S v Katoo

• Jurisdiction: South Africa
• Judge: Harms JA, Cameron JA, Mthiyane JA, Cloete JA and Jafta AJA
• Judgment Date: 30 November 2004
• Docket Number: 642/2002
• Hearing Date: 02 November 2004
• Counsel: L Williams for the State. No appearance for the respondent.
• Court: Supreme Court of Appeal

S v Katoo
2005 (1) SACR 522 (SCA)

2005 (1) SACR p522

Citation	2005 (1) SACR 522 (SCA)
Case No	642/2002
Court	Supreme Court of Appeal
Judge	Harms JA, Cameron JA, Mthiyane JA, Cloete JA and Jafta AJA
Heard	November 2, 2004
Judgment	November 30, 2004
Counsel	L Williams for the State.; No appearance for the respondent.

Flynote : Sleutelwoorde E

Evidence — Witnesses — Calling, examination and refutation of — Incompetence of witness — Witness apparently suffering from mental illness or imbecility — Criminal Procedure Act 51 of 1977, s 194 — Section having two requirements to be applied collectively, namely (1) that witness suffered from (a) F mental illness or (b) that she or he laboured under imbecility of mind due to intoxication or drugs or the like and (2) that as direct result of such mental illness or imbecility, witness was deprived of proper use of her or his reason — Imbecility not mental illness and per se not disqualifying witness — Only imbecility induced by 'intoxication or drugs or the like' that falls within ambit of section (and then only when witness was deprived of proper use of her or his G reason) — Court having duty properly to investigate cause of imbecility before concluding incompetence.

Evidence — Witnesses — Calling, examination and refutation of — Imbecile witness — Not automatically H disqualified as incompetent — Criminal Procedure Act 51 of 1977, s 194 — Two relevant factors to be collectively applied, namely, (1) that witness must be suffering from mental illness or imbecility of mind due to intoxication, drugs or the like, and (2) such condition must render her or him incapable of proper reasoning — Court having duty properly to investigate cause of imbecility before concluding incompetence. I

Evidence — What constitutes — Propositions put to State witnesses on behalf of accused during cross-examination — Such not constituting evidence — Accused closing case without testifying or calling witnesses — Court's verdict should be based on evidence by prosecution only. J

2005 (1) SACR p523

Trial — Cross-examination — Of State witness — Evidence of past sexual A experience — Limitation of — Criminal Procedure Act 51 of 1977, s 227(2) — Evidence of complainant's sexual experience not related to incident giving rise to trial, may not be adduced without leave of court and such leave may be granted only if court satisfied that it is relevant — Section to be strictly applied. B

Headnote : Kopnota

The accused had been charged with kidnapping and rape, alternatively sexual intercourse with an imbecile. At the end of the State's case he closed his case without testifying or calling any witnesses. He was acquitted on both counts. During the course of the trial, the prosecution sought to call the complainant, a 16-year-old female. In order to prove that the respondent must have been aware of the fact that the complainant was incapable of consenting to sexual C intercourse as she obviously was an imbecile, the prosecution led evidence of inter alia a clinical psychologist, who had examined her and prepared a report on her mental capacity, stating that the complainant suffered from severe mental retardation and that she could consequently be described as an imbecile. He also found that as a result of the mental retardation the complainant had a 'very limited D capacity to exercise her will and make choices'. The trial Judge had ruled that she was not competent to testify in the light of the provisions of s 194 of the Criminal Procedure Act 51 of 1977 (the Act). Having been unsuccessful in the Court below, the prosecution applied to the Supreme Court of Appeal for leave to have the following question of law reserved: Whether the Court was correct in law in E refusing the State an opportunity to present the evidence of the complainant on the charges preferred?

Held, that s 194 of the Act created two requirements for determining whether or not a particular witness was incompetent, namely (1) that the witness suffered from (a) mental illness or (b) that he or she laboured under imbecility of mind due to intoxication or drugs or the like and (2) that as a direct result of such mental illness or imbecility, the witness was deprived of the F proper use of her or his reason. Those two requirements collectively had to be satisfied before a witness could be disqualified from testifying on the basis of incompetence. (Paragraphs [10] and [11] at 526j - 527g.)

Held, further, that the evidence in the present case fell short of establishing those requirements. The psychologist's evidence did not indicate that the complainant suffered from any mental illness. G It merely established that she was, in the outdated terminology of the Act, an imbecile. Imbecility was not a mental illness and per se did not disqualify her as a witness. It was only imbecility induced by 'intoxication or drugs or the like' that fell within the ambit of the section (and then only when the witness was deprived of the proper use of her or his reason). It was also clear from the evidence that the complainant had a limited mental capacity. (Paragraph H [12] at 527h - i.)

Held, further, that the trial Court had a duty properly to investigate the cause of her imbecility before concluding that she was incompetent. Section 193 of the Act enjoined a trial Court to enquire into this issue and decide whether a witness was in fact incompetent. This could be done by way of an enquiry whereby medical evidence on the mental state of the witness was led or by allowing the witness to I testify so that the court could observe him or her and form its own opinion on the witness's ability to testify. (Paragraph [13] at 527j - 528b.)

Held, further, that such approach was in line with the presumption that every person was a competent witness. However, the fact that someone was a competent witness did not mean that that person could be sworn as a J

2005 (1) SACR p524

witness. That raised a discrete issue, namely whether the witness understood the nature and import of the oath or A affirmation, which had to be dealt with under s 164. (Paragraph [14] at 528c - d.)

Held, accordingly, that the State was deprived of the opportunity of leading evidence, which was palpably admissible on the plain wording of the section and material for its case on the second count. A miscarriage of justice had occurred. It was appropriate to allow a new prosecution if the State was so minded. (Paragraph [16] at 528h - i.) B

Held, further, regarding the trial Court allowing evidence on the complainant's previous sexual experience to be introduced into the record of the proceedings, that s 227(2) of the Act stipulated that evidence of a complainant's sexual experience, which did not relate to the incident giving rise to the trial, could not be adduced without leave of the Court and that such leave could be granted only if the Court was satisfied that it was relevant. Consistently with this C provision trial courts vigilantly had to protect complainants' privacy and dignity by allowing evidence of past sexual experience to be led only where the requirements of the section were met. The requirements of s 227(2) were not complied with before the evidence pertaining to the complainant's previous sexual...