S v Gallant (CA&R 69/06) [2007] ZAECHC 64; 2008 (1) SACR 196 (E) (19 July 2007)

S v Gallant (CA&R 69/06) [2007] ZAECHC 64; 2008 (1) SACR 196 (E) (19 July 2007)

The court found that the Magistrate failed to properly administer the oath, affirmation, or admonition to the complainant, her mother, and brother as required by sections 162, 163, and 164 of the Criminal Procedure Act. The Magistrate incorrectly assumed that being of the Islamic faith justified a departure from the prescribed oath without proper enquiry or objection from the witnesses. Furthermore, the Magistrate did not establish whether the witnesses understood the nature and import of the oath or affirmation, nor did he follow the prescribed formula for affirmation or admonition. As a result, the evidence of these witnesses was inadmissible. The remaining evidence was insufficient to...

Citation
[2007] ZAECHC 64
Parties
Appellant: Lester Gallant; Respondent: The State
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
19 July 2007
Case Number
CA&R 69/06
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence From the Port Elizabeth Regional Court
Outcome
Appeal upheld; conviction and sentence set aside.
Judges
E Revelas, C Plasket
Legal Topics
Admissibility of Evidence, Procedural Irregularity, Oath and Affirmation, Indecent Assault
Criminal Law Civil Procedure Admissibility of Evidence Procedural Irregularity Oath and Affirmation Indecent Assault

Case Brief

Summary, issues, holding and outcome

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Parties

Lester Gallant

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence From the Port Elizabeth Regional Court

Legal Issues

  1. 1 Whether the trial court complied with sections 162, 163, and 164 of the Criminal Procedure Act regarding the administration of oath, affirmation, or admonition to witnesses.
  2. 2 Whether the evidence of the complainant, her mother, and brother was admissible.
  3. 3 Whether the conviction was sustainable on the merits given the factual discrepancies and misdirections.

Ratio Decidendi

The court found that the Magistrate failed to properly administer the oath, affirmation, or admonition to the complainant, her mother, and brother as required by sections 162, 163, and 164 of the Criminal Procedure Act. The Magistrate incorrectly assumed that being of the Islamic faith justified a departure from the prescribed oath without proper enquiry or objection from the witnesses. Furthermore, the Magistrate did not establish whether the witnesses understood the nature and import of the oath or affirmation, nor did he follow the prescribed formula for affirmation or admonition. As a result, the evidence of these witnesses was inadmissible. The remaining evidence was insufficient to...

Court Disposition

Appeal upheld; conviction and sentence set aside.

Orders

  • The conviction and sentence are set aside.