Lewis and Another v S (A387/2002) [2003] ZAWCHC 22 (5 June 2003)

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[2003] ZAWCHC 22
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Lewis and Another v S (A387/2002) [2003] ZAWCHC 22 (5 June 2003)

IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Case
No: A387/2002
[REPORTABLE]
In the matter
between:
BERTRAM
LEWIS
First
Appellant
TOM
PHILANDER Second Appellant
and
THE
STATE
Respondent
JUDGMENT
DELIVERED: WEDNESDAY, 5 JUNE 2003
YEKISO,
J
The
first and second appellant appeared as accused no’s 1 and 2
respectively in the district court, Oudtshoorn on a charge of robbery
with aggravating circumstances.The State alleged that on the 26 May,
2001 and at Begonia Avenue, Toekomsrus, within the magisterial
district of Oudtshoorn, the appellants wrongfully and unlawfully
robbed the complainant, one Vuyisile Mntwini of certain items of
clothing together with cash in an amount of R2.00.
Both
the first and the second appellant appeared in person and pleaded not
guilty to the charge against them. After evidence was led,
they were
each convicted of robbery with aggravating circumstances as charged.
Because
the magistrate was of the view that the offence in respect of which
the appellants were convicted merited punishment in excess
of his
jurisdiction, the matter was referred to the Regional Court for the
imposition of an appropriate sentence.
On
the 17 January, 2002 and at the Regional Court, Oudtshoorn the first
appellant was sentenced to five (5) years imprisonment in
terms of
section 276
(1) (i) of the
Criminal Procedure Act, 51 of 1977
whilst
the second appellant was sentenced to seven (7) years imprisonment.
The appeal by both appellants is against conviction only.
The
State called two witnesses, the complainant in the person of the said
Vuyisile Mntwini and one Elricho Forch, who was fourteen
(14) years
of age as at the time he tendered evidence in court. Whilst both the
appellants elected not to testify in their own defence,
the first
appellant called one witness in the person of one Ellen Jonkers.
The
evidence tendered before the court is briefly as follows:
The
complainant testified about the robbery itself. He confirmed in his
evidence that he was robbed of the items referred to in the
charge
sheet; that because he was under the influence of intoxicating liquor
at the time, he could not identify any of the robbers
and that he
fled from the scene shortly after he had been robbed of his
belongings.
The
second witness called by the State was Elricho Forch who testified
that whilst he and the complainant were walking along on their
way to
the complainant’s place of residence, they were accosted by the
second appellant and one Dirk Skilpad. The second appellant
demanded
that they stop. The second appellant, as also the said Dirk Skilpad,
each had a knife in their possession. The second appellant
and Dirk
Skilpad searched both the complainant and the witness. The witness
was not robbed of anything. The complainant was robbed
of certain
items of clothing and cash in an amount of R2.00.
The
witness confirmed that the complainant fled from the scene shortly
after the robbery whilst the witness proceeded walking towards
the
complainant’s place of residence. Subsequent to the event, the
complainant went to lay a charge of robbery with the police.
The
role played by the first appellant in the commission of the offence
is anything but clear. Elricho Forch does not make any reference
in
his evidence in chief as regards any degree of participation by the
first appellant in the commission of the offence. Only when
questioned by the court as to whether the first appellant had any
weapon in his possession did this witness refer to the first
appellant.
His response to this question was that because the first
appellant had stood far away from the scene of robbery, he could not
see
if the first appellant had any weapon in his possession.
A
further reference to the first appellant by this witness was on a
question by the prosecutor whether this witness could remember
what
clothing the first appellant had, to which question the witness
responded by saying he could not recall.
How
far the first appellant was from the scene of robbery and to what
extent the first appellant participated in the commission of
the
robbery itself is anything but clear regard being had to the evidence
on record.
Before
dealing with the merits of the appeal itself, it is perhaps
appropriate to deal with a matter raised by
Mr
Pothier
, counsel for both
the appellants, in argument before court at the hearing of the
appeal. The issue raised by
Mr
Pothier
relates to what he
contends was an irregularity by the magistrate in the application of
the provisions of
section 164
(1) of the
Criminal Procedure Act.
