Bessick v S (A539/2010) [2012] ZAWCHC 248 (29 May 2012)

Bessick v S (A539/2010) [2012] ZAWCHC 248 (29 May 2012)

The court held that the magistrate failed to properly comply with the requirements of section 164 of the Criminal Procedure Act when receiving the evidence of the child complainant. The inquiry conducted was inadequate, as the magistrate did not explain the meaning of the oath or affirmation to the child, nor did she properly determine whether the child understood its nature and import. The mere asking of whether the child knew the meaning of the words was insufficient. As a result, the warning to speak the truth was not lawfully administered, and the evidence was inadmissible. Since the complainant's testimony was the only direct evidence linking the appellant to the offences, its...

Citation
[2012] ZAWCHC 248
Parties
Appellant: Lance Bessick; Respondent: The State
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
29 May 2012
Case Number
A539/2010
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal upheld. Convictions and sentences on both counts set aside.
Judges
Veldhuizen R, Henney R, Moses WnR
Legal Topics
Admissibility of Evidence, Child Witnesses, Oath and Affirmation, Fair Trial Rights
Criminal Law Civil Procedure Admissibility of Evidence Child Witnesses Oath and Affirmation Fair Trial Rights

Case Brief

Summary, issues, holding and outcome

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Parties

Lance Bessick

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the evidence of the complainant, given without oath or affirmation, was admissible against the accused.
  2. 2 Whether the magistrate complied with the requirements of section 164 of the Criminal Procedure Act when receiving the evidence of a child witness.
  3. 3 Whether the failure to properly administer the oath or affirmation rendered the conviction unsafe.

Ratio Decidendi

The court held that the magistrate failed to properly comply with the requirements of section 164 of the Criminal Procedure Act when receiving the evidence of the child complainant. The inquiry conducted was inadequate, as the magistrate did not explain the meaning of the oath or affirmation to the child, nor did she properly determine whether the child understood its nature and import. The mere asking of whether the child knew the meaning of the words was insufficient. As a result, the warning to speak the truth was not lawfully administered, and the evidence was inadmissible. Since the complainant's testimony was the only direct evidence linking the appellant to the offences, its...

Court Disposition

Appeal upheld. Convictions and sentences on both counts set aside.

Orders

  • The convictions and sentences on both charges are set aside.