Study Unit 2 – Competence and Compellability of Witnesses

Question 1

two grounds of admissibility/inadmissibility

Answer 1

➢ Qualitative admissibility
➢ Presentational admissibility

Question 2

Def of Competence

Answer 2

refers to the capacity ex lege to be sworn in or
admonished and to take the witness stand to testify

Question 3

Def of compellability

Answer 3

refers to persons who, because of their status
and/or relationship to the facts of a particular case, are legally obliged to give evidence under the threat of possible sanction

Question 4

What does Qualitative Admissibility deal with?

Answer 4

❖ Deal with:
➢ The quality of substance of evidentiary facts (character evidence)
➢ The opinions of experts.
➢ Facts about a prior unrelated incident that shows a perpetrator’s pattern of behavior)

Question 5

What does Presentational Admissibility deal with?

Answer 5

❖ Deals with:
➢ The manner in which they are presented in court (oral testimony, documents, or physical items).

Question 6

Weight of evidence ito Presentational Admissibility

Answer 6

➢ Is forward looking.
➢ Excludes evidence.

Question 7

Explain weight of Evidence

Answer 7

➢ Is assessed only in terms of evidence which is actually admitted.
➢ It is retrospective.

Question 8

The General Rule on compellability and competence

Answer 8

❖ In both civil and criminal proceedings, every person is presumed to be competent and compellable to give evidence, unless the
matter of competence or compellability is regulated by statutory provisions or where applicable, by the law as it stood on 30 May
1961 (common law)

Question 9

CPEA Statutory Provisions on compellability and competence

Answer 9

❖ Section 8 CPEA
➢ Provides that:
▪ Save in so far as the CPEA or any other law otherwise provides, every person shall be competent and compellable to give evidence in civil proceedings.

Question 10

CPA Statutory Provisions on compellability and competence

Answer 10

Section 192 of the CPA
➢ Provides that:
▪ Every person not expressly excluded by the CPA from giving evidence shall, subject to the provisions of section 206, be competent and compellable to give evidence in criminal
proceedings.

Question 11

General principle on procedural aspects+case law

Answer 11

➢ S v Thurstann en ‘n Ander
▪ Parties cannot consent to the admission of evidence of an incompetent witness.
➢ It is for the court to decide any question about the competence or compellability of a witness.

Question 12

Specifics on procedural aspects

Answer 12

➢ The procedure or forum for determining competence and/or compellability typically is that of a trial within a trial.
➢ It may be necessary for the court to hear oral evidence, for example, on whether a deaf persons can communicate properly.
➢ However, the court can also decide the issue of competence on the basis of its own observations without requiring a trial
within a trial

Question 13

Refusal of procedural aspects

Answer 13

➢ A competent and compellable witness who refuses to attend the proceedings may be brought before the court by means of
a warrant of arrest

Question 14

Statutory provision for governing a child’s competence to give evidence

Answer 14

➢ There is no statutory provision governing a child’s competence to give evidence.

Question 15

Common law on a child’s competence to give evidenc+case law

Answer 15

➢ There is also no specific age limit.
▪ S v Cele
* A five-year-old who as aged three at the time of the alleged rape, was allowed to testify.

Question 16

Conditions a child must meet in order to testify

Answer 16

➢ They may testify provided that they:
▪ (1) Appreciate the duty of speaking the truth
* S v V (NB)
* Court must be satisfied that they understand the oath and what it means to tell the truth.
* Admonishment is not allowed where they don’t understand it.
* However, if the child is competent the court must admonish them.
(2) Have sufficient intelligence
* It is the maturity and understanding of the child which is considered by the presiding officer.
(3) Can communicate effectively.

Question 17

Swearing in a Child who is Competent

Answer 17

➢ A child who is competent may be sworn in, provided that the court is of the opinion that she understands the nature and import of the oath.
▪ Case law is not clear whether this is a separate enquiry from the previous enquiry for testifying, or whether the prior enquiry may satisfy this one.
➢ If the child is unable to understand that, she may give her evidence without taking the oath. In this case, the court must
admonish her to speak the truth.
➢ Assuming the witness is competent, she will then be admonished to tell the truth.
➢ The court may also direct, on application or mero motu, that the child testify through an intermediary or in camera.

Question 18

Testifying Against Parents +case law

Answer 18

➢ Children who are competent, may be compelled to testify against their parents.
➢ R v Zulu
▪ It was held that it is in principle undesirable that children
should be compelled to do so.

Question 19

MCR 51A(3)

Answer 19

➢ A child as a witness duly sworn in, does not hear the original question.
➢ An intermediary will relay the question in an appropriate form and report back regarding the answer whiled the child’s demeanor is observed in person (through a two-way mirror) or virtually by all parties to matter.

Question 20

General rule on compellability and competence of spouses

Answer 20

➢ Competence and compellability of a spouse against the other spouse depends on the nature of the proceedings.

Question 21

Statutory provisions for what a spouse is

Answer 21

❖ Section 13(2)(b) of the Civil Union Act
➢ Partner in a civil union as provided for by the Act, is also a spouse.
❖ Indigenous Law and Religious Law
➢ People married in terms of these systems are also considered spouses.

Question 22

Competence and compellability of spouses in civil cases

Answer 22

In these proceedings the spouse of a party is a competent and compellable witness for and against the party concerned.

Question 23

Competence and compellability of spouses in criminal cases

Answer 23

❖ There is a distinction between where the spouse of an accused is called as:
➢ Witness for the Defense.
➢ Witness for the Prosecution.

Question 24

S v Taylor (NB)

Answer 24

➢ The court decided that the words of a wife and husband contained in sections 195 and 196 of the CPA include the former spouse of an accused if she is required to testify to events which occurred during the marriage. If the former spouse is called as a witness by the state or the court, she is competent but not compellable to testify about these events

Question 25

s196(1)

Answer 25

➢ The former spouse is only competent and compellable if the accused requires evidence for their defense.