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

This concept focuses on the quality and relevance of evidence that can be used in court.

Key Elements:

Character Evidence: This relates to the qualities or reputation of a person. For example, evidence about someone’s honesty or reliability.

Expert Opinions: These are insights provided by individuals with specialized knowledge or expertise, like a doctor testifying about medical issues.

Pattern of Behavior: This includes facts from unrelated incidents that help show a consistent pattern of behavior by the perpetrator. For instance, past actions that indicate a habit or tendency.

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.
* presentational admissibility is about carefully selecting evidence that will aid in the trial’s fairness and effectiveness,
➢ Excludes evidence.
* ensuring that irrelevant or overly prejudicial evidence is kept out

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

What is an intermediary in the context of court proceedings?

Answer 20

A: An intermediary is a court official with the necessary impartiality, appointed to support a witness during their testimony. They must be sworn in by oath or affirmation before commencing duties.

Question 21

What does Sections 1, 8, and 18 of the Criminal and Related Matters Amendment Act state about intermediaries?

Answer 21

A: An intermediary must perform their functions truly and correctly to the best of their ability, conveying all questions and the general purport of questions to the witness accurately unless directed otherwise by the court

Question 22

What must be established about an intermediary according to MCR 51B(2)/ CPA s170A(12) / S37B(2) SCA?

Answer 22

A: The competence of the intermediary must be established through an inquiry by the presiding officer regarding
1) the person’s fitness,
2) relevant experience,
3) formal qualifications,
4) relevant knowledge,
5) language & communication abilities, and
6) ability to interact with the witness.

Question 23

How does the use of an interpreter or intermediary affect cross-examination?

Answer 23

A: The use of an interpreter or intermediary can unduly hinder cross-examination by allowing extra time to think of an appropriate answer, interrupting the flow of cross-examination, and potentially losing the nuance of the answer in translation.

Question 24

What was the court’s decision in S v F regarding a child’s testimony?

Answer 24

A: The court would not permit a child to testify separately as they believed it was necessary for the accused to be able to cross-examine. The child was alleged to be a victim of rape.

Question 25

General rule on compellability and competence of spouses

Answer 25

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

Question 26

Statutory provisions for what a spouse is

Answer 26

❖ 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 27

Competence and compellability of spouses in civil cases

Answer 27

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

Question 28

Competence and compellability of spouses in criminal cases

Answer 28

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

Question 29

S v Taylor (NB)

Answer 29

The court ruled that the terms “wife” and “husband” in sections 195 and 196 of the CPA also refer to an accused’s former spouse if she is asked to testify about events that happened during the marriage. If the state or court calls the former spouse as a witness, she can testify but cannot be forced to do so.

Question 30

s196(1)

Answer 30

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

Question 31

❖ Section 196(2) CPA

Answer 31

➢ If either testifies in their own defence and incriminates the other, then such evidence will be admissible.

Question 32

What determines the competency and compellability of mentally disordered and intoxicated persons?

Answer 32

A: It depends on the proper use of reason; if impaired, the witness is not competent

Question 33

What must the court determine about a witness with a mental illness or intoxication?

Answer 33

A: Whether the witness suffers from a mental illness or imbecility induced by intoxication/drug use and if it deprives them of proper use of reason.

Question 34

What are the general test steps for the court if an impression is created?

Answer 34

Can the witness distinguish between truth and falsity?

Does the witness understand the nature and importance of the oath and affirmation?

Question 35

What are the requirements for otherwise disabled persons to be competent witnesses?

Answer 35

They must understand the nature and importance of the oath or affirmation.

They must be able to communicate with the court.

Question 36

Are judges and magistrates competent to give evidence in cases they preside over?

Answer 36

A: No, they are not competent to give evidence in such cases.

Question 37

When should a judge recuse themselves?

Answer 37

If they have a personal connection to the case.

Question 38

Can attorneys, advocates, and prosecutors be witnesses in cases they are professionally involved in?

Answer 38

They can be competent witnesses in cases they are not professionally involved in, but impartiality is a question if they are on record in the case.

Question 39

Is an accused person competent to testify in their own defence?

Answer 39

A: Yes, a witness is competent to testify in their own defence

Question 40

Can an accused be compelled to testify?

Answer 40

No, an accused may not be compelled to testify.

Question 41

What are the requirements for an accused to become a witness for the prosecution?

Answer 41

Charge against the accused is withdrawn.

The accused is found not guilty and discharged.

The accused pleads guilty and trials are separated.

Trials are separated for another valid reason.

Question 42

When can a member of the NA or NCOP testify?

Answer 42

They can only testify after concluding their business in the NA or NCOP.

Question 43

Is the President of South Africa a competent and compellable witness?

Answer 43

Yes, the President is a competent and compellable witness.

Question 44

When are diplomats competent and compellable witnesses?

Answer 44

Only in exceptional circumstances regarding the interests of justice.