Recent Case: Evidence

• Jurisdiction: South Africa
• Citation: (2003) 16 SACJ 239
• Author: Nicci Whitear-Nel
• Published date: 03 September 2019
• Date: 03 September 2019
• Pages: 239-249

Recent Cases

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239

Evidence

NICCI WHITEAR-NEL

University of Natal, Pietermartizburg

Interpretation — unsworn interpreter

S v Siyotula

2003 (1) SACR 154 (E) a lengthy part heard criminal trial (in

which 18 witnesses had testified) was submitted to the High Court for a

special review. The High Court found that although the Criminal Procedure

Act 1977 did not deal explicitly with the review of part heard matters, the

High Court had the inherent jurisdiction to do so. It confirmed that the

interpretation of evidence and administration of the oath by an unsworn

interpreter was indeed irregular. The bulk of the judgement concerned how

to cure the irregularity.

A year and a half after the start of the trial it was discovered that an

unsworn interpreter had interpreted the evidence of two of the state

witnesses, as well as that of the accused. The court confirmed that this was

indeed irregular — but held that this in itself did not necessarily vitiate the

entire proceedings.

The court held that the fundamental question was whether the

irregularities had resulted in a miscarriage of justice. If so, whether the

irregularities could be cured, or whether the trial would have to start de novo.

The relevant facts were as follows: The state witnesses, Le Roux and

Steinhous, had testified in Afrikaans and English respectively, and their

evidence was interpreted into isiXhosa for the accused. The magistrate

administered the oath to them. The court found that their evidence was

properly before the court, but that it had been improperly translated into

isiXhosa, as the interpreter was unsworn. The accused gave his evidence in

isiXhosa, which was interpreted into English by the interpreter.

administration of the oath

As regards the administration of the oath, it appears that there are two

approaches by magistrates when the oath has to be administered to an

accused who does not speak the magistrate's language. The one approach is

for the magistrate to call the oath in English, which is then interpreted into

isiXhosa for the accused. The second is for the oath to be called by the

interpreter, who then simply confirms for the magistrate that the witness is

sworn in. In this case it is unclear from the judgement which approach was

followed. The court however found that as the oath was administered by an

(2003) 16 SACJ 239

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