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[2008] ZAWCHC 103
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Swartz v S (A299/07) [2008] ZAWCHC 103; 2009 (1) SACR 452 (C) (17 April 2008)
[REPORTABLE]
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO: A299/07
In
the appeal of:
FREDERICK
SWARTZ
Appellant
and
THE
STATE
Respondent
JUDGMENT
DELIVERED ON 17 APRIL 2008
STEYN
AJ:
[1]
The appellant, Mr Frederick Swartz, was convicted on 22 March 2006,
in the regional court Parow, on a charge of indecent assault
in that
he indecently assaulted the complainant, a young boy, 4 years old. At
the trial he pleaded not guilty and tendered a plea
explanation
wherein he denied having had any knowledge of the offence. He was
found guilty and sentenced on the 21 August 2006
to three years
correctional supervision in terms of section 276(1)(h) of the
Criminal Procedure Act 51 of 1977 ("the Act").
[2]
Appellant appealed to this court against his conviction on the
aforementioned charge. For purposes of this judgment it is important
to note that Mr Tredoux, acting on behalf of the appellant,
challenged the trial court's findings on the merits of the case. In
my view the challenge was misdirected and should rather have been
directed at the procedural irregularity that occurred when the
evidence of the complainant was led.
[3]
In light of the aforegoing view, Adv Theunissen, acting for the
State, was asked to address us on the procedure used to determine
competency when the young witness testified. Ms Theunissen conceded
that the procedure used ex
facie
the
record appeared to be problematic for the state's case but requested
that this court grants the state the opportunity to listen
to the
tapes and verify that what is reflected on the record is indeed a
true reflection of the proceedings.
We
were not persuaded to grant such an order for a number of reasons:
(a) This court remains a court of record and as such has to
rely on
the record submitted to us; (b) The record is certified as a true
copy of the proceedings in the regional court; (c) The
magistrate in
her judgment never referred to any competency
finding
of the witness. Granting the request would therefore not have
remedied the irregularity.
[4]
I shall now turn to the relevant facts which gave rise to this
conviction, as testified to by the complainant. It can be summarised
as follows: the complainant was indecently assaulted by the appellant
in that the appellant fondled his penis, in the appellant's
bedroom;
the outside braai area and in the appellant's kitchen in the year
2003. At the time of these incidents the complainant
was merely four
years old.
[5]
At the commencement of the trial, the state lodged an application in
terms of s 170A of the Act for the evidence to be led through
an
intermediary including the use of closed circuit television with the
complainant being in a separate room. In support of the
application a
social worker testified for the State that the child was young and
she also furnished various reasons justifying
the appointment of an
intermediary. The defence had no objection to the use of the
intermediary and accordingly the application
was granted.
[6]
After the order in terms of s 170A was made the following extract
from the record reveals what transpired in the proceedings
leading up
to the complainant, who was by then seven years old, being sworn to
give testimony:
Hof
: me Harrison, kan u ons hoor?âJa, U Edele.
Se
vir X ons se more.â-Die landdros se goeie more.
X
Goeie
more.
Hof
: Me Magopani, kan u horn en me Harrison
duidelik
sien en hoor?
Aanklaer
Ek
kan hulle duidelik sien Agbare, dit is so.
Hof
: Mnr Broadway?
Mnr
Broadway
:
Ek bevestig dankie, Edelagbare.
Hof
: Mnr Swartz, kan u duidelik sien en
hoor?
Beskuldigde
(Onduidelik)
Minderiarige
getuie ingesweer
X
[Verklaar
onder eed)
Hof
: Kan jy onthou dat jy met 'n dame vanoggend by die hof gepraat
het oor die saak?âNee Okay. Wiluhaarsien?âToemaar Is dit
all
right?â (Geen hoorbare antwoord) As u nie omgee nie sy sal net dear
inloer, kom wys wie is sy. Okay u kan maar gaan.
Masjien
afgeskakel
-
Met
hervatting
Hof
: Sy kom om te wys wie is sy. Okay, nou onthou hy?
Okay,
so nou gaan sy vir jou vrae vra, verstaan?
Ondervraaing
deur Aanklaer:
More
weer X-- Goeie more.
Hof
: Okay, se net vir hom want hy lyk 'n bietjie gespanne oor die
mikrofoon. Se vir horn hy kan maar los want dit tel sy stem op.
U kan
voortgaan.
