Regional court magistrates’ recommendations for improving the efficacy of taking statements from children

• Jurisdiction: South Africa
• Published date: 11 September 2019
• Author: Hendrik Lochner
• Date: 11 September 2019
• Citation: (2019) 32 SACJ 202
• Pages: 202-222

Regional court magistrates’

recommendations for improving

the efcacy of taking statements

from children

HENDRIK LOCHNER* & JUANIDA HORNE**

ABSTRACT

National Instruction 3/20081 of the South African Police Serv ice recognises

the fact that taki ng children’s statements (irresp ective of whether they are

victims of, or witnesses to, a cr ime) is a challenge requiri ng special skills.

There are thus well-d ocumented instr uctions, guideli nes and prescriptions

for taking writte n statements from child ren who are victims of c rime. The

purpose of the resea rch on which this ar ticle is based was to indicate, from

the point of view of a crim inal investigator, crucial a spects that are not

covered in the Standing Order s2 of the South Africa n Police Service or

National Instr uction 3/2008, and to suppor t these with empirica l evidence

and references from the literat ure. Taking a witness statement from a c hild

does not happen in a vacuum, and the i nvestigating ofcer who perform s

this task is centr al to the investigation of the reported case and its s uccessful

prosecution. In this a rticle, the authors examine and report on the re quisite

skills, make recom mendations and identif y aspects which regiona l court

magistrates consider when e valuating children’s evidence based on t heir

witness statements.

1 Introduction

The witness statements of child ren who are victims of or witnesses

to crime are frequently taken down or documented i n a haphazard

manner. Despite South African Police Ser vice principles, instructions

and guidelines for taking witnes s statements from children, regu lar

reports appear in the medi a about the poor quality of such statements.

The former Minister of Safet y and Security, Nathi Mthethwa, issued

* NDip (Pol) (Technikon SA) NDip (Secu rity Managemen t) (Technikon SA) BTech

(Policing) BTech (Security M anagement) MTech (Forensic Investigation) DLit t et

Phil (Unisa); Senior Lec turer, Department of Police Practice, Un isa.

** NDip (Pol) (Technikon SA) BTech (Policing) M Tech (Forensic Investigation) DLitt e t

Phil (Unisa); Senior Lec turer, Department of Police Practice, Un isa.

1 National Instr uctions are di rectives issued by t he National Commi ssioner and are

binding on all employees of t he South African Police Service.

2 Standing Order s are directives i ssued by the National Com missioner and in struct

employees of the South Af rican Police Service to follow certain c ourses of action.

202

(2019) 32 SACJ 202

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serious warnings to police ofcers to g uard against taki ng down

written witness statements wh ich are incomplete and not compliant

with instructions.3 Great care must be taken when obtaining written

statements from children, which i mplies that the investigating ofcers

tasked with this duty must pos sess certain skil ls.4

Section 205(3) of the South African Con stitution places a statutory

obligation on the South African Police Ser vice to investigate all crime

and collect relevant ev idence.5 Investigating crime is the primar y

responsibility of any police serv ice or force.6 During the course of

a criminal i nvestigation, evidence is collected in different ways, and

the documentation of evidence – in the form of a writ ten witness

statement – is a cardinal par t of the process.7 The taking of written

witness statements is complex,8 and all cri minal cases investigated by

the South African Police Ser vice involve the taking down of at least

one such statement.9 Where a child is the victim of a sex ual crime,

there is a great likelihood of more tha n one written witness statement

being taken, in most instances by investigating of cers associated with

the Family Violence, Child Protection and Sexual O ffences units.10

Members associated with these un its are specically tr ained in taking

written witness statements f rom children who are the victim s of sexual

crimes. In contrast, the st atements of children who are witnesses to, or

victims of, any other crime can b e taken by any police ofcer, or by the

police ofcer who will be investigating the reporte d crime; thus the

information contained with in witness statements of child ren who are

witnesses to, or victims of, a crime is t he focus of this article.

In the South Africa n criminal law process, the information contained

in a witness statement is verbally conveyed to the court by means of

oral evidence by the witness or victim, which i ncludes children, where

it is tested.11 It is therefore important that al l statements be taken

3 HT Lochner Taking Effectiv e Witness Statements (2 014) 60.

4 T van Niekerk, HT Lochner, Y Naido o and RJ Zinn ‘Forensic inves tigation of

crime, irreg ularities a nd transgression s’ in RJ Zinn and SI Di ntwe (eds) Forensic

Investigation: Legisl ative Principles and Scientic P ractice (2015) 210 at 225.

5 Constitution of t he Republic of South Africa, 1996.

6 HM Wrobleski and KM He ss An Introduction to Law Enfor cement and Crimin al

Justice 6ed (200 0) 240; M Maguire Criminal Invest igation and Crime Control (20 03)

366; C Rogers and R Lewi s Introduction to Police Work (2007) 150.

7 Lochner op cit (n3) 15; A Jones A Descriptiv e Analysis of Statements Taken by Polic e

Ofcers from C hild Complainants in Sexual Of fence Cases that Examines the D egree

to which the Form and Conte nt of the Statements Accord with Best P ractice across a

Range of Variables LL M (Rhodes) (2012) 13.

8 F Rock ‘The genesis of a wi tness statement’ (20 01) 8 Forensic Linguistics 44 -72.

9 Lochner op cit (n3) 15.

10 Jones op cit (n7) 13.

11 Lochner op cit (n3) 6-7.

Regional court magistrates’ recommendations for improving

the efcacy of taking statements from children 203

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