
defence by
exercising his right to remain silent, as envisaged in
section 35(3)(h) of The Constitution of the Republic of South
Africa Act 108 of 1996.
(7) The Magistrate, in enquiring whether the accused desired to
testify under the prescribed oath, was by implication invoking
the
provisions of
section 162
of the
Criminal Procedure Act 51 of
1977
.
For purposes of elucidation, the two sections
applicable in addressing the principles governing witnesses
testifying in criminal
proceedings are encapsulated in
sections
162
,
163
and
164
of Act 51 of 1977
which are fully quoted
hereunder, except section 164 which is irrelevant for purposes of
this review.
Section 162
provides:
Witnesses to be examined under oath
“
(1) Subject to the provisions of section 163 and 164, no
person shall be examined as a witness in criminal proceedings unless
he
is under oath, which shall be administered by the presiding
judicial officer or, in the case of a 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 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.”
and
Section 163
provides:
“
Affirmation in lieu of oath
Any person who is or may be required to take the oath and–
who objects to taking the oath;
who objects to taking the oath in the prescribed form;
who does not consider the oath in the prescribed form, binding on
his conscience; or
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.”
(8) In
S v Gallant
2008 (1) SACR 196
at 199 (ECD) para 4 –para
6 Revelas J,
in interpreting
sections 162, 163 and 164
of Act 51 of 1977
stated: “
[4] The provision in
section 162(1) of the Act
, that witnesses must
be examined under oath in criminal proceedings, is peremptory, and
can only be departed from in the circumstances
set out in
sections
163 and 164 of the Act
. Non-compliance results in the
inadmissibility of the testimony in question
. (Vide S v
Ndlela
1984 (1) SA 223
(N) at 225G-H; S v Mashava
1994 (1) SACR 224
(T) at 228f-g; S v N
1996 (2) SACR 225
(C) at 227a-c; S v B
2003 (1)
SACR 52
(SCA) in para 14.)
[5]
Section 163(1) of the Act
relates to a
witness who is required to take the oath, but who objects to taking
the oath, or to its prescribed form, or advises
the court that the
oath (in any form) does not bind his or her conscience, or objects to
it on the basis of his or her religious
beliefs or lack thereof. Such
a witness must then make an affirmation, also in accordance with a
prescribed formula.
[6] Section 164 applies to the ignorant witness who is unable to
appreciate the nature and import of the oath or affirmation, because
of youth, defective education or another cause. In such cases the
oath or affirmation may be substituted with an admonition by
the
judge or judicial officer, to speak the truth, the whole truth, and
nothing but the truth. This section presupposes a finding
as to the
extent of the ignorance and the reason for it. No express enquiry or
finding is necessary (
S v B supra at 63b-c
).”
(9) The Magistrate’s conduct incontrovertibly shows that he did
not fully appreciate the distinction between the accused’s
election not to testify under the prescribed oath because of his
religious beliefs, and the accused’s election not to testify,
purely as an exercise of his
section 35(3)(h)
constitutional
right to remain silent as a choice made pursuant to his defence.
(10) It is patent that the accused in his interaction with the
Magistrate desired to testify in his defence but not under the
prescribed oath. The accused’s intention to testify, but not to
do so under the prescribed oath, is gleaned from the manner
in which
he enunciated and qualified his refusal. “
I cannot take the
oath because it is against my religious beliefs but I can only speak
honestly and truthfully out of my mouth.”
(11) The accused on being asked if he did not want to testify under
the prescribed oath answered in the double negative:
“No I
cannot your honour”
The accused did not pertinently state
that he did not want to testify.
It is quite evident that the
Magistrate incorrectly interpreted the accused’s refusal to
testify under the prescribed oath
because of his religious beliefs as
a refusal to testify in his defence. Because of the Magistrate’s
lack of understanding
and appreciation of the accused’s nuanced
refusal to testify under the prescribed oath, he failed to invoke the
provisions
of
section 163
of the
Criminal Procedure Act 51 of
1977
as enjoined under the prevailing circumstances
.
(12) The accused’s refusal to testify under the prescribed oath
because of his religious beliefs, obliged the Magistrate
to enquire
and establish the reasons which precluded the accused from so
testifying. The Magistrate’s failure to conduct
such an enquiry
constituted a procedural misdirection which compounded into a
procedural irregularity in that the accused was denied
his
constitutional right to testify in his defence.
(13) The accused’s reason for refusing to testify was
predicated on the fact that he was not prepared and did not desire
to
testify under the prescribed oath as envisaged in
section 162
of
Criminal Procedure Act 51/1977
>.
The accused’s
refusal to testify was not premised on the exercise of his
constitutional right to remain silent in terms of
section
35(3)(h) of the Constitution of the Republic of South Africa Act 108
of 1996
in the sense that he appreciated, understood and
knew that he could have testified in his defence if he so elected
under affirmation
in lieu of oath in terms of
section 163 of
Act 51 of 1977
at the Magistrate’s direction.
(14) The Magistrate, by his failure to invoke the provisions of
section 163 of Act 51 of 1977
which would then
entitle the
accused
to testify under affirmation in
lieu of oath, committed a gross irregularity which vitiated the
proceedings. The Magistrate’s
conduct clearly resulted in the
accused not being afforded a fair trial as envisaged in
section
35(3) of the Constitution
, consequently, the accused’s
conviction and sentence fall to be set aside in that there has been
in a failure of justice.
(15) In the premises, the following order is made:
(a) the conviction and sentence are set aside.
Signed at Johannesburg on the 1
st
December 2009.
________________________
MOKGOATLHENG J
JUDGE OF THE HIGH COURT
I, agree
__________________________
MABESELE AJ
ACTING JUDGE OF THE HIGH COURT
THE CHIEF MAGISTRATE
JOHANNESBURG MAGISTRATE’S COURT
THE DEPUTY DIRECTOR OF PUBLIC PROSECUTIONS
JOHANNESBURG