(Record
pages 14 and 15)
[7]
The court then proceeded with the trial and allowed the witness to
testify without making any inquiry or finding on whether
the witness,
age seven, could differentiate between the truth and lies. The
youthfulness of the child should have served as sufficient
indication
to the regional magistrate that the child is likely to be ignorant of
the meaning of the oath and that some consideration
should be given
to the application of s 164 of the Act. (See
S
v
Chalale
2004
(2) SACR 264
(W) at 265i-j)
[8]
It is trite law that only admissible evidence can be accepted as
evidence and hence it is required of presiding officers when
dealing
with young witnesses to determine whether they have the necessary
competency to testify. In the given circumstances the
regional
magistrate was required to determine whether the witness, a child of
seven years of age, was a competent witness to give
sworn evidence in
terms of s 162 of the Act.
[9]
Ex
facie
the
record no such enquiry was held. The record only reveals that the
young witness, once sworn, explained what had happened to
him when
the appellant indecently assaulted him. No enquiry was ever held by
the regional magistrate regarding the witness's competency
nor were
there any other proceedings upon which the regional magistrate could
reasonably determine whether the witness understood
the nature of the
oath, before the oath was administered to him. In my view an enquiry
establishing that the young witness appreciates
to speak the truth
should have preceded the process of administering the oath.
[10]
In the judgment of the regional magistrate no reference is made to
any competency finding of the young witness. The only comment
in the
judgment that appears to be in support of the capacity of the witness
to testify is the following:
"When
in court, X presented himself quietly and courteously he was alert
and
appeared
to understand the necessity for telling the truth
."
(See
record at 153, my emphasis)
[11]
The following statement by the presiding judicial officer in her
judgment is even more erroneous in light of the absence of
any
enquiry or finding on whether the young witness could distinguish
between truth and falsehood:
"Section
208 of the Criminal procedure Act makes provision for the conviction
of a person on the evidence of a single competent
witness.
Because
X was four years old at the time of he incident, his competency is
necessarily an issue
."
(My
emphasis).
Further
the regional magistrate states after dealing with s 208 the following
in her judgment: "There is no further statutory
provision
relating to the acceptance of a child' testimony. Moreover, there is
no necessity for adopting caution unless it is indicated
in the facts
of the case itself." (See record at 153) This statement
indicates that there was no due consideration of ss 162,163,
164 and
193 of the Act by the regional magistrate.
[12]
The question that arises, however, is whether it was proper for the
regional magistrate to have accepted the sworn testimony
of the child
without having enquired into and without determening whether the
child understood, firstly, the difference beween
lies and the truth,
and secondly the nature of the import of the oath.
[13]
Section 162 of the Act provides that no person shall be examined as a
witness in criminal proceedings unless he is under oath
administered
by the presiding judicial officer, judge or registrar of the Court,
as the case may be. This provision is peremptory.
It is expressly
made subject to the further provisions of s 163 which provide for the
making of an affirmation to tell the truth
in lieu of an oath in
certain circumstances mentioned in the section, and subject to s 164
which provides as follows:
"164(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 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."
[14]
The capacity to understand the difference between truth and falsehood
is thus a prerequisite for the oath, the affirmation
and an
admonition in terms of s 164. Because of this requirement s 164 can
only be resorted to in order to procure the evidence
of a child if a
child does not understand the nature and the religious sanction of
the oath. (Also see s 41 of the Civil Proceedings
and Evidence Act,
25 of 1965)
[15]
In
S
v Vumazonke
2000
(1) SACR 619
(C)
Jali
J
held
that an enquiry of some kind should be held before a court can resort
to the application of s 164. In
S
v
B
2003
(1) SA 52
(SCA) the Supreme Court of Appeal, however, held that the
view as expressed in
Vumazonke
was
based on a too narrow interpretation of the said section. (Also see
S
v Sikhipa
2006
(2) SACR 439
(SCA) The direction from the Supreme Court of Appeal in
S,
supra,
is
that a witness needs to understand the nature of the oath and if
through youthfulness, defective education or any other cause,
it is
found that he or she does not understand the nature and the import of
the oath or the affirmation, then such witness should
be admonished
to tell the truth. Nothing in the record shows that the proceedings
were in accordance with any of the aforementioned
dicta.
[16]
It is my view that the reason why courts require that witnesses
testifying in court should be competent is basically to ensure
that
the witness is capable of giving reliable testimony. An examination
of competency tests in most Anglo American jurisdictions
shows that
what these competency tests should account for is the likelihood that
the child has an accurate memory of the event
to be recalled and
whether it is possible for the child to communicate the recalled
information accurately. Our criminal justice
system requires
competency when dealing with child witnesses as opposed to
intelligibility as required by some other jurisdictions.
