Soares and Another v S (CAF26/2016) [2017] ZANWHC 24 (15 June 2017)

Soares and Another v S (CAF26/2016) [2017] ZANWHC 24 (15 June 2017)

The trial court failed to properly establish whether the child complainant understood the nature and import of the oath or the importance of speaking the truth, as required by section 164 of the Criminal Procedure Act. The questions posed did not ascertain her understanding, and her responses indicated confusion. The trial court also failed to appoint an intermediary for the child witness, despite clear indications of undue mental stress, and instead appointed a guardian without statutory basis. The evidence of the complainant was unreliable, and the second complainant did not testify. The medical evidence was inconclusive, as the doctor admitted alternative causes for the injuries....

Citation
[2017] ZANWHC 24
Parties
Appellant: Morais Soares; Appellant: Emmanuel Soares; Respondent: The State
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
15 June 2017
Case Number
CAF26/2016
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal upheld; conviction and sentence set aside; immediate release of the appellants ordered.
Judges
JT Djaje, RD Hendricks
Legal Topics
Rape, Child Witness Competence, Section 164 Criminal Procedure Act, Section 170a Criminal Procedure Act, Admissibility of Evidence, Reasonable Doubt
Criminal Law Rape Child Witness Competence Section 164 Criminal Procedure Act Section 170a Criminal Procedure Act Admissibility of Evidence Reasonable Doubt

Case Brief

Summary, issues, holding and outcome

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Parties

Morais Soares

Appellant

Emmanuel Soares

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the complainant was properly sworn in and competent to testify.
  2. 2 Whether the evidence of the complainant was reliable and admissible.
  3. 3 Whether the trial court erred in not appointing an intermediary for the child witness.

Ratio Decidendi

The trial court failed to properly establish whether the child complainant understood the nature and import of the oath or the importance of speaking the truth, as required by section 164 of the Criminal Procedure Act. The questions posed did not ascertain her understanding, and her responses indicated confusion. The trial court also failed to appoint an intermediary for the child witness, despite clear indications of undue mental stress, and instead appointed a guardian without statutory basis. The evidence of the complainant was unreliable, and the second complainant did not testify. The medical evidence was inconclusive, as the doctor admitted alternative causes for the injuries....

Court Disposition

Appeal upheld; conviction and sentence set aside; immediate release of the appellants ordered.

Orders

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