Sobahle Macinezela (aka