ADMONITION TO SPEAK TRUTH – DUTY OF COURT

S v BAADJIES 2017 (2) SACR 366 (WCC)

Evidence — Witnesses — Calling, examination and refutation of — Oath — Admonition to speak truth — Duties of court — No procedural requirement that court first had to enquire of witness whether she understood what oath was— Criminal Procedure Act 51 of 1977, s 164(1).

Sentence — Imposition of — Global sentence imposed in respect of multiple offences — When appropriate — Inappropriate in circumstances where vastly differing sentences required — Such sentence might also present difficulties on appeal.

 

The appellant was convicted in a regional magistrates’ court of two counts of contravening s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 in respect of the sexual penetration of a 7½-year-old girl, and one count of sexual violation of the same girl in contravention of s 5(1) of the same Act. The convictions were taken as one for the purposes of sentence and he was sentenced to life imprisonment.

On appeal, his counsel contended that the evidence of the complainant had been improperly admitted as she had not been properly cautioned in terms of the Criminal Procedure Act 51 of 1977 (the CPA) — she had not been specifically asked whether she understood what the concept of an oath embraced.

Held,that there was no procedural requirement that the court first had to enquire of the witness whether she understood what the oath was and it was left up to the court to assess whether this was probable or not. The magistrate had obviously satisfied herself as to the inability of the complainant to formally take the oath and had correctly applied the provisions of s 164 of the CPA, thereby ensuring that the evidence was admissible. Most importantly, the trial court had formally admonished her to speak the truth as required by that section. (See [30] – [31].)

Held, as to sentence, that the court had erred in imposing one global sentence in the circumstances. The assault count justified a lesser sentence and the legislature had seen fit to prescribe minimum sentences of life imprisonment for the sexual penetration of a minor. It was appropriate that each offence be dealt with individually, particularly because the court had to assess whether substantial and compelling circumstances, to avoid the ultimate sentence, had been established in respect of each contravention. The method adopted by the magistrate might also present difficulties on appeal if one or more of the convictions were set aside. (See [37] – [38].) The sentence was accordingly altered to one of five years’ imprisonment on the conviction of sexual assault, and to life imprisonment in respect of each of the two remaining counts.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s