S v Mponda

JurisdictionSouth Africa
Citation2007 (2) SACR 245 (C)

S v Mponda
2007 (2) SACR 245 (C)

2007 (2) SACR p245


Citation

2007 (2) SACR 245 (C)

Case No

A137/2003

Court

Cape Provincial Division

Judge

Yekiso J and Binns-Ward AJ

Heard

February 13, 2004; August 18, 2004

Judgment

August 27, 2004

Counsel

G C Erasmus for the State.
W Booth (attorney) for the appellant.

Flynote : Sleutelwoorde E

Fundamental rights — Right to a fair trial — Interpretation of evidence — F Appearing that evidence against accused not satisfactorily translated into his home language or language with which he was conversant — Further appearing that accused's evidence not properly translated into English — Effect hereof quite possibly material — Accused person's ability to adequately understand case against him and to communicate as well as G reasonably possible his response to it, influencing, and possibly determining, result of trial — Under circumstances in casu, Court not satisfied that accused having had fair trial.

Evidence — Witnesses — Interpretation of evidence of — Ad hoc interpreter — Interpreter not properly sworn in — Interpreter's oath of office not indicating H which language he had undertaken to interpret and containing no material asserting and confirming his ability in that language or those into which he undertook to translate — Unlike officially appointed interpreters, casual or ad hoc interpreters needing to be sworn in on each occasion they interpreted — Record having to show basis and extent of interpreter's I qualification to fulfil his or her duty — Nothing on record in casu to establish basis upon which magistrate could have been satisfied as to expertise of interpreter — Essential that magistrate be so satisfied — This ordinarily achieved by swearing in interpreter in open court and by questioning him or her appropriately — Accordingly, evidence of appellant given through interpreter not properly admitted. J

2007 (2) SACR p246

Indictment and charge — Charge-sheet — Formulation of — Accused A charged with single count of rape but prosecution adducing evidence of multiple rapes — Accused sentenced as if convicted on multiple counts — Slovenly preparation of charge-sheet potentially prejudicial not only to accused but also to administration of justice — Contrary to basic concept of B fair trial that accused charged with one count of offence confronted with evidence of number of incidents and sentenced as if he or she convicted on multiple counts — Administration of justice potentially prejudiced because allegation of only single count, where evidence supporting multiplicity of counts, meaning that accused could be sentenced only as single-count offender — This frustrating fight against crime and bringing criminal-justice system into public disrepute. C

Headnote : Kopnota

The appellant was convicted of raping a young girl, purportedly his daughter, when she was between the ages of 9 and 12, and sentenced to 15 years' imprisonment. Even though he had been charged with only one rape, the magistrate found that the appellant had raped the complainant on numerous occasions. Serious problems of interpretation were experienced during D the trial, since no suitable interpreter could be found who was sufficiently conversant with the appellant's language, and it was not clear to what extent the appellant understood any South African language. It further appeared that certain opinion evidence given in the trial court ought not to have been admitted.

Held, that whereas it was clear from the complainant's evidence that the State E must have intended to show that the appellant had raped the complainant on diverse occasions, he had in fact been charged with only one count. It was most unsatisfactory that too frequently insufficient care was paid to the appropriate formulation of the charge-sheet, especially in serious cases with the potential for a severe sentence. Slovenly preparation of the charge-sheet was potentially prejudicial not only to the accused but also to the administration F of justice. It was contrary to the basic concept of a fair trial that an accused person charged with one count of a particular offence was confronted with evidence of a number of incidents, and thereafter sentenced as if he or she had been convicted on multiple counts. In addition, an inadequately formulated charge-sheet might well, by its failure to inform the accused of the charge with sufficient detail to answer it, further infringe G his or her right to a fair trial. The administration of justice was potentially prejudiced because the allegation of only a single count, where the evidence supported a multiplicity of counts, meant that the accused could be sentenced only as a single-count offender. This was liable to obstruct the achievement of legislative objects in the fight against crime and to bring the criminal-justice system into public disrepute. (Paragraphs [9] - [15] at H 250f - 251g.)

