Get documents about "The appointment of an intermediary is not a blanket or once for all appointment such as in the case of permanent Court Interpreters who are Court officials
Shared by: HC12100412145
-
Stats
- views:
- 0
- posted:
- 10/4/2012
- language:
- English
- pages:
- 12
Document Sample
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
REPORTABLE
CASE NO. CC 180/2003
IN THE HIGH COURT OF SOUTH AFRICA
(BOPHUTHATSWANA PROVINCIAL DIVISION)
In the matter between:
THE STATE
And
LAZARUS BOOI ACCUSED 1
PHILLEMON BOOI ACCUSED 2
____________________________________________________________
JUDGMENT
____________________________________________________________
MOGOENG JP.
Introduction
[1] This matter came before me on 12 August 2004. Both counsel for the State
and for the Accused agreed that in the event of the Court setting aside the
convictions for the reasons set out hereunder, then the order may be made
that the trial should start afresh. Having studied the papers and heard both
counsel, I made the following order:
“The convictions are set aside and both accused are
discharged. The accused are to be tried de novo by
a differently constituted Court.”
Reasons for judgment were reserved. These then are the reasons.
Background
[2] Accused no.1 and accused no.2 in this matter were convicted in the regional
Court of the rape of Ms V.D. and Ms K.M.M., aged 11 and 15 years
respectively. The proceedings were stopped and the accused were then
committed for sentence by this Court in terms of s 52 of the Criminal Law
Amendment Act 105 of 1997 (“the Act”).
[3] Intermediaries were used to facilitate communication between the Court,
Counsel and the rape victims in this matter. Those intermediaries were
apparently appointed in terms of s 170A of the Criminal Procedure Act 51 of
1977 (“the CPA”).
[4] In terms of s 170A(4)(a) ‘The Minister may by notice in the Gazette
determine the persons or the category or class of persons who are
competent to be appointed as intermediaries.’ The Minister has already
made the determination, and Social Workers are some of the persons or the
category or class of persons appointable as intermediaries. However, not
every Social Worker is competent for appointment as an intermediary. In
order to qualify a Social Worker must have two years experience in Social
Work. (See GN R1374 Gazette 1504 of July 1993 as amended by R30 in
9917882 of 28 January 1997 and R597 in 9922435 dated 02 July 2001; and
Du Toit, Commentary on the Criminal Procedure Act at 22-32). I single
out Social Workers because the intermediaries used in this matter were Social
Workers.
[5] Pistor AJ and Sibeko AJ were seized of the matter at different stages.
Sibeko AJ remitted the matter to the Court a quo (presumably in terms of s
52(3)(e)(v) of the Act) with instruction to enquire into the names,
qualifications and appointment, etc, of the intermediaries.
[6] An enquiry was held pursuant to the above instruction. In response, the
presiding officer said, inter alia, that (i) the intermediaries were both Social
Workers; (ii) they were used by the Court daily; (iii) they were competent
and qualified; (iv) they communicated well with the complainants; (v) the
accused were represented by a competent attorney who did not suggest that
there was anything wrong with the intermediaries; and (vi) the intermediaries
were sworn in.
[7] When the matter came before me the evidence of Ms Rebaone Josephine
Modungoa and Ms Kesenogile Queen Molamu was led by the State (in terms
of s 52(3)(d) of the Act) in order to provide this Court with the information
which the enquiry was meant to provide but had failed to do so. This
evidence was necessitated by the fact that although the record shows that
applications to make use of intermediaries were made and granted in terms of
s 170A of the CPA, the names and particulars of the intermediary who was
used to assist Ms D. (the intermediary who turned out to be Ms Modungoa)
do not appear anywhere on the record. Whereas the names of Ms Molamu
(the intermediary who assisted Ms M.) are reflected on the record, her other
particulars do not appear on record. The evidence of the two ladies in this
Court follow below.
[8] The essence of Ms Modungoa’s evidence is that she was a
qualified Social Worker, she had been working as such for a period of
8 years and that she had undergone training as an intermediary.
She was thus qualified to be appointed and used as an intermediary.
She also said that she assisted Ms D. in the Court a quo as an
intermediary.
