[REPORTABLE]

IN THE HIGH COURT OF SOUTH AFRICA
 (CAPE OF GOOD HOPE PROVINCIAL DIVISION)

CASE NO: A299/07
In the appeal of:

and

JUDGMENT DELIVERED ON 17 APRIL 2008

STEYN AJ:

[1] The appellant, Mr Frederick Swartz, was convicted on 22 March 2006, in the regional court Parow, on a charge of indecent assault in that he indecently assaulted the complainant, a young boy, 4 years old. At the trial he pleaded not guilty and tendered a plea explanation wherein he denied having had any knowledge of the offence. He was found guilty and sentenced on the 21 August 2006 to three years correctional supervision in terms of section 276(1)(h) of the Criminal Procedure Act 51 of 1977 ("the Act").

[2] Appellant appealed to this court against his conviction on the aforementioned charge. For purposes of this judgment it is important to note that Mr Tredoux, acting on behalf of the appellant, challenged the trial court's findings on the merits of the case. In my view the challenge was misdirected and should rather have been directed at the procedural irregularity that occurred when the evidence of the complainant was led.

We were not persuaded to grant such an order for a number of reasons: (a) This court remains a court of record and as such has to rely on the record submitted to us; (b) The record is certified as a true copy of the proceedings in the regional court; (c) The magistrate in her judgment never referred to any competency

finding of the witness. Granting the request would therefore not have remedied the irregularity.

[4] I shall now turn to the relevant facts which gave rise to this conviction, as testified to by the complainant. It can be summarised as follows: the complainant was indecently assaulted by the appellant in that the appellant fondled his penis, in the appellant's bedroom; the outside braai area and in the appellant's kitchen in the year 2003. At the time of these incidents the complainant was merely four years old.

[5] At the commencement of the trial, the state lodged an application in terms of s 170A of the Act for the evidence to be led through an intermediary including the use of closed circuit television with the complainant being in a separate room. In support of the application a social worker testified for the State that the child was young and she also furnished various reasons justifying the appointment of an intermediary. The defence had no objection to the use of the intermediary and accordingly the application was granted.
[6] After the order in terms of s 170A was made the following extract from the record reveals what transpired in the proceedings leading up to the complainant, who was by then seven years old, being sworn to give testimony:

Se vir X ons se more.—-Die landdros se goeie more.

(Record pages 14 and 15)

[8] It is trite law that only admissible evidence can be accepted as evidence and hence it is required of presiding officers when dealing with young witnesses to determine whether they have the necessary competency to testify. In the given circumstances the regional magistrate was required to determine whether the witness, a child of seven years of age, was a competent witness to give sworn evidence in terms of s 162 of the Act.

[10] In the judgment of the regional magistrate no reference is made to any competency finding of the young witness. The only comment in the judgment that appears to be in support of the capacity of the witness to testify is the following:

[11] The following statement by the presiding judicial officer in her judgment is even more erroneous in light of the absence of any enquiry or finding on whether the young witness could distinguish between truth and falsehood:

Further the regional magistrate states after dealing with s 208 the following in her judgment: "There is no further statutory provision relating to the acceptance of a child' testimony. Moreover, there is no necessity for adopting caution unless it is indicated in the facts of the case itself." (See record at 153) This statement indicates that there was no due consideration of ss 162,163, 164 and 193 of the Act by the regional magistrate.
[12] The question that arises, however, is whether it was proper for the regional magistrate to have accepted the sworn testimony of the child without having enquired into and without determening whether the child understood, firstly, the difference beween lies and the truth, and secondly the nature of the import of the oath.

[13] Section 162 of the Act provides that no person shall be examined as a witness in criminal proceedings unless he is under oath administered by the presiding judicial officer, judge or registrar of the Court, as the case may be. This provision is peremptory. It is expressly made subject to the further provisions of s 163 which provide for the making of an affirmation to tell the truth in lieu of an oath in certain circumstances mentioned in the section, and subject to s 164 which provides as follows:

"164(1) 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 the affirmation: Provided that such person 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."

[14] The capacity to understand the difference between truth and falsehood is thus a prerequisite for the oath, the affirmation and an admonition in terms of s 164. Because of this requirement s 164 can only be resorted to in order to procure the evidence of a child if a child does not understand the nature and the religious sanction of the oath. (Also see s 41 of the Civil Proceedings and Evidence Act, 25 of 1965)

[16] It is my view that the reason why courts require that witnesses testifying in court should be competent is basically to ensure that the witness is capable of giving reliable testimony. An examination of competency tests in most Anglo American jurisdictions shows that what these competency tests should account for is the likelihood that the child has an accurate memory of the event to be recalled and whether it is possible for the child to communicate the recalled information accurately. Our criminal justice system requires competency when dealing with child witnesses as opposed to intelligibility as required by some other jurisdictions. (Cf. s 52 of England's Criminal Justice Act 1991)

[18] In this case the trial court took it for granted that a witness of seven years of age understands the nature and import of the oath. By doing so the court ignored the witness's youth and whether the child was capable of distinguishing between right and wrong. The regional magistrate had lost sight of the importance of this distinction which ensures that a witness is capable of comprehending the consequesnes of false testimony and perjury.

[19] Given the peculiar circumstances of the case, namely that the child was only four at the time of the offence, the trial court should have been acutely aware and alive to the dangers of accepting the evidence of a child witness without establishing the ability of the witness to make the distinction between lies and truth.

[21] The judgment of the regional magistrate shows that she misdirected herself when she lost sight of the statutory and evidentiary requirements regarding child witnesses. Whilst it is in the interests of justice that child witnesses not be unnecessarily excluded as witnesses, it remains the duty of each presiding officer to be vigilant when accepting any evidence as reliable and truthful. Competency requirements cannot be abandoned simply because they appear to operate unfairly. The requirement is not to merely determine that a child can give a coherent and accurate account of the event that happened but that he or she can distinguish between truth and falsity.

[25] Our Constitution provides for fair trial rights and where the evidence of a particular case requires a cautionary approach, such fair trial rights mean that a court is required to ensure that the accused received a fair trial in the sense that there should be no conviction unless the court is satisfied that the prosecution has proved the guilt of an accused person beyond reasonable doubt.

[26] In my view, the trial court's conviction of the appellant relying on the complainant's evidence without conducting the enquiry referred to or making a finding regarding the child's competency was an irregularity which led to irremediable prejudice being suffered by the appellant which resulted in an infringement of his fair trial rights and a failure of justice.

[27]  In the event I would uphold the appeal.