Lewis and Another v S (A387/2002) [2003] ZAWCHC 22 (5 June 2003)

Lewis and Another v S (A387/2002) [2003] ZAWCHC 22 (5 June 2003)

The court held that the magistrate did not commit an irregularity by admonishing the child witness to speak the truth without conducting a formal enquiry, as recent Supreme Court of Appeal decisions have established that such an enquiry is not always necessary and mere youthfulness may justify the presiding officer's opinion. On the merits, the evidence did not establish the first appellant's participation in the robbery beyond reasonable doubt, as there was no direct evidence linking him to the offence and the witness's references to him were vague and inconclusive. In contrast, the second appellant was clearly identified and his role in the robbery was described in detail by the...

Citation
[2003] ZAWCHC 22
Parties
Appellant: Bertram Lewis; Appellant: Tom Philander; Respondent: The State
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
5 June 2003
Case Number
A387/2002
Procedural Posture
Criminal Appeal / Appeal Against Conviction Only
Outcome
The appeal by the first appellant is upheld and his conviction is set aside; the appeal by the second appellant is dismissed and his conviction is confirmed.
Judges
Yekiso, Hlophe
Legal Topics
Admissibility of Child Witness Evidence, Robbery With Aggravating Circumstances, Standard of Proof, Section 164 Criminal Procedure Act
Criminal Law Admissibility of Child Witness Evidence Robbery With Aggravating Circumstances Standard of Proof Section 164 Criminal Procedure Act

Case Brief

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Parties

Bertram Lewis

Appellant

Tom Philander

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction Only

Legal Issues

  1. 1 Whether the evidence of a child witness was properly admitted in terms of section 164(1) of the Criminal Procedure Act.
  2. 2 Whether the first appellant's participation in the robbery was proved beyond reasonable doubt.
  3. 3 Whether the conviction of both appellants was justified on the evidence.

Ratio Decidendi

The court held that the magistrate did not commit an irregularity by admonishing the child witness to speak the truth without conducting a formal enquiry, as recent Supreme Court of Appeal decisions have established that such an enquiry is not always necessary and mere youthfulness may justify the presiding officer's opinion. On the merits, the evidence did not establish the first appellant's participation in the robbery beyond reasonable doubt, as there was no direct evidence linking him to the offence and the witness's references to him were vague and inconclusive. In contrast, the second appellant was clearly identified and his role in the robbery was described in detail by the...

Court Disposition

The appeal by the first appellant is upheld and his conviction is set aside; the appeal by the second appellant is dismissed and his conviction is confirmed.

Orders

  • The conviction of Bertram Lewis (first appellant) is set aside.
  • The conviction of Tom Philander (second appellant) is confirmed.