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IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION: MAKHANDA]
CASE NO.CA&R 100/2021
In the matter between:
THEMBA FRANS Appellant
And
THE STATE Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
JOLWANA J
Introduction
[1] This matter represents an ignominious but unfortunately not so uncommon
feature of cases which become doomed to fail from inception. Some of these cases
become a comedy of sometimes fatal errors due to lack of attention by prosecutors
and unfortunately even presiding judicial officers in some instances. This
unfortunate trend is a regrettable betrayal of the principle of criminal accountability
on which so much premium and hope is placed by the citizenry. The inevitable result
is the failure of justice with dire consequences for the victims of crime who would
have taken all the trouble to report the crimes to the police. The victims of crime
would also have re -lived their trauma during consultations with prosecutors and
again re -lived it when they testify which often entails that they are sometimes
subjected to unavoidable cross examination in which their stories are questioned.
Victims of crime follow the whole process in search of justice and in recognition of
the importance of the criminal justice system protecting them from brazen criminality.
Fortunately, these types of cases represent a small fraction of cases that are heard
in our courts daily with many prosecutors and presiding judicial officers diligently
doing what they took their oaths of office to do and displaying amazing dedication to
their duties. Be that as it may, when the criminal justice system fails in one case due
to lack of diligence and care or even ineptitude, reference to many cases that are
successfully prosecuted and to the many criminals that are convicted and are
sentenced to long periods of imprisonment, all of that is unfortunately cold solace to
those victims of crimes whose cases do not get successfully prosecuted. Their only
hopes are, in the result dashed when criminals are released even before they would
have come to terms with what was done to them and have figured out how to carry
on with their lives.
Factual background
[2] Appellant was arraigned in the Regional Court in Makhanda for the very serious
crime of contravening various provisions of the Criminal Law Amendment Act 32 of
2007 (the Sexual Offences and Related Matters Amendment Act) further read with
section 51(1) and (2) and Schedule 2 of the Criminal Law Amendment Act 105 of
1997 (the Minimum Sentences Act). It was alleged that on or about 28 September
2020 and at or near Transit Camp in Makhanda appellant unlawfully and intentionally
committed an act of sexual penetration with the complainant who was 17 years old at
the time, by inserting his penis into her vagina without her consent.
[3] Before appellant was asked to plead, he was informed about the implications of
the state’s invocation of the Minimum Sentences Act. He confirmed that he
understood the charge that was preferred against him and the implications of the
state having invoked section 51(2) of the Minimum Sentences Act and the applicable
minimum sentences. Appellant pleaded not guilty to the charge and went on to
explain that he never had sexual intercourse with the complainant. At the conclusion
of the trial he was, however, convicted and sentenced to 10 years imprisonment.
First procedural irregularity
[4] The charge sheet, as read to the appellant by the prosecutor, did not reflect the
basis on which the provisions of section 51(2) read with Schedule 2 of the Minimum
Sentences Act were invoked. The court did not correct this error nor did the legal
representative of the appellant point this out to the court so that it may be corrected
in the interests of justice. I do need to emphasise that it is simply not enough for a
prosecutor, in charging an accused person, to merely refer to section 51 and the
applicable schedule. The basis on which section 51 is invoked must be explained to
the accused person. This is very important and not mere pedantry to ensure that an
accused person understands, right at the beginning of the trial, all the elements of
the criminal charge on which the state intends to rely in proving its case against him.
All the aspects of the case that may be relevant during trial and to the extent that
they may be a fundamental consideration at the sentencing stage should the
accused be convicted must be disclosed.
[5] In Baloyi1 the Supreme Court of Appeal explained this principle as follows:
“A minimum sentence imposed will stand only if the accused had been properly
apprised in the charge sheet and informed by the court of the relevant provisions of
the CLAA before the trial begins. Furthermore, the state will not be relieved of the
duty to prove planning or premeditation before the verdict. In that event, the accused
will be made aware of which evidence will be led and the kind of sentence likely to be
imposed. That will allow the accused to prepare his defence and cross -examination
of the state witnesses accordingly... .”
[6] To the sentiments expressed by the court in Baloyi, I can only add that it is not
enough for the charge sheet and therefore the prosecutor as well as the court to
fleetingly make reference to section 51 and the relevant subsection and schedule.
