S v PILANE 2016 (1) SACR 247 (NWM)

Evidence — Witnesses — Calling, examination and refutation of — The oath — Administering of — Provisions of s 162 of Criminal Procedure Act 51 of 1977 peremptory.

If an oath was not properly administered to a witness in terms of the prescripts of s 162 of the Criminal Procedure Act 51 of 1977 then what was said by the witness lacked the status and character of evidence. In other words, whatever was said by the witness was not evidence and was inadmissible.
All three state witnesses were therefore sworn in by the interpreter and not by the presiding officer. The question arises as to whether this is proper.
The appellant contends that the manner in which the oath was administered constitutes an irregularity that vitiates the proceedings. Section 162 of the Criminal Procedure Act 51 of 1977, as amended, provides:
‘(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 following form:
“I swear that the evidence that 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.’
Furthermore, the oath must be administered by a judicial officer and not the interpreter. In the event that the oath is not administered by the judicial officer as prescribed by s 162, the witnesses are not properly sworn in and their evidence is therefore inadmissible.