The importance of explicit reasons when overturning a conviction: Non-compliance with the competency test or the requirement to admonish complainants

• Author: Phanyane, N.
• DOI: https://doi.org/10.47348/SACJ/v35/i1a2
• Published date: 07 July 2022
• Date: 07 July 2022
• Citation: (2022) 35 SACJ 19
• Pages: 19-33

The importance of explicit

reasonswhen overturning a

conviction: Non-compliance

with the competency test or the

requirement to admonish

complainants

NONDUMISO PHENYANE*

ABSTRACT

There are numerous case s in which magistrates failed to properly ad minister

the competency test or to admoni sh complainants in terms of s 164(1) of the

Criminal P rocedure Act 51 of 1977. In many of these cases, the magistr ates

nonetheless found the accused gui lty based on the inad missible evidence

of the complainants. On review or appe al, however, the higher courts set

the decisions of the magi strates aside because the ma gistrates’ decisions

were based on the unreliable evidence of t he complainants. Wh ile the

rulings of the hig her courts were legally sound , if not explained explicitly

and thoroughly, they may appear unjust, cli nical, harsh, inconsider ate,

or even nonsensical. Such matters i nvolve the fundamental right s of

complainants and accused p ersons. They also result in severe consequences

for complainants and accused per sons, and they involve vulnerable g roups

such as children and ment ally-ill individu als. It is therefore import ant that

the higher courts rev iewing the procedural er rors of magistrate s provide

explicit and thorough explanation s for their ndings. To avoid perceptions

that the decisions of the h igher courts are unjust , the rulings of the cou rts

should expressly acknowledge and address the u nfortunate conse quences

suffered by both complaina nts and accused persons when a m agistrate’s

conviction is unsusta inable because it was based on evidence t hat was

not properly admitted. Ack nowledging and addressing the inju stices may

help courts provide reasons for thei r decisions that go beyond merely

stating that the complai nants’ evidence is excluded because it is un reliable.

Explicit reasons in such i nstances would go a long way in engendering and

maintaini ng public condence in the judicial s ystem and enhancing public

scrutiny of the cu rrent legal position.

* B Soc Sci LLB LL M (UCT), Lect urer, Department s of Public and Mercant ile Law,

Stellenbosch University.

https://doi.org/10.47348/SACJ/v35/i1a2

19

(2022) 35 SACJ 19

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