Geallal Raghubar v The State

The appellant was charged with indecent assault in the Verulam Regional Court. The charge alleged that between 2000-2004 in Phoenix, he unlawfully and intentionally committed an assault of an indecent character upon P (then 6 years old) by inserting his penis into the complainant's anus. The complainant was 14 years old at the time of trial and testified through an intermediary via closed circuit camera. He was born on 18 July 1994, according to his birth certificate. The alleged indecent assault had occurred approximately eight years prior to trial. The appellant was convicted and sentenced to ten years' imprisonment. His appeal to the KwaZulu-Natal High Court, Pietermaritzburg on conviction and sentence was dismissed. He appealed to the Supreme Court of Appeal with leave.

• Whether the trial court properly complied with sections 162, 163 and 164 of the Criminal Procedure Act 51 of 1977 in relation to the competency of the minor child witness to testify
• Whether the complainant understood the nature and import of the oath or affirmation before giving evidence
• Whether the magistrate conducted an adequate enquiry to establish the competency of the child witness
• Whether the conviction could be sustained on the evidence presented, having regard to the cautionary rule applicable to single witnesses and young children
• Whether the evidence established the guilt of the appellant beyond reasonable doubt

1. The appeal is upheld. 2. The conviction and sentence are set aside.

The binding legal principles established are: (1) Compliance with sections 162-164 of the Criminal Procedure Act is mandatory when child witnesses testify - the language is peremptory and mere lip service is insufficient. (2) It is the duty of the presiding officer to satisfy himself/herself that a child witness can distinguish between truth and untruth through proper questioning. (3) The court may not merely accept assurances of competency from counsel - counsel are not qualified to express opinions on witness competency. (4) Questioning to establish competency must not seek abstract understanding of concepts of truth and falsehood, but rather whether the child understands what it means to speak the truth and will do so. (5) Leading, compound questions that only permit 'yes' or 'no' answers are inadequate to establish a child's understanding of truth-telling obligations. (6) Evidence of a child who does not understand what it means to tell the truth is not reliable and its admission would undermine the accused's right to a fair trial under the Constitution. (7) Properly trained intermediaries are key to ensuring fairness of trials involving young child witnesses, as they possess special skills in questioning and communicating with children. (8) The cautionary rule must be rigorously applied to evidence of single witnesses and young children, particularly in sexual offence cases, with proper evaluation of contradictions and weaknesses in the evidence.

The court made several non-binding observations: (1) It noted that while it is not unusual for young children to experience difficulties relating sexual incidents with adult precision, especially regarding events that occurred years earlier, this does not diminish the need for caution. (2) The court observed that the medical report showing only an old bruise near the anal area was at best neutral and did not strengthen the State's case - it may have detracted from the complainant's version. (3) The court commented that it would be unfair to expect a young complainant to recall exact dates and occurrences with precision, but equally unfair to expect an accused to defend against such sketchy details. (4) The court criticized the trial court's skewed approach in analyzing evidence, noting it explained and justified all contradictions in the State's case while showing no similar generosity to the appellant's evidence. (5) The court observed that when an accused is asked to explain why he was falsely implicated, he is called upon to speculate, not testify on a matter of fact, and cannot be blamed if his explanation is found wanting - what matters is whether he was truthful in relaying the incident to court.

This case is significant in South African criminal procedure and evidence law for several reasons: (1) It reinforces the mandatory requirement for judicial officers to properly enquire into the competency of child witnesses in accordance with sections 162-164 of the Criminal Procedure Act, emphasizing that the language in these sections is peremptory. (2) It provides practical guidance on how to question child witnesses to determine if they understand what it means to speak the truth, emphasizing that abstract concepts of truth and falsehood are not required, but rather whether the child will speak the truth. (3) It highlights the vital importance of properly trained intermediaries when young children testify, as they possess special skills in questioning and communicating with children. (4) It reaffirms that evidence from a child who does not understand what it means to tell the truth is unreliable and undermines the accused's right to a fair trial. (5) It demonstrates the proper application of the cautionary rule to evidence of single witnesses and young children in sexual offence cases. (6) It emphasizes that while courts must respond appropriately to victims of sexual misconduct, evidentiary rules and procedural safeguards must be properly applied and adhered to, balancing protection of vulnerable complainants with fair trial rights of accused persons.