Mr
Pothier
makes a point in
his submissions that the evidence by Elricho Forch who, as has
already been pointed out elsewhere in this judgment,
was fourteen
(14) years of age at the time he tendered his evidence, ought to be
excluded on the basis that the magistrate did not
administer the
requisite oath to the witness nor did the magistrate conduct any
enquiry to establish whether or not the witness understood
the nature
and the import of the oath or affirmation as was required in terms of
the provisions of
section 164
(1) of the
Criminal Procedure Act.
Mr
Pothier
submitted that in
terms of
section 164
(1) of the Act, properly interpreted, before the
witness referred to in this section is allowed to testify, the
magistrate is required
to make a finding whether the witness
concerned is capable of understanding the nature and the import of
the oath or affirmation,
and that, invariably, such a finding ought
to be preceded by an enquiry to establish whether or not the witness
is capable of understanding
the nature and the import of the oath or
affirmation. Because the magistrate omitted to make this enquiry, so
Mr Pothier
argued, the evidence tendered by Elricho Forch ought to excluded from
the record.
He
submitted further that such an enquiry ought to be conducted, that
the presiding judicial officer cannot just simply assume that
a
witness does not appreciate the nature and the import of the oath or
affirmation and, based on that assumption, proceed in admonishing
the
witness and allow the witness to give evidence without making the
necessary enquiry.
Section
164
(1) of the
Criminal Procedure Act provides
as follows:
“
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.”
The
portion of the record of the proceedings complained of in the
district court, which precedes the evidence by Elricho Forch, is
recorded as follows:
“
Aanklaer: Elricho
Forch
Hof: Wat
is jou naam en van?
Getuie: Elricho
Forch
Hof: Hoe
oud is jy?
Getuie: 14
Hof: Jy is nou 14 jaar
oud jy word nou geroep om te kom getuig oor ‘n voorval wat
plaasgevind het. Die hof waarsku nou vandag vir
jou om net die
waarheid, die hele waarheid en niks anders as die waarheid te praat
nie. Met ander woorde jy moet nie vandag kom getuig
oor dinge wat jy
gehoor het nie maar net oor dinge wat jy gesien het, reg so?
Elricho
Forch: Bevestig.
Hof: Goed
SA?
Ondervraging
deur Aanklaer: Elricho gaan jy skool ? --- Ja, edele.”
When
one looks at the portion of the record of the proceedings cited above
it is quite evident that the evidence tendered by Elricho
Forch was
not preceded by any form of an enquiry specifically with a view to
establishing whether or not the witness understood the
nature and the
import of the oath or the affirmation. The question that calls for
determination, therefore, is whether the evidence
by this witness
ought to be excluded from the record because of the omission by the
magistrate to conduct an
enquiry with a view to
establishing if the
witness, at the time he tendered his evidence in court, understood
the import of the oath or the affirmation,
as, according
Mr
Pothier’s
submissions,
the magistrate is expressly required to do in terms of provisions of
section 164
(1) of the Act before admonishing the witness to speak
the truth, the whole truth and nothing other than the truth.
In
a series of judgments delivered by the various Provincial Divisions
of the High Court, the trend appears to have been that a witness,
in
terms of
section 164
(1) of the Act, cannot be admonished unless he
or she comprehends what it is to speak the truth and to shun
falsehood in his or her
evidence. It has further been held in a
number of decisions that before the section is invoked, the court
must make the necessary
finding that the witness concerned does not
understand the nature and the import of the oath or affirmation and
that this finding
entails the holding of an enquiry which should
precede such a finding. (See in this regard
S
v V
1998 SACR 651
(C);
S
v Vumazonke
2001 (1) SACR 619
(C) ;
S v Malinga
2002 (1)
SACR 615
(N) and Du Toit et
al
Commentary on the
Criminal Procedure Act
22
–
19 to 22 – 20 and other authorities cited therein.)
