S v Ohentse (34/05) [2005] ZANCHC 17 (15 April 2005)

S v Ohentse (34/05) [2005] ZANCHC 17 (15 April 2005)

The magistrate failed to comply with the requirements of sections 162, 163, and 164 of the Criminal Procedure Act when receiving the evidence of the child witnesses Gobhiya and Nomsa. There was no proper inquiry into their understanding of the oath, nor were they warned in terms of section 164. Instead, they merely affirmed to tell the truth, which does not satisfy the statutory requirements. As their evidence was inadmissible, and the convictions were based solely on their testimony, the convictions and sentences must be set aside. The matter is remitted to the trial court for reconsideration and possible reopening to cure the procedural defect.

Citation
[2005] ZANCHC 17
Parties
Applicant: The State; Respondent: Sylvester Kgokong Ohentse
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
15 April 2005
Case Number
34/05
Procedural Posture
Criminal Review / Review of Conviction and Sentence
Outcome
Convictions and sentences set aside; matter remitted for reconsideration.
Judges
Lacock
Legal Topics
Admissibility of Evidence, Child Witnesses, Oath and Affirmation, Criminal Procedure Act Section 162, Criminal Procedure Act Section 163, Criminal Procedure Act Section 164
Criminal Law Admissibility of Evidence Child Witnesses Oath and Affirmation Criminal Procedure Act Section 162 Criminal Procedure Act Section 163 Criminal Procedure Act Section 164

Case Brief

Summary, issues, holding and outcome

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Parties

The State

Applicant

Sylvester Kgokong Ohentse

Respondent

Procedural Posture

Criminal Review / Review of Conviction and Sentence

Legal Issues

  1. 1 Whether the magistrate complied with sections 162, 163, and 164 of the Criminal Procedure Act regarding the administration of oath or affirmation to child witnesses.
  2. 2 Whether the evidence of the child witnesses Gobhiya and Nomsa was admissible.
  3. 3 Whether the convictions and sentences based solely on the inadmissible evidence should be set aside.

Ratio Decidendi

The magistrate failed to comply with the requirements of sections 162, 163, and 164 of the Criminal Procedure Act when receiving the evidence of the child witnesses Gobhiya and Nomsa. There was no proper inquiry into their understanding of the oath, nor were they warned in terms of section 164. Instead, they merely affirmed to tell the truth, which does not satisfy the statutory requirements. As their evidence was inadmissible, and the convictions were based solely on their testimony, the convictions and sentences must be set aside. The matter is remitted to the trial court for reconsideration and possible reopening to cure the procedural defect.

Court Disposition

Convictions and sentences set aside; matter remitted for reconsideration.

Orders

  • The convictions on both charges and the sentences imposed on the accused are set aside.
  • The matter is referred back to the trial court for consideration of reopening the case to properly receive the evidence of witnesses Gobhiya and Nomsa in compliance with statutory requirements.