S v MALI 2017 (2) SACR 378 (ECG)
Evidence— Witness — Oath — Admonition to speak truth — Irregularity committed where magistrate requiring child to ‘confirm’ that she would tell truth — Could be corrected by requiring child to listen to evidence and confirm it.
The conviction and sentence of the appellant in the regional court on charges of kidnapping and rape were based largely on the evidence of the 11-year-old complainant who, before testifying, was asked a number of pertinent questions by the regional magistrate to establish that she knew the difference between truth and lies. She was then asked to ‘confirm’ that she would tell the truth. The magistrate did not admonish the child in terms of s 164 of the Criminal Procedure Act 51 of 1977. After having given her evidence-in-chief, the matter was postponed for five months before she was cross-examined. On the resumption of the trial and before cross-examination, the magistrate reminded the complainant that she was still under oath.
Held, that the irregularity was procedural and technical in nature and the case was such that it should be corrected in the interests of justice. This would not infringe the appellant’s constitutional right to a fair trial nor would it be a miscarriage of justice. (See  – .)
Held further, that the irregularity could be corrected by the trial being reopened and the complainant being properly admonished in accordance with s 164, and for her evidence to be read to her and for her to confirm it. (See  – .)
Semble: The statement in S v Matshivha 2014 (1) SACR 29 (SCA) at para 11, that for the provisions of s 164(1) to be triggered there had to be a formal finding that the witness did not understand the nature and import of the oath, appeared to be obiter and in conflict with earlier precedents of the same court.