Makumu v S (CA&R49/2013) [2016] ZANCHC 86 (23 September 2016)

Makumu v S (CA&R49/2013) [2016] ZANCHC 86 (23 September 2016)

The trial court failed to comply with the mandatory provisions of sections 170A, 162, 163, and 164 of the Criminal Procedure Act. The intermediary was appointed without a proper enquiry and was not sworn in, and the complainant was admonished without a finding that he did not understand the nature and import of the oath or affirmation. These failures constitute gross irregularities that vitiate the proceedings. The conviction and sentence cannot stand and must be set aside. The State is at liberty to pursue the matter afresh if it so elects.

Citation
[2016] ZANCHC 86
Parties
Appellant: Poloko Makumu; Respondent: The State
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
23 September 2016
Case Number
CA&R49/2013
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence From the Kuruman Regional Court
Outcome
Appeal upheld; conviction and sentence set aside.
Judges
Olivier, Mamosebo
Legal Topics
Rape, Child Witnesses, Intermediary Appointment, Admonishment of Witness, Irregularity in Proceedings
Criminal Law Rape Child Witnesses Intermediary Appointment Admonishment of Witness Irregularity in Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

Poloko Makumu

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence From the Kuruman Regional Court

Legal Issues

  1. 1 Whether the provisions of section 170A of the Criminal Procedure Act regarding the appointment and swearing in of an intermediary were complied with.
  2. 2 Whether the complainant was duly sworn in or properly admonished as required by sections 162, 163, and 164 of the Criminal Procedure Act.
  3. 3 Whether the identity of the appellant was proven beyond reasonable doubt.

Ratio Decidendi

The trial court failed to comply with the mandatory provisions of sections 170A, 162, 163, and 164 of the Criminal Procedure Act. The intermediary was appointed without a proper enquiry and was not sworn in, and the complainant was admonished without a finding that he did not understand the nature and import of the oath or affirmation. These failures constitute gross irregularities that vitiate the proceedings. The conviction and sentence cannot stand and must be set aside. The State is at liberty to pursue the matter afresh if it so elects.

Court Disposition

Appeal upheld; conviction and sentence set aside.

Orders

  • The appeal is upheld.
  • The conviction and sentence are set aside.