Unit 2 - Competence and compellability of witnesses

Question 1

What is competence ?

Answer 1

Refers to a witness’s capacity to give evidence.

Question 2

What is compellability ?

Answer 2

Refers to whether a witness can be legally required to give evidence.

Question 3

What is the general principle regarding competence and compellability of a witness ?

Answer 3

Every person is competent and compellable to give evidence unless there is a specific exception.

Question 4

Discuss oath or affirmation.

Answer 4

• Key requirement for a witness competence is the capacity to understand the nature and importance of the oath or affirmation.
• If a person is found not to understand the nature of it, they may still give evidence provided that they are admonished to tell the truth.

Question 5

What are the exceptions to the general rule ?

Answer 5

• Mentally disordered and intoxicated persons.
• Children.
• Judicial officers.
• Legal professionals.
• The accused.
• Spouses.
• Members of the National Assembly and Council for Provinces.
• Heads of State and diplomats.

Question 6

What are the two requirements that the court will inquire into for a witness with a mental disorder ?

Answer 6

• Can the witness dinstinguish between truth and falsehood ?
• Does the witness understand the nature and importance of the oath or affirmation ?

Question 7

What are the requirements to determine a child’s competence ?

Answer 7

• They appreciate the duty of speaking the truth.
• They have sufficient intelligence.
• They can communicate effectively.

Question 8

What happens if a child doesn’t understand what it means to tell the truth ?

Answer 8

• The child cannot be admonished to tell the truth and is considered incompetent to testify.
• A competent child must be admonished to testify.

Question 9

Discuss a trial-within-a-trial.

Answer 9

• The competence of a witness is established at the start of the trial, during a trial-within-a-trial.
• Is a seperate hearing that happens during the main trial to decide a specific legal issue.

Question 10

Discuss expert evidence.

Answer 10

May be presented to assist the court in determining the competence of a child or any witness where required.

Question 11

What is an intermediary ?

Answer 11

Are court officials who can assit the court in determining the competence of a child witness and support a witness during a testimony.

Question 12

Discuss intermediaries.

Answer 12

• Role is to ensure that evidence of a child is presented fairly in court and that the rights of the child is protected.
• Must be sworn in by oath or affirmation before they can assist.
• Relay questions to the witness in an appropriate form.
• Must give feedback to the court about the effect testifying had on the witness.

Question 13

What factors does the court inquire into about an intermediary before appointment ?

Answer 13

• Fitness for appointment.
• Experience.
• Formal qualifications.
• Knowledge.
• Language and communication skills.
• Ability to interact with witnesses.

Question 14

Discuss oral evidence.

Answer 14

• Generally required to be given in orally, in court, in person, and from memory.
• Child witnesses are an exception to this rule, as they can testify with the help of an intermediary and may also not be required to be present physically.

Question 15

Discuss the co-accused in terms of being an exception.

Answer 15

• An accused may incriminate a co-accused while testifying in their own defence.
• The state cannot call an accused person as a witness for the prosecution as their competence is limited to their own defence.

Question 16

What must change before an accused person can become a witness for the prosecution ?

Answer 16

• The charges against are withdrawn (not an acquittal)
• The accused is found not guilty and discharged.
• The accused pleads guilty and their trial is seperated from the co-accused.
• The trials are seperated for another valid reason.

Question 17

Discuss spouses as witnesses.

Answer 17

• In civil cases, a spouse is a both competent and compellable witness for an against the party concerned.
• In criminal cases are more complex and depend on the several factors, including whether the spouse is testifying for the prosecution or defence.

Question 18

Discuss spouses as a witness for the prosecution.

Answer 18

• A spouse is competent and compellable to testify for the prosecution if the other spouse is charged with certain specific crimes.
• A former spouse is competent but not compellable to testify about events that occurred during the marriage.

Question 19

Discuss spouses as a witness for the defence.

Answer 19

They are both competent and compellable if called to testify on behalf of the accused.

Question 20

Discuss a husband an a wife as co-accused.

Answer 20

• If they are jointly charged, neither can be called as a witness for the prosecution.
• If one spouses chooses to testify in their own defence and incriminates the other spouse, that evidence is admissable.