S v QN

• Jurisdiction: South Africa

S v QN
2012 (1) SACR 380 (KZP)

2012 (1) SACR p380

Citation	2012 (1) SACR 380 (KZP)
Case No	AR 591/2010
Court	KwaZulu-Natal High Court, Pietermaritzburg
Judge	Wallis J, Gorven J and Ngwenya AJ
Heard	May 4, 2011
Judgment	May 27, 2011
Counsel	SB Mngadi for the appellant.; J du Toit for the State.

Flynote : Sleutelwoorde

B Evidence — Witnesses — Calling, examination and refutation of — The oath — Admonition to speak the truth — Section 164(1) of Criminal Procedure Act 51 of 1977 — Requirement for implementation of s 164(1) is that witness does not understand import of oath or affirmation — Effect of such lack of C understanding not inadmissibility of evidence of witness but that court to consider whether witness competent — Evidence of such witness competent if requirements of section satisfied.

Evidence — Witnesses — Calling, examination and refutation of — Intermediary — Section 170A of Criminal Procedure Act 51 of 1977 — Swearing in of D intermediary — Analogy between intermediary and an interpreter false — Purpose of s 170A met by intermediary mediating questions put to witness, and not answers given — Not correct that, if intermediary not sworn in, it amounts to irregularity — But practice of swearing in intermediaries not to be denigrated as it serves salutary purpose — If oath administered to intermediary, it should be to honestly and faithfully and to E best of ability to discharge function of intermediary.

Headnote : Kopnota

The requirement for implementing s 164(1) of the Criminal Procedure Act 51 of 1977 is that the witness does not understand the import of the F oath or affirmation. The effect of the witness not understanding the import of the oath or affirmation is not to render the evidence of the witness inadmissible, but to constrain the court to consider whether, notwithstanding that fact, the person concerned is a competent witness. The evidence of such a witness is admissible if the requirements of the section are satisfied. (Paragraph [10] at 385a–c.)

The purpose of s 170A of the Criminal Procedure Act, which provides for the G giving of evidence through an intermediary, is met by the intermediary mediating the questions put to the witness, not the answers given by the witness. There is no reason for the intermediary to become involved in the answers given by the witness. Once it is recognised that the witness must give his/her own answers to questions, however, and by whom they have been formulated, the intermediary is not conveying the evidence to the H court as does an interpreter. The analogy between an intermediary and an interpreter is therefore a false one. Thus, the approach in certain decided cases to the role of the intermediary is that, if the intermediary is not sworn in, as an interpreter is, it amounts to an irregularity. But the practice that has grown up of swearing in an intermediary should not be denigrated. The function of the intermediary is extremely important. That function is to I minimise the mental stress or suffering of the witness by employing the intermediary's specific expertise whilst the witness gives evidence. Requiring an intermediary to discharge this function under oath seems to me a salutary practice. But if this is not done, an irregularity does not occur. No form of any such oath has been prescribed. If an oath is administered it should be to honestly and faithfully and to the best of her or his ability discharge the function of an intermediary. (Paragraphs [21], [22] and [26] at 392h–393e and 394f–h.) J

2012 (1) SACR p381

Annotations:

Cases cited

Reported cases

Director of Public Prosecutions, KwaZulu-Natal v Mekka 2003 (2) SACR 1 (SCA) (2003 (4) SA 275): dictum in para [11] compared A

K v The Regional Court Magistrate NO, and Others 1996 (1) SACR 434 (E) (1996 (3) BCLR 402): dicta at 445c – f and 448e – f applied B

R v Umhlahlo (1904) 25 NLR 264: considered

S v B 2003 (1) SACR 52 (SCA) (2003 (1) SA 552; [2002] 4 All SA 451): dictum in paras [15] and [16] applied

S v Booi and Another 2005 (1) SACR 599 (B): criticised in part

S v L 1973 (1) SA 344 (C): considered C

S v Motaung 2007 (1) SACR 476 (SE): criticised in part

S v Mpopo 1978 (2) SA 424 (A): referred to

S v N 1996 (2) SACR 225 (C): considered

S v Naidoo 1962 (2) SA 625 (A): considered

Tshabalala v Lekoa City Council 1992 (3) SA 21 (A): referred to.

