Talane v S (CAP 22/2014) [2015] ZANWHC 8 (12 March 2015)
- Citation
- [2015] ZANWHC 8
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North West High Court, Mafikeng
- Panel
- R D Hendricks, T Djaje
- Case number
- CAP 22/2014
More details
- Court
- North West High Court, Mafikeng
- Panel
- R D Hendricks, T Djaje
- Case number
- CAP 22/2014
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that section 162(1) of the Criminal Procedure Act is peremptory and requires the presiding judicial officer to administer the oath to witnesses. In this case, the interpreter administered the oath, which is not permitted. As a result, the evidence given by all witnesses was inadmissible and lacked the status of evidence. This irregularity vitiated the entire proceedings, leaving no admissible evidence before the court. Consequently, the conviction and sentence must be set aside, and the appeal succeeds.
Court disposition
Appeal upheld; conviction and sentence set aside due to fatal procedural irregularity.
Orders
- The appeal is upheld.
- The conviction and sentence are set aside.
- A copy of this judgment must be sent to the President of the Regional Court, North West Province.
02
Material facts
Parties
Talane Jabulile Baby
Appellant Counsel: Adv ThobejaneThe State
Respondent Counsel: Adv Maila03
Procedural history
Posture
Criminal Appeal / Appeal Against Conviction and Sentence From the Regional Court
04
Questions and positions
Legal issues
- 01
Whether the failure to administer the oath to witnesses by the presiding judicial officer rendered the evidence inadmissible.
- 02
Whether the irregularity vitiated the entire proceedings and required the conviction and sentence to be set aside.
Party arguments
- Applicant
- The appellant argued that the presiding officer failed to personally administer the oath to witnesses as required by section 162(1) of the Criminal Procedure Act. Instead, the interpreter administered the oath, which is not permitted. As a result, the evidence given by the witnesses was inadmissible and the proceedings were fatally irregular.
- Respondent
- The respondent contended that the irregularity did not materially affect the proceedings and that the evidence should be considered valid. The respondent argued that the conviction and sentence should stand despite the procedural defect.
05
Court’s reasoning
Legal principles
- 01
Criminal Procedure Act 51 of 1977
Section 162(1) of the Criminal Procedure Act requires that the oath be administered by the presiding judicial officer, not by an interpreter. Failure to comply renders the evidence inadmissible.
- 02
Matshivha v The State (656/12) [2013] ZASCA 124
Testimony not properly placed under oath, affirmation, or admonition lacks the status and character of evidence and is inadmissible.
- 03
S v Raghubar 2013 (1) SACR 398 SCA
If an oath is not properly administered, the proceedings are vitiated by a fatal irregularity and must be set aside.
06
Ratio, limits and disposition
Ratio decidendi
The court held that section 162(1) of the Criminal Procedure Act is peremptory and requires the presiding judicial officer to administer the oath to witnesses. In this case, the interpreter administered the oath, which is not permitted. As a result, the evidence given by all witnesses was inadmissible and lacked the status of evidence. This irregularity vitiated the entire proceedings, leaving no admissible evidence before the court. Consequently, the conviction and sentence must be set aside, and the appeal succeeds.
Obiter and limits
- The judgment must be sent to the President of the Regional Court, North West Province, to address the procedural irregularity.
- It is unnecessary to consider the merits of the evidence since the proceedings are vitiated by a technical irregularity.
Court disposition
Appeal upheld; conviction and sentence set aside due to fatal procedural irregularity.
- The appeal is upheld.
- The conviction and sentence are set aside.
- A copy of this judgment must be sent to the President of the Regional Court, North West Province.
Source and reliance status
North West High Court, Mafikeng
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North West High Court, Mafikeng
Judgment
IN THE NORTH WEST HIGH COURT, MAFIKENG
CASE NO: CAP 22/2014
DATE: 12 MARCH 2015
In the matter between:
TALANE JABULILE BABY....................................................................................................Appellant
And
THE STATE............................................................................................................................Respondent
CRIMINAL APPEAL
HENDRICKS J; DJAJE AJ
DATE OF HEARING : 06 MARCH 2015
DATE OF JUDGMENT : 12 MARCH 2015
COUNSEL FOR THE APPELLANT : ADV
THOBEJANE
COUNSEL FOR THE RESPONDENT : ADV
MAILA
JUDGMENT
HENDRICKS J
[1] The Appellant was arraigned before the Regional Court, GaRankuwa and charged with conspiracy to commit murder. She was convicted and sentenced to five (5) years imprisonment of which two (2) years were suspended for a period of five (5) years on condition that she is not again convicted of conspiracy to commit murder during the period of suspension. The Appellant appeal against both the conviction and the sentence.
