Director of Public Prosecutions Kwazulu-Natal v Mekka (57/2002) [2003] ZASCA 17 (26 March 2003)

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[2003] ZASCA 17
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Director of Public Prosecutions Kwazulu-Natal v Mekka (57/2002) [2003] ZASCA 17; 2003 (4) SA 275 (SCA); 2003 (2) SACR 1 (SCA) (26 March 2003)

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Certain personal/private details of
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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case
No: 57/2002
In the matter between:
THE
DIRECTOR OF PUBLIC PROSECUTIONS
KWAZULU-NATAL
Appellant
and
JOHN
MEKKA
Respondent
Coram
:
Vivier
ADP, Olivier, Streicher, Farlam JJA and Jones AJA
Heard
:
20
March 2003
Delivered
:
26
March 2003
Section 164 of Act 51 of
1977 – finding that witness did not understand the nature and
import of the oath – inquiry preceding
finding not always
necessary- court bound by its earlier decision in
S v B
2003
(1) SA 552
(SCA).
J
U D G M E N T
STREICHER
JA/
STREICHER
JA
:
[1] The respondent was
convicted of rape and indecent assault and sentenced to 10 years
imprisonment by the regional court in Durban.
On appeal the Natal
Provincial Division held 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.
In the result and as the other
evidence led at the trial did not establish the guilt of the
respondent, the conviction and sentence
were set aside. This is an
appeal in terms of s 311 of the Criminal Procedure Act 51of 1977
(‘the Act’) against the setting
aside of the conviction and
sentence.
[2] Section
162 of the Act provides that subject to the provisions of ss 163 and
164 no person shall be examined as a witness in
criminal proceedings
unless he is under oath. In terms of s 163 a person who objects to
taking the oath or who does not consider
the oath in the prescribed
form as binding on his conscience or who informs 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 the
affirmation prescribed by the section.
[3] Section
164(1) of the 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.’
[4] The
proceedings in the regional court preceding the complainant’s
testimony, were recorded as follows:
‘
COURT
M. how old are you?
.
. .
M.N.
I’m
nine years.
.
. .
COURT
Do you go to school?
M.N.
Yes.
COURT
What standard are you in or class?
M.N.
Standard
2.
COURT
You’re a clever girl. All right, do you
know the difference between truth and lies?
M.N.
Yes.
COURT
What happens to you at school if your teacher finds out you’re
telling lies?
M.N.
You
get punished.
COURT
All right, its very important you tell us the truth today in court
and you’re warned to tell the truth.’
[5] In
her reasons for judgment the magistrate said:
‘
3.1 I
do concede that the court never enquired from M. the complainant
whether she understood the nature and import of the oath
or whether
she considered the oath to be binding on her conscience before
admonishing her to tell the truth.
3.2 The
court believed that due to her tender age she would not have
understood the nature and import of the oath and therefore
merely
admonished her to tell the truth after she was found to be a
competent witness who knew the difference between truth and

falsehood.’
[6] The
court
a quo
relied on
S v N
1996 (2) SACR
225
(C) at 229
e
and
S
v Malinga
2002 (1) SACR 615
(N), a judgment
of the full bench of the Natal Provincial Division which was binding
on it. It consequently held that a finding
in terms of the section
had to be preceded by some form of inquiry; that it was clear that
the magistrate did not inquire from
the complainant whether she
understood the nature and import of the oath; and that the evidence
of the complainant was therefore
inadmissible. However, in its
judgment granting leave to appeal the court
a
quo
said:
‘
It seems to me that
there are reasonable prospects of the Supreme Court of Appeal
concluding that in the circumstances of this case
the presiding
magistrate, by clear implication, made a finding which was based on
her observation that the witness, because of
her self-evident youth
and immaturity, could not understand the actual nature and import of
the oath and accordingly it was only
necessary to admonish and warn
her and then hear her testimony.’
[7] Since
the judgments by the court
a quo
were delivered this court has
held in
S v B
2003 (1) SA 552
(SCA) that an inquiry is not
always necessary in order to make the finding required by s 164 and
that the mere youthfulness of
a witness may indeed justify such a
finding. In para [15] of the judgment this court said:
‘
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
).’
[8] Counsel
for the respondent submitted that the court’s remarks on this point
were
obiter
and that
they should in any event be departed from as they were wrong. He
submitted that we should rather follow the Provincial
Division
decisions in which it was held that an inquiry was always necessary.
[9] There
is no merit in the contention that the decision constituted an
obiter
dictum
. Questions of law were reserved for
decision by this court. One of the questions so reserved was whether
the failure of the trial
court to have conducted an inquiry resulted
in the evidence of the witness concerned being rendered inadmissible
(see para 10).
This court was therefore called upon to decide whether
or not s 164 required an inquiry to be conducted.
[10] As
regards the invitation to depart from the decision in
S
v B
I need go no further than to refer to
what Harms JA said in
Contract Forwarding
(Pty) Ltd v Chesterfin (Pty) Ltd and Others
2003 (2) SA 253
(SCA) para 9:
‘
The
approach of this Court to
stare
decisis
is well known
and we are not here merely in order to pay lip service to it. It
suffices to underscore the formulation in
Bloemfontein Town
Council v Richter
1938 AD 195
at 232:
“
The
ordinary rule is that this Court is bound by its own decisions and
unless a decision has been arrived at on some manifest oversight
or
misunderstanding, that is there has been something in the nature of a
palpable mistake, a subsequently constituted Court has
no right to
prefer its own reasoning to that of its predecessors – such
preference, if allowed, would produce endless uncertainty
and
confusion.”’
I am in any event of the
view that the decision in
S v B
was correct.
[11] The fact that the
magistrate after having established the age of the complainant
proceeded to inquire 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.
[12] The
respondent submitted that the trial court also had to inquire whether
the complainant understood the difference between
truth and
falsehood. Whether such an inquiry need be held is a question that
was not decided in
S v B
and need not be decided in this case
as it is clear that the magistrate conducted such an inquiry. The
complainant said that she
understood the difference and that one got
punished if one were to tell a lie thereby indicating that she knew
that it was wrong
to tell a lie. It was on the basis of these answers
that the magistrate concluded, as she was in my view entitled to do,
that the
complainant understood the difference between truth and
falsehood.
[13] It
follows that the magistrate did not commit an irregularity by
allowing the complainant to testify after having warned her
to tell
the truth.
[14] Having
decided the matter in issue in favour of the appellant this court may
in terms of s 311(1) set aside or vary the decision
appealed from and
re-instate the conviction and sentence of the regional court. In my
view the magistrate correctly convicted the
respondent and sentenced
him to 10 years imprisonment. No submissions to the contrary were
made on behalf of the respondent. The
regional court’s conviction
and sentence of the respondent should therefore be re-instated.
[15] For these reasons
the appeal is upheld, the order made by the court
a quo
is set
aside and the conviction and sentence imposed by the regional court
are re-instated.
______________
P E STREICHER
Judge of Appeal
Vivier
ADP )
Olivier
JA )
Farlam JA )
Jones JA ) concur