Held, further, that there were indications on the record that the evidence might not have been entirely satisfactorily translated into the accused's home language, or into a language with which he was sufficiently conversant. Likewise, his evidence might not have been properly interpreted into English. To ensure that every accused person was assured of a fair trial it I was necessary to have a properly resourced complement of court and auxiliary interpreters. The appellant, a Malawian by birth, had apparently indicated that he understood some isiZulu, but the record showed that the court interpreter could not communicate satisfactorily with the accused in that language. Thereafter, an ad hoc interpreter was arranged by the Malawian Embassy, but although he and the appellant appeared to have J

2007 (2) SACR p247

been able to understand each other in the appellant's language of choice, A the record indicated that the magistrate had been concerned that either one or both of them had experienced difficulty in following the evidence. There also appeared to have been instances where the appellant and the interpreter encountered communication difficulties inter se. (Paragraphs [17] - [27] at 251i - 254f.)

Held, further, that two questions arose in connection with the swearing-in of the B ad hoc interpreter: firstly, was the content of the oath he had made satisfactory, in the sense of creating a record that he was competent in the relevant languages? The oath of office did not indicate which language he had undertaken to interpret and contained no material asserting and confirming his ability in that language or those into which he undertook to translate. Secondly, did his extra-curial swearing-in by the court's principal C interpreter render the evidence translated by him admissible? Officially appointed interpreters were not required to be sworn in on each occasion that they carried out their duties. Casual or ad hoc interpreters, on the other hand, did need to be sworn in on each occasion. The record also had to show the basis and extent of the interpreter's qualification to fulfil his or her duty. However, there was nothing on record in casu to establish a basis upon D which the magistrate could have been satisfied as to the expertise of the interpreter. It was essential that he be so satisfied. This would ordinarily be achieved by swearing in the interpreter in open court and by questioning him or her appropriately. (Paragraphs [30] - [34] at 255d - 256f.)

Held, further, that, under the circumstances, it appeared that the evidence of the appellant, which had been given through the interpreter, had not been E properly admitted. This failure did not affect the evidence given directly by other witnesses, which might lead to the conclusion that the matter could simply be remitted to the trial court for the appellant to be reheard through a properly qualified and sworn interpreter. However, apart from the fact that the trial court had already expressed a view on the evidence, the record revealed that there had been communication difficulties between the F interpreter and the appellant, and that the interpreter was not fully competent in English. The effect of this might well have been material. An accused person's ability to adequately understand the case against him and to be able to communicate as well as reasonably possible his response to it, would influence, and might determine, the result of the trial. Under the circumstances in the present case, the Court could not be satisfied that the G accused had had a fair trial. (Paragraphs [35] - [38] at 256g - 257h.)

Semble: The appellant's attorney experienced great difficulty in obtaining the services of an interpreter through whom he could adequately communicate with the appellant. This, together with the difficulties of interpretation experienced during the trial, suggested that measures were necessary to address the language-interpretation requirements likely to arise in comparable H cases. The establishment of a panel of officially accredited ad hoc interpreters qualified in the various foreign African languages spoken by significant numbers of people living in South Africa was desirable so that courts and legal practitioners who required such services might have a ready means of access. (Paragraph [44] at 259e - g.)

Held, further, that, had it been necessary to decide the appeal on the evidence as I if it had been properly admitted and competently translated, certain aspects might have resulted in its being upheld. The complainant, apart from being a single witness, was young and of limited intellect. She had no real idea of time and some of her answers did not follow logically or consistently on the content of the questions. Hers was the only direct evidence against the appellant, and the need for objectively corroborating circumstantial evidence J

2007 (2) SACR p248

was clear...

