Choku v S (CA50/2015) [2018] ZANWHC 7 (14 June 2018)

Choku v S (CA50/2015) [2018] ZANWHC 7 (14 June 2018)

The trial court's inquiry into the child witness's competency and understanding of the oath was superficial and ambiguous, failing to establish whether the witness could distinguish between truth and falsehood or understood the nature and import of the oath. This rendered the complainant's evidence inadmissible. Without admissible evidence from the complainant, and in light of the lack of corroboration from medical and other witnesses, the State failed to prove penetration and guilt beyond reasonable doubt. The appellant's version was reasonably possibly true and not contradicted by the State. The conviction and sentence for rape could not be sustained, and the appeal was upheld.

Citation
[2018] ZANWHC 7
Parties
Appellant: Tebogo Christopher Choku; Respondent: The State
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
14 June 2018
Case Number
CA50/2015
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence After Petition Granted
Outcome
Appeal upheld; conviction and sentence set aside; immediate release of appellant ordered.
Judges
Kgoele, Nobanda
Legal Topics
Child Witness Competency, Admissibility of Evidence, Rape, Penetration Requirement, Fair Trial Rights
Criminal Law Child Witness Competency Admissibility of Evidence Rape Penetration Requirement Fair Trial Rights

Case Brief

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Parties

Tebogo Christopher Choku

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence After Petition Granted

Legal Issues

  1. 1 Whether the trial court properly conducted a competency and oath inquiry for the child witness.
  2. 2 Whether the complainant's evidence was admissible and reliable.
  3. 3 Whether the State proved sexual penetration beyond reasonable doubt.

Ratio Decidendi

The trial court's inquiry into the child witness's competency and understanding of the oath was superficial and ambiguous, failing to establish whether the witness could distinguish between truth and falsehood or understood the nature and import of the oath. This rendered the complainant's evidence inadmissible. Without admissible evidence from the complainant, and in light of the lack of corroboration from medical and other witnesses, the State failed to prove penetration and guilt beyond reasonable doubt. The appellant's version was reasonably possibly true and not contradicted by the State. The conviction and sentence for rape could not be sustained, and the appeal was upheld.

Court Disposition

Appeal upheld; conviction and sentence set aside; immediate release of appellant ordered.

Orders

  • The appeal against both conviction and sentence is upheld.
  • The immediate release of the appellant is ordered.