Recent Case: Law of evidence

• Jurisdiction: South Africa
• Date: 04 July 2019
• Author: Nicci Whitear
• Citation: (2019) 32 SACJ 119
• Published date: 04 July 2019
• Pages: 119-135

Law of Evidence

NICCI WHITEAR

University of KwaZulu-Natal

1 Admonishment, and competence of a mentally-

challenged adult

In the case of Haarhof v Director of Public Prosecutions Eastern Cape

(Grahamstown) (1192/17) [2018] ZASCA 184; [2019] 1 All SA 585 (SCA);

2019 (1) SACR 371 (SCA) (11 December 2018), the two appellants were

charged with the rape of a twenty-four-year-old female who had the

mental age of a ten-year-old. Her mental ability fell exactly on the

border between mild intellectual disability and borderline intellectual

functioning (at para [14]). The appellants were convicted in the trial

court, and they unsuccessfully appealed to the full bench of the

Eastern Cape division of the high court, Grahamstown. They applied

for leave to appeal against the majority judgement, which was refused.

They then approached the Supreme Court of Appeal, which granted

them leave to appeal (at para [8]). They appealed against both their

convictions and sentences. The appeal against conviction was based

on the argument that the complainant’s evidence was not properly

before the court, as well as on the merits of the case (at para [10]).

They argued that the trial court had erred in accepting the version

of the complainant over their versions that the intercourse was

consensual. This discussion will focus only on the question of whether

the complainant’s evidence was properly before the court.

Some months prior to the commencement of the legal proceedings,

the complainant was referred to a clinical psychologist for an

assessment, for the purposes of assessing her mental ability and ability

to testify in court (at para [11]). The prosecution tendered this report

to lay a basis for an application for the trial to be held in camera, and

for the complainant to testify via an intermediary in terms of s 170A

of the Criminal Procedure Act 51 of 1977 (at para [11]). The report

turned out to be vital for determining the complainant’s competence

to testify and whether the admonishment could be used to swear her

in. Importantly, the appellants did not challenge the report.

The clinical psychologist who conducted the assessment of

the complainant used scientic psychological tests to assess the

complainant’s mental functioning. She reached the conclusion that the

complainant was able to testify in court and had a cognitive ability

which made her suitable for the admonishment. She found that the

complainant was not mentally disabled as envisaged by the Sexual

Recent cases 119

(2019) 32 SACJ 119

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Offences Act 23 of 1957. The trial court also directed questions at

the complainant aimed at ascertaining whether she understood the

distinction between truth and falsehood. Ultimately the trial court

found her competent to testify and administered the admonishment

to her.

The applicant could testify via an intermediary.

Before the Supreme Court of Appeal, counsel for the appellants

indicated that they were not challenging the complainant’s general

competence to testify, but that they took issue with the complainant

being admonished. The reason they gave was that although it was

established that the complainant could distinguish between truth and

falsehood, she did not understand the moral obligation to tell the tr uth

or its signicance (at para [16]). The Supreme Court of Appeal noted

that despite this submission, the appellants did in fact challenge the

complainant’s general competence to testify in the proceedings before

the court. The Supreme Court of Appeal therefore dealt with the issue

of the complainant’s general competency in its judgement (at para

[16]). It started out by distinguishing between the enquiry into the

complainant’s general competency to testify in terms of s 192 of the

Criminal Procedure Act 51 of 1977, and the enquiry into whether the

complainant could be admonished because she did not understand

the nature and import of the oath, in terms of s 164 of the Criminal

Procedure Act 51 of 1977. They are two separate enquiries, on the

authority of the case of S v Katoo [2006] 4 All SA 348 (SCA), which the

court referred to at para [17].

1.1 Competence

The Supreme Court of Appeal rst dea lt with the question of competency,

explaining that every person not expressly excluded by the Criminal

Procedure Act 51 of 1977 or the English law of evidence as at 30 May

1961 was presumed to be both competent and compellable in criminal

proceedings (s 192 read with s 206 of the Criminal Procedure Act 51

of 1977, referred to in para [19]). Section 194 of the Criminal Procedure

Act 51 of 1977 stipulates the specic requirements for determining

whether a witness is incompetent to testify. It provides that:

‘No person appearing or proved to be aficted 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 aficted or disabled.’

The rst requirement of the section is that the court must be satised

that the witness suffers from a mental illness or 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 result of that condition,

120 SACJ.(2019) 1

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