Oral Evidence

Question 1

Def of oral evidence

Answer 1

Evidence that is presented by a witness in court, (usually in person/face to face)

Question 2

S v Andendorff

Answer 2

The courts allowed a witness to present a previous statement as evidence.
This is highly irregular
The courts prefer that a witness give evidence from memory than from a previous statement as the latter allows the witness the maintain a lie.
This is a common feature in the common law adversarial evidentiary system

Question 3

Perie case

Answer 3

Confirms the latin word for oral evidence as vivo voce
Vivo voce means live voice

Question 4

Section 161 of CPA

Answer 4

A witness in a criminal proceeding must give oral evidence
A person under the age of 8 who is unable to give oral evidence due to reasons such as physical, emotional, psychological or mental conditions may give demosnstations, hand gestures and non-verbal expressions as oral evidence.

Question 5

Case law supporting s161 of CPA

Answer 5

S v Ergie
Demonstrations includes physically acting something out using anatomically correct dolls

Question 6

Section 42 of CPEA

Answer 6

Incorporates general common law provisions that a witness SHOULD present oral evidence in civil proceedings
Likewise rule 38(3) of Uniform Rules of Court

Question 7

s162 of CPA

Answer 7

No person shall be examined as a witness unless they have taken the oath in a prescribed form

Question 8

s163 of CPA

Answer 8

Allows a person who objects to taking an oath to be affirmed to speak the truth
An affirmation has the same legal effect as an oath
The maker of both an oath and affirmation will suffer perjury or statutory perjury if they do not speak the truth

Question 9

s164 of CPA

Answer 9

Provides for admonishment
A person who does not understand the nature and import of an oath or affirmation may give evidence without taking an oath or affirmation.
There is a provisio that they should be admonished to speak the truth
A person who willfully states an untruth after being admonished may be charged with perjury or statutory perjury provided they have the necessary criminal capacity.

Question 10

Case Law supporting admonishment

Answer 10

S v B
Not necessary for a formal, expressing inquiry to be made on whether or not a child understands the nature and purport of the oath or affirmation before admonishing a child
Presiding officer can make this finding simply by virtue of the youth of the child
SAPS officers presume that a child under the age of 12 cannot understand nature and significance of an oath therefore must be admonished
A 14 year old child on the other hand could be assumed to understand

Question 11

Administering the admonishment to a child

Answer 11

S v B further elaborates that
▪ In addition to the requirements in S164 of the CPA is that the child must DEMONSTRATE to the presiding officer that they understand the difference between TRUTHS AND LIES.
▪ This is to ensure that their evidence is reliable and the promise to tell the truth is meaningful.
▪ Expert evidence can be used by the court to assist it in determining the competence of a child.

Question 12

Step-by-Step Analysis of Swearing In Procedure

Answer 12

❖ Attorney / Advocate will say:
➢ Your Worship (Regional Court) or My Lord/Lady (High Court), insert your name and surname (‘Frikkie Augustyn’) on
behalf of the Plaintiff in this matter.
➢ Refer to the NSD (notice of set down) and state progression of the matter authorizing set down on the unopposed divorce roll.

❖ Plaintiff walks from Court’s Gallery to Witness Box

❖ Swearing of oath/ affirmation (questions and answers)
➢ Magistrate / Judge asks:
▪ Please state your name and surname for the record (to the plaintiff)
* Plaintiff answers
▪ Do you have any objection in taking the prescribed oath?
* Plaintiff answers: NO
* Note: An affirmation has the same effect.
▪ Do you consider the oath / affirmation to be binding on your conscience?
* Plaintiff answers: YES
▪ Do you swear to tell the truth, the whole truth and nothing but the truth?
* Plaintiff answers: YES
▪ Raise your right hand and state “So help me God.”
* Plaintiff answers: SO HELP ME GOD
* Note: This is ONLY for the oath and not the
affirmation, as the oath is religious in nature.

Question 13

Consequences of Non-Compliance with the Above Procedure

Answer 13

If the witness is not properly sworn in, the evidence is inadmissible.

