Jacob September v The State

The appellant was convicted of rape in contravention of Section 3 of the Criminal Law Sexual Offences and Related Matters Amendment Act 32 of 2007. The offence was committed on diverse occasions between 2016 and 2019 against a complainant who was 6 years old at the time. He was sentenced to life imprisonment on 19 October 2021. The complainant was 11 years old when she testified in court via an intermediary. She testified that she was raped by the appellant (her maternal grandmother's husband) on four occasions, though her testimony in court focused on two incidents. The first report of the rape was made to the complainant's paternal grandmother, Patricia, during the COVID-19 lockdown in March/April 2020, after intervention by a pastor. A forensic nurse examined the complainant on 1 May 2020 and found healing bruises and a completely eroded hymen, consistent with sexual penetration on more than one occasion. The appellant denied the allegations, suggesting the paternal grandmother may have induced the complainant to implicate him.

• Whether the Regional Magistrate properly administered the oath to the complainant or properly admonished her before taking her testimony
• Whether the complainant's evidence was admissible given the procedural irregularities in oath administration and admonishment
• Whether the trial court properly applied the cautionary rules when assessing the evidence of a single child witness
• Whether the State proved the appellant's guilt beyond reasonable doubt
• Whether the conviction and sentence should be set aside

The appeal was upheld. The conviction and sentence were set aside. The appellant was ordered to be released from custody with immediate effect.

The binding legal principles established are: (1) Where a court finds that a witness understands the nature and import of an oath, that witness must be sworn in under section 162 of the Criminal Procedure Act before testifying - failure to do so renders the evidence inadmissible. (2) Section 164 of the CPA (allowing admonishment in lieu of oath) can only be applied where a court finds that a witness does NOT understand the nature and import of the oath. (3) Proper admonishment under section 164 must include warning the witness about consequences of untruthfulness - diluting or removing this warning fails to meet statutory requirements. (4) Testimony given without proper oath administration, affirmation, or proper admonishment lacks the status and character of evidence and is inadmissible, rendering a trial unfair and prejudicing the accused's right to a fair trial. (5) The cautionary rules applicable to single child witnesses must be applied, including assessment of the child's power of observation, recollection, and narration, and consideration of potential unreliability due to lack of judgment, immaturity, inexperience, imaginativeness, and susceptibility to influence. (6) In the absence of corroboration, courts must look for features in the evidence giving it a hallmark of trustworthiness before relying on a single child witness's evidence.

The court made several non-binding observations: (1) The concept of "oath in court" as distinct from the general concept of "oath" is a misnomer that can be confusing even to adults unfamiliar with court proceedings. (2) The court noted the "uncanny coincidence" that the pastor who counselled the complainant (leading to the first report) was named Jimmy, when the complainant also mentioned being raped by "uncle Jimmy" - suggesting possible connections not explored at trial. (3) The court observed that Patricia's failure to mention that the complainant reported being raped while staying with her, combined with the State's conscious avoidance of evidence about another perpetrator, created an inference that someone was being protected, lending credence to the appellant's version that Patricia may have influenced the complainant. (4) The court noted that the Regional Magistrate misdirected herself in upholding the State's objection to cross-examination on previous sexual encounters under section 227(2) of the CPA, as this evidence was first introduced by the State and therefore fell under the exceptions in subsection 227(2)(b). (5) The court emphasized that an accused person bears no onus to prove innocence, commenting that the fact the appellant initially denied the complainant stayed with him (later conceded) did not advance the State's case.

This case is significant in South African criminal procedure and evidence law for several reasons: (1) It reinforces the peremptory nature of section 162 of the Criminal Procedure Act requiring witnesses to be sworn in, and the strict requirements for when section 164 (admonishment in lieu of oath) may be applied. (2) It clarifies that a witness can only be admonished under section 164 if found NOT to understand the nature and import of the oath - if the witness does understand, they must be sworn in. (3) It emphasizes that admonishment must include warning the witness about consequences of untruthfulness, not diminish such consequences. (4) It reaffirms that testimony not properly taken under oath, affirmation, or proper admonishment lacks the status and character of evidence and is inadmissible. (5) It underscores the continued application of cautionary rules when assessing evidence of child witnesses, particularly single witnesses. (6) It demonstrates that procedural irregularities in taking a child witness's evidence can be fatal to a conviction, particularly where the child is a single witness and other evidence does not provide adequate corroboration. (7) It highlights the prosecution's duty to present all relevant evidence, including evidence of other potential perpetrators, and the court's obligation to allow proper cross-examination on such matters.