[2] Upon perusal of the record it became apparent that the prescripts of section 162 (1) of the Criminal Procedure Act 51 of 1997 (the “Act”) was not complied with in that the presiding officer did not personally swear in any of the witnesses that testified but instead instructed the interpreter to do it.
The following are extracts from the record:-
“COURT: Let us swear Mr Maluleka in.
INTERPRETER: Sworn in.
KING WINNER MUSO MALULEKA: d.s.s. (Through Interpreter)
COURT: Names in full?
WITNESS: Victor Matsila.
COURT: Swear him in.
VICTOR MATSILA: d.s.s. (Through Interpreter)
COURT: Names sir?
WITNESS: Elant Talana, E-L-A-N-T.
COURT: Yes let us swear him in.
ELANT TALANE: d.s.s. (Through Interpreter)
COURT: Yes you may come over. Your names in full?
ACCUSED: Baby Jabulile Talane.
COURT: Your age?
ACCUSED: I am 43 years of age.
COURT: You may place her under oath.
INTERPRETER: The witness is sworn in.
BABY JABULILE TALANE: d.s.s. (Through Interpreter)”
Counsel was alerted to this and even asked to advance argument in this regard. Oral and written submissions were made.
[3] Section 162 (1) of the Act states:-
“(1) Subject to the provisions of sections 163 and 164, no person shall be examined as a witness in criminal proceedings unless he is under oath, which shall be administered by the presiding judicial officer or, in the case of a superior court, by the presiding judge or the registrar of the court, and which shall be in the following form:
‘I swear that the evidence I shall give, shall be the truth, the whole truth and nothing but the truth, so help me God.’
(2) If any person to whom the oath is administered wishes to take the oath with uplifted hand, he shall be permitted to do so.”
[4] In my view, the provisions of section 162 (1) is peremptory. Furthermore, in the lower courts, the oath must be administered by a judicial officer and not the interpreter. In the event that the oath is not administered by the judicial officer as prescribed by section 162 of the Act, the witnesses will not be properly sworn in and their evidence will therefore be inadmissible.
See:- S v Raghubar 2013 (1) SACR 398 SCA.
[5] In Matshivha v The State (656/12) [2013] ZASCA 124 (23 September 2013) the Supreme Court of Appeal stated the following:-
“[10] The reading of section 162 (1) makes it clear that, with the exception of certain categories of witnesses either falling under s 163 or 164, it is peremptory for all witnesses in criminal trials to be examined under oath. And the testimony of a witness who has not been placed under oath properly, has not made a proper affirmation or has not been properly admonished to speak the truth as provided for in the Act, lacks the status and character of evidence and is inadmissible.”
(my underlining.)
[6] The effect is also clear. If an oath was not properly administered in terms of the prescripts of section 162 then what was said by the witness lacks the status and character of evidence. In other words, whatever was said by the witness is not evidence and is inadmissible. That being the case, there is therefore no evidence before this Court in the present appeal to adjudicate upon. The irregularity committed by the Regional Magistrate vitiates the entire proceedings. It is therefore not necessary to consider the “evidence” that was tendered during the trial in order to establish whether or not the State succeeded in proving the guilt of the Appellant beyond reasonable doubt. The proceedings in the court a quo need to be set aside due to this technical irregularity.
Therefore, in my view, the appeal must succeed and the conviction and sentence should be set aside.
Order:-
[8] Consequently, the following order is made:-
[i] The appeal is upheld.
[ii] The conviction and sentence is set aside.
[iii] A copy of this judgment must be send to the President of the Regional Court, North West Province.
R D HENDRICKS
JUDGE OF THE HIGH COURT
I agree.
T DJAJE
ACTING JUDGE OF THE HIGH COURT
Case-aware research
Ask AI about this case
The judgment and available research above are public. New questions open in a separate private conversation grounded in this case.