Question 14

Facilitation of Swearing In

Answer 14

➢ Presiding Officer can facilitate.
➢ Interpreter (in presence of the Presiding Officer) is authorized to facilitate.

Question 15

Reading Evidence into the Court Record

Answer 15

❖ Most important take-away by example:
➢ Settlements made outside of court must be read into the record.
➢ Such as in divorce proceedings, you as the
advocate/attorney will proceed with the Questioning and Answering of the witness to read the parental responsibilities and rights provision as provided for in the Deed of Settlement into the Court’s records.
➢ You will do the same for all other provisions in the Deed of Settlement.

Question 16

English as the language of record in court

Answer 16

➢ Section 6 of the Constitution entrenches 11 official languages, none of which have pre-eminence over another.
➢ Chief Justice Mogoeng confirmed English as the only official language of record in South African courts.

Question 17

Fair-trial rights and the language in court

Answer 17

Section 35(3)(k) of the Constitution provides that the accused has a right to a fair trial which includes the right to be tried in a language that they understand, or if that is not practicable, to have the proceedings interpreted into that
language.

Question 18

Interpreters

Answer 18

A witness and accused may give evidence through an interpreter who has been sworn in the presence of the presiding officer.

Question 19

Swearing in of interpreters who are in the employ of Department of Justice

Answer 19

▪ Interpreters who are in the employ of the Department of Justice are sworn in on taking up appointment in terms of rule 61(1) of the Uniform Rules of Court or Rule 68 of
the MCR, whichever are applicable.
▪ They need not be sworn in anew on each occasion.
▪ An ad hoc interpreter must be sworn each time anew each time that their services are used.

Question 20

S v Roux
(Case law on interpreters)

Answer 20

Court permitted a minor with Down’s syndrome to communicate via an interpreter.

Question 21

S v Kruse
(Case law on interpreters)

Answer 21

Accused was unable to hear or speak, nor could he understand sign language. He was permitted to communicate via writing but the court was highly critical of this method.

Question 22

Purpose of Examination in chief

Answer 22

➢ The purpose of examination in chief is to present evidence favorable to the version of the party calling the witness.
➢ This is done usually through a question and answer technique.

Question 23

What is a leading question?

Answer 23

A leading question is one which either:
▪ Suggests an answer; or
▪ Assumes the existence of certain facts which might be in issue

Question 24

Permitting leading questions

Answer 24

➢ They are permitted with regard to INTRODUCTORY or UNCONTESTED MATTERS.
➢ It is also often permissible to use them with regard to IDENTIFICATION of persons or things.
➢ The general rule is that they are also permitted in CROSS EXAMINATION.

Question 25

Impeachment of Own Witness During Examination in Chief

Answer 25

❖ Generally, by calling your own witness you vouch for their credibility and reliability.

Question 26

General rule for impeachment of own witness during examination in chief

Answer 26

➢ You cannot cross examine your own witness, unless the court declares them hostile.
➢ However, there is nothing preventing the calling of other witnesses to undermine your own witness’s credibility.

Question 27

Section 190 CPA

Answer 27

➢ A party may impeach the testimony of the witness and prove a previous inconsistent statement.
➢ A similar approach is possible in civil proceedings.

Question 28

General rule on Limited use of witness’s previous consistent statement during examination in chief

Answer 28

➢ A party usually presents evidence-in-chief of their witnesses on the basis of extra-curial written statements made by the witnesses concerned.
➢ These earlier statements may generally not be proved or quoted by the party conducting the examination-in-chief.

Question 29

When may PCS be used during examination in chief

Answer 29

The previous consistent statement may be used
▪ To rebut an accusation that the witness is fabricating their testimony (lying on the stand) during cross-examination.

▪ To refresh the memory of the witness while they are in the witness box, provided that certain strict requirements are met and certain consequences will follow.

Question 30

What is cross-examination?

Answer 30

➢ It is a fundamental procedural right in the common law
adversarial/accusatorial trial.
➢ It is simply the questioning of the opponent’s witness.
➢ It comes after examination-in-chief.
➢ It is where the essence of any defense ought be introduced.

