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[2018] ZASCA 32
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Macinezela v S (550/2017) [2018] ZASCA 32; 2018 (2) SACR 573 (SCA) (26 March 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 550/2017
In
the matter between:
SOBAHLE MACINEZELA
(aka MACIMELA)
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Macinezela
v The State
(550/2017)
[2018] ZASCA 32
(26 March 2018)
Coram:
Navsa,
Majiedt, Dambuza and Mocumie JJA and Hughes AJA
Heard:
15
February 2018
Delivered:
26
March 2018
Summary:
Criminal
Procedure – before a witness testifies in a criminal trial in
appropriate circumstances an inquiry must be held into
whether he or
she understands the nature and import of the oath or affirmation as
provided in
ss 162(1)
and
163
of the
Criminal Procedure Act 51 of
1977
– where a witness is found not to understand the nature
and import of the oath or affirmation due to intellectual incapacity
an inquiry must be held in terms of
s 164
of that Act into whether he
or she understands the difference between truth and falsehood ─
failure of trial court to hold
an inquiry into whether a mentally ill
witness understands the difference between truth and falsehood
renders the evidence of that
witness inadmissible.
ORDER
On
appeal from:
Eastern
Cape Local Division, Mthatha (Brooks and Alkema JJ sitting as court
of appeal).
The
following order is made:
1.
The appeal succeds.
2.
The order of the high court is set aside and replaced with the
following:
‘
(a)
The appeal is upheld.
(b)
The conviction and sentence
are set aside.’
JUDGMENT
Dambuza
JA (Navsa, Majiedt and Mocumie JJA and Hughes AJA concurring)
[1]
This appeal, against a conviction of rape and a consequent sentence
of life imprisonment, is with the leave of this court. The
appellant
was convicted and sentenced by the Regional Court, Mount Frere,
Eastern Cape. He had pleaded not guilty to the charge
of rape in
terms of
s 3
of the Criminal Law (Sexual Offences and related
matters) Amendment Act 32 of 2007 (the Act). His appeal against the
conviction
and sentence was dismissed by the full bench of the
Eastern Cape Local Division, Mthatha. The central issue in this
appeal
is the admissibility of the evidence of the complainant who
was alleged to be ‘mentally unstable’.
[1]
[2]
The complainant and the appellant are relatives. At the time of the
incidents which gave rise to the charge against the appellant,
he was
married to the complaint’s maternal aunt. The complainant, who
was 28 years old at the time, resided with the appellant
and his wife
at Cwalinkungu in Mount Frere, Eastern Cape. It was common cause at
the trial that on a number of occasions during
March 2015, the
appellant and complainant had sexual intercourse.
[3]
The appellant was charged with having raped the complainant on more
than one occasion. His defence was that there was a love
relationship
between himself and the complainant and that the complainant had
consented to sexual intercourse with him. Before
the trial commenced,
the prosecutor asked that the charge sheet be amended to reflect that
the complainant was ‘not mentally
stable’. The amendment
was effected and the trial proceeded.
[4]
At the trial the complainant and her maternal uncle testified on
behalf of the State. The complainant testified that she and
the
appellant had sex on a number of occasions and that she had not
consented to it. The uncle testified that the complainant was
not
mentally sound. The appellant was the only defence witness. In
convicting the appellant, the magistrate reasoned, amongst other
things, that the appellant had been aware that the appellant was ‘not
mentally sound’, and that even if ‘she
may have consented
to sexual intercourse such consent was not recognised by virtue of
her mental illness or mental retardness’.
The magistrate also
remarked that he had also observed that the complainant was ‘not
completely sane’, citing the fact
that she appeared not to know
her age and that she had read incorrectly the date on which she was
alleged to have sent a text message
to the appellant.
[5]
Although the magistrate made no express credibility findings in
relation to those who testified, it is evident from his judgment
that
he accepted the evidence of both State witnesses, particularly the
complainant, and rejected the appellant’s evidence
that the
complainant had consented to sexual intercourse.
[6]
On appeal, the high court confirmed the findings of the trial court
that the complainant was ‘mentally retarded’
or
‘intellectually challenged’, referring, as the trial
court had also done, to her simplistic responses to questions
and her
inability to tell her date of birth. The high court also found that,
given the period of more than a year during which
the appellant had
stayed with the complainant, he must have been aware of the
complainant’s mental condition. It found the
complainant’s
evidence to be satisfactory in all material respects and was of the
view that the complainant would not have
made reports of sexual
intercourse to her maternal uncle and the appellant’s wife, and
would not have testified in court
if it had not occured. That court
also confirmed the magistrate’s finding that no substantial and
compelling circumstances
existed to justify a departure from the
statutorily prescribed minimum sentence of life imprisonment.
[7]
This appeal is founded, broadly, on two grounds. The first is that
the trial is tainted by a material irregularity emanating
from the
manner in which the complainant’s mental condition was
introduced into the proceedings. The complaint is that the
appellant
was never given an opportunity to make submissions on the proposed
amendment to the charge sheet to that effect. There
was also no
ruling by the court on the proposed amendment. Consequently, the
trial court’s finding that the charge sheet
was duly amended
and that the complainant’s ‘mental disability’ was
established is wrong. The second ground is
that both the trial court
and the high court failed to properly consider whether the
complainant was in fact ‘mentally disabled’
as envisaged
in the Act.
