S v MABUZA 2018 (2) SACR 54 (GP)


Evidence — Witness — Children — Appointment of intermediary in terms of s 170A(1) of Criminal Procedure Act 51 of 1977 — Prosecutor making use of services of social worker to interview children to determine whether intermediary required — Competency report not required before appointing intermediary — Contents thereof not constituting evidence on which witnesses could be cross-examined.


In an appeal against convictions for the rape of four girls under the age of 14 years, the appellant attacked the evidence of the witnesses who testified through an intermediary. He complained that at the trial the magistrate had not required the social worker, on whom the state relied for its assertion that the children needed to testify in this way, to testify as to what the children had told her about the rapes. The magistrate found that a competency report was not a prerequisite to making a ruling that a witness’s evidence may be presented through an intermediary; and further, that a determination could be done without any evidence being presented by merely taking the ages and the nature of the charges into account.

Held, that the magistrate was correct in the conclusion that he arrived at and it was evident that the reports were compiled solely for the purpose of determining whether the particular child witnesses should testify through an intermediary, and no other. The social worker was not supposed to get the children’s version of events relating to the charges and, to the extent that she had done so, she went outside of the ambit within which she was to operate. Counsel’s submission that the competency reports constituted evidence on which the witnesses could be cross-examined was without merit. (See [24] – [27].) The appeal was dismissed.


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