The basis on which the state will rely on section 51 and the relevant subsection and
the applicable schedule if he or she is convicted must be explained to the accused.
All of this is part of fully informing the accused what evidence the state intends to rely
on will be and why it intends to apply for the imposition of a particular sentence if the
accused is convicted. Armed with all this information, an accused person becomes
well informed, therefore forewarned and is placed in a better position to defend
himself before he tenders his or her plea and about the possible consequences of a
conviction on that particular charge. This enables him to deal with that aspect of the
state’s case during cross -examination of the state witnesses and to also deal with it
when and if he testifies in his defence.
[7] In this matter, the prosecutor merely referred to section 51(2) and Schedule 2
without giving reasons why this was the case. The court, while it correctly explained
without giving reasons why this was the case. The court, while it correctly explained
1 Baloyi v S 2022 (1) SACR 557 (SCA) para 25.
to the appellant the implications of section 51(2) having been invoked, however did
not ask the prosecutor to deal with this short coming in the charge sheet or explain
why section 51(2) was said to be implicated. In this regard the court committed a
misdirection which, in my view was quite significant. What the consequences may
be in respect of any particular misdirection will always depend on the facts of each
case as not all misdirections may result in the accused person not receiving a fair
trial and therefore the quashing of the conviction and sentence on appeal.
Second procedural irregularity
[8] The second and most egregious misdirection on the part of the presiding judicial
officer was in respect of the very first witness called by the state which happened to
be the complainant herself. This is in respect of the way the oath or affirmation was
or was not dealt with by the court. In this regard it is apposite to start by referring to
the relevant provisions of the Criminal Procedure Act 51 of 1977 (the CPA). I quote
sections 162, 163 and 164 sequentially hereunder:
“162 Witnesses to be examined under oath
(1) Subject to the provisions of sections 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 that 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.
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 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.
(2) If such person wilfully and falsely states anything which, 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.”
[9] With these provisions in mind, I now deal with the relevant aspects of the court
proceedings in the court a quo. After the prosecutor put the charges to the
appellant, the court correctly confirmed with the appellant that he understood the
appellant, the court correctly confirmed with the appellant that he understood the
charge. When it comes to the provisions of section 51(2) of the Minimum Sentences
Act having been invoked by the state, the court explained the implications thereof but
did not explain the reasons for its invocation. From this point onwards, and
subsequent to appellant’s legal representative having confirmed that the plea of not
guilty tendered by the appellant was in accordance with her instructions and a brief
outline of the basis for the appellant's plea of not guilty having been given, the state
called the complainant to the witness stand to testify.
[10] The transcribed record of the proceedings for that day reflect that portion of the
proceedings as follows:
“PROCEEDINGS HELD IN CAMERA
COURT: Name and surname. Be seated.
WITNESS: S[...] M[...].
COURT: Any objections to the taking of the oath?
WITNESS: No objection Your Worship.
COURT: Thank you, Madam you will have to speak up, and clear so that you can be
heard. You are speaking through the mask that we are wearing. Makes it difficult for
one to be heard and for one to be audible so speak up.
WITNESS: Yes Your Worship.
COURT: Thank you may be seated.
PROSECUTOR: May I then proceed Your Worship?
COURT: Okay.”
[11] The court record reflects very clearly that while the complainant indicated that
she had no objection in taking the prescribed oath, no such oath was administered at
all to her. Instead, the prosecutor proceeded to lead the evidence of the complainant
and neither the legal representative of the appellant nor the presiding magistrate
corrected this egregiously serious procedural irregularity. At the end of the trial with
more evidence having been led and appellant having testified, appellant was
convicted and sentenced to 10 years imprisonment. Appellant applied for leave to
appeal against his conviction only. That application was refused by the court a quo.
He was subsequently granted leave to appeal against his conviction by this Court on
petition to the Judge President.
[12] In the court a quo’s verdict convicting appellant, the presiding judicial officer
expressed himself as follows before he analysed the evidence:
“In this matter the provisions of Section 162 were invoked, it was found that the
complainant understands what an oath is and the import of the oath. She took to the
stand and testified in the provisions of section 153 of the Criminal Procedure Act, 51
of 1977 as amended was invoked in taking the evidence of the complainant.”