[8]
For a proper perspective of the issues that arise in this appeal, a
closer account of the proceedings at the start of the trial
is
required. After the appellant had pleaded to the charge, the
prosecutor called the complainant as the first witness for the
State.
When the complainant took the witness stand, the prosecutor addressed
the court as follows:
‘
Your
Worship, there is something that I have just missed regarding to
complainant. When I consulted with her, Your Worship, I found
that
she is not mentally stable, to a certain extent, Your Worship. May I
apply, Your Worship, to also insert same on the charge
sheet, Your
Worship?’.
[9]
The magistrate remarked that the amendment sought would have ‘no
effect’ (presumably on the charge against the appellant
and the
applicable sentencing regime). He said:
‘
[T]he
facts will still be the same if the basis for invoking Section 51
[2]
was the fact that it was more than once, you have the same effect. In
other words if for instance it was just a question of mental
illness,
it will still fall under that category, whether it was more than once
or not. So it doesn’t make much of a difference.’
[10]
The magistrate then explained to the appellant that it had been
‘placed on record by the State that during consultation
it
transpired that the complainant was not mentally sound’.
Immediately thereafter the complainant was sworn in in the usual
course and she proceeded to testify. The trial proceeded to finality
and the appellant was found ‘guilty as charged’.
[11]
As already stated, in his evidence the complainant’s uncle
described the complainant as ‘not mentally sound’.
His
opinion was based on the fact that the complainant had not passed Sub
A at school and was receiving a social grant. On cross
examination he
explained that:
‘
When
you are looking at her you would think that she is mentally sound,
but if you are staying with her you would observe from her
conduct
that what she is doing is not supposed to be done by somebody her
age.’
[12]
This being the only evidence that was led before the trial court on
the complainant’s mental capacity, it is clear that
the
pertinent antecedent issue of whether the complainant’s
evidence would be admissible arose. The primary issue that arises
is
whether the proper procedure was followed when it became apparent at
the outset that the complainant might not understand
the nature
and import of the oath or affirmation as provided for in s164 of the
Act. Regrettably, that issue was not identified
by the magistrate,
the prosecutor and the defence.
[13]
It is trite that the principal method of adducing evidence in a trial
is by oral evidence of a competent witness.
[3]
Section 192 of the Criminal Procedure Act 51 of 1977 (CPA) provides
that:
‘
Every
person not expressly excluded by this Act from giving evidence shall,
subject to the provisions of section 206, be competent
and
compellable to give evidence in criminal proceedings’.
[4]
[14]
The general rule, therefore, is that everyone is presumed to be a
competent and compellable witness. In terms of s 194 of the
CPA,
persons who suffer from mental disorder and intoxication are not
competent to give evidence in certain circumstances.
[5]
Importantly, that section does not decree a blanket exclusion of the
evidence of people suffering from intellectual incapacity.
It is only
where the intellectual capacity results in an inability to reason
properly that the affected person is disqualified
from testifying. In
S v
Katoo
2005 (1) SACR 522
(SCA), at para 11 this court set out the parameters
for assessing whether an affected person may give evidence. It said:
‘
The
first requirement of the section is that it must appear to the trial
court or be proved that the witness suffers from (a) mental
illness
or (b) that he or she labours under imbecility of mind
due
to
intoxication or drugs or
the like. Secondly, it must also be established that as a direct
result of such mental illness or imbecility,
the witness is deprived
of the proper use of his or her reason. Those two requirements must
collectively be satisfied before a
witness can be disqualified from
testifying on the basis of incompetence’.
[15]
In this case there is no indication from the record whether, apart
from the allegation by the prosecutor at the start of the
trial, the
magistrate had himself formed a view in respect of the complainant’s
mental capacity. The application made by
the prosecutor for amendment
of the charge sheet on account of the complainant’s mental
condition clearly called for vigilance
in considering the proper
approach to her evidence.
[16]
A court confronted with the difficulty of a potentially mentally ill
witness may opt to seek expert medical evidence on the
effect thereof
on the witness’ cognitive faculties, or it may allow the
witness to testify in order to assess his or her
competency. Where,
as in this case, the court allows the witness to testify, the
provisions of ss 162, and 163 of the CPA come
into play. Section
162(1)
[6]
commands that all
witnesses must testify under oath. Section 163 provides for
administration of affirmation in lieu of oath in certain
circumstances. These sections must be read with s 164 which provides
that:
‘
(1)
Any person, who is found not to understand the nature and import of
the oath or 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’.
