In South Africa, child witness competency is regulated by different sections of the Criminal Procedure Act.[1] For the sake of convenience, the relevant sections are:
“162. Witness to be examined under oath (1)Subject to the provisions of sections 163 and 164, no person shall be examined as a witness in criminal proceedings unless he is under oath, which shall be administered by the presiding judicial officer, or in the case of a superior court, by the presiding judge or the registrar of the court, and which shall be in the form: ‘I swear that the evidence I shall give, shall be the truth, the whole truth and nothing but the truth, so help me God.’ (2) If any person to whom the oath is administered wishes to take the oath with uplifted hand, he shall be permitted to do so. 163. Affirmation in lieu of oath (1) Any person who is or may be required to take the oath and – (a) who objects to taking the oath; (b) who objects to taking the oath in the prescribed form; (c) who does not consider the oath in the prescribed form to be binding on his conscience; or (d) who informs the presiding judge or, as the case may be, the presiding judicial officer, that he has no religious belief or that the oath is contrary to his religious belief, shall make an affirmation in the following words in lieu of the oath and at the direction of the presiding judicial officer or, in the case of a superior court, the presiding judge or the registrar of the court: - ‘I solemnly affirm that the evidence that I shall give, shall be the truth, the whole truth and nothing but the truth’. (2) Such affirmation shall have the same legal force and effect as if the person making it had taken the oath. (3) The validity of an oath duly taken by a witness shall not be affected if such witness does not on any of the grounds referred to in subsection (1) decline to take the oath.
164. When unsworn or unaffirmed evidence admissible (1) Any person who [from ignorance arising from youth, defective education or other cause,][2] 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 shall, in lieu of the oath or affirmation, be admonished to speak the truth [, the whole truth and nothing but the truth].[3] (2) If such person wilfully and falsely states anything which, if sworn, would have amounted to the offence of perjury or any statutory offence punishable as perjury, he shall be deemed to have committed that offence, and shall, upon conviction, be liable to such punishment as is by law provided as a punishment for that offence.
165. Oath, affirmation or admonition may be administered by or through interpreter or intermediary Where the person concerned is to give his evidence through an interpreter or an intermediary appointed under section 170(A) (1),[4] the oath, affirmation or admonition under section 162, 163 or 164 shall be administered by the presiding judge or judicial officer or the registrar of the court, as the case may be, through the interpreter or the intermediary or by the interpreter or intermediary in the presence or under the eyes of the presiding judge or judicial officer as the case may be. …
192. Every witness competent and compellable unless expressly excluded Every person not expressly excluded by this Act from giving evidence shall, subject to the provisions of section 206, be competent and compellable to give evidence in criminal proceedings.
193. Court to decide upon competency of witness The court in which criminal proceedings are conducted shall decide any question concerning the competency or compellability of any witness to give evidence.
194. Incompetency due to state of mind No person appearing or proved to be afflicted with mental illness or to be labouring under any imbecility of mind due to intoxication or drugs or the like, and who is thereby deprived of the proper use of reason, shall be competent to give evidence while so afflicted or disabled.”
------------------------------------------- [1] Act 51 of 1977. [2] The phrase in brackets is omitted in the amended subsection 164(1), as per s 68 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. [3] This phrase has also been omitted in the amended subsection 164(1), as per s 68 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. [4] S 170A (1) as amended by s 68 of Act 32 of 2007: “Whenever criminal proceedings are pending before any court and it appears to such court that it would expose any witness under the biological or mental age of eighteen years to undue mental stress or suffering if he or she testifies at such proceedings, the court may, subject to subsection (4), appoint a competent person as an intermediary in order to enable such witness to give his or her evidence through that intermediary.”