[13] The basis on which the magistrate asserted that section 162 was complied with
is unclear as the transcribed record bears no evidence of this having been done.
However, even if it was so that the complainant understood what an oath is and its
import, that would not have been nearly enough. This is because it was necessary
for the complainant, as a witness as is the case with all witnesses, to actually take
the prescribed oath. Secondly and in any event, the record does not reflect it being
enquired if the complainant understood what an oath is and its import. That simply
did not happen. Therefore, the basis on which the magistrate said he made that
enquiry is difficult to understand as it is not born out by the record. What did happen
was that the complainant was asked if she had any objection in taking the prescribed
oath to which she said she had no objection. Thereafter, the evidence of the
complainant was elicited without her taking an oath.
[14] Non-compliance with any of the provisions set out in sections 162, 163 and 164
was raised as a misdirection by appellant in his amended notice of appeal. It was
contended that appellant’s conviction should be set aside on the basis
foreshadowed. As a result, when the appeal was supposed to be heard on 23 April
2025 it could not be heard. Instead, the matter had to be removed from the roll. In
addition to removing the matter from the roll the court issued an order for the
presiding magistrate to look for and find his bench notes in respect of the
proceedings of the day on which the trial commenced. He was further ordered to
provide the said notes under oath and to express his views on whether, having
perused his notes, his final vi ew was that the complainant was in fact sworn or not
sworn in. The court further set out other processes to establish factually what
actually transpired regarding the swearing in of the complainant regard being had to
what the magistrate said in his judgment considered together with what the record
reflected.
[15] The swearing in of the complainant was central to the entire case due to the
nature of her evidence as the entire case was about what happened or did not
happen to her. Appellant contended further in his amended notice of appeal that the
complainant was 17 years old at the time of the incident and was 19 years old during
the trial. The magistrate failed to satisfy himself whether or not she knew the
meaning of the oath. In this regard the provisions of sections 162, 163 and 164 of
the CPA were raise d pointedly and in some detail with reference to the court record
and how appellant contended, none of those provisions were complied with.
[16] As ordered by court, the presiding magistrate filed an affidavit. It appears
therefrom that he misunderstood the nature of the issue that was raised in the
enquiry made in the court order directing him to file an affidavit. In his affidavit he
started by referring to his own judgment in confirming that the oath was administered
to the complainant. This, notwithstanding the fact that it was the inconsistency
between the court record and his judgment regarding the observance or otherwise of
the provisions of section 162 that was at issue. Therefore, reference to his judgment
did not make sense. In any event, he had been asked to look for his bench notes
and file an affidavit based on what he would have recorded in his bench notes. He
also referred to the audio recording of the day in question and said that he listened to
it and that it had a low volume with inaudibles all of which he said were due to a
technical error. He then submitted that decided cases did not require a perfect
record but a record that is adequate for a proper consideration of the appeal.
[17] However, there could have been no objective basis for the submission that the
court record reflected that the oath was administered when he had been asked to
find his handwritten notes of the court proceedings of that day and he had failed to
do so. There is something else that I find disturbing, if not incredible about the
contents of the magistrate’s affidavit. It is that the magistrate also said that he had
found his notes but had misplaced them again. The suggestion in this regard
appears to be that his view that the oath was administered to the complainant was
based on what he would have gleaned from his notes which he had found and had
subsequently misplaced again. With this, he then submitted that the appeal court
should deal with the appeal record based on his found but later misplaced notes.
For his confirmation that the prescribed oath was administered to the complainant
there was absolutely no objective basis beyond his mere ipse dixit.
[18] It is clear on all objective facts that the oath was not administered. What was
required therefore was the magistrate honestly acknowledging that an error occurred
in this regard, explain how the error occurred and then leave the matter to the court
of appeal to deal with it. The objective fact is that section 162 of the CPA was not
complied with nor was section 163 or section 164 for that matter if regard is had to
complied with nor was section 163 or section 164 for that matter if regard is had to
the court record of the proceedings a quo. To the extent that in his affidavit the
magistrate sought to explain away this serious procedural short coming by relying on
case law that deals with an incomplete record, he misdirected himself quite
significantly in this regard too. He clearly did not understand the gravity of eliciting
crucial evidence of the nature that the complainant gave which resulted in the
appellant being convicted and sentenced to a lengthy period of incarceration.