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, ss 164(1) and 170A: see Juta's Statutes of South Africa 2010/11 vol 1 at 2-374 and 2-375.

Case Information

Appeal to a full court from a conviction in a regional magistrates' court and a sentence imposed in a High Court. The facts appear from the reasons for judgment. E

SB Mngadi for the appellant.

J du Toit for the State.

Cur adv vult.

Postea (May 27). F

Judgment

Gorven J (Wallis J and Ngwenya AJ concurring):

[1] The appellant was charged with one count of rape, alleged to have been committed in 2003 on a 5-year-old female, NM (N). He was G represented at the trial, pleaded not guilty and elected not to disclose the basis of his defence. He was convicted as charged. Sentence was imposed in the High Court because the regional magistrate did not, at the time, have the requisite jurisdiction to impose the sentence prescribed by s 51 of the Criminal Law Amendment Act 105 of 1997. In the High H Court he was sentenced to life imprisonment. The appeal against both conviction and sentence comes before us with leave of the High Court.

[2] N testified that she was playing with her siblings at a neighbour's house when the appellant grabbed her hand. He then took her behind the house, pushed her to the floor, told her he would give her sweets, I raped her and threatened on pain of death that she should not tell her mother. During the rape she felt pain in her vagina. He thereafter put his penis in her mouth and then made her lie on her stomach and put his penis into her anus. At home, before she bathed, her mother noticed blood on her panties and asked her what had happened. N told her what had happened and that the appellant, whom she named Q, had done it. J

2012 (1) SACR p382

Gorven J

A She knew the appellant as a neighbour and a friend of the family who came to the house to play dice. She knew that he worked at the taxi rank. She demonstrated, with the use of dolls, the positions that she and the appellant had occupied and the movements he had made during the rape, and the incident where he had placed his penis in her anus. She also B described the positioning of his and her clothing at the time. The demonstration and description were consistent with the manner in which acts of rape and anal penetration could occur.

[3] The mother of N materially confirmed those aspects of which she had knowledge. Counsel for the appellant submitted that there were C discrepancies between their evidence. The mother said, for example, that when she called N to the bath, N ran away. N made no mention of this, saying only that her mother had noticed blood on her panties whilst undressing her for her bath. This was not a discrepancy since N was not asked what had happened prior to presenting herself for her bath. Her further evidence, which corroborated that of N, was that the incident, D including the identity of the appellant, was reported to the police that day and that N was taken to see a doctor either that day or the following day. The doctor's evidence was that there was a small tear in N's rectum, blood in her faeces and that her vagina admitted one and a half fingers, which was suggestive of penetration. The doctor said that what she saw E was consistent with N's version. None of this evidence was challenged. All that was relied on by the appellant in argument in this regard was the concession by the doctor that the tear in the rectum could have been caused by constipation.

[4] The appellant was the only witness for the defence. He confirmed F that he was a neighbour, that his name was Q, that he used to play dice at N's home and that he worked at the taxi rank. The first inkling as to the nature of his defence was given in cross-examination. It was put to N that Q would say that he had been at work at the time. A different version was put to N's mother, to the effect that he was not working that day, but had gone to see one of the taxi conductors. In his G evidence, however, he departed from both of these versions, becoming more elaborate as time went by. He began by saying that he was 'not necessarily working' that day, as someone else was filling in for him. He then stated in cross-examination that it was his day off. It then emerged that he was not employed full time, but did temporary work. He finally H stated that another boy was working with his taxi, so that day he had worked with another taxi in Raisethorpe. This is a far cry from his having had the day off. He also clearly became inventive regarding a potential motive for N's mother to untruthfully implicate him. He claimed that she had suggested conducting a covert sexual relationship with him one i month prior to the incident and that, when he refused, she had said that she would get him because he was smart. This was not put to her when she gave evidence. Without going into any greater detail, it is clear that the learned regional magistrate correctly dismissed his evidence as being false beyond reasonable doubt.

[5] In the heads of argument and during the hearing of the appeal, J counsel for the appellant raised a number of issues. Two main issues

2012 (1) SACR p383

Gorven J

relating to the content of the evidence given were raised. The first was A that there was an issue as to whether or not N had been raped. When it was pointed out to counsel for the appellant that the appellant had in evidence conceded that the rape had...