Witnesses: competence and compellability Flashcards
When is a witness competent to give evidence?
If they can do so lawfully.
When is a witness compellable?
If they may lawfully be obliged to give evidence.
Which civil law deals with competence and compellability?
Section 8 of the Civil Proceedings Evidence Act.
Which criminal provision deals with competence and compellability?
Section 192 of the CPA.
Who can be excluded from being a witness?
- Mentally incompetent and intoxicated witnesses (section 9 CPEA, section 194 CPA)
- Accused (section 35(3)(j) of Constitution)
- Co-accused
- Husband and wife
- Child witnesses
- Hearing and speech impaired persons
- Foreign language speakers
- Judicial officers
- Officers of the court
- Members of parliament
- Foreign heads of state and diplomats
- President
Which case sets out the way in which section 194 of CPA is to be applied?
S v Katoo.
What is the two-stage nature of the test in S v Katoo?
- Evidence of incompetence be presented
- Establish whether a witness is deprived of the proper use of their reason as a result of the incompetence.
When may the State call a co-accused as a state witness if they are no longer a co-accused?
- If there is a separation of trials
- If the charge is withdrawn against the co-accused
- Deputy public prosecutor stops prosecution against the co-accused
- Co-accused has already been acquitted or convicted and sentenced
What happens if the charge against the co-accused is withdrawn?
Co-accused is dealt with terms ito section 204 of the CPA.
What is section 204 of the CPA?
It provides that a witness who may incriminate themselves is obliged to give evidence and to do so frankly and honestly in exchange for being discharged and indemnified from prosecution for the offence specified by the prosecutor.
When is the spouse of an accused compellable to give evidence against the accused?
When the accused is charged with:
1. Any offence committed against the person of either of them or a child of either of them
2. Any offence under Chapter 8 of the Child Care Act committed in respect of their child
3. In contravention of any provision of section 31(1) of the Maintenance Act
4. Bigamy
5. Incest
6. Abduction
What happens if the spouses are co-accused and they testify in their own defence?
The evidence given is admissible against the other spouse.
When is a child deemed competent to testify?
If the presiding officer is satisfied that a child witnesses in a particular case:
1. Has sufficient intelligence
2. Can communicate effectively
3. Is capable of understanding what it means to tell the truth, to distinguish it from what is false and comprehends that it is wrong to lie.
What is privilege?
Whether a witness, who has been called and is in the process of testifying, can be forced to answer a particular question.
What is the penalty for a recalcitrant witness?
- Committal to prison for contempt of court (civil proceedings)
- Sentence of imprisonment for a period not exceeding two years (criminal proceedings)
- If it is a schedule 2 offence, a sentence not exceeding five years.
