1

Witnesses
(Chapter 27, Law of evidence in South Africa, Oxford, 2019).
2 Recap of previous class

 In our previous class, we covered the following:

 Basic concepts and terminology
 Admissibility and weight
 Evidence and proof – Duty to begin
 Burden and standard of proof
 In this class, we build on what we covered in our previous class by engaging with
witnesses. Why focus on witnesses? The above concepts i.e. admissibility, evidence/ proof,
burden and standard of proof always come into play when dealing with evidence from
witnesses. So, we need to understand the concept of witnesses in the law of evidence.
 Lets go!
3 Outcome of Unit 3

 Competence and compellability

 General rules on competence and compellability
 Special categories and applicable rules
4 Brief background

 To settle a dispute evidence has to be given in court. It is usually from witnesses – who
therefore have to be a reliable source.
 In some cases for reasons of public policy a witness is not competent and may not even be
called to give evidence.
 In others a witness may be competent – but not compellable = ie cannot be forced if don’t
want to.
 Rules to ensure reliability have been developed which excludes certain classes of witnesses
 Some witnesses both = cannot be called OR led to give evidence in court for reasons of
privilege.
5 Who is a Witness ?

 Meaning here:
 Person who testifies in court – usually under oath
 Wider meaning: someone who saw / heard something in relation = relevant = eye witness.
 Some types of witnesses can therefore be incompetent and non-compellable - categories
6 Competence

 Competence (adjective competent)

 Ability (adjective=able) to testify; court may call witness to witness stand and receive testimony
from such a person.
 Precisely, a witness is competent when qualified and able to give evidence lawfully

 As a general rule, all witnesses are considered to be competent to give evidence.

7 Compellability
 Compellability (adjective compellable)
 Competent witness can be called to stand and must / obliged / has to testify. He/she will be charged with
contempt of court if he/she refuses to testify.
 Precisely, a witness is compellable if he/she may be obliged to give evidence.
 Most witnesses who are competent can be compelled to give evidence. This rule, however, is
subject to exceptions.
 In terms of s 8 CPEA: Save in so far as this Act or any other law otherwise provides, every person shall
be competent and compellable to give evidence in any civil proceedings.Remember, all rules have
exceptions.
 In terms of s 192 CPA: Every person not expressly excluded by this Act from giving evidence shall,
subject to the provisions of section 206, be competent and compellable to give evidence in criminal
proceedings.
 s 206 CPA- The law as to the competency, compellability or privilege of witnesses which was in force in
respect of criminal proceedings on the thirtieth day of May, 1961, shall apply in any case not expressly
provided for by this Act or any other law. NB. The effect of this provision is that it makes English Common Law
regarding competence/compellability and privilege applicable as it was on 30 May 1961 and as amended by statute.
8 General rule

 All persons are competent and compellable, unless a specific rule of law provides
otherwise.
 Incompetent witnesses may not testify, even if parties agree, e.g. insanity
 Same rule apply in both civil and criminal matters.
 CPA s193. Court decides on competence and compellability on basis rules of law, rules of
evidence and its own observations.
 Any dispute – “ Trial within trial “ with witnesses (i.e., A trial-within-a-trial procedure is,
of course, one designed to cater for the accused's right to a fair trial in order to ensure that
questions of admissibility and of guilt are distinguished from each other and decided
separately)
 NB: A compellable witnesses may still be entitled to refuse to answer certain questions if
privilege operates and the witness claims it.
9 Categories of witnesses and applicable
exclusions
 Children
 Mentally disordered and intoxicated persons
 Persons with physical defects
 Judge Magistrate or Assessor
 Court Officers = Prosecutor Attorney + Advocate
 Accused in criminal trial
 Accused &Co- accused in same proceedings > separate.
 Spouses in civil cases –own*
 Spouses in criminal matters *
 Parliamentarians
 Heads of States and Diplomats
10
10 Evidence from children

 Children are not prevented from giving evidence merely because they are children
 Provided- they have the ability to tell difference between the truth and a lie ? Not a cause for dangers as to lie? Have a
sufficient Standard of intelligence ?
 No specific age limit for child to be competent to give evidence – depends standard of intelligence to relate facts, not abstract
concepts of truth. Court satisfied :
1) Does child have capacity to appreciate truth?
2) Does child have sufficient intelligence?
3) Can child communicate effectively?
 Child are competent and compellable witnesses against their parents - although undesirable. Courts approach evidence of
children with caution.
 Judicial Officer makes decision on whether child is competent i.e. it is for court to assess child’s adherence to the above three
elements. The court/legal rep/prosecutor questions the child for court to arrive at conclusion on this
 The cautionary rule is not to be mechanically applied: Director of Public Prosecutions v S (2000) (2) SA 711 (T), Court has
cautioned against the automatic assumption that children are unreliable witness. Each case is to be dealt with on it merits.
 Court to question child, legal rep or prosecutor to assess competence of child. If child deemed competent they may give
evidence on oath or after making affirmation.
 Failure to for court to conduct this assessment amounts to an irregularity and can be a basis for setting aside conviction as was
the position in the case of S v Raghubar 2013 (1) SACR 398 (SCA).
11 Insane or intoxicated persons

