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IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, BHISHO
Not reportable
CASE NO. CA&R4/2026
In the matter between:
THE STATE
and
S[...] N[...] Accused
___________________________________________________________________
REVIEW JUDGMENT
___________________________________________________________________
Bands J and Laing J:
[1] This matter concerns unterminated criminal proceedings emanating from the
Middledrift District Court, in which the accused pleaded not guilty to a charge of
assault with intent to do grievous bodily harm. The complainant who was 15 years of
age at the date of trial, gave evidence through a duly appointed intermediary. In the
referral letter, the presiding officer records that the matter is being sent on “ special
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review” by reason of the fact that the complainant testified without the court having
“administered his affirmation ”. From the record, it appears that such realisation
occurred during the complainant’s cross examination.
[2] It must immediately be said that on a perusal of the record of proceedings, the
complainant was purportedly admonished in terms of section 164(1) of the Criminal
Procedure Act, 51 of 1977 (CPA), same ha ving been administered by the interpreter
and intermediary in the presence of the presiding officer as provided for in section
165. Accordingly, the presiding officer’s reference to the lack of affirmation being
administered (this being separate and disti nct from an admonition), is somewhat
confusing.
[3] In terms of section 162 of the Act, no person, subject to the provisions of
sections 163 and 164, shall be examined as a witness in criminal proceedings unless
he is under oath.
[4] Sections 163 to 165 of the Act provide as follows:
“163 Affirmation in lieu of oath
(1) Any person who is or may be required to take the oath and-
(a) who objects to taking the oath;
(b) who objects to taking the oath in the prescribed form;
(c) who does not consider the oath in the prescribed form to be binding on his
conscience; or
(d) 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.
164 When unsworn or unaffirmed evidence admissible
(1) Any person, who is found not to understand the nature and import of the oath
or the affirmation, may be admitted to give evidence in criminal proceedin gs
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.
(2) If such person wilfully and falsely states anything whi ch, if sworn, would have
amounted to the offence of perjury or any statutory offence punishable as
perjury, he shall be deemed to have committed that offence, and shall, upon
conviction, be liable to such punishment as is by law provided as a
punishment for that offence.
165 Oath, affirmation or admonition may be administered by or through
interpreter or intermediary
Where the person concerned is to give his evidence through an interpreter or
an intermediary appointed under section 170A (1), the oath, a ffirmation or
admonition under section 162, 163 or 164 shall be administered by the
presiding judge or judicial officer or the registrar of the court, as the case may
be, through the interpreter or intermediary or by the interpreter or intermediary
in the presence or under the eyes of the presiding judge or judicial officer, as
the case may be.”
[5] It is well established that the reason for giving evidence under oath (s 162),
affirmation (s 163) or admonishment (s 164) is to ensure that the evid ence given is
reliable.1 The evidence of a witness, in circumstances where he or she has not been
reliable.1 The evidence of a witness, in circumstances where he or she has not been
1 2013 (1) SACR 398 (SCA) para 4.
properly placed under oath, made a proper affirmation, or been properly admonished
to speak the truth, lacks the status and character of evidence and is inadmissible.2
[6] Relevant to the above, the Supreme Court of Appeal, in S v Raghubar3 stated
as follows:
“Section 192 of the Criminal Procedure Act declares generally that unless specially
excluded, all persons are both competent and compellable witnesses. A witness is
competent to testify if his or her evidence may properly be put before the court. If a
child does not have the ability to distinguish between truth and untruth, such a child is
not a competent witness. It is the duty of the presiding officer to satisfy himself or
herself that the child can distinguish between truth and untruth. The court can also
hear evidence as to the competence of the child to testify. Such evidence assists the
court in deciding (a) whether the evidence of the child is to be admitted, and (b) the
weight (value) to be attached to that evidence. The maturity and understanding of the
particular child must be considered by the presiding judicial officer, who must
determine whether the child has sufficient intelligence to testify and a proper
appreciation of the duty to speak the truth. The court may not merely accept
assurances of compet ency from counsel. The language used in all three sections is
peremptory.”
[7] Where it is established that the child witness is able to distinguish between
truth and untruths, which is a prerequisite for the oath, affirmation, and admonition,
an enquiry into whether the witness possesses the required capacity to understand
the nature and import of the oath, including its religious sanction, must be conducted.
Should the latter enquiry yield a negative result, the witness must be admonished to
speak the truth . Accordingly, it is only where the court finds that the witness lacks
2 S v Matshivha 2014 (1) SACR 29 (SCA) para 10; and Rammbuda v S (156/14) [2014] ZASCA 146
(26 September 2014) para 7.