[19] The provisions of sections 162, 163 and 164 have nothing to do with an
incomplete, imperfect or even a missing portion of the record. They have everything
to do with a presiding judicial officer ensuring that before any evidence is tendered
by any witness he or she has taken an oath where he or she has no objection or an
affirmation where the witness concerned objects to taking the prescribed oath or the
witness being admonished to speak the truth, as the case may be. Therefore, the
magistrate’s reliance on all those decided cases referred to in his affidavit was in
itself a misdirection used to explain away a grave miscarriage of justice.
[20] Sections 162, 163 and 164 were explained very succinctly in Director of Public
Prosecutions, Transvaal2 by the Constitutional Court as follows:
“[165] The reason for evidence to be given under oath or affirmation or for a person to
be admonished to speak the truth is to ensure that the evidence given is
reliable. Knowledge that a child knows and understands what it means to tell
the truth gives the assurance that the evidence can be relied upon. It is in fact
a pre -condition for admonishing a child to tell the truth that the child can
comprehend what it means to tell the truth. The evidence of a child who does
not understand what it means to tell the truth is not reliable. It would undermine
the accused’s right to a fair trial were such evidence to be admitted. To my
mind, it does not amount to a violation of section 28(2) [of the Constitution] to
exclude the evidence of such a child. The risk of a conviction based on
exclude the evidence of such a child. The risk of a conviction based on
unreliable evidence is too great to permit a child who does not understand what
2 Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development and
Others 2009 (2) SACR 130 (CC).
it means to speak the truth to testify. This would indeed have serious
consequences for the administration of justice.
[166] When a child, in the court’s words, cannot convey the appreciation of the
abstract concept of truth and falsehood to the court the solution does not lie in
allowing every child to testify in court. The solution lies in the proper questioning
of children, in particular younger children. The purpose of questioning a child is
not to get the child to demonstrate knowledge of the abstract concepts of truth
and falsehood. The purpose is to determine whether the child understands what
it means to speak th e truth. Here the manner in which the child is questioned is
crucial to the enquiry. It is here where the role of an intermediary becomes vital.
The intermediary will ensure that questions by the court to the child are
conveyed in a manner that the child can comprehend and that the answers given
by the child are conveyed in a manner that the court will understand.
[167] As pointed out earlier, questioning a child requires special skill. Not many
judicial officers have this skill, although there are some who, over the years and
because of their constant contact with child witnesses, have developed a
particular skill in questioning children. This illustrates the importance of using
intermediaries where young children are called upon to testify. They have
particular skills in questioning and communicating with children. Counsel for the
Centre for Child Law and Child line was quite correct when, in her reply, she
submitted that everything seems to turn upon the need for intermediaries when
young children testify in court. Properly trained intermediaries are key to
ensuring the fairness of the trial. Their integrity and skill will be vital in ensuring
both that innocent people are not wrongly convicted and that guilty people are
properly held to account.”
[21] This takes me back to the point I made earlier which is essentially about
[21] This takes me back to the point I made earlier which is essentially about
diligence and care by all concerned in how any trial is run and managed due to the
ever present possibility of something being done in a procedurally irregular manner
which many result in the failure of justice. That responsibility lies primarily with the
presiding judicial officer. However, the prosecutor and indeed accused’s legal
representatives, as officers of the court, have an equally very important role in
ensuring that the trial not only runs smoothly but also and most importantly, an
accused person receives a procedurally and substantively fair trial and evidence is
properly and procedurally obtained from all witnesses. It is incorrect for these
officers of the court to keep quiet and not bring to the attention of the presiding
judicial officer where he might have overlooked certain procedural steps.