[9] Ms Molamu had, however, only been a Social Worker for a period of about
13 months as at the time when her services were used as an intermediary in this
case. She and her superiors were aware that her service fell short of the prescribed
service period. For that reason, she was not qualified to act as an intermediary
since the Minister had determined that only a Social Worker who had been working
as such for a period of at least two years would qualify to be appointed and to act as
an intermediary.
[10] None of these shortcomings, individually or collectively is so prejudicial to
the accused’s case as to justify the setting aside of the convictions. A proper
consideration of the provisions of s 170A(5) of the CPA must lead to the conclusion
that the incompetence of, for example Ms Molamu, did not adversely affect the
reliability of her evidence and that real and substantial justice would not be impaired
if the evidence which was led through these intermediaries were admitted. These
are the least of the State’s problems. A discussion of the real issues follow below.
The Issues
[11] There are two main issues on the basis of which the convictions were set
aside and they are whether: (a) the requirements for using the intermediaries
were met; and (b) the Court did in fact appoint the two ladies as
intermediaries.
Was there a need to use intermediaries?
[12] Section 170A(1) of the CPA provides that:
“(1) Whenever criminal proceedings are pending before any
Court and it appears to such Court that it would expose any
witness under the age of eighteen years to undue mental
stress or suffering if he or she testifies at such
proceedings, the Court may, subject to subsection (4),
appoint a competent person as an intermediary in order to
enable such witness to give his or her evidence through
that intermediary.”
(My emphasis)
The thinking behind the enactment of s 170A(1) was to moderate the
traumatic effect of the abuse of children in a situation where giving evidence
without skilled assistance from an intermediary would heighten the mental
stress or suffering to a level which is far above the ordinary. Mental stress
or suffering is a given in a case of children who were sexually abused. It is
the UNDUE stress or suffering that was intended to be catered for by s 170A.
[13] The complainants in this case were 11 years and 15 years old respectively
and obviously below the age of 18 years. It follows from this subsection
that when applying for the use of an intermediary it is desirable that facts, on
the strength of which the Court may decide that the witness would be
exposed to ‘undue mental stress or suffering’ if he/she were to testify
without the assistance of an intermediary, be placed before Court. The
application should not, as it often happens, be granted merely because the
victim is young. In S v Mathebula (1996) 4 ALL SA 168 (C) the
Magistrate granted an application for the use of an intermediary on the basis
only that one of the accused’s victims upon whom an alleged act of indecent
assault had been committed was ten years old and that both victims were
known to the accused. The Court, approving a passage relating to the
appointment of an intermediary, in Kriegler, Suid-Afrikaanse
Strafprosesreg (Fifth edition) at 433 stated that youthfulness alone is not
sufficient. The Court went on to endorse the other factors, listed by Kriegler
supra, which the Court should consider which are: the intelligence, age,
gender and personality of the witness, the nature of the witness and more.
[14] In S v Stefaans 1999 (1) SACR 182 (C), the Court laid down guidelines
which a Court faced with an application for the invocation of the provisions of s
170A should consider. The hampering of effective cross-examination is one of
them. The Court also decided that s 170A(1) may be readily invoked when the
application to use an intermediary is not opposed. I disagree with the decision that
the attitude of the accused’s counsel, which may be misguided, should, so to speak,
be decisive.
[15] It is the responsibility of the presiding judicial officer to ensure that sufficient
facts relating to the factors mentioned above, upon which the application may
be meaningfully considered, are placed before him/her. This should be so
even if the accused is legally represented and there is no opposition to the
application. Section 170A(1) can only find application where a witness,
under the age of 18 years, would be exposed to ‘undue mental stress or
suffering’. Whether or not the witness would be so exposed, does not
depend on the cooperation of the accused’s counsel or the lack thereof. It
depends on a consideration of the above and similar factors.
[16] The mere fact that the accused in this matter were represented by a competent
attorney and that that attorney did not oppose the applications for the use of
the intermediaries did not relieve the learned Magistrate of the duty to ensure
that the statutory requirements for using an intermediary, namely whether the
victim would be exposed to ‘undue mental stress or suffering’, were met
before he allowed the victims to testify through intermediaries (See S v
Nzima & Another 2001 (2) SACR 354 (C) at 356f-h).