The Procedure
The criminal court decides whether a witness has testimonial competence, as only a witness who is regarded as competent is allowed to give evidence.[1] The child has to demonstrate an understanding of the difference between the truth and a lie[2] during a formal enquiry before admission as a witness to be heard by the court.[3]
Van der Merwe clarifies: “In the view of the Constitutional Court, understanding what it means to tell the truth gives the assurance that the evidence can be relied upon. The evidence of a child who does not understand what it means to tell the truth is not reliable, and would undermine the accused’s right to a fair trial if such evidence were to be admitted. The risk of a conviction based on unreliable evidence is too great to permit the evidence of a child who does not understand what it means to tell the truth.”[4]
Although the religious sanction implied by the oath received less emphasis in the courts previously,[5] Steyn AJ held in State v Swartz,[6] “s 164 could be resorted to in order to procure a child’s evidence only if the child did not understand the nature of the religious sanction of the oath”.[7] South African case law confirms the link between the oath and its religious understanding at present.[8] If the witness does understand the import of the oath,[9] he or she proceeds to take the oath.[10] Müller states that a “solemn promise to tell the truth with reference to God” is also understood as the oath.[11]
When the witness objects to the prescribed oath or has “no religious belief” to swear by, he or she gives an affirmation of truthfulness to the court in terms of s 163(1).[12] According to Revelas J, a “promise” is not permitted as a form of “affirmation”.[13]
A witness who is ignorant of the meaning and moral significance of the oath will proceed to give evidence after an admonition by the court to speak the truth.[14] According to Le Roux and Engelbrecht, young children are too immature to understand the oath,[15] but the discretion of the presiding officer should be recorded as such before continuing with admonishment.[16] When a child witness is younger than eight years, he or she is generally regarded as not understanding the import of the oath due to youthfulness.[17] Also, children with developmental delays, the focus of research in the current study, are also likely to not understand the meaning of the oath.[18]
Currently no formal enquiry is required to determine whether the child witness is unable to be sworn in.[19] However, this section of the Act has previously been interpreted as requiring a formal investigation as well as that the exact wording should be used – even if children had a limited understanding of these abstract concepts.[20] Furthermore, the evidence of an older child witness is considered inadmissible if he or she was admonished to speak the truth (but not sworn in) while, in actual fact, having had the ability to understand the oath and its meaning.[21] Consequently, the court should not omit the oath-taking procedure based on the assumption of inability only.[22]
The provision for unsworn evidence due to incomprehension of the nature of the oath originates from 1861 legislation.[23] In terms of an amendment to the current Act, the evidence of a witness who for some reason or other does not understand the concept of sworn evidence, may be allowed to proceed to testify after an admonition.[24] However, according to a Constitutional Court ruling, it is imperative that the court is convinced that the child witness understands what it means to “speak the truth”[25] and “[i]t is not an option to be applied at the whim of the magistrate”.[26] This comprehension is said to ensure reliable testimony and is prerequisite to appear as a witness.[27]
In Director of Public Prosecutions Transvaal v Minister of Justice and Constitutional Development,[28] Ngcobo J states that skilful questioning during the legal competency examination of a (young) child witness would reveal whether he or she “understands what it means to speak the truth”.[29] This is regarded as one of the functions of the intermediary during the trial.[30]
