S v Kondile

• Jurisdiction: South Africa
• Judge: Ebrahim J and Norman AJ
• Judgment Date: 17 February 2003
• Docket Number: CA & R 65/03
• Court: Ciskei High Court
• Hearing Date: 17 February 2003
• Citation: 2003 (2) SACR 221 (Ck)

Ebrahim J:

[1] This matter came on automatic review pursuant to the provisions of s 302 of the Criminal Procedure Act 51 of 1977 (the CPA). C

[2] In the court a quo the accused was charged with the offence of housebreaking with intent to assault and assault and duly convicted thereof. The accused was thereupon sentenced to a term of imprisonment of 720 days.

[3] The following queries were addressed to the magistrate: D

'1.

On what basis was the magistrate satisfied that his questioning of the witness, S, prior to admonishing her in terms of s 165 of the Criminal Procedure Act 51 of 1977 to speak the truth, established that she was able to:

1.1

Appreciate what was meant by ''the truth''?

1.2

Distinguish between ''the truth'' and ''a lie''? E

1.3

Understood that there were certain consequences if she lied and what those were?

2.

In the absence of the evidence of S would the magistrate still have convicted the accused of the offence of which he was charged? If not, of which offence, if any, would the magistrate then have convicted the accused, and why?' F

[4] The magistrate replied in these terms:

'In regard to para 1 of the Judge's query, the witness S was duly admonished in terms of s 165 of Act 51 of 1977 to speak the truth and nothing but the truth, which is a requirement in terms of that section if it appears by reason of youth or other factor that the witness may not appreciate the taking of an oath. All that is required G by the section is for the underage witness to be admonished by the court, and that was done.

In regard to para 1.1 the court did not question the witness as to her age and whether she is schooling and in what standard is she. The witness upon further questioning did say she knows what it means to speak the truth and it is to speak the truth. H

A ten-year-old child in the person of the witness fully appreciated what is meant by the truth.

In regard to para 1.2 the aforegoing also applies since the child clearly in the eyes of the court did appreciate the meaning of truth. The witness cannot be able to appreciate the truth and not be able to distinguish between the very same truth and a lie. I

In regard to para 1.3 just like adult witnesses who sometimes are over 75 years old, once the witness has taken an oath or in the case of this witness once she has been admonished, the leading of evidence takes place without questioning the witness as to whether he or she understands that there are certain consequences if he or she lied and what those are. This is because the child witness for that J

Ebrahim J

matter must be put at ease as much as possible in court, especially when the child A witness is...