Motsisi v The State

The appellant was charged with raping a 24-year-old complainant who was alleged to be mentally retarded, and convicted in the magistrate's court and sentenced to 15 years' imprisonment under the Criminal Law Amendment Act 105 of 1997. The appellant and complainant were neighbours who knew each other well. On 31 May 2005, a neighbour (T) found them emerging from the complainant's locked house. When questioned, the complainant allegedly told T that the appellant had intercourse with her. T informed the complainant's mother who reported the matter to police. The appellant denied having sexual intercourse with the complainant and stated he had been sitting outside on the stoep. Dr Monaledi had limited consultation time with the complainant and could not determine her competence to testify or the extent to which reliance could be placed on her testimony. The complainant's mother testified that her daughter was a slow learner who could only perform rudimentary household tasks. Medical evidence (J88) was inconclusive regarding penetration or sexual assault. The magistrate decided the complainant would not understand the oath and admonished her under section 164(1) without properly establishing whether she could distinguish between truth and falsehood.

• Whether the trial court properly administered the admonition in compliance with sections 164 and 165 of the Criminal Procedure Act 51 of 1977
• Whether the magistrate conducted a proper enquiry to establish if the complainant could distinguish between truth and falsehood before admonishing her to speak the truth
• Whether the complainant was competent to testify in terms of sections 192, 193 and 194 of the Criminal Procedure Act
• Whether the conviction could stand in the absence of properly admitted evidence from the complainant

1. The appeal is upheld. 2. The conviction and sentence imposed by the magistrate are set aside and substituted with the following: 'The appellant's conviction is quashed and the sentence is set aside.'

Before a court may admonish a witness in terms of section 164 read with section 165 of the Criminal Procedure Act, it must conduct an enquiry to satisfy itself that the witness understands what it means to speak the truth and can distinguish between truth and falsehood. This is a precondition for admonishment and ensures the reliability of evidence. What is required is not knowledge of abstract concepts of truth and falsehood, but that the witness will understand what it means to relate what happened and nothing else. The duty to ensure proper administration of the admonition is imposed on the presiding judicial officer personally and cannot be abdicated to an interpreter or intermediary, although their assistance may be utilized. Evidence of a witness 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. Where fundamental irregularities occur in the administration of the admonition and the complainant's evidence has not been properly placed on record, a conviction based on such evidence cannot stand.

The Court made important obiter comments on the practice of referring to witnesses by labels rather than their names. The Court criticized the practice of referring to the complainant throughout the trial as 'the victim' rather than by her name or proper title. Citing S v Gwebu 1988 (4) SA 155 (W), the Court emphasized that all witnesses ought to be addressed in a humane manner in court proceedings and that the depersonalizing of people by referring to them as 'accused', 'witness', or 'victim' is disrespectful and degrading. The Court stated that members of the public who appear in courts, whether as accused or as witnesses, are entitled to be treated courteously and in a manner keeping with the dignity of the court, and expressed hope that judicial officers would always be alive to this and discourage such practices. This observation reinforces constitutional values of human dignity as protected by section 10 of the Constitution.

This case is significant in South African criminal procedure law as it clarifies and reinforces the strict requirements that must be met when a judicial officer decides to admonish a witness under section 164 of the Criminal Procedure Act rather than administering an oath or affirmation. The judgment emphasizes that: (1) the duty to ensure proper administration of the oath, affirmation or admonition lies with the presiding judicial officer and cannot be delegated to an interpreter or intermediary; (2) before admonishing a witness, the court must establish through proper enquiry that the witness can distinguish between truth and falsehood; (3) what is required is not knowledge of abstract concepts of truth and falsehood, but understanding of the duty to relate what actually happened; and (4) the risk of conviction based on unreliable evidence is too great to permit testimony from a witness who does not understand what it means to speak the truth. The case provides important guidance on the competence of witnesses with mental disabilities and the procedural safeguards required to protect an accused's right to a fair trial. It also reinforces principles of human dignity in court proceedings by condemning the practice of referring to persons by impersonal labels rather than their names.