[17]
In
S v Matshivha
2014(1) SACLR (SCA) 29 at paras 10 and 11
this court set out clearly the material determinants for
admissibility of evidence under
ss 162, 163 and 164. It said that:
‘
The
reading of s162(1) makes it clear that, with the exception of certain
categories of witnesses falling under either s163 or s164,
it is
peremptory for all witnesses in criminal trials to be examined under
oath. And the testimony of a witness who has not been
placed under
oath properly, has not made a proper affirmation or has not been
properly admonished to speak the truth as provided
for in the Act,
lacks the status and character of evidence and is inadmissible.
Section
164(1) is resorted to when a court is dealing with the admission of
evidence of a witness who, from ignorance arising from
youth,
defective education or other cause, is found not to understand the
import of the oath or affirmation. Such a witness, must,
instead of
being sworn in or affirmed, be admonished by the judicial officer to
speak the truth. It is clear from the reading os
s164(1) that for it
to be triggered there must be a finding that the witness does not
understand the nature and import of the oath.
The finding must be
preceded by the form of enquiry by the judicial officer, to establish
whether the witness understands the nature
and import of the oath. If
the judicial officer should find after such an enquiry that the
witness does not possess the required
capacity to understand the
nature and import of the oath, he or she should establish whether the
witness can distinguish between
truth and lies, and if the inquiry
yields a positive outcome, admonish the witness to speak the truth’.
(footnotes omitted)
[7]
[18]
Although these remarks were made in respect of child witnesses, they
are equally applicable in respect of mentally ill witnesses.
The
inquiry ordered under s 164(1) applies to any person who is found not
to understand the nature and import of the oath or affirmation
for
the reasons stated in that section, including defective education or
other cause. It is for that reason that this Court, in
Motsisi
v S
[2012]
ZASCA 59
(2 April 2012), set aside a conviction of rape. There the
trial court had failed to establish that the complainant who was
allegedly
mentally retarted was able to distinguish between truth and
falsehood.
[19]
An inquiry into whether a potential witness can distinguish between
truth and falsity goes to whether the witness is competent
in the
first place. On the other hand, a question directed to a witness on
whether he or she understands the nature and import
of the oath and
affirmation goes to whether the witness should be caused to take the
oath or affirmation, or should be admonished
to speak the truth in
terms of s 164(1).
[8]
[20]
In this case the oath or affirmation could not, in the circumstances,
be administered in the ordinary course. At the very least
an inquiry
in terms of s164 should have been conducted. Clearly, none of these
considerations occupied the mind of the magistrate
in this matter. As
a result, he never conducted an inquiry into whether the complainant
could distinguish between truth and falsehood.
The failure to hold
such inquiry is fatal.
[21]
This appeal and many other similar cases illustrate the injustice
that can be suffered by both complainants and accused as
a result of
failure by courts to properly ascertain whether a witness is able to
disnguish between truth and falsehood. In
S
v Nondzamba
2013(2)
SACR 333 (SCA) this court highlighted the sensitivity of our courts
to victims of sexual violence and the courts’
determination to
ensure that such victims are afforded the full protection of the
law.
[9]
Such pronouncements are
undermined when proper care is not taken to ensure that evidence led
is admissible.
[22]
The following order is therefore issued:
1.
The appeal succeeds.
2.
The order of the High Court is set aside and replaced with the
following:
‘
(a)
The appeal is upheld.
(b)
The conviction and sentence
are set aside.’
___________________
N
Dambuza
Judge
of Appeal
APPEARANCES
For
the Appellant:
E Crouse
Instructed
by:
Mthatha Justice Centre
Legal
Aid South Africa, Bloemfontein
For
the Respondent:
M F Mzila
Instructed
by:
The Director of Public Prosecutions, Mthatha
The
Director of Public Prosecutions, Bloemfontein
[1]
Different expressions, such as
‘mentally unstable, not mentally sound and mentally retarded’,
were used at the trial
to describe the complainanat’s mental
condition.
[2]
This is a
reference to the Criminal Law (Sexual Offences and related matters)
Amendment Act 32 of 2007.
[3]
D T
Zeffert
and A P Paizes
The
South African Law of Evidence
2 ed (2009) at 805.
[4]
Section 206
of the
Criminal Procedure Act 51 of 1977
refers to the law relating
to express exclusions from the generally accepted competency and
compellability provided as
it was on 30 May 1960.
[5]
Section 194
provides
that: ‘No person appearing or proved to be afflicted with
mental illness or to be labouring under any imbecility
of mind due
to intoxication or drugs or the like, and who is thereby deprived of
the proper use of his reason, shall be competent
to give evidence
while
so afflicted or disabled
.’
(My Emphasis.)
[6]
Section 162
of the CPA
provides: ‘Subject to the provisions of
section 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 court, and which shall
be in
the following form:
“
I
swear that the evidence I shall give, shall be the truth, the whole
truth and nothing but the truth, so help me God”.’
[7]
See also other authorities cited in
[7]
Du Toit
et al
Commentary
on the
Criminal Procedure Act
(Service
58, 2017) at 22-67.
[8]
Du
Toit
(supra
)
at 22-70.
[9]
At para 13, with reference to the
remarks made by the Constitutional Court in
S
and Another v Acting Regional Magistrate, Boksburg and Another
2011(2) SACR 274 (CC)
paras 22 and 23.