Question 31

Case laws on cross-examination

Answer 31

▪ Distillers Korporasie (SA) Bpk v Kotze
▪ S v Mgudu

Question 32

Failure to permit cross-examination

Answer 32

➢ It amounts to a gross irregularity.
➢ The court has no right to prevent it, even to protect a witness.
➢ There are limits to cross examination.

Question 33

Purpose of Cross-examination

Answer 33

The purpose is to elicit facts favorable to the cross-examiner’s case and to challenge the truth or accuracy of the witness’s version of the disputed events.

Question 34

Scope of cross-examination

Answer 34

The scope is not restricted to matters covered by the witness in their evidence-in-chief.

Question 35

Function of cross-examination

Answer 35

➢ Exists to test reliability and credibility.

Question 36

Methods of Cross Examination

Answer 36

➢ Witness may be asked the same question more than once to ensure consistent answers, but not where pointless.
➢ Court cannot reject the right of counsel to ask the witness to repeat something already said.
➢ However, court can step in where it is a clear attempt to wear down the witness.

Question 37

Leading questions during Cross examination

Answer 37

➢ As a rule, they may be asked during cross-examination.
➢ There are disputes to this rule where the witness is favorable to the cross examiner.
➢ It is risky as the court is free to attach less weight to such evidence.

Question 38

Who may be cross examined

Answer 38

➢ Any opponent’s witness if:
▪ Sworn in
▪ Admonished
▪ Affirmation given

Question 39

Existence of right to be cross-examined

Answer 39

➢ This right exists even where the witness does not give evidence in chief.

Question 40

Who may cross examine in a joint trial?

Answer 40

In a join trial, each accused has the right to cross examine.

Question 41

Who may not be cross-examined?

Answer 41

A party cannot cross examine their own witness (except in extreme circumstances).

Question 42

The Duty to Cross Examine

Answer 42

➢ A party has a duty to cross examine on aspects which they dispute.
➢ Failure to cross examine may result in adverse inferences being drawn.
➢ Failure of the prosecutor to cross examine will generally lead to an acquittal.
➢ Failure of an accused to cross examine the prosecutor’s witnesses (where the accused is inexperienced) it will not necessarily signify guilt and the court has the duty to inform the accused to put the relevant portions of his defense to a
witness.

Question 43

Consequences of failure to cross examine

Answer 43

➢ Failure to cross examine may result in adverse inferences being drawn.
➢ Failure of the prosecutor to cross examine will generally lead to an acquittal.
➢ Failure of an accused to cross examine the prosecutor’s witnesses (where the accused is inexperienced) it will not necessarily signify guilt and the court has the duty to inform the accused to put the relevant portions of his defense to a
witness.

Question 44

Case law on duty to cross-examine

Answer 44

S v Ndlovu
Both the defense and the prosecutor exercised very “shallow” cross-examination.
The court found this to be unacceptable, stating that they were essentially gambling with the life of the victim.

Question 45

The limits of cross examination

Answer 45

❖ Curial Courtesy
➢ Unnecessary rudeness will not be tolerated.
➢ Court will still allow a cross examiner to cut a rude witness down to size.

Question 46

S v Omar on limits of cross-examination

Answer 46

▪ It is the court’s duty to ensure a fair trial.
▪ Court will step in to prevent rudeness even where the witness’s counsel does not object.
❖ Misleading statements put by cross examiner

Question 47

Overall decision in S v Kubeka (Limits of Cross-examination)

Answer 47

▪ It is permissible to test a witness’s version of events.
▪ However, this does not extending by purposefully misleading the witness.

Question 48

S v Kubeka on inadmissable evidence

Answer 48

➢ Cannot be cross examined on an inadmissible confession or privileged statement.

Question 49

S v Kubeka on Sections 197 and 211 of the CPA

Answer 49

➢ Cannot be asked or required to answer questions which tend to show that he has been conflicted of or charged with any other offence apart from the one on which is standing
trial.