[17] The Court itself must always be satisfied that the young victim would be
exposed to ‘undue mental stress or suffering’ before an intermediary could
be appointed and used. The fact that the application was not opposed, for
instance, would not debar counsel on appeal from taking the point that the
statutory requirements for appointing intermediaries were not met if they
were in fact not met.
[18] I am satisfied that the requirements for using intermediaries in this case were
not considered, let alone met. I turn to the last issue, which is whether
intermediaries were in fact appointed in terms of s 170A(1).
Did the Court appoint the intermediaries?
[19] All that is recorded in respect of the intermediary who assisted Ms D. is that
an application was made in terms of s 170A to make use of an intermediary.
The Court granted that application. The names of the Complainant were
then stated followed by the Court’s remarks that Ms D. was a small child and
appealing to her to tell the truth, nothing else but the truth. The evidence
was then led.
[20] The prosecutor also made a similar application to use the intermediary who
assisted Ms M.. The Court noted that the Complainant was a very young
child and immediately said that Ms M. was going to testify through an
intermediary. Unlike in the case of Ms D., counsel for the accused was
asked whether he had any objection to the use of an intermediary and he
answered in the negative. The application to use the intermediary was then
granted. The full names of that intermediary (Ms Molamu) were then stated,
whereafter the Court admonished Ms M. to tell the truth. Her evidence was
then led.
[21] Paragraphs 19 and 20 above amount to a complete record of
what transpired when the applications were made in terms of s
170A(1) and when the Court a quodecided that intermediaries be
used. The names of the intermediary who assisted Ms D. do not
appear on the record. The qualifications or profession of the two
intermediaries and the period over which they had been working
within the category or class determined by the Minister are not
mentioned at all. There is no indication on the record that the oath
or affirmation was administered to any of them. The only semblance
of an oath that is recorded is an admonition to the Complainants in
terms of s 164 of the CPA. The record does not show that anything
like that was done to any of the intermediaries.
[22] It follows that whenever the oath or affirmation is actually administered to
an intermediary and an intermediary is actually appointed, the names,
qualifications and occupation of each intermediary used must be captured
somewhere in the record of the proceedings, to signify a proper
administration of the oath or affirmation and the appointment of the
intermediaries. Had this procedure been followed the particulars of the
intermediary who assisted Ms D. and the substance of the oath would have
been recorded in the Court a quo.
[23] The learned Magistrate made no reference whatsoever to the oath and to the
purpose it is intended to serve, in the enquiry that he was ordered by Sibeko
AJ to hold. The only statement which could be understood to remotely
suggest that factors essential to the appointment of an intermediary may
have been considered is the one that says ‘[t]hey have been sworn in.’
This oath which the learned Magistrate mentions in passing almost at the
end of the enquiry does not appear in the record of the trial proceedings in
any manner whatsoever.
[24] It is also a matter of common sense that the appointment of an intermediary
has to be made in respect of a particular case, just as in the case of a district
surgeon, a pathologist or police officer who has to be sworn in or affirmed
whenever he/she testifies, notwithstanding the fact that he/she may be a
regular witness in the same Court and well-known to the Court officials.
The appointment of an intermediary is not a blanket or once for all
appointment such as in the case of permanent Court Interpreters who are
Court officials. (See S v Manra 1966 (4) SA 319 (A) at 321E-G and S
v Kwali 1967 (3) SA 193 (A) at 197H-198A).
[25] It is always essential to the proper performance of his/her functions that the
intermediary be reminded of what his/her functions in Court entail. An
intermediary must specifically undertake to convey correctly and to the best
of his/her ability the general purport of what is being said to and by the
witness, before he/she begins to help the witness. An intermediary needs
to be reminded or cautioned that his/her role in Court is, generally
speaking, just as important as and similar to that of an interpreter. He/she
is an interpreter of a special kind. This is in line with Rule 61(1)-(2) of the
Uniform Rules and especially Rule 68(1)-(5) of the Magistrates’ Courts
Rules which applies to the Court a quo.
[26] In the absence of any recording which has captured the information which is
substantially similar to the one set out above, the irresistible conclusion to
arrive at is that no oath or affirmation was administered to the intermediaries
and that the Magistrate did not appoint them as he was supposed to do in
terms of s 170A(1). Alternatively, to the extent that his granting of the
Prosecutor’s application in terms of s 170A, to use the intermediaries, may be
construed as amounting to the appointment of the intermediaries, those
appointments are so defective as to be invalid.
Can this situation be rescued by s 170A(5)?
[27] It is imperative that all of the above be considered with reference to the
provisions of s 170A(5)(a) and (b) of the CPA which follow below:
“170A Evidence through intermediaries
(5)
a) No oath, affirmation or admonition which has been
administered through an intermediary in terms of section
165 shall be invalid and no evidence which has been
presented through an intermediary shall be inadmissible
solely on account of the fact that such intermediary was
not competent to be appointed as an intermediary in
terms of a regulation referred to in subsection (4)(a), at a
time when such oath, affirmation or admonition was
administered or such evidence was presented.
b) If in any proceedings it appears to a court that
an oath, affirmation or admonition was
administered or that evidence has been
presented through an intermediary who was
appointed in good faith but, at the time of
such appointment, was not qualified to be
appointed as an intermediary in terms of a
regulation referred to in subsection (4)(a), the
court must make a finding as to the validity of
that oath, affirmation or admonition or the
admissibility of that evidence, as the case may
be, with due regard to―
i) the reason why the intermediary concerned was
not qualified to be appointed as an intermediary,
and the likelihood that the reason concerned will
affect the reliability of the evidence so presented
adversely;
(ii) the mental stress or suffering which the
witness, in respect of whom that
intermediary was appointed, will be exposed
to if that evidence is to be presented anew, whether
by the witness in person or through another
intermediary; and
(iii) the likelihood that real and substantial justice
will be impaired if that evidence is admitted.”
[28] Section 170A(5) is intended to safeguard the oath, affirmation or admonition
administered through an incompetent intermediary or evidence led through
an intermediary who was appointed in good faith but was not qualified to be
appointed as an intermediary. In other words, s 170A(5) empowers the
Court, to consider the effect of the incompetence of an intermediary on the
validity of the oath, affirmation or admonition administered through that
intermediary and the admissibility of the evidence given through that
intermediary with reference to the factors listed in s 170A(5)(b)(iii), to
determine whether real and substantial justice will be advanced or
jeopardised by accepting or rejecting the oath, affirmation or admonition and
the evidence. Factors listed in s 170A(5)(b)(i) to (iii) are, therefore, only
applicable and of relevance to a case where the oath or affirmation would
have been administered to the incompetent or unqualified intermediary and
where that intermediary would have actually been appointed, the only defect
being that the intermediary in question does not meet any of the requirements
for competence or appointment determined by the Minister as set out in the
Gazettes referred to in paragraph 4 above.
[29] Evidently, the question of considering the provisions of s 170A(5)
does not even arise in this case. The admonition to the
children was administered through intermediaries to whom no
oath or affirmation was administered. The evidence of the
young complainants was given through intermediaries who
were either not even appointed or whose appointment is invalid
owing to the Court a quo’s failure to comply with the
requirements of s 170A(1), by: (i) not satisfying itself that the
children would be exposed to ‘undue mental stress or suffering’
and (ii) not actually appointing the intermediaries. These
irregularities have resulted in the accused not being given a fair
trial. (See The State v Naidoo 1962 (2) SA 625 (A) at 637A-D,
G-H, 638A-B; Tshabalala v Lekoa City Council 1992 (3) SA 21 (A)
at 32F-G; and Sidow en andere v S 2003 (1) ALL SA 118 (c) at
124h). For these reasons, the convictions were set aside.
_________________
M.T.R. MOGOENG
JUDGE PRESIDENT OF THE HIGH COURT
APPEARANCES
DATE OF HEARING : 12 AUGUST 2004
DATE OF JUDGEMENT : 30 NOVEMBER 2004
COUNSEL FOR THE STATE : ADV D. MOEKETSI
COUNSEL FOR THE ACCUSED : MR ROODTMAN
