Ngxabazi v S - Appeal (CA&R 188/19) [2023] ZAECMKHC 124 (7 November 2023)

Ngxabazi v S - Appeal (CA&R 188/19) [2023] ZAECMKHC 124 (7 November 2023)

The trial court failed to conduct a proper enquiry into the competency of the minor child witnesses to understand the nature and import of the oath or admonition as required by sections 162 and 164 of the Criminal Procedure Act. The record did not reflect any assessment of their capacity, despite clear indications of their youth and lack of formal education. As a result, the evidence of both child witnesses was inadmissible. Without their evidence, the remaining evidence was insufficient to support the conviction. The trial court also failed to consider the appointment of an intermediary for the child witnesses, further compromising the fairness of the proceedings. The conviction and...

Citation
[2023] ZAECMKHC 124
Parties
Appellant: Asanda Ngxabazi; Respondent: The State
Court
Eastern Cape High Court, Makhanda
Jurisdiction
South Africa
Judgment Date
7 November 2023
Case Number
CA&R 188/19
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal upheld; conviction and sentence set aside.
Judges
Cengani-Mbakaza, V P Noncembu
Legal Topics
Competency of Child Witness, Admissibility of Evidence, Criminal Procedure Act, Sexual Offences, Appointment of Intermediary
Criminal Law Civil Procedure Competency of Child Witness Admissibility of Evidence Criminal Procedure Act Sexual Offences Appointment of Intermediary

Case Brief

Summary, issues, holding and outcome

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Parties

Asanda Ngxabazi

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the trial court properly assessed the competency of minor child witnesses to take the oath or be admonished under the Criminal Procedure Act.
  2. 2 Whether the evidence of the child witnesses was admissible given the lack of proper enquiry into their understanding of the oath.
  3. 3 Whether the conviction and sentence could stand in the absence of admissible evidence from the child witnesses.

Ratio Decidendi

The trial court failed to conduct a proper enquiry into the competency of the minor child witnesses to understand the nature and import of the oath or admonition as required by sections 162 and 164 of the Criminal Procedure Act. The record did not reflect any assessment of their capacity, despite clear indications of their youth and lack of formal education. As a result, the evidence of both child witnesses was inadmissible. Without their evidence, the remaining evidence was insufficient to support the conviction. The trial court also failed to consider the appointment of an intermediary for the child witnesses, further compromising the fairness of the proceedings. The conviction and...

Court Disposition

Appeal upheld; conviction and sentence set aside.

Orders

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