In
S
v B
2003 (1) SA 552
(
SCA
)
the Supreme Court of Appeal had to consider a question of law
referred to it by the Transvaal Provincial Division in terms of
section 319
of the
Criminal Procedure Act. The
question the court had
to determine was whether the evidence of a witness who was merely
admonished to tell the truth without any
prior investigation and a
subsequent determination that the witness did not appreciate the
nature and the import of the oath or affirmation
due to youth,
defective education or any other cause, could not be regarded as
admissible evidence.
In
answer to this question, the Supreme Court of Appeal held that an
enquiry is not always necessary in order to make a finding required
by
section 164
of the
Criminal Procedure Act. It
further held that
the mere youthfulness of a witness, without such an enquiry being
held, may indeed justify such a finding. The
court remarked as
follows in paragraph 15 at pages 562 F-G to 563 A – D:
“
Dit
is duidelik dat art 164 ‘n bevinding vereis dat ‘n persoon weens
onkunde voorspruitende 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 vroe
ëre
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 228g –
h);
S v Vumazonke 2000 (1)
SASV 619
(K) op 622f –
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. Dit kan by voorbeeld gebeur
dat, wanneer gepoog
word om die eed op te le 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 (sien
S
v Stefaans 1999 (1) SASV 182
(K) op 185i).
This
approach has recently been confirmed by the Supreme Court of Appeal
in an as yet unreported judgment handed down on the 26 March
2003 in
the matter of
The
Director of Public Prosecutions: Kwazulu – Natal v John Mekka
,
SCA Case No. 57/2002. In this case the respondent was convicted of
rape and indecent assault and sentenced to 10 years imprisonment
by
the Regional Court in Durban. An appeal was noted to the Natal
Provincial Division on the basis that the magistrate failed to
inquire from the complainant whether she understood the nature and
import of the oath and that such failure constituted an irregularity
rendering the complainant’s evidence inadmissible. As there was no
other evidence led to establish the guilt of the accused, the
conviction and sentence was set aside, the court holding that failure
to hold such an enquiry constituted an irregularity rendering
the
complainant’s evidence inadmissible.
The
State noted an appeal against this finding in terms of
section 311
of
the
Criminal Procedure Act to
the Supreme Court of Appeal. Following
its earlier decision in
S
v B
supra, the court held that failure to hold the enquiry did not
constitute an irregularity. The appeal by the State was thus upheld.
The conviction and sentence imposed by the Regional Court was
re-instated.
In
the light of the decisions by the Supreme Court of Appeal in both the
matters of
S
v B
and
The
Director of Public Prosecutions: Kwazulu – Natal v John Mekka
supra, it would appear that nothing more is required of the presiding
judicial officer than to form an opinion that the witness does
not
understand the nature and the import of the oath or affirmation due
to ignorance, arising from youthfulness, defective education
or any
such like cause.
In
casu
the magistrate was informed that the witness was fourteen (14) years
of age before tendering his evidence, and arising from such
information had formed an opinion that the witness did not understand
the nature and import of the oath or affirmation. Based on
this
opinion the magistrate proceeded to admonish the witness to speak the
truth, the whole truth and nothing other than the truth.
It follows,
therefore, that
Mr
Pothier’s
contention
that evidence by Elricho Forch is inadmissible because the magistrate
omitted to hold an enquiry before he formed an opinion
that the
witness did not understand the nature and the import of the oath or
affirmation is without substance.
Accordingly,
in the words of Streicher JA in
The
Director of Public Prosecutions:Kwazulu – Natal v John Mekka
supra
at p8
“the
magistrate did not commit an irregularity by allowing the witness to
testify after having warned him to tell the truth.”
I
have had an opportunity to ascertain what the position in other
jurisdictions is as regards whether some form of an enquiry is called
for in circumstances where the evidence of a child below the age of
fourteen (14) is to be tendered. In Canada, it appears that in
terms
of section 16 of the
Canada
Evidence Act
,
a court is required, before permitting a child below the age of
fourteen (14) years to give evidence, to conduct an enquiry to
determine
whether the child concerned (a) understands the nature of
an oath or affirmation and (b) whether the child is able to
communicate
the evidence. If the child does not meet requirement (a)
but does meet requirement (b) the child may testify on promising to
tell
the truth. However, there is proposed a change in this approach
in the form of the proposed
Child
Evidence Act
.