(Cf. s 52 of
England's Criminal Justice Act 1991)
[17]
What is discernible from an analysis of South Africa's competency
rule is that age is not a decisive factor in the decision
of the
child's competency as witness. (See
Schwikkard
and Van der Merwe
'Principles
of Evidence'
(2002)
at 393.)
[18]
In this case the trial court took it for granted that a witness of
seven years of age understands the nature and import of
the oath. By
doing so the court ignored the witness's youth and whether the child
was capable of distinguishing between right and
wrong. The regional
magistrate had lost sight of the importance of this distinction which
ensures that a witness is capable of
comprehending the consequesnes
of false testimony and perjury.
[19]
Given the peculiar circumstances of the case, namely that the child
was only four at the time of the offence, the trial court
should have
been acutely aware and alive to the dangers of accepting the evidence
of a child witness without establishing the ability
of the witness to
make the distinction between lies and truth.
[20]
An analysis of the South African case law pertaining to child
witnesses reveals that there is no universal test, which can
be
applied by the courts in determining whether a child witness is
sufficiently competent to testify. The guiding provision is
that
courts are obliged in terms of s 193 of the Act to decide upon the
competency of witnesses before they testify. It is for
this very
reason that parties are for example not permitted to consent to the
admission of evidence of incompetent witnesses. (See
S
v Thurston
1968
(3) SA 284
(A) and
Schwikkard
et al
op
cit
at
392)
[21]
The judgment of the regional magistrate shows that she misdirected
herself when she lost sight of the statutory and evidentiary
requirements regarding child witnesses. Whilst it is in the interests
of justice that child witnesses not be unnecessarily excluded
as
witnesses, it remains the duty of each presiding officer to be
vigilant when accepting any evidence as reliable and truthful.
Competency requirements cannot be abandoned simply because they
appear to operate unfairly. The requirement is not to merely
determine
that a child can give a coherent and accurate account of
the event that happened but that he or she can distinguish between
truth
and falsity.
[22]
The statutory requirements provide that a court will have to
determine on the facts of each case, whether the child is
sufficiently
intelligent to testify and whether the child has
sufficient mental capacity to testify. This means that a court will
have to enquire
whether a child witness understands the oath and
whether the child understands what it means to speak the truth. (See
Henderson
v S
(1997)
1 All SA 594
(C) at 597d-g;
S
v
Stefaans
1999
(1) SACR 182
(C);
S
v V
1998
(2) SACR 651
(C);
S
v B
supra;
S
v Gallant
2008
(1) SACR 196
(ECD))
[23]
There was no finding recorded by the presiding judicial officer as to
whether or not the complainant understood the nature
or import of the
oath, which is not surprising since there had been no enquiry. The
admission of the evidence of the young complainant
in the
circumstances was a grave irregularity. The question is whether the
irregularity per
se
invalidated
the proceedings at the trial? (Cf.
S
v Hendricks en 'n Ander
1995
(1) SACR 37
(C) The judgment of the regional magistrate shows that if
the evidence of the complainant is found to be inadmissible then
there
is no other evidence on the record to support the contention
that the complainant had been indecently assaulted.
[24]
Furthermore the record does not display that the merits as well as
the demerits of the complainant's testimony, him being a
child
witness and a single witness, were considered with sufficient caution
by the magistrate. Given the circumstances of this
case, a cautious
approach was clearly required and would have been in accordance with
the direction of the Supreme Court of Appeal
as in
S
v Jackson
1998
(1) SACR 470
(SCA). The judgment reveals that the regional magistrate
glossed over the discrepancies when she merely stated:
"The
Court is aware that there are discrepancies, but not such as to shake
the Court's evaluation of X's evidence as being
reliable"
(See
record at 155)
[25]
Our Constitution provides for fair trial rights and where the
evidence of a particular case requires a cautionary approach,
such
fair trial rights mean that a court is required to ensure that the
accused received a fair trial in the sense that there should
be no
conviction unless the court is satisfied that the prosecution has
proved the guilt of an accused person beyond reasonable
doubt.
[26]
In my view, the trial court's conviction of the appellant relying on
the complainant's evidence without conducting the enquiry
referred to
or making a finding regarding the child's competency was an
irregularity which led to irremediable prejudice being
suffered by
the appellant which resulted in an infringement of his fair trial
rights and a failure of justice.
[27]
In the event I would uphold the appeal.
E
J S STEYN
HLOPHE
JP: I agree. The appeal is allowed and the Judgment of the court
a
quo
is
set aside.
M
J HLOPE, JP