Recent Case: Evidence

• Jurisdiction: South Africa
• Pages: 85-103
• Date: 16 August 2019
• Citation: (2014) 27 SACJ 85
• Published date: 16 August 2019
• Author: Nicci Whitear-Nel

Evidence

NICCI WHITEAR-NEL

University of KwaZulu-Natal

1 The child witness: competence and the oath or

admonishment

In the case of S v Matshivha 2014 (1) SACR 29 (SCA), the appellant was

convicted in the high court of rape and murder. He appealed against

his conviction on both counts. It is the appeal again st the conviction

for rape that this discussion wi ll focus on.

The appellant’s conviction of rape was based on the evidence of the

complainant and her brother who were 8 and 13 years old respectively

at the time of the trial. T hey both identif‌ied the appellant as the

perpetrator of the cri me. The Supreme Court of Appeal, mero motu,

raised the question of whether the evidence given by the child ren was

Recent cases 85

(2014) 27 SACJ 85

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properly before the court in light of how the issue of their competence

to testify was dealt with a nd how they were sworn in.

In order for a child to be a competent witness the child must be able

to demonstrate that s/he understand s the difference between trut h

and falsehood and must have suff‌icient cognitive ability, including the

ability to understand questions put and formul ate rational answers

in response. There is no standa rd test for this (S v Swartz 2009 (1)

SACR 452 (C) at para [20]). If the child is competent the court must

then proceed to swear the child in. The capacit y to understand the

distinction between t ruth and lies is a prerequisite for the oath or

admonishment to be administered (S v Swartz supra at para [14]).

The questioning of the child to est ablish whether she understands the

difference between trut h and lies should, in this author’s submission,

establish that the child underst ands that a lie involves deliberately

deceiving another person by providing inaccurate, incomplete or

otherwise misleadi ng information. This need not be done in a n

overly technical manner (Director of Public Pros ecutions, Transvaal v

Minister of Justice and Constitutional Develop ment 2009 (2) SACR 130

(CC) at para [164]).

In this author’s submission it would be desirable to develop a

standard test to be used in South A frican court s to establish a child’s

competence to testify – although thi s would possibly raise the spectre

of children being coached to ‘pass’ the test.

In the case of S v Mokoena, S v Phaswane 2 008 (2) SACR 216 (T) it

was argued that the competency test should be abolished since even a

child who could not demonstrate to the court that she understoo d the

distinction between t ruth and lies might be capable of providing reliable

testimony. This argument is in line wit h international research which

suggests that there is litt le correlation between a demonstrated abilit y

to distinguish tr uth and lies and actual tr uth telling ( JZ Klemfuss and

SJ Ceci ‘Legal and psychological perspectives on children’s competence

to testify in cour t’ (2012) 32 Developmental Review 268 at 277). This

argument was however rejected by the Constitutional Cour t in the case

of Director of Public Prosecutions, Transvaal v Minister of Justice and

Constitutional Development supra where the Court held that the risk

of false convictions was too high to abolish the competency test (at

pa ra [165] ).

The court must establish whether t he child has the ability to

understand the nature and the i mport of the oath. If so, the child

may be sworn in in the usual way. If not, then the court must simply

admonish the child to tell the tr uth. The admonishment must convey

to the child that s/he is require d to tell the truth and that there w ill

be negative consequences if s/he does not. There is no set format for

the admonishment. Empirical res earch suggests that trut h telling is

86 SACJ . (2014) 1

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