S v Booi and Another

• Jurisdiction: South Africa
• Judge: Mogoeng JP
• Judgment Date: 30 November 2004
• Docket Number: 180/2003
• Hearing Date: 12 August 2004
• Counsel: D Moeketsi for the State. Roodtman for the accused.
• Court: Bophuthatswana High Court

S v Booi and Another
2005 (1) SACR 599 (B)

2005 (1) SACR p599

Citation	2005 (1) SACR 599 (B)
Case No	180/2003
Court	Bophuthatswana Division
Judge	Mogoeng JP
Heard	August 12, 2004
Judgment	November 30, 2004
Counsel	D Moeketsi for the State.; Roodtman for the accused.

Flynote : Sleutelwoorde E

Evidence — Intermediary — Appointment of intermediary in terms of s 170A(1) of Criminal Procedure Act 51 of 1977 — Requirements for — Presiding officer F not relieved of duty of inquiry, even where accused represented and application for appointment not opposed — In casu, requirements neither considered nor met and no indication on record that intermediaries sworn in — Convictions set aside but accused to be tried de novo. G

Evidence — Witnesses — Intermediary — Appointment of — Criminal Procedure Act 51 of 1977, s 170A — Certain social workers authorised to act as intermediaries — Minister prescribing service period of social workers before they are qualified to be appointed and to act as intermediary — Non-compliance with service period not individually so prejudicial to accused's case as to justify setting aside of convictions. H

Evidence — Witnesses — Intermediary — Appointment of — Criminal Procedure Act 51 of 1977, s 170A — When appointed intermediary must be sworn in and names, qualifications and occupation to be recorded — Appointment of intermediary having to be in respect of particular case — Essential to proper performance of intermediary's functions to be reminded thereof and she I or he then undertaking to convey correctly and to best of her or his ability general purport of what said by witness — In absence of such information on record, conclusion being that no oath or admonition was administered and intermediary not appointed in terms of s 170A(1). J

2005 (1) SACR p600

Trial — Irregularity in — What constitutes — Evidence received through intermediary not A properly appointed or sworn in — Convictions set aside and trial de novo allowed.

Headnote : Kopnota

After being convicted in the regional court on two counts of rape, the accused were committed for sentence to the High Court. During the trial intermediaries had been used to facilitate communication between the court, counsel and the two minor complainants. The intermediaries B were seemingly appointed in terms of s 170A of the Criminal Procedure Act 51 of 1977 (the Act). However, as their details on the record were incomplete, the matter was remitted to the court a quo to enquire inter alia into the names, qualifications and appointment of the intermediaries. It appeared from the magistrate's response that the intermediaries were both social workers. After evidence was led before the present Court, it appeared that the one C intermediary used in the trial had been a social worker for a period of 13 months instead of the minimum of two years required to qualify to be appointed and to act as intermediary. The two further issues were whether the requirements for using the intermediaries were met; and whether the court did in fact appoint the two social workers as intermediaries. D

Held, that, on a proper consideration of the provisions of s 170A(5) of the Act the incompetence of the intermediary in casu did not adversely affect the reliability of her evidence and the real and substantial justice would not be impaired if the evidence which was led through her was admitted. (Paragraph [10] at 603f - h.)

Held, further, that, when applying for the use of an intermediary facts, on the strength of which the court could decide E that the witness would be exposed to 'undue mental stress or suffering' if she or he were to testify without the assistance of an intermediary, had to be placed before the court. (Paragraph [13] at 604c.)

Held, further, that the application for the use of an intermediary should not be granted merely because the victim was young. It was the responsibility of the presiding judicial officer to ensure F that sufficient facts relating to the relevant factors, upon which the application could be meaningfully considered, were placed before her or him. This should be so even if the accused were legally represented and there were no opposition to the application. (Paragraph [15] at 604h - i.)

Held, further, that s 170A(1) of the Act could only find application where a witness, under the age of 18 years, would be G exposed to 'undue mental stress or suffering'. The court itself had to be satisfied that the young victim would be so exposed before an intermediary could be appointed and used. The fact that the application was not opposed, for instance, would not debar counsel on appeal from taking the point that the statutory requirements for appointing intermediaries were not met. (Paragraph [17] at 605b - c.) H

Held, further, that in casu the requirements for using intermediaries were not considered, let alone met. (Paragraph [18] at 605d.)

Held, further, as to the question whether intermediaries were in fact appointed in terms of s 170A(1), that the record reflected applications made in terms of s 170A to make use of the intermediaries. The names of the intermediary who assisted the one I complainant did not appear on the record. The qualifications or profession of the two intermediaries and the period over which they had been working within the category or class determined by the Minister were not mentioned at all. There was no indication on the record that the oath or affirmation was administered to any of them. (Paragraph [21] at 605g - i.) J

2005 (1) SACR p601

Held, further, that whenever the oath or affirmation was actually administered to an intermediary and an intermediary was A actually appointed, the names, qualifications and occupation of each intermediary used had to be captured somewhere in the record of the proceedings, to signify a proper administration of the oath or affirmation and the appointment of the intermediaries. Had this procedure been followed the particulars of the intermediary and the substance of the oath would have been recorded in the court a quo. (Paragraph [22] at 605j - 606b.) B

Held, further, that the appointment of an intermediary had to be made in respect of a particular case, just as in the case of a district surgeon, a pathologist or police officer who had to be sworn in or affirmed whenever she or he testified, notwithstanding the fact that she or he might be a regular witness in the same court and well known to the court officials. The appointment of an intermediary was C not a blanket or once and for all appointment such as in the case of permanent court interpreters who were court officials. It was essential to the proper performance of his/her functions that the intermediary be reminded of what her or his functions in court entailed. An intermediary specifically had to undertake to convey correctly and to the best of her or his ability the general purport of what was being said to and by the witness, before she or he began to help the witness. D (Paragraphs [24] and [25] at 606d - g.)

Held, accordingly, that no evidence existed on the record that the oath or affirmation was administered to the intermediaries and thus the magistrate did not appoint them as he was supposed to do in terms of s 170A(1). (Paragraph [26] at 606h.) The E irregularities had resulted in the accused not being given a fair trial. Therefore the convictions were set aside and a trial de novo ordered.

Annotations:

Cases cited

Reported cases

S v Kwali 1967 (3) SA 193 (A): referred to F

S v Manjra 1966 (4) SA 319 (A): referred to

S v Mathebula 1996 (2) SACR 231 (T) ([1996] 4 All SA 168): referred to

S v Naidoo 1962 (2) SA 625 (A): referred to

S v Nzima and Another 2001 (2) SACR 354 (C): referred to G

S v Stefaans 1999 (1) SACR 182 (C): criticised

S v Sydow 2003 (2) SACR 302 (C) ([2003] 1 All SA 118): referred to

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