The evidence of young children: Establishing the truth in South African criminal courts

• Jurisdiction: South Africa
• Pages: 310-324
• Date: 24 May 2019
• Author: R Songca
• Published date: 24 May 2019
• Citation: (2004) 17 SACJ 310

The evidence of young children:

Establishing the truth in South African

criminal courts

R SONGCA*

and

J LE ROUX**

ABSTRACT

This article critically addresses the manner in which accurate information from child

witnesses is obtained in criminal proceedings. Although establishing the truth is a

primary objective in criminal proceedings, young children are often excluded from the

criminal justice system by being characterised as unreliable witnesses. The cognitive

development of young children is explained and the article emphasises the crucial

need for the proper training of judicial officers in the various developmental changes

in the cognitive development of young children. The Appeal Court's decision

in S v B

is discussed and welcomed as it is envisaged that this decision will bring justice to

victims of child sexual abuse. The inability of a young witness to understand the oath

should be clearly distinguished from such a child's reliability as a witness. Finally, the

recommendation is put forward that no distinction should be made between sworn

and unworn evidence and the Sexual Offences Draft Bill's recommendation for the

abolition of the competency test, is supported.

Introduction

Adults have from time immemorial regarded children's evidence with

scepticism. In court the child witness, instead of the accused who has only to

deny his or her guilt, has to convince the court that he or she is mature and

reliable enough to narrate events truthfully. This article critically analyzes the

evidence of child witnesses in sexual abuse cases. It also discusses the

competency of young children to testify and the administration of oaths by

presiding officers to children as witnesses or complainants. It is argued that

although establishing the truth and obtaining accurate information from child

witnesses is the primary objective in criminal proceedings, the manner in

which this is done effectively excludes young children from the criminal

justice system. It is thus argued that adults working with children should have

knowledge of child development. The last part of this article discusses the

* BA Law (NUL) LLB LLM (UND) LLM (Georgetown Law School) LLD (UP),

Associate Professor

in the Department of Jurisprudence, University of South Africa.

This article is adapted from

R Songca's doctoral thesis

Aspects of sexual abuse of children: A comparative study

(LLD Pret

2003).

** Blur LLB (UPE) LLD (UP),

Associate Professor in the Department of Public Law, University of

Pretoria.

310

(2004) 17 SACJ 310

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