-------------------------------------------- [1] S 193. [2]S v V 1998 (2) SACR 651 (C) Headnote; State v Katoo 2006 (4) All SA 348 (SCA) paras 13-14. [3] Van der Merwe Child Law in SA 579. In State v Swartz 2009 (1) SACR 452 (C), the conviction was set aside on appeal owing to the absence of the formal enquiry into competency. Conversely, due to the finding that the correct procedure was followed in State v Williams 2010 (1) SACR 493 (EGC) an appeal to set a conviction aside was dismissed. [4] Van der Merwe Child Law in SA 578-579. This corresponds with Director of Public Prosecutions Transvaal v Minister of Justice and Constitutional Development, and Others 2009 (2) SACR 130 (CC) para 166: See thesis for relevant quotation. [5] Müller Judicial Officer 138-139. Also see Bala et al 2010 Journal of Children’s Rights 56 on how the religious meaning of the oath evolved to having “social significance” in Canadian courts. It is argued in Ndokwane v State [2011] JOL 27316 (KZP) that an understanding of punishment associated with perjury is not expected from a child witness. “At most the importance of truthfulness is generally covered, as was done in the present matter, by an enquiry satisfying the court that the witness understands that an adverse sanction will generally follow the telling of a lie.” [6] 2009 (1) SACR 452 (C). [7]S v Swartz 2009 (1) SACR 452 (C) Headnote D. [8]S v Seymour 1998 (1) SACR 66 (N) 69F-J; S v M 2004 (2) All SA 74 (D) para 35; S v Gallant 2008 (1) SACR 196 (E) 200D-G. [9] Myers 1993 Behavioral Sciences 128: “The oath is not, technically speaking, a component of testimonial competence. Rather, the oath is required in addition to the cognitive and moral capacities that make up testimonial competence. Courts and commentators often overlook or ignore the distinction between testimonial competence and the oath, referring to both in the same breath.” [10] See s 162(1). However, Müller Judicial Officer 139 puts forward two primary reasons why the oath has been “watered down”. There has been a cultural shift regarding the importance of religion and of church attendance. Furthermore, schools no longer necessarily provide religious instruction to learners. Consequently, morality on the basis of religious education can no longer be assumed. Furthermore, Bala et al 2010 Journal of Children’s Rights 57 argue that the former emphasis on religion obscures the focus on the actual purpose of the enquiry, i.e., to ascertain whether the child understands that it is expected of him or her to be honest during testimony. [11] Müller Judicial Officer 139. [12] S 163 (1). [13]State v Gallant 2008 (1) SACR 196 (E) paras 12 and 21. [14] S 164. [15] Le Roux and Engelbrecht Introduction to Child Law 347. [16]S v Malinga 2002 (1) SACR 615 (NPD) in Müller Judicial Officer 143-144; S v Williams 2010 (1) SACR 493 (ECG). [17]S v Gallant 2008 (1) SACR 200-201 para 10. [18] In State v Vumazonke 2000 (1) SACR 619 C, the complainant was a 10-year-old girl with a mild cognitive delay as a result of Down syndrome. On appeal it was confirmed that the procedure for competency evaluation does allow for the presiding officer to use his or her discretion as to whether the child witness would be able to understand the import of the oath. Furthermore, it was the essence of the admonition and not its exact words that needed to be communicated to the child, appropriate to her level of language development. [19] Van der Merwe Child Law in SA 579. [20]State v Seymour 1998 (1) SACR 66 (N); State v Pienaar 2001 (1) SACR 391 (C). Also in Director of Public Prosecutions Kwazulu-Natal v Mekka 2003 (2) SACR 1 (SCA), it was confirmed that a magistrate could proceed without a formal investigation into whether the witness understood the nature of the oath, if he or she formed an opinion of inability based on the child’s age. Subsequently the magistrate enquired whether the nine-year-old child witness understood the distinction between truth and lies and then admonished her to tell the truth. See thesis for relevant transcript. [21]State v B 2003 (1) SA 552 (SCA) 556D-F. In 556 para 2, it appears as if the presiding officer had not kept to the distinction between oath / affirmation and admonition. While he enquired about taking an oath to speak the truth, the court gave the complainant (13 years) a warning only. [22]State v Gallant 2008 (1) SACR 196 (E). [23] Müller Judicial Officer 144. [24] S 68 of Act 32 of 2007. [25] See Motsisi v The State (513/11) [2012] ZASCA 59 paras 11-13, also referring to DPP Tvl v Min of Just and Const Dev, and Others para 164: “If the child does not understand what it means to speak the truth, the child cannot be admonished to speak the truth and is therefore an incompetent witness. The child cannot testify.” [26]S v Stefaans 1999 (1) SACR 182 (C) 185D. [27]DPP Tvl v Min of Just and Const Dev, and Others para 166. [28] 2009 (2) SACR 130 (CC) para 167. [29] 2009 (2) SACR 130 (CC) paras 167-168. [30] S 165.