Third procedural irregularity
[22] Another unfortunate error in the never-ending comedy of errors committed in this
matter was in respect of the way the evidence contained in the J88 medico legal
report was dealt with. The J88 medico legal report was handed up by agreement
between the prosecutor and the legal representative of appellant. The remarkable
thing about the J88 medico legal report was that it was unfortunately very tersely and
scantily completed by the doctor and therefore the evidence contained therein was
very difficult t o understand. For example, somewhere in the J88, it is recorded
“apparent sexual assault ”. The issue that the doctor needed to clarify was whether
and on what basis he came to the conclusion that the complainant was sexually
assaulted. It was not enough for him to merely record that sexual assault was
apparent with no indication of the basis for that conclusion. This required the doctor
who examined the complainant and completed the J88 medico legal report to be
called to testify so that he could explain to the court his entries therein and what they
meant in relatio n to what was alleged to have happened. This did not happen
notwithstanding the lack of detail in that document. The magistrate also simply
accepted it as evidence without ensuring that appellant received a fair trial or that the
evidence reflected therein was properly understood and was reliable.
[23] In Tshimbudzi3 the Supreme Court of Appeal explained the importance of some
of these procedures which are sometimes mistakenly seen as mere pedantry. It
said:
[6] “[I]t is an essential requirement of the Act for the appellant to be convicted of rape
under s 51(1) read with Part I of Schedule 2 of the Act that there had to be
admissible evidence that the complainant was below the age of 16 years. There was
none. The doctor also recorded in the medical report that she was 13 years old. The
opinion by the medical doctor, which is contained in the medical report, the J88, is
inadequate as it is not supported by any facts. The doctor did not testify. Ordinarily,
one would have expected the medical doctor to lay down a basis for his opinion
perhaps by reference to the medical examination which he conducted. Absent such
evidence, we find that notwithstanding the fact that the medical report was admitted
by consent, it is not adequate to prove the complainant’s age satisfactorily. The age
of the complainant is crucial in determining the precise nature of the offence for
which the appellant is charged and the possible sentence to be imposed upon his
conviction.
[7] A further irregularity relates to whether the complainant was validly sworn in in
terms of s162 of the Criminal Procedure Act 51 of 1977 (CPA) before she testified.
The record shows that she was sworn in (d.s.s.). However, this is not enough as the
complainant was a minor. Given the age of the complainant, it was essential that the
regional magistrate make some enquiry to satisfy himself that the complainant
understood and appreciated the distinction of telling the truth and a lie. Only in the
event that the magistrate was satisfied that the minor possessed this ability should
the magistrate then have proceeded to determine whether the said minor fully
understood the nature and import of giving evidence under oath. The magistrate
conducted none of these enquiries and as consequence the complainant’s evidence
conducted none of these enquiries and as consequence the complainant’s evidence
was rendered inadmissible.”
[24] The complainant in this matter was a single witness as it is normally the case
with most sexual assault cases. On her evidence, she was at the appellant’s place
of residence with the appellant only at the time of the incident. Her evidence was
also that from appellant’s place of residence she ran naked straight to her home after
3 S v Tshimbudzi 2013 (1) SACR 528 (SCA).
having been sexually assaulted by him. The crucial issue was whether or not she
was raped and if so by whom. This was even more important as appellant’s plea
explanation was that he never had sexual intercourse with the complainant.
Complainant testified without having been sworn in or having taken an affirmation
according to the transcribed court record. This rendered all her evidence unreliable
and most importantly, inadmissible hearsay. Counsel for the state also conceded
this unfortunate reality in her supplementary heads of argument in which it was
indicated, were prepared after having listened to the audio recording and
consequently did not support the conviction of appellant.
Conclusion
[25] Therefore, the conviction of appellant in circumstances in which the
complainant, on whose crucial evidence the entire case of the state largely
depended for his conviction, was irregular having as its foundation, the complainant
testifying without having taken an oath or an affirmation or even been admonished.
This rendered the very trial itself unfair and therefore his conviction not being in
accordance with justice as it was solely based on unreliable evidence. In all the
circumstances the conviction and sentence of the appellant stand to be set aside.
Result.
[26] In the result the following order is issued.
1. The appeal is upheld.
2. The conviction and sentence of appellant are both set aside.
_______________________
M.S. JOLWANA
JUDGE OF THE HIGH COURT
I agree:
_______________________
N. NTLAMA-MAKHANYA
JUDGE OF THE HIGH COURT (ACTING)
Appearances:
Counsel for the appellant : D. Geldenhuys
Instructed by : Legal Aid South Africa
Makhanda
Counsel for the respondent: N.P. Phikiso
Instructed by : Director of Public Prosecution
Makhanda
Date heard : 25 February 2026
Date delivered : 17 March 2026