Witnesses

Chapter 27: Oxford

Textbook.
Note:
• To settle a dispute evidence has to be given in court. It is usually from witnesses – who therefore has 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 they do not want to.
A witness= Person who testifies in court – usually under oath

Wider meaning: someone who saw / heard something in relation = relevant = eye witness.

Competence

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

A witness is competent to give evidence if he or she can do so lawfully.

Precisely, a witness is competent when qualified and able to give evidence lawfully
Compellable:
A witness is compellable if he or she can lawfully be obliged to give evidence.
Most witnesses who are competent to give evidence are compellable.

In terms of s 8 of the Civil Proceedings Evidence Act:

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, be competent and compellable to give evidence in criminal proceedings.

The effect of both statutes: In both criminal and civil proceedings, witnesses
are presumed competent and compellable to give evidence.
Putting it all together:

• All persons are competent and compellable, unless a specific rule of law
provides otherwise.

• Incompetent witnesses may not testify, even if parties agree.

• Same rule apply in both civil and criminal matters.

• S193 of CPA: The Court decides on competence and compellability on the

rules of law, rules of evidence and its own observations.

• NB: A compellable witnesses may still be entitled to refuse to answer certain

questions if privilege operates and the witness claims it (Attorney - Client).
 Categories of witnesses and applicable
exclusions:
1. 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 (lucid interval)
/intoxication passes.
• If doubt exists, court can hear evidence and form their own impression (from
whom are they hearing evidence from?)
• Insanity or intoxication does not automatically render one incompetent. Issue is:
Does the condition affect the witnesses ability to observe and think rationally?
NB: Read the case: (S v Katoo (642/2002) [2004] ZASCA 109; [2006] 4 All SA 348
(SCA); [2006] 4 All SA 348 (SCA) (30 November 2004):

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 (foolishness) 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.”
2. 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?

• 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 must
be satisfied that satisfied (intermediaries) :

1) Does child have capacity to appreciate truth?

2) Does child have sufficient intelligence?
3) Can child communicate effectively?
• Children are competent and compellable witnesses against their parents - although
undesirable. Courts approach evidence of children with caution.

Cautionary rules: a rule of practice that aims to assist judges in assessing evidence. It
requires judicial officers to exercise caution before adopting the evidence of certain
witnesses on the ground that the evidence of such witnesses is inherently potentially
unreliable.

Director of Public Prosecutions v S (2000 (2) SA 711 (T): the court warned that the
cautionary rules should not not be mechanically applied and that the automatic
assumption that children are unreliable witnesses should be avoided.

• The Judicial Officer makes the 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.
• 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).
3. Hearing impaired and mute people
• Hearing impaired and mute people are competent and compellable if they can
communicate.
• 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.
4. 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/matter 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.
5. Evidence of the co-accused
• Co accused can testify against accused.
• Accused cannot compel co-accused to testify.
• The state may call the accused as a witness if he/she is no longer a co-accused. This may
occur if:
(1) Separation of trials (Section 157 of the CPA: The court may now, at any time during the
trial, on the application of the prosecutor, any of the accused of mero motu, direct that
separate trials take place.
Effect of separation:
• The case goes on against the remaining accused;
• the separated accused starts completely afresh on a new charge sheet .

(2): Charge withdrawn: When a charge is withdrawn, that witness is dealt with as a section
204 witness. S204 witness: permits a witness to give incriminating evidence
for the prosecution. Upon testifying frankly and honestly, such a witness
6. 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.
• Subsection (1) shall also apply to a communication made during the subsistence
Accused spouse as a witness for the prosecution

The husband or wife of an accused is competent to give evidence against

the accused in a criminal trial but is not compellable to do so unless:

• any offence committed against the person of either of them or of a

child of either of them or of a child that is in the care of either of them;
• any contravention of any provision of section 31 (1) of the
Maintenance Act, 1998, or of such provision as applied by any other
law;
• bigamy;
• incest
• Abduction.
Read S 205 of the CPA:
A prosecutor may approach the court in terms of this section to request it to require that a witness
appear before a judicial officer to produce evidence that is likely to give material or relevant
information as to any alleged offence.

Recalcitrant Witnesses: Read s 189 of CPA

A compellable witness may not refuse to attend court. If they do so, he or she may be arrested and
brought to the court where he/she is due to testify.

A compellable witness may not refuse to take the oath or affirmation or refuse to give evidence or
answer questions, without a just excuse.
In civil proceedings, the penalty for this is contempt of court.
In criminal proceedings, the penalty is a sentence of not more than 2 years.

If the information or document that the witness refuses to produce is related to a serious offence,
the court may impose a sentence not exceeding 5 years. These offences include:
Sedition. Public violence, Arson, Murder, Kidnapping, Child stealing (part 3 of schedule 2 of the CPA
A Recalcitrant witness is one who refuses or fails to furnish material or relevant
information which is necessary for the 'administration of justice or the maintenance of
law and order.

NB: The court must enquire in into the witnesses failure or refusal to testify or answer
questions.
NB READ: Attorney -General Transvaal v Kader 1991 (4) SA 727 (A).