(26 September 2014) para 7.
3 2013 (1) SACR 398 (SCA) para 5.
capacity to understand the nature and import of the oath, as set out above, that
triggers the court’s need to admonish a witness to speak the truth in terms of section
164(1) of the CPA.
[8] In this regard, the court, in S v V,4 stated as follows:
“If s 164 is to be resorted to in order to procure the evidence of a child the court must
first make the necessary finding that the child does not understand the nature and
import of the oath. To make a finding entails an enquiry. The court must enquire and
satisfy itself whether the child understands the oath and understands what it means
to speak the truth… If the child does not, it cannot be admonished under s 164, it is
an incompetent wit ness, whose evidence is inadmissible. The admission of such
evidence is an irregularity which, in my opinion, constitutes a failure of justice per se.
Compare S v Hendricks en ‘n Ander 1995 (1) SACR 37 (C).”
[9] In the present matter, the following exchange, prior to the complainant giving
evidence, appears from the record of proceedings:
“Court: How old is O[...]?
Prosecutor: He is 15 years, Your Worship.
Court: Thank you very much. O[...] can you hear us?
Ms Mokoena (intermediary): I confirm I can hear Your Worship he cannot.
Court: Why is that ma’am?
Ms Mokoena : Because due to the headsets your Worship that are with the
intermediary the witness is unable to hear and will only take questions when relate by
the intermediary, Your Worship.
Court: Are you ready to proceed, ma’am?
Ms Mokoena: Yes, I am Your Worship.
Court: Thank you very much. We are about to begin then. Proceed Mr Potselo, sir.
O[...] N[...]: (admonished) [through intermediary] [through interpreter].”
4 1998 (2) SACR 651 (C) at 652I-J and 653a.
[10] From the aforesaid, it is imm ediately apparent that the irregularity in the
proceedings lies in the presiding officer’s failure to enquire into the complainant’s
ability to: (i) differentiate between truth and untruth, relevant to his competency to
give evidence; and (ii) understand t he nature and import of the oath. Accordingly,
absent the aforesaid enquiries, and the necessary findings relevant thereto,
whatever admonition was purportedly administered to the complainant, fell far short
of what is required by s 164 of the CPA. Essen tially, the complainant, who was not
assessed as to competency, was permitted to give evidence in the absence of an
oath, affirmation, or admonishment. That being so, and as succinctly stated in
paragraph [8] of Rammbuda (supra): “[t]he testimony of the c omplainant thus lacked
the status and character of evidence.”
[11] The presiding officer, albeit for different reasons, approached this court
seeking a review of the proceedings before her, in medias res. Accordingly, s 304(4)
of the CPA, upon which the pre siding officer relies to place the matter before the
High Court, is of no application as it does not allow for review proceedings prior to
sentencing. By virtue of the High Court’s inherent power to restrain illegalities in
inferior courts, this court may , in a proper case, by way of review, interdict or
mandamus, grant relief against the decision of a magistrates’ court g iven prior to
conviction.5
[12] As set out in African Paper Products (Pty) Ltd and Another v Director of Public
Prosecutions: Eastern Cape and Another:6
5 Wahlhaus & others v Additional Magistrate, Johannesburg & Another 1959 (3) SA 113 (AD) at 119G.
6 (250/2020) [2022] ZAECMKHC 90 (31 October 2022).
“[20] It is an established principle of our law that the High Court will not ordinarily,
by way of appeal, review or mandamus, interfere with unterminated proceedings in a
lower court. The court’s power to interfere is exercised sparingly and only in those
cases in which the court is satisfied that grave injustice may otherwise result or
where justice might not by other means be obtained. The court’s reluctance to
interfere in unterminated proceedings stems primarily from (i) the effect that such
procedure has upon the continuity of proceedings in the court below; 7 (ii) the
undesirability of hearing appeals and reviews piecemeal; 8 and (iii) the fact that
redress by other means, such as review or appeal, will ordinarily be available in due
course.9
[21] In Wahlhaus and Others v Additional Magistrate, Johannesburg and Another
(supra) the Appellate Division (as it then was) commented as follows at 120D:
“[T]he prejudice, inherent in an accused’s being obliged to proceed to trial,
and possible conviction, in a magistrate’s court before he is accorded an
opportunity of testing in the Supreme Court the correctness of the
magistrate’s decision overruling a preliminary, and perhaps fundamental,
contention raised by the accused, does not per se necessarily justify the
Supreme Court in granting relief before conviction… As indicated earlier, each
case falls to be decided on its own facts and with due regard to the salutary
general rule that appeals are not entertained piecemeal.”
