S v Booi and Another (CC 180/2003) [2004] ZANWHC 35; 2005 (1) SACR 599 (B) (30 November 2004)

S v Booi and Another (CC 180/2003) [2004] ZANWHC 35; 2005 (1) SACR 599 (B) (30 November 2004)

The court found that the statutory requirements for appointing and using intermediaries under section 170A of the Criminal Procedure Act were not met. The record did not reflect the names, qualifications, or proper appointment of the intermediaries, nor did it show that the oath or affirmation was administered to them. The magistrate failed to consider whether the complainants would be exposed to undue mental stress or suffering, as required by law. These irregularities were not cured by section 170A(5), as the provision applies only where the intermediary was appointed in good faith but was unqualified, not where there was no proper appointment or administration of the oath. The...

Citation
[2004] ZANWHC 35
Parties
Applicant: The State; Respondent: Lazarus Booi; Respondent: Phillemon Booi
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
30 November 2004
Case Number
CC 180/2003
Procedural Posture
Criminal Law / Appeal Against Conviction and Sentence; Review of Trial Irregularities
Outcome
Convictions set aside; accused discharged; new trial ordered before a differently constituted court.
Judges
MTR Mogoeng
Legal Topics
Use of Intermediaries, Fair Trial Rights, Criminal Procedure Act Section 170a, Oath and Affirmation Requirements, Child Witnesses, Setting Aside Convictions
Criminal Law Civil Procedure Use of Intermediaries Fair Trial Rights Criminal Procedure Act Section 170a Oath and Affirmation Requirements Child Witnesses Setting Aside Convictions

Case Brief

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Parties

The State

Applicant

Lazarus Booi

Respondent

Phillemon Booi

Respondent

Procedural Posture

Criminal Law / Appeal Against Conviction and Sentence; Review of Trial Irregularities

Legal Issues

  1. 1 Whether the statutory requirements for appointing and using intermediaries under section 170A of the Criminal Procedure Act were met.
  2. 2 Whether the intermediaries were properly appointed and administered the oath or affirmation as required.
  3. 3 Whether the failure to comply with section 170A resulted in an unfair trial for the accused.

Ratio Decidendi

The court found that the statutory requirements for appointing and using intermediaries under section 170A of the Criminal Procedure Act were not met. The record did not reflect the names, qualifications, or proper appointment of the intermediaries, nor did it show that the oath or affirmation was administered to them. The magistrate failed to consider whether the complainants would be exposed to undue mental stress or suffering, as required by law. These irregularities were not cured by section 170A(5), as the provision applies only where the intermediary was appointed in good faith but was unqualified, not where there was no proper appointment or administration of the oath. The...

Court Disposition

Convictions set aside; accused discharged; new trial ordered before a differently constituted court.

Orders

  • The convictions are set aside and both accused are discharged.
  • The accused are to be tried de novo by a differently constituted court.