 S 194 of CPA -No person suffering from mental illness or intoxication to extent of being
deprived of proper use of reason is competent to testify while so afflicted.
 Note that incompetence goes away once insanity lucidum /intoxication passes.
 If doubt exists, court can hear evidence and form own impression
 Court can even hear evidence of person possibly suffering from mental disability: S v Malcolm
1999 (1) SACR 49 (SE), S v J [1988] ZASCA 117; 1989 (1) SA 525 (A); R v K 1957 (4) SA 49,
S v Thurston and another 1968 (3) SA 284.
 Insanity or intoxication does not automatically render one incompetent. Issue is: Does the
condition affect the witnesses ability to observe and think rationally?
 12 See the case of Katoo on this (S v Katoo (642/2002) [2004] ZASCA
109; [2006] 4 All SA 348 (SCA); [2006] 4 All SA 348 (SCA) (30
November 2004)
 Complainant a victim of sexual violence – complainant was an imbecile. During the course of the trial, the prosecution sought to call the
complainant, a 16 year old female as a witness. The trial judge ruled that she was not competent to testify in the light of the provisions of s 194 of the
CPA. Question of law reserved and heard in SCA. Issue before SCA was whether the trial court was correct in law in refusing the state an opportunity
to present the evidence of the complainant on the charges preferred. During the trial the respondent admitted that he had engaged in sexual
intercourse with her. The defence on the rape charge raised and advanced in cross-examination on his behalf was that the intercourse was consensual
and, as far as the alternative count of intercourse with an imbecile was concerned, that he did not know that she was an imbecile. SCA held at para 8
and 9 that section 194 (i.e. ‘No person appearing or proved to be afflicted with a mental illness or to be labouring under any imbecility of mind due to
intoxication or drugs or the like, and who is thereby deprived of the proper use of his reason, shall be competent to give evidence while so afflicted or
disabled.’) must read in the context of sections 192 and 193 which precede it. Section 193 provides that the court before which criminal proceedings
are conducted must decide any question concerning the competency of any witness. According to s 192 every person is competent to give evidence in
a criminal trial unless expressly excluded by the Act from doing so. At para 10, the Court held that “The first requirement of the section is that it must
appear to the trial court or be proved that the witness suffers from (a) a mental illness or (b) that he or she labours under imbecility of mind due to
intoxication or drugs or the like. Secondly, it must also be established that as a direct result of such mental illness or imbecility, the witness is
deprived of the proper use of his or her reason. Those two requirements must collectively be satisfied before a witness can be disqualified from
testifying on the basis of incompetence.” At para 11 and 12, the Court noted that “Imbecility is not a mental illness and per se did not disqualify her
as a witness. It is only imbecility induced by ‘intoxication or drugs or the like’ that falls within the ambit of the section (and then only when the
witness is deprived of the proper use of his or her reason). It is also clear from the evidence thus far led that the complainant was not deprived of the
proper use of her reason because she had a limited mental capacity. The trial court had a duty properly to investigate the cause of her imbecility
before concluding that she was incompetent. Section 193 enjoins a trial court to enquire into this issue and decide whether a witness is in fact
incompetent. This may be done by way of an enquiry whereby medical evidence on the mental state of the witness is led or by allowing the witness to
testify so that the court can observe him or her and form its own opinion on the witness’s ability to testify.”
13
13 Test for incompetence due to mental illness

 Principle:
 Has to be evidence of incompetence
 + court has to investigate whether witness is incompetent
 + because deprived of proper use of reasoning
 To be disqualified – incompetence proved.
 TEST:
 Must appear or be proved to the trial court :
 Witness suffers from a mental illness or
 Is under imbecility of mind – intoxication, drugs – direct cause – deprived of reasoning.
14
14 Hearing impaired and mute people

 Hearing impaired and mute people are competent and compellable if they can communicate.
 Can be understood – sign language with sworn interpreter for this purpose.
 The usual practice is to use the services of a qualified interpreter who is able to convey the
information expressed by the witness in sign language.
 Definition of oral evidence in s 161(2) of CPA expanded to cover this situation.
 S 161(1)&(2) CPA – 161(1) A witness at criminal proceedings shall, except where this Act or any
other law expressly provides otherwise, give his evidence viva voce (i.e., oral other than written).
 161(2) In this section the expression 'viva voce' shall, in the case of a deaf and dumb witness, be
deemed to include gesture-language and, in the case of a witness under the age of eighteen years, be
deemed to include demonstrations, gestures or any other form of non-verbal expression.
 If person cannot understand or make him/herself understood – he/she may be deemed incompetent by
court.
15
15 Judicial officers