Question 50

S v Kubeka on Cross examination as to credit

Answer 50

➢ Any questions going to the credit of the witness, when answered, are treated as final and cannot be explored further.

Question 51

S v Kubeka on Improper muzzling of cross examination and S166(3) of the CPA

Answer 51

➢ Courts, although overseers of the proceedings, must generally avoid interfering with the proceedings.
➢ Only were it is overly repetitive or abusive will the court reign the defense in.

Question 52

S v Kubeka on ambushing a witness

Answer 52

Ambushing witness under cross-examination with a charge of perjury

Question 53

S v Krejcir on Limits of cross examination

Answer 53

▪ Witness was charged with perjury whilst still under cross-examination, due to inconsistencies between his prior and current testimony.
▪ Witness then refused to answer further for fear of self-incrimination.
▪ Court held that S203 of the CPA did not extend to perjury because it would be absurd and grind the justice system to a halt.

Question 54

S v Krejcir on use of interpreter during cross-examination

Answer 54

➢ The use of an interpreter can unduly hinder cross examination.
➢ The same can be said of an intermediary.

Question 55

S v F

Answer 55

▪ Court would not permit a child to testify separately to the court as they believed it was necessary that the accused be able to cross examine.
▪ The child was alleged to be a victim of rape.
❖ The Child Justice Act

Question 56

Section 63(4)(b)

Answer 56

▪ Best interests of the child must be upheld.
▪ Must ensure fairness and prevent undue hostility.
❖ The Children’s Act

Question 57

Section 61(1)(c)

Answer 57

▪ Presiding officer must intervene if it is in the best interests of the child.

Question 58

Section 52(2) and 52(1)

Answer 58

▪ Rules should be developed regarding appropriate questioning techniques for children in general.

❖ Legal Professional Ethics
➢ Part VI regulates court appearances and appearances before tribunals

Question 59

Section 56 – Scope and Limits of Legitimate Cross Examination

Answer 59

▪ Cross examine with regard for the witness’s dignity.
▪ Practitioner must guard against being influenced by any other person.
▪ Must not adduce something as fact to a witness if the practitioner cannot prove it.
▪ Legal practitioner will not impugn the character of a witness unless he or she has good grounds to do so.
▪ Shall not put imputations to a witness unless the answers that might be given could reasonably be believed to be material to the credibility of that witness or to be material to any issue in the case.
▪ A practitioner shall not in the conduct of a criminal defense, recklessly attribute to or accuse a witness or other person of the crime with which the client is being tried.

Question 60

Procedural Matters Pertaining to Cross Examination

Answer 60

➢ Cross examination takes place immediately after evidence in chief.
➢ It can be reserved but it is solely within the discretion of the court whether to allow that.
➢ Once the court allows it, they cannot retract that from the defense counsel regardless of the stage.
➢ Defense witnesses called by one accused can be cross examined by a co-accused before the prosecutor cross examines.
➢ The cross examiner is not obliged to state the relevance of his questions beforehand but should be able to explain them. Should they offend, the court may choose to investigate them.

Question 61

Death ito cross-examination

Answer 61

Where a witness dies before cross examination is complete, the court has discretion to exclude the evidence.

Question 62

Mutliple counsel ito cross-examination

Answer 62

Where a party has more than 1 legal representative, only one can cross examine.

Question 63

What is Re-examination?

Answer 63

❖ This follows cross examination.
❖ It is conducted by the party who initially called the witness and led the examination in chief.
❖ A party has a right to re-examine.

Question 64

Purpose of re-examination

Answer 64

➢ Clear up any point or misunderstanding.
➢ Correct wrong impressions or false perceptions
➢ Give witnesses a fair opportunity to explain answers given by him under cross-examination which, if unexplained, may create a wrong impression or be used to arrive at false
deductions.
➢ Put the full picture and context before the court
➢ Correct patent mistakes made under cross examination

Question 65

Examination by the Court

Answer 65

❖ The court has the right to question at witness at any stage of the proceedings.
❖ The rule against leading questions does not apply to the court.
❖ Best practice is that any such questioning takes place after re-examination.

