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 impr isonment,
and the court had to decide whether the evidence of the complainant,
a girl who was nine years old when the rape was commit ted, and 13
when she testied, was admissible.
The court referred to s 164(1) of the Criminal Procedure Act and
to cases that dealt with thi s issue (paras [5]-[6]). In Director of Public
Prosecutions, Transvaal v Minister of Justice and Constitutional
Development 2009 (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
testies must understand what it mean s to speak the truth, because i f
she does not know ‘what it means is to speak the trut h, the child cannot
be admonished to speak the trut h and is, therefore, an incompetent
witness and cannot testif y’ (para [6]). In response to a question put
to her by the magistrate, the complainant replied that she k new 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 tr uth, the magistrate proceeded to ad monish
her to tell the truth (para [7]).
Ploos van Amstel J held that establishing that t he child witness
understands the notion of trut hful evidence, assures t he reliability of
such evidence. He stated that a child can only be admoni shed to tell
the truth if such a chi ld indeed understands the notion of tr uthful
evidence. The issue in casu was whether the magistrate had done
enough to establish that the witness understood t he difference
between telling the tr uth 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 undermi ne 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 t he truth, without establishi ng whether
she understood what it means to speak the trut h, that it is important
to speak the truth, and th at 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 t he admonition to speak the trut h 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 a nd 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 ter ms of s 164 would demonstrate whether the child
understands and can di fferentiate between the truth a nd untruth,
and the consequences of telling untruth s (para [3]). With reference
to S v Raghubar 2013 (1) SACR 398 (SCA) she submitted that it is the
duty of the presiding ofcer to consider the matur ity of the child, the
intelligence of the child and whether the child pos sesses a proper
appreciation of the duty to speak the truth (pa ra [4]). The court of
appeal held that compliance with s 162 is compulsory, except where
s163, alternatively s 164 of the CPA, is complied with (para [6]). Upon
a question by the court a quo whether the complainant understoo d
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
testies without taki ng the oath properly, or without making a proper
afrmation, or without bei ng properly admonished, their evidence
lacks the status and charac ter 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 t he judicial ofcer, that the witness lacked
an understanding of the concept of tr uth and of the importance of
giving truthf ul evidence under oath. Should such an inquir y reveal
that the witness lacks an underst anding of what the oath implies, the
judicial ofcer, according to Zondi AJA in Matshivha, should ascertain
whether the witness is capable of distingui shing between the truth
and a lie. Should the witness be capable of making this d istinction,
such a witness should be admonished to speak the tr uth (para [12]).
The two-part e nquiry, namely that ‘there must rstly b e an enquiry
by the judicial of cer to determine whether the witnes s understands
the nature and impact of the oath. Second ly, a nding must be made
from that inquiry, which nding would determ ine 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 term s of s 162 did not constitute an irregularit y, because
the provisions of s 162 provide compliance with s 164 as an option
246 SACJ . (2019) 2
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