[22] …
[23] In Ismail and Others v Additional Magistrate, Wynberg and Another ,10 the
court, in assessing what constitutes a gross irregularity justifying inter ference before
conviction, stated:
7 Wahlhaus & others v Additional Magistrate, Johannesburg & Another 1959 (3) SA 113 (AD) at 119H
– 120A.
8 Motata v Nair and Another 2009 (1) SACR 263 (TPD) at 267 at paragraph [12].
9 Wahlhaus & others v Additional Magistrate, Johannesburg & Another 1959 (3) SA 113 (AD) at 119H
– 120A.
10 1963 (1) SA (A).
“I should point out that it is not every failure of justice which would amount to
a gross irregularity justifying interference before conviction. As was pointed
out in Wahlhaus and Others v Additional Magistrate, Johann esburg and
Another 1959 (3) SA 113 (AD) at p119, where the error relied upon is no more
than a wrong decision, the practical effect of allowing an interlocutory
remedial procedure would be to bring the magistrate’s decision under appeal
at a stage where no appeal lies. Although there is no sharply defined
distinction between illegalities which will be restrained by review before
conviction on the ground of gross irregularity, on the one hand, and
irregularities or errors which are to be dealt with on appeal after conviction, on
the other hand, the distinction is a real one and should be maintained. A
Superior Court should be slow to intervene in unterminated proceedings in
the court below, and should, generally speaking, confine the exercise of its
powers to ‘rare cases where grave injustice might otherwise result or where
justice might not be by other means attained.’ (Wahlaus’s case, supra at
p120).”
[24] The aforesaid approach, as set out in Wahlhaus (supra) and Ismail (supra),
was endorsed by the court in Motata v Nair NO and Another 11 and more recently, by
the full bench of this court in Mispha CC and Another v The Honourable Regional
Magistrate and Others.12”
[13] In Magistrate, Stutterheim v Mashiya 13 the Supreme Court of Appeal
commented that:
“The higher courts have however emphasised repeatedly that the power to intervene
in unconcluded proceedings in lower courts will be exercised only in cases of great
rarity – where grave injustice threatens, and where intervention is necessary to attain
justice. The same approach has been followed under the Constitution. At the same
time, although the cases in which intervention has actually occurred are
11 2009 (1) SACR 263 (TPD) at paragraphs [9] and [10].
11 2009 (1) SACR 263 (TPD) at paragraphs [9] and [10].
12 Case No.: 2647/2011, ECD Grahamstown (as it then was) (delivered on 18 September 2013).
See also: Sizani v Mr Mpofu N.O. and Another , Case No.: 2804/2019, ECD Grahamstown (as it then
was) (delivered on 18 August 2020).
13 [2003] 3 All SA 11 (SCA).
uncommon, this Court has refused to define o r limit the circumstances in which
intervention would be justified. The categories remain open.”
[14] Mindful of the aforesaid, it remains to be determined whether the proceedings
under consideration fall to be reviewed and set aside, regard being had to the
appropriate threshold as set out above.
[15] In the present matter, there can be no question as to the prejudice, inherent in
the accused being obliged to proceed to trial and face a possible conviction upon the
inadmissible evidence of the complainant (shoul d the presiding officer erroneously
take the complainant’s evidence into account), only to then have such conviction set
aside on review or appeal, with the possibility of a retrial in due course. By the same
token, should the presiding officer disregard the evidence of the complainant, which
she would be bound to do in the circumstances, this may very well be prejudicial to
the state’s case. Moreover, the prejudice to the complainant, all relevant witnesses,
and the accused (should he elect to testify), in having to give evidence on more than
one occasion, is self -evident. To allow the proceedings to continue in the
Magistrates’ Court, in the face of a substantial irregularity as set out above, will likely
result in grave injustice. This court is accord ingly satisfied that the matter justifies
the intervention of this court prior to conviction.
[16] Consequently, the following order is issued:
(a) the proceedings are set aside; and
(b) the matter is referred to the court a quo, to be commenced de novo.
_________________________
I BANDS
JUDGE OF THE HIGH COURT
I agree.
_________________________
JGA LAING
JUDGE OF THE HIGH COURT
Date delivered: 24 March 2026.