Question 66

Purpose of examination by court

Answer 66

❖ Main purpose is to clear up any points which are still obscure.

Question 67

Limits to examination in court

Answer 67

❖ The judge must avoid “descending into the arena” as it will cloud their judgement

Question 68

Examination of Witness called by court

Answer 68

❖ The court may in certain instances call witnesses, even if neither of the parties called the witness.
❖ Such a witness may be cross examined.
❖ The court may also recall a witness but such a witness can only then be cross examined with the leave of the court.

Question 69

Background on Intermediary and Related Procedures

Answer 69

➢ April 1989 → South African Law Commission concluded that the ordinary adversarial trail procedure with its strongemphasis on cross examination was insensitive and unfair to child witnesses, especially the alleged sexually abused
child witnesses, who had to go through the traumaticexperience of facing the accused in court and who had to be subjected to cross-examination which could be intimidating, aggressive, tormenting and humiliating.

➢ S170A of the CPA was then effected on 5 August 2022.

Question 70

Provisions of S170A of the CPA effected on 5 August 2022.

Answer 70

▪ Provides for the use of an intermediary by the child.
▪ Child must be under 18 years old.
▪ Testimony must reasonably be capable of cause undue mental stress from testifying without such assistance.
▪ Also provides that an intermediary can be appointed to any witness who suffers from a physical, psychological, mental or emotional condition or who isan older person as defined in S1 of the older Persons Act
of 2006.

Question 71

Case law on general provisions of Intermediary and Related Procedures

Answer 71

Director of Public Prosections, Tvl
▪ Purpose of an intermediary is to create an environment which is conducive to communication.
▪ Must be able to convey questions to the child.
▪ Must be able to convey answers to the court.

Question 72

Questions to be put via the intermediary

Answer 72

▪ No examination (in chief, cross or re-) may take place without an intermediary if one has been appointed.
▪ Only the court may question the witness without the intermediary.
▪ The intermediary cannot conduct their own questioning of the witness independently.
▪ Courts have held that the intermediary may assist in determining the competence (need for an intermediary) of a witness.
▪ After conclusion of the testimony, the intermediary must provide feedback to the court as to what effect testifying had upon the witness.
▪ The intermediary must also be given an opportunity to build rapport with the witness before testifying.

Question 73

Separation of the witness and intermediary from the court room

Answer 73

▪ Both the witness and the intermediary will be located in a separate room.
▪ The room will be informally arranged to put the witness at ease (less serious than court room and away from people who may upset/intimidate them).
▪ All parties (judge, defense and prosecutor) will be able to hear and see witness at all times either through one-way glass or electronic medium.

Question 74

Who qualifies as an intermediary?

Answer 74

▪ They don’t have to be legally trained.
▪ There are seven categories but only 3 are used in practice, namely:
* Social workers
* Retired educators
* Psychologists

Question 75

Unsuccessful application for an intermediary to be appointed

Answer 75

▪ The court must provide reasons for the refusal.
▪ If additional relevant information comes later, the courtis entitled to reconsider a refusal.

Question 76

Absence of intermediary

Answer 76

▪ Court may postpone
▪ Court may summon the intermediary to explain their absence
▪ Court may revoke the appointment of the intermediary
▪ Coury may either appoint a new intermediary or proceed.

Question 77

Interrogatories

Answer 77

❖ In civil cases in the higher courts interrogatories may be granted in terms of rule 38(5) of the Uniform Rules of Court and section
39 of the Superior Courts Act 10 of 2013.
❖ In magistrates’ courts section 52 of the MCR is the rule.
❖ The principle governing the issue of interrogatories are similar to those for the issue of commissions.

Question 78

Process of granting interrogatories

Answer 78

❖ A list of proposed questions is drawn up by the parties.
❖ The court may also add questions of its own.
❖ The interrogatories are then sent to the court having jurisdiction where the witness is present.
❖ The court then summons the witness, puts the questions to him, records the answers and returns the record to the original court.
❖ The interrogatories will be read as evidence at the trial and form part of the evidential material.