S v Stefaans

• Jurisdiction: South Africa
• Judge: Van Zyl J and Mitchell AJ
• Judgment Date: 15 December 1998
• Counsel: T R Tyler for the appellant A Bouwer for the State.
• Court: Cape Provincial Division

Mitchell AJ:

The appellant was convicted in the regional court at Ladismith of the rape of the complainant who was aged 16 years at the time of the trial. He was sentenced to five years' imprisonment of which two years were suspended for five years on condition that he is not convicted of rape or attempted rape during the period of suspension. C

D He appeals against his conviction. For reasons which will become apparent, I do not intend to deal with the merits of the appeal.

Mr Tyler, who argued the matter before us on behalf of the appellant, filed supplementary heads of argument shortly before the hearing. In these supplementary heads he raised the question of whether the evidence of the complainant was properly before the E court. In this regard he pointed out that it did not appear from the record that the witness had taken the oath as prescribed by s 162 of the Criminal Procedure Act 51 of 1977 or that she, having objected to taking the oath, had affirmed that her evidence would be true as provided for in s 163. The magistrate had, he submitted, apparently applied the provisions of s 164 of the Act without having established the appropriateness of using this section.

F The raising of the point caused the hearing of the appeal to be postponed so that the tape recording of the proceedings could be examined to ascertain what had actually occurred at the trial which gave rise to the cryptic notation in the trial record reading 'bevestig'.

G At the resumed hearing of the appeal, it was agreed between Mr Tyler and Mr Bouwer, who appeared for the State, that the tape recording revealed the following questions and answers:

'Hof:	Goed. Ja, meisie kan jy my hoor?
Getuie:	Ja.
Hof:	Wat is jou naam?
Getuie:	L.
Hof:	Sê weer?
Getuie:	L.
Hof:	L, en jou van?
Getuie:	A.
Hof:	Hoe oud is jy?
Getuie:	16.
Hof:	Is jy in die skool?
Getuie:	Ja.
Hof:	In watter skool is jy?
Getuie:	Ladismith Sekondêr.
Hof:	Standerd?
Getuie:	St 8.

Mitchell AJ

Hof:	Weet jy wat dit beteken om die waarheid te praat?
Getuie:	Ja.
Hof:	Jy gaan nou gevra word om te vertel wat gebeur het wat aanleidinggegee het tot die saak. Jy hoef nie skaam te wees nie. Jy hoef nie bangte wees nie. Jy moet net die waarheid vertel, hoor.
Getuie:	Ja.'

Mr Tyler argued that this revealed that no adequate grounds existed for the witness to be excused from taking the oath or affirming. B The result, so he said, was that the evidence of the complainant fell to be excluded from the record and that the remaining evidence was inadequate to support a conviction.

It was submitted by Mr Bouwer that the magistrate had clearly applied the provision of s 164(1) of the Act. This section reads as C follows:

'Any person who, from ignorance arising from youth, defective education or other cause, 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 D shall, in lieu of the oath or affirmation, be admonished by the presiding Judge or judicial officer to speak the truth, the whole truth and nothing but the truth.'

It is clear from this that the section may only be applied in circumstances when the witness is, for one or more of the reasons stated, unable to take the oath or affirm. It is not an option to be applied at the whim of the magistrate. E

We were referred to two unreported judgments in this Division in the matters of Swarts v S (A2109/96 - 13 June 1997) and Williams v S (A545/97 - 21 November 1997) in which similar points were raised. The former case involved the evidence of a F 13-year-old girl who was at the time in std 4. The magistrate used the provision of s 164(1) after questioning the witness as to her age and standard of education. Van Deventer J held as follows:

'In casu het die streeklanddros myns insiens voldoende inligting ingewin om tot 'n gegronde bevinding soos voorgaande te geraak. Dit kan eerstens uit die vrae en die optrede van die streeklanddros afgelei word dat hy getwyfel het of die klaagster die aard en betekenis van 'n eed of bevestiging in terme G van arts 162 of 163 sou kon begryp en dit wenslik geag het om liewers die art 164 prosedure te volg.

Tweedens kan afgelei word dat die streeklanddros tevrede gestel is deur sy voorafgaande ondervraging en die antwoorde van die klaagster dat sy intelligent genoeg was om tussen waarheid en onwaarheid te onderskei en ". . . to recognise the danger and impiety of saying what is not true". H (Chaimowitz v Chaimowitz 1960 (4) SA 820 (C) op 822C.)'

The latter case, so we are informed by the State, involved a 16-year-old girl who had left school the previous year in std 5.

I accept that it is not necessary that any formal finding need be made to the effect that the witness is unable to take the oath or affirm I in terms of ss 162 and 163 before s 164 can be applied. I also accept that the magistrate may rely on his own observation of the witness concerned in coming to the conclusion that s...