There is a history of convictions being set aside on appeal owing to procedural irregularities regarding competency examination in the court a quo. For example, in State v Mashava the magistrate had not enquired whether the 12-year-old witness understood the nature of the oath and while she had been warned to relate her own experiences only, the court had not admonished her “to speak the truth, the whole truth and nothing but the truth”.[1]
The judgment of State v T is considered ironical.[2] While the honourable judge opined that the sentence of the court a quo in a rape case of this nature was too lenient, he also had to set the conviction and sentence aside owing to the procedural irregularity caused by an “extremely superficial enquiry” preceding the oath-taking of the two witnesses. The six- and seven-year-old girls were not probed to check whether they actually understood the meaning of truth and the potential consequences of lying. In both instances, the magistrate was satisfied with a mere “yes” to each and every closed-ended question put to them.[3] It was a similar situation with a 10-year-old complainant in State v Kondile due to the inadequacy of the enquiry.[4]
In Henderson v State the complainant was a 19-year-old with moderate intellectual disability.[5] According to Friedman JP and Van Reenen J, “Despite the fact that he had been alerted to the fact that the complainant had a mental age of between 5 and 6 years the Magistrate, except for asking the complainant whether she knew what it was to take the oath and receiving a reply in the affirmative, made no effort to ascertain whether she understood the meaning of and possessed the capacity to differentiate between truth and falsity. The Magistrate, instead of satisfying himself that the complainant possessed the necessary capacity, relied on her assurance that she understood what it meant to take the oath. It is not necessary to speculate about the complainant’s mental capacity as the State adduced the evidence of a clinical psychologist … and in a report expressed the view that she understood the difference between truth and falsehood and had a rudimentary understanding of court proceedings. The complainant’s mother testified that she attended special schools. In the light of that information and the absence of any enquiry whether the complainant possessed the mental capacity to understand the meaning of the oath and to appreciate and accept the religious sanction thereof, I am not satisfied that the oath was properly administered in the instant case. … If the complainant’s evidence is disregarded, as it should be, there is no evidence to support the convictions and accordingly the accused should not have been convicted.”[6]
In State v Seymour[7] a procedural irregularity similar to that in State v Mashava[8] happened, i.e., the witness was sworn in as a result of the child exhibiting an understanding of the difference between truth and falsity, but it had not been tested whether he or she understood the importance of the oath. Of interest in the matter of S v Seymour is the argument that a presiding officer should ascertain whether the child witness has the necessary “intelligence” not only to differentiate between truth and falsehood, but also to grasp the danger of telling lies.[9]
The competency examination of Ramon Fitzgerald,[10] the complainant in this case, actually gives a strong impression of a 13-year-old child witness with a developmental delay or even developmental disability.[11] The average age for a child in Standard 3 (Grade 5) is 11 years. The cognitive development of the typical 13-year-old (associated with Grade 7) would have allowed a witness to define the concepts truth and falsehood without difficulty. However, this was not the case with Ramon who was – at this age – still unable to give a verbal description of the moral concept of lying, but clearly implied that telling lies was like “stealing”, and that a child gets punished for such behaviour.[12]
When enquiries are made during the competency examination about verbal concepts like “truth” and “lie” and the difference between them, it is not at all unexpected that young children are unable to put their thinking into words. Walker points out that because preschoolers have major difficulties with abstract language, an expectation to define or even describe legal competency concepts is developmentally inappropriate.[13] To be able to give a definition or explanation of these abstract concepts requires cognitive development associated with children of 10 years and older.[14] However, the ability of older children should not be overestimated. For example, it was found that children as old as 11 years can still confuse the meanings of a “lie” and a “mistake”.[15] Consequently, the cognitive development of a witness seems indeed a valid factor to consider when determining competency.