In terms of the proposed change, a child’s evidence will be
admissible if (a) he or she promises to tell the truth and (b) the
court is of the opinion that the child understands what it means to
tell the truth and is able to communicate the evidence. The Bill
incorporating the proposed change, was introduced in the second
session of the Canadian parliament during 2002. It would appear that
the approach by the Supreme Court of Appeal is in line with the
change proposed in Canada if such change is not yet law.
Having
said that this then calls for the determination of the merits of this
appeal. As regards the first appellant I have already
made the
observation that no specific reference was made to him with regards
to his degree of participation in the commission of
the offence, if
the first appellant did participate in the commission of the offence
at all. On only three occasions does the eye
witness Elricho Forch
specifically refer to the first appellant. This was on the two
occasions when asked by the court as regards
whether the first
appellant had any weapon in his possession and the witness had
replied that the first appellant had stood at a
distance from the
scene of crime and could therefore not see whether first appellant
had any weapon in his possession; the second
occasion was when asked
by the court where first appellant lived and the witness had replied
that he also lived in Swart Street.
The third occasion was a question
by the prosecutor as regards what clothing the first appellant had
and the witness had replied
that he could not remember.
In
the course of his judgment, the magistrate concluded that the first
appellant placed himself on the scene of crime in the course
of
cross-examination of the witness, Elricho Forch. This is because of
certain statements the first appellant put to this witness
as regards
certain events at the scene of crime.
Although
not explicit on the record, it appears that Elricho Forch had met and
had a conversation with the first appellant whilst
the latter was
still in custody after arrest. This is apparent on the first
appellant’s notice of appeal addressed to the Chief
Magistrate,
Oudtshoorn. In his notice of appeal, first appellant states how
Elricho Forch had told him (the first appellant) as regards
how far
Ericho Forch was from the scene of crime when same was committed, the
direction he had come from when he approached the scene
of crime, the
fact that he (Elricho Forch) had heard the first appellant’s
nickname (Betty) mentioned by one of the robbers, how
surprised
Elricho Forch was to learn that the first appellant was linked to the
commission of the offence and even went further to
say that he would
make a statement to the investigating officer in order to have
charges against first appellant withdrawn.
The
first appellant, naturally, put these statements to Elricho Forch in
the course of his cross-examination based, as they are, on
the
conversation he had with this witness whilst first appellant was
still in custody. Based on this line of cross-examination of
the
witness by the first appellant, the magistrate concluded that the
first appellant placed himself on the scene of the robbery.
Based on
this conclusion, the magistrate drew an inference that the first
appellant was one of the persons who had robbed the complainant
of
his belongings.
I
am in agreement with the submission by
Mr
Pothier
that the inference
drawn by the magistrate that the first appellant had placed himself
on the scene in the process of cross-examination
of the witness, is
not only inaccurate but also incorrect. It is indeed so that what the
first appellant merely put to this witness
was what the latter had
informed the first appellant in their conversation whilst the first
appellant was still in custody after
arrest.
In
my view, there is doubt whether the first appellant participated in
the commission of the offence, due regard had to the totality
of the
evidence on record. However, not the same could be said as far as the
second appellant is concerned.
Elricho
Forch describes in graphic detail the role played by the second
appellant in the commission of the robbery. He was close to
the
second appellant all the time and had every opportunity to observe
him. Moreso, the second appellant was known to Elricho Forch
and
there is no suggestion at all, as the record shows, that Elricho
Forch could be making a mistake as far as the identity of the
second
appellant is concerned.
In
my view, the state has not succeeded in proving the guilt of the
first appellant beyond reasonable doubt and he ought to have been
found not guilty and discharged. As regards the second appellant it
is my view that the state succeeded in proving that he did commit
the
robbery in question and, accordingly, he was correctly convicted.
In
the result I would make the following order:
(a) The
appeal by the first appellant is upheld and his conviction is thus
set aside;
(b) The
appeal by the second appellant is dismissed and the conviction is
confirmed.
______________
YEKISO,
J
I
agree.
_______________
HLOPHE,
JP