S v Dlamini

JurisdictionSouth Africa
JudgeOlsen J and Masipa J
Judgment Date09 November 2018
Citation2019 (1) SACR 467 (KZP)
Docket NumberAR 713/17
Hearing Date09 November 2018
CounselAdv Hulley for the appellant, instructed by the Justice Centre and Legal Aid South Africa, Durban. Adv Xaba for the state.
CourtKwaZulu-Natal Division, Pietermaritzburg

Masipa J (Olsen J concurring):

[1] On 9 November 2018 this court granted the order set out above and undertook to provide reasons for its decision in due course. Those J appear from this judgment.

Masipa J (Olsen J concurring)

[2] This is an appeal in terms of s 309(1) of Criminal Procedure Act A 51 of 1977 (the CPA). The appellant was charged and convicted on a charge of rape of a 6-year-old girl and was sentenced to life imprisonment. He appeals against both conviction and sentence.

[3] The appellant raised two main points as the basis for his appeal. The first one relates to compliance with s 164 of the CPA. In respect of B this point, it is contended that the elementary questions asked by the court a quo of the complainant fell short of the requirements set out in s 164. In order for the court a quo to satisfy itself that the complainant, who was 8 years old at the time of her evidence, could distinguish between the truth and untruth, a proper enquiry had to be held to C establish her competence. Relying on S v Mhlongo [2015] ZAKZPHC 16 (AR 272/1427; February 2015) Ms Hulley, counsel for the appellant, submitted that it was the responses provided from the enquiry which would demonstrate whether the child understands and can differentiate between the truth and untruth, and the consequences of telling untruths. D

[4] Ms Hulley contended that the duty of the presiding officer is to consider the maturity of the child, the intelligence, and whether the child possesses a proper appreciation for the duty to speak the truth. She referred to S v Raghubar 2013 (1) SACR 398 (SCA). She submitted that the court a quo failed to satisfy itself that the complainant understood the nature and import of the oath as required in s 162 of the E CPA, and failed to conduct a competency test.

[5] Mr Xaba, counsel for the respondent, argued that all persons are competent witnesses in terms of s 192 of the CPA. It is common cause that no person may testify unless under oath. See Raghubar and F S v Matshivha 2014 (1) SACR 29 (SCA) ([2013] ZASCA 124). Mr Xaba submitted that there are exceptions to the norm, being the failure by the witness to understand the import of the oath. It is contended that this was apparent to the court a quo after it conducted its enquiry in terms of s 164 of the CPA.

[6] It is apparent from a reading of the provisions of s 162 of the CPA that G compliance with the section is compulsory, except where s 163, alternatively s 164, of the CPA is complied with. The relevant part of the record with the exchange between the court a quo and the complainant reveals that the court a quo enquired of the complainant if the complainant knew what it meant to take the oath, and her response was that she did H not. There was no decision by the court a quo in respect of compliance with s 162, and nothing to state that, in view of the complainant's inability to comply with the provisions of s 162, it was embarking on an enquiry in accordance with s 164.

[7] Section 164(1) of the CPA provides as follows: I

'Any person, who is found not to understand the nature and import of the oath or the affirmation, may be admitted to give evidence in criminal proceedings without taking the oath or making the affirmation: Provided that such person shall, in lieu of the oath or affirmation, be admonished by the presiding judge or judicial officer to speak the truth.' J

Masipa J (Olsen J concurring)

[8] A I conclude, from the questions that followed the complainant's response in respect of the oath, that the court a quo embarked on an enquiry to admonish the complainant. Amongst the questions asked by the court a quo of the complainant, having established that she was wearing a pink jacket, was whether it was true to say that she was wearing a white jacket, which she said would be a lie. She was asked whether it B was good to lie, and she replied that it was not. She was asked if it was a good thing to tell the truth and she agreed that it was. She was then told that the court expected her to tell the truth in respect of what she saw and not what she heard, which she agreed to. Following from this, she was admonished to tell the truth and her evidence was led.

[9] C As stated in Director for Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development, and Others 2009 (2) SACR 130...

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1 practice notes
  • An introduction to proof in South Africa
    • South Africa
    • Juta South African Law Journal No. , December 2022
    • 12 December 2022
    ...235 (SCA) para 133; S v Machi [2021] ZASCA 106 para 30.7 Chabalala ibid pa ra 15; S v Sauls 1981 (1) SA 172 (A) at 180F; S v Dlamini 2019 (1) SACR 467 (KZP) para 25; S v Ern est 2021 (1) SACR 324 (KZP) pa ra 27; Oosthuizen ibid para 20.8 Oosthuizen ibid paras 15–17.9 Sauls supra note 7 at 1......
1 books & journal articles
  • An introduction to proof in South Africa
    • South Africa
    • Juta South African Law Journal No. , December 2022
    • 12 December 2022
    ...235 (SCA) para 133; S v Machi [2021] ZASCA 106 para 30.7 Chabalala ibid pa ra 15; S v Sauls 1981 (1) SA 172 (A) at 180F; S v Dlamini 2019 (1) SACR 467 (KZP) para 25; S v Ern est 2021 (1) SACR 324 (KZP) pa ra 27; Oosthuizen ibid para 20.8 Oosthuizen ibid paras 15–17.9 Sauls supra note 7 at 1......

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