From the transcript of P, one of the two child witnesses in the State v Pienaar trial,[16] it not only transpires that this boy of 13 years was in Standard 2 (Grade 4), but that the court proceeded without further enquiry, to warn him to tell the truth after P replied that one is allowed to tell untruths.[17] As with Ramon Fitzgerald, the significant discrepancy between P’s age and the expected level of education for such a chronological age should have alerted the court to the possibility of a developmental delay or disability. In light of his answer, it was impossible to assume P understood the difference between truth and lies without further enquiry. Pinky was the eight-year-old complainant in State v M [18] and the complex language used by the court to communicate with this first-grader is noted.[19] In an attempt to prevent a sentence being set aside due to procedural irregularities, the court let the child take the oath even though she had been unable to clearly distinguish between truth and lie.[20] However, Pinky did understand the negative consequence to lying. The following conclusions were made on review of her competency examination:
Due to her inability to understand the difference between truth and falsehood, Pinky was an incompetent witness and she was not supposed to have given evidence at all.[21]
Also an admonition would only have had meaning to the child witness if he or she was able to distinguish between truth and lies.[22]
The religious sanction linked to the oath would only have meaning if the child witness differentiated between truth and untruth.[23]
Judicial discretion as required by the applicable section,[24] also accommodates the possibility that it is concluded in retrospect that a child witness had given “reliable” testimony.[25]
The reliability of evidence is related to various factors, e.g. memory and the ability to narrate the event.[26]
Contradictions during testimony indicate that the child witness is unable to “appreciate the importance of being truthful”.[27]
Conversely, in the State v Chalale the magistrate admonished the witnesses aged 15 and 17 to speak the truth without holding an enquiry as to whether they understood the nature of the oath.[28] This was found to be irregular, as it is developmentally expected that an adolescent of this age would understand the import of the oath and subsequently be sworn in.[29] As a result of the irregularity their testimonies were considered to be inadmissible.[30] This was also the case in S v Gallant – the complainant’s age was 11 years and she was in Grade 5 (Standard 3).[31]
A legal argument raised in the case State v Katoo on appeal has relevance.[32] The complainant was a 10-year-old boy with Down syndrome and a language impairment. Clearly there is a difference between cognitive disability (or developmental disability) and mental illness.[33] While a person with a mental illness is generally considered to be incompetent owing to reasoning faculties being affected significantly, this cannot be said of a person who is intellectually challenged (para 3.1.3).[34] Even if the latter’s mental age is low, it cannot be assumed that such a witness is necessarily incompetent.[35] “Doubts about a child’s testimonial competency are particularly likely when the child is mentally challenged, although most children with below average intelligence are capable of testifying”.[36] A competency evaluation is needed in order to ascertain to what extent the cognitive impairment limits his or her moral reasoning, and thus testimonial competency. To simply assume that a person with a mental disability is an incompetent witness is discriminatory.
The trial of State v Roux also involved a 10-year-old boy with Down syndrome as the complainant in a rape case.[37] The court of appeal confirmed that the child witness with a speech disability should be accommodated in the legal process by means of a speech therapist “interpreting” his verbal testimony to the court.[38] However, the transcript of the competency examination reveals the complainant’s lack of understanding of the very long and complex questions that were put.[39] A significant positive correlation between mental disability and Down syndrome exists.[40] Here the court focused on one aspect of competent testimony, i.e., intelligible expressive communication. Obviously, it was vital for the court to understand the complainant while he gave evidence. The assumption must have been that his receptive language, i.e. his understanding of verbal communication, was functional and that the problem lay with the court’s understanding of his communication. However, the complainant’s responses rather revealed limited cognitive functioning.
