S v HEROLDT 2018 (2) SACR 69 (KZP)

Witness — Competence of — Child witness — Questioning by presiding officer — Magistrate’s questions direct and specific and answers clear and precise — Five-year-old child competent to testify.

Witness — Children — As complainants in sexual offences — Use of infantile words to describe parts of genitalia acceptable and sufficiently understood by all concerned.

On appeal against his conviction in a regional magistrates’ court for the rape of a 5-year-old girl, the appellant took issue with the admissibility of the evidence of the complainant and contested her competency to testify. He also queried the court’s acceptance of her use of infantile words to depict parts of male and female genitalia that had not been clarified to determine what the complainant was referring to.

Held, that the magistrate’s questions were direct and specific, as she had enquired of the complainant whether it was good or bad to tell lies, which had elicited the correct response. The magistrate also determined that the complainant understood what she was saying, and her answers were clear and precise. There was nothing to suggest that she could not distinguish between the truth and falsehood. (See [6].)

Held, further, that it was patently clear from the record that the complainant was referring to the male and female genitalia. Parents found appropriate words to use for private parts when they spoke to young children and it had been accepted by well-known and authoritative dictionaries that the words she used were informal terms used in polite conversation referring to the respective gender’s genitalia. In the circumstances there could be no suggestion that one did not appreciate what she had been referring to. (See [9] – [11].) The appeal was dismissed.


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