Director of Public Prosecutions, KwaZulu-Natal v Mekka

The respondent, John Mekka, was convicted in the Durban regional court of rape and indecent assault and sentenced to 10 years’ imprisonment. The complainant was a nine-year-old child. Before she testified, the magistrate established her age, schooling, and understanding of the difference between truth and lies, and admonished her to tell the truth, but did not expressly inquire whether she understood the nature and import of the oath. On appeal, the Natal Provincial Division held that this failure constituted an irregularity under s 164 of the Criminal Procedure Act 51 of 1977, rendering the complainant’s evidence inadmissible. As the remaining evidence was insufficient, the conviction and sentence were set aside. The Director of Public Prosecutions appealed to the Supreme Court of Appeal under s 311 of the Act.

The appeal was upheld. The order of the Natal Provincial Division setting aside the conviction and sentence was set aside, and the regional court’s conviction and sentence of 10 years’ imprisonment were reinstated.

The case confirms and applies the principle that a formal inquiry is not invariably required under s 164 of the Criminal Procedure Act before allowing a child witness to testify without taking the oath. It reinforces the binding authority of S v B and clarifies the approach to the admissibility of child witness evidence, promoting a practical and flexible application of procedural requirements in criminal trials.