------------------------------------------- [1] 1994 (1) SACR 224 (T) 228G-I. [2] 2000 (2) SACR 658 (Ck) paras 25-28. [3]First witness 2000 (2) SACR 658 (Ck) para 25: “’Court: Now does she understand the meaning of, and has the capacity to appreciate and accept the religious sanction of taking an oath? Miss Diko: Yes, your Worship. Court: Swear her in, Mr Interpreter.’” Second witness 2000 (2) SACR 658 (Ck) para 26: “’Court: … Now do you understand to speak the truth? – Yes. Now do you understand what happens to persons or people who do not speak the truth? – Yes. Now are you going to tell this Court the truth of what you know? – Yes.’ Thereafter she was sworn in.” [4] 2003 (2) SACR 221 (Ck). Ebrahim J contends in 223-224 para 7, “The single question which the magistrate posed to this witness in this regard was, ‘Do you know what it means to speak the truth?’ to which she replied, ‘Yes it is to speak the truth’. This was simply a restatement of the question without any accompanying explanation and did not indicate that she indeed knew what it meant. I am at a loss to understand on what basis the magistrate was able to conclude from this reply that she ‘appreciated what is meant by the truth’ and was able to distinguish between truth and lies.” [5] 1997 (1) All SA 594 (C). [6] 1997 (1) All SA 594 (C) 597-598. [7] 1998 (1) SACR 66 (N). [8] 1994 (1) SACR 224 (T). [9] 1998 (1) SACR 66 (N) 70-71H-B. [10] 1998 (1) SACR 66 (N) 68-69G-A: See thesis for relevant transcript. [11] A developmental delay that persists, is later diagnosed as a developmental disability, i.e., an impairment. Examples of developmental disabilities are cerebral palsy, autism and intellectual impairment. [12] See para 2.5: From a developmental point of view, this concrete understanding is usually associated with young children. [13] Walker Handbook on Questioning Children 3. In S v V for example, the court put the following question to a four-year-old: “L, are you able to differentiate between the truth and a lie?” Her answer through the intermediary was, “no”. In order to “differentiate”, the cognitive function of comparison with various steps of information processing is required, according to Walker Handbook on Questioning Children 67-68 –
Firstly, the child needs to know what is meant by referring to one thing being different from (or the same as) another;
Secondly, the cognitive skill to determine sameness and difference in an abstract concept needs to be operational; and
Lastly, after such mental processing, he or she has to have the linguistic ability to describe in words the conclusion reached.
[14] Walker Handbook on Questioning Children 69. [15] Walker Handbook on Questioning Children 67. [16] 2001 (1) SACR 391 (C). [17] 2001 (1) SACR 391 (C) 393C-G: See thesis for relevant transcript. [18] 2004 (2) All SA 74 (D). [19] The interpreter in S v Mokoena 2008 (5) SA 578 (T) 587E-G told the court: “I do understand what the State wants to elicit from this witness, it is just that the Prosecutor does not have proper words which can be cut down to the level of the understanding of this. All the questions, the words that come, I saw a pitch high. The State does not have proper words which are curtailed to the level of the understanding of this, and I do understand what she is saying but I am just afraid to say what she did not say, because I end up testifying.” [20] 2004 (2) All SA 74 (D) 79 para 26 – 81 para 28: See thesis for relevant transcript. [21] 2004 (2) All SA 74 (D) para 34. [22]ibid. [23]ibid. [24] 2004 (2) All SA 74 (D) para 38. [25] 2004 (2) All SA 74 (D) para 39. It is explained in para 37: “A trial court can have doubts about the reliability of a witness, given the formative nature of an enquiry in terms of section 164(1). A proper assessment may only be possible at the end of the hearing. In that case, the trial court should record its reservations about the reliability of the witness, but allow her to testify under oath, affirmation or admonishment in the interests of justice.” [26] 2004 (2) All SA 74 (D) para 45. [27] 2004 (2) All SA 74 (D) para 50. [28] 2004 (2) SACR 264 (W). [29] 2004 (2) SACR 264 (W) 264B. [30] 2004 (2) SACR 264 (W) para 4. [31] 2008 (1) SACR 196 (E). [32] 2006 (4) All SA 348 (SCA). [33] 2006 (4) All SA 348 (SCA) para 12. [34] 2006 (4) All SA 348 (SCA). Also see s 194. [35] 2006 (4) All SA 348 (SCA) para 12. [36] Myers 1993 Behavioral Sciences 132. [37] 2007 (1) SACR 379 (C). [38] Criminal Procedure Act s 161(1) and 161(2). [39] In 2007 (1) SACR 379 (C) 381A: See thesis for relevant transcript. [40] S McDermott et al “Epidemiology and Etiology of Mental Retardation” in JW Jacobson et al (eds) Handbook of Intellectual and Developmental Disabilities (2009) 12: “Virtually all persons with DS [Down syndrome] have a cognitive impairment, with the majority functioning in the moderate to profound range of MR [mental retardation]” [descriptions added for clarity].