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20 practice notes
  • 2015 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...116, 119S v Motsepe 2015 (2) SACR 125 (GP) ................................................. 383-5S v Mponda 2007 (2) SACR 245 (C) .................................................... 94S v Mqabhi 2015 (1) SACR 508 (GJ) .................................................... 418, 421 S v Mshen......
  • 2014 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...8S v Mphala 1998 (1) SACR 654 (W)..................................................... 89, 91S v Mponda 2007 (2) SACR 245 (C) .................................................... 79S v Mqikela 2010 (2) SACR 589 (ECG) ................................................ 106S v MS 2014 (1) SACR 5......
  • 2012 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...88, 90S v Mpofana 1998 (1) SACR 40 (Tk) ................................................... 30-31S v Mponda 2007 (2) SACR 245 (C)..................................................... 333S v Mqabuzana 1976 (1) SA 212 (E) ................................................... 310S v Msane 1977 (......
  • 2008 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...206-207S v Motshari 2001 (1) SACR 550 (NC) ................................................. 310-311S v Mponda 2007 (2) SACR 245 (C) ..................................................... 124S v Mponda 2007 (2) SACR 245 (CPD) ................................................ 113-114S v Mpulam......
  • Request a trial to view additional results
13 cases
  • Sayed and Another v Levitt NO and Another
    • South Africa
    • Invalid date
    ...S v Booi and Another 2005 (1) SACR 599 (B): dicta in para [25] compared S v Lin [2010] 1 All SA 358 (W): referred to F S v Mponda 2007 (2) SACR 245 (C) ([2004] 4 All SA 229): dicta in para [34] applied S v Naidoo 1962 (2) SA 625 (A): dictum at 632G applied S v Saidi 2007 (2) SACR 637 (C): d......
  • S v RO and Another
    • South Africa
    • Invalid date
    ...(1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA 220): referred to S v McMillan 2003 (1) SACR 27 (SCA): referred to S v Mponda 2007 (2) SACR 245 (C) ([2004] 4 All SA 229): referred to S v Ndlovu 2003 (1) SACR 331 (SCA) ([2003] 1 All SA 66): referred to I S v O 2003 (2) SACR 147 (C): re......
  • S v DJ
    • South Africa
    • Invalid date
    ... ... S v L  I  1973 (1) SA 344 (C): referred to ... S v Leopeng and Another 1966 (4) SA 484 (A): compared ... S v Matshivha  2014 (1) SACR 29 (SCA) ([2013] ZASCA 124): referred to ... S v Monyane and Others  2008 (1) SACR 543 (SCA): referred to ... S v Mponda  2007 (2) SACR 245 (C) ([2004] 4 All SA 229): referred to ... S v Phallo and Others  1999 (2) SACR 558 (SCA): referred to ... S v Raghubar  J  2013 (1) SACR 398 (SCA) ([2012] ZASCA 188): referred to ... 2019 (2) SACR p615 ... S v Ramulifho  2013 (1) SACR 388 (SCA) ... ...
  • S v RO and Another
    • South Africa
    • Supreme Court of Appeal
    • 31 May 2010
    ...(1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA 220): referred to S v McMillan 2003 (1) SACR 27 (SCA): referred to S v Mponda 2007 (2) SACR 245 (C) ([2004] 4 All SA 229): referred to S v Ndlovu 2003 (1) SACR 331 (SCA) ([2003] 1 All SA 66): referred to I S v O 2003 (2) SACR 147 (C): re......
  • Request a trial to view additional results
7 books & journal articles
  • 2015 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...116, 119S v Motsepe 2015 (2) SACR 125 (GP) ................................................. 383-5S v Mponda 2007 (2) SACR 245 (C) .................................................... 94S v Mqabhi 2015 (1) SACR 508 (GJ) .................................................... 418, 421 S v Mshen......
  • 2014 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...8S v Mphala 1998 (1) SACR 654 (W)..................................................... 89, 91S v Mponda 2007 (2) SACR 245 (C) .................................................... 79S v Mqikela 2010 (2) SACR 589 (ECG) ................................................ 106S v MS 2014 (1) SACR 5......
  • 2012 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...88, 90S v Mpofana 1998 (1) SACR 40 (Tk) ................................................... 30-31S v Mponda 2007 (2) SACR 245 (C)..................................................... 333S v Mqabuzana 1976 (1) SA 212 (E) ................................................... 310S v Msane 1977 (......
  • 2008 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...206-207S v Motshari 2001 (1) SACR 550 (NC) ................................................. 310-311S v Mponda 2007 (2) SACR 245 (C) ..................................................... 124S v Mponda 2007 (2) SACR 245 (CPD) ................................................ 113-114S v Mpulam......
  • Request a trial to view additional results

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