Recent Case: Law of evidence

• Jurisdiction: South Africa
• Pages: 245-265
• Citation: (2019) 32 SACJ 245
• Author: Lirieka Meintjes-van der Walt
• Published date: 11 September 2019
• Date: 11 September 2019

Law of Evidence

LIRIEKA MEINTJES-VAN DER WALT

University of Fort Hare

1 Admonition to speak truth

In S v Sangweni 2019 (1) SACR 672 (KZP), the appellant appealed

against his conviction of rape and a sentence of life imprisonment,

and the court had to decide whether the evidence of the complainant,

a girl who was nine years old when the rape was committed, and 13

when she testied, was admissible.

The court referred to s 164(1) of the Criminal Procedure Act and

to cases that dealt with this issue (paras [5]-[6]). In Director of Public

Prosecutions, Transvaal v Minister of Justice and Constitutional

Development2009 (2) SACR 130 (CC), (2009 (4) SA 222 (CC); 2009 (7)

BCLR 637; [2009] ZACC 8) (para [163]) Ngcobo J held that a person who

testies must understand what it means to speak the truth, because if

she does not know ‘what it means is to speak the trut h, the child cannot

be admonished to speak the truth and is, therefore, an incompetent

witness and cannot testify’ (para [6]). In response to a question put

to her by the magistrate, the complainant replied that she knew the

oath but did not know what the consequences would be ‘after taking

the oath’. Upon her answering that she knew the difference between

telling lies and telling the truth, the magistrate proceeded to admonish

her to tell the truth (para [7]).

Ploos van Amstel J held that establishing that the child witness

understands the notion of truthful evidence, assures the reliability of

such evidence. He stated that a child can only be admonished to tell

the truth if such a child indeed understands the notion of truthful

evidence. The issue in casu was whether the magistrate had done

enough to establish that the witness understood the difference

between telling the truth and telling lies and whether she understood

the potential consequences of telling lies (para [8]). Evidence given

by a child who does not comprehend the concept of truth, cannot be

regarded as reliable. Should evidence given under such circumstances

be admitted, it would undermine the accused’s right to a fair trial (para

[10]).

Merely asking the minor complainant whether she knew the d ifference

between telling lies and telling the truth, without establishing whether

she understood what it means to speak the truth, that it is important

to speak the truth, and that it is wrong to tell lies (para [11]) was

considered by the court to be inadequate and it, therefore, it was held

Recent Cases 245

(2019) 32 SACJ 245

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that the appeal succeeded and that the conviction and sentence were

set aside (para [12]).

Another case that dealt with the admonition to speak the truth is

S v Dlamini 2019 (1) SACR 467 (KZP). The appellant was convicted

on a charge of the rape of a 6-year-old girl and was sentenced to life

imprisonment

Counsel for the appellant, relying on S v Mhlongo (AR 272/14) [2015]

ZAKZPHC 16 (27 February 2015) submitted that responses provided

by an inquiry in terms of s 164 would demonstrate whether the child

understands and can differentiate between the truth and untruth,

and the consequences of telling untruths (para [3]). With reference

to S v Raghubar 2013 (1) SACR 398 (SCA) she submitted that it is the

duty of the presiding ofcer to consider the maturity of the child, the

intelligence of the child and whether the child possesses a proper

appreciation of the duty to speak the truth (para [4]). The court of

appeal held that compliance with s 162 is compulsory, except where

s163, alternatively s 164 of the CPA, is complied with (para [6]). Upon

a question by the court a quo whether the complainant understood

what it meant to take the oath, the complainant’s response was in

the negative. With reference to S v Matshivha 2014 (1) SACR 29 (SCA)

(para [10]), Masipa J (Olsen J concurring) held that, where a witness

testies without taking the oath properly, or without making a proper

afrmation, or without being properly admonished, their evidence

lacks the status and character of evidence and is inadmissible. This

principle was followed in S v Machaba 2016 (1) SACR 1 (SCA), ([2015]

2 All SA 55, [2015] ZASCA 60) (para [11]).

A prerequisite for the activation of s164(1) is that it has to be found,

based on an inquiry by the judicial ofcer, that the witness lacked

an understanding of the concept of truth and of the importance of

giving truthful evidence under oath. Should such an inquiry reveal

that the witness lacks an understanding of what the oath implies, the

judicial ofcer, according to Zondi AJA in Matshivha, should ascertain

whether the witness is capable of distinguishing between the truth

and a lie. Should the witness be capable of making this distinction,

such a witness should be admonished to speak the truth (para [12]).

The two-part enquiry, namely that ‘there must rstly be an enquiry

by the judicial ofcer to determine whether the witness understands

the nature and impact of the oath. Secondly, a nding must be made

from that inquiry, which nding would determine whether or not to

admonish the witness’, as was set out in S v Matshiva 2014 (1) SACR 29

(SCA), was not followed (para [13]).

The court held that the oversight by the court a quo to issue a

ruling in terms of s 162 did not constitute an irregularity, because

the provisions of s 162 provide compliance with s 164 as an option

246 SACJ.(2019) 2

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