 Generally, judicial officers are competent

 However, they are not competent to testify in cases in which they are presiding or have
presided, unless there has been a recusal.
 Natural justice – rule. You cant be a witness in your own court i.e. bias.
 If judicial officer has personal knowledge of facts of case, should recuse him/herself. This
position was buttressed in the case of R v Sonyangwe 1908 22 EDC 394 where it was held
that a judge or magistrate may not give evidence in the case that he is hearing.
16
16 Other officers of court

 Officers of court such as advocates, attorneys, prosecutors, are competent and compellable.
Impartiality is compromised.
 But extremely undesirable that they testify in cases in which they are/were involved. This
is for the sake of the dignity of the profession.
 Lawyers may be compelled – However, note that they enjoy legal privilege which protects
communications between clients and advocates for purposes of obtaining legal advice. In
that case, legal professional privilege applies.
 Prosecutor – detachment and moderation is hallmark of prosecution at the public interest.
To be witness would not be proper. For sake of dignity of profession.
17
17 Accused in criminal case

 Accused has special position because of s 35 of Constitution (right to silence, right not to
testify) –called on own application and can elect to testify.
 Accused competent, but not compellable:
 S 196 CPA Evidence of accused and husband or wife on behalf of accused
(1) An accused and the wife or husband of an accused shall be a competent witness for the defence
at every stage of criminal proceedings, whether or not the accused is charged jointly with any other
person: Provided that- (a) an accused shall not be called as a witness except upon his own
application; (b) the wife or husband of an accused shall not be a compellable witness where a co-
accused calls that wife or husband as a witness for the defence.
 Once accused decides to testify he/she cannot revoke that decision, and can even be recalled by
court under s 167 of CPA (s 167 CPA “Court may examine witness or person in attendance. The court may at any stage of
criminal proceedings examine any person, other than an accused, who has been subpoenaed to attend such proceedings or who is in
attendance at such proceedings, and may recall and re-examine any person, including an accused, already examined at the proceedings,
and the court shall examine, or recall and re-examine, the person concerned if his evidence appears to the court essential to the just
decision of the case.”
18
18 Accused and co-accused in same
proceedings

 Co accused can testify against accused in his own defence but not compellable.
 Accused cannot compel co-accused to testify.
 If status of co-accused changes (e.g. charge withdrawn, accused acquitted or convicted, trials separated,
or whatever) former co-accused becomes compellable and State may call such witness in terms of s 204
of the CPA. Often used with child witnesses because of its effect in having the witness discharged from
prosecution.
 See s 204(1) CPA Whenever the prosecutor at criminal proceedings informs the court that any person
called as a witness on behalf of the prosecution will be required by the prosecution to answer questions
which may incriminate such witness with regard to an offence specified by the prosecutor-(a) the court, if
satisfied that such witness is otherwise a competent witness for the prosecution, shall inform such
witness- (i) that he is obliged to give evidence at the proceedings in question; (ii) that questions may be
put to him which may incriminate him with regard to the offence specified by the prosecutor; (iii) that he
will be obliged to answer any question put to him (iv) that if he answers frankly and honestly all
questions put to him, he shall be discharged from prosecution
19
19 Husband and wife
 A husband may call wife as a witness in support of his case and vice versa. There are however rules that govern the extent to
which one spouse can be compelled to give evidence against the other.
 In civil proceedings, spouse can be competent to give evidence for his or her spouse and can even be compelled to give
evidence against his or her spouse. However, although the spouse can be compelled, he or she may, upon taking a stand,
refuse to disclose any communication made between them during the course of marriage on account of marital privilege.
This privilege applies even after the marriage is dissolved.
 In criminal proceedings, in terms of s 198 CPA - “(1) A husband shall not at criminal proceedings be compelled to disclose
any communication which his wife made to him during the marriage, and a wife shall not at criminal proceedings be
compelled to disclose any communication which her husband made to her during the marriage. (2) Subsection (1) shall also
apply to a communication made during the subsistence of a marriage or a putative marriage which has been dissolved or
annulled by a competent court.” Note that this is a rule of “Privilege arising out of marital state”. It should not be confused
with compellability.
 In practice best to examine spouses position as a witness for:
 The defence - Husband or wife of accused is competent and compellable to give evidence on behalf of his or her spouse. If co-accused wishes to
call spouse of another co-accused, he or she may do so but the husband or wife of an accused is not a compellable witness for a co-accused. (s
196(1)(b) CPA
 The prosecution- husband or wife of accused is competent to give evidence against the accused in a criminal trial but is not compellable to do so
unless accused charged with (see offences in next slide) (s 195(1) CPA
 As co-accused with his or her husband or wife- If husband and wife are charged jointly and either or both of them testify in their own defence, the
evidence given is admissible against the other spouse despite the fact the fact that the person testifying would not have been a competent witness
for the prosecution (s 196(2) CPA
20
20 Spouses: Criminal cases

 Now can be a competent witness for prosecution or defence (including co-accused) – fair
trial rights and policy.
 Prior to 1988 only competent for prosecution in exceptional cases
 Today not a compellable witness for prosecution other than in some exceptional cases:
 Offence committed against spouse or own child .
 Offence under Child Care Act
 Offence under Maintenance Act
 Bigamy charge
 Incest, abduction, some other offences: see s 196
21
21 Meaning of ‘spouse’

 For law of evidence in criminal proceedings – includes any marriage - any system of law.
 Includes persons married by customary or religious rites: s 195
 And persons in civil unions: see s 13(2) of Civil Union Act 17 of 2006
 NB. Spouse does not include boyfriend, girlfriend, fiancé, people having children together
and living like husband and wife, etc. The rules on non-compellability are not applicable to
this category.
22
22 Parliamentarians

 Act 4 of 2004,s 9: Powers, Privileges and Immunities of Parliament and Legislature. Act
4/2004
 If Speaker of Parliament issues certificate that MP on account of parliamentary business
not available on a day, MP excused from attending court that day as witness in civil or
criminal trial (s 9 Power and Privileges and Immunities of Parliament and Legislature. Act
4/2004)
 S 10: No MP or staff member may testify in court about proceedings, documents, etc of
Parliament without permission from Parliament
23
23 Heads of State, diplomats

 SA Head of State a competent witness.

 Also compellable, but should only be compelled to testify in court in exceptional
circumstances: President of SA v SARFU 2000 (1) SA 1 (CC).
 Foreign heads of state and diplomats:
 Governed by Diplomatic Immunities and Privileges Act 37of 2001: Diplomats competent
but not compellable, Consular officials obliged to testify, but cannot be punished for not
testifying.
24
24 Setting the pace for our next class

 Once a witness is deemed competent and compellable, that witness can then adduce
evidence. The process of adducing evidence entails a number of stages. In our next class,
we will deal with these stages.
25 Practice questions

 X has been charged with the offence of “exposure or display of or causing exposure or display
of child pornography or pornography to children” in terms of section 19 of the Sexual
Offences Act 32 of 2007. The facts leading up to this charge pertain to a discovery made by Y
in September 2020. On 10 September 2020, Y (who is X’s wife), while scrolling through X’s
phone (as she always does with no objection from X), discovered images and videos of child
pornography. Among the contents in X’s phone were two videos which depicted X and Little
B (a son to X and Y who is 10 years of age) watching visual presentations of a sexual nature.
These images and videos were found hidden in the gallery section of X’s phone. With Y
persuaded that these videos are disturbing, harmful and age-inappropriate for little B, she
immediately forwarded these images and videos to her phone through WhatsApp and
proceeded to report the matter to Police.
 The trial against X commences in a month’s time and it brings to the fore a number of
contentious issues which you need to resolve in various capacities including (i.e. as a
Prosecutor and Presiding judge).
26 Cont …
1. Y has indicated preparedness to testify against X. She, however, worries that this
decision has dire consequences. She has confided in the Prosecutor that testifying
against X will most likely mean the end of her marriage. As a religious person, she
ascribes to forgiveness and marriage “for better or for worse.” As the presiding judge
in this case, is it possible for Y to be compelled to testify against X? Would your ruling
be different were this crime to have been committed against a stranger as opposed to
Little B? (10 marks)

2. Y takes the witness stand. After preliminary questioning regarding her name and
residence, she starts responding in a manner not anticipated by the Prosecutor. In her
response, she indicates that she has never retrieved any photos or videos from X’s
phone. She also testifies that she is not aware of any evidence supporting the claim
that X presented Little B with visual images and videos of a sexual nature. As the
Prosecutor in this case, how would proceed in these circumstances? (5 marks)

3. The prosecutor also intends to call Little B (the 10-year-old son of X and Y) as one of
the prosecution witnesses. As the presiding judge in this matter, you need to resolve
two issues 1. Whether Little B is able to testify and 2. How to assess the ability of
Little B to testify. How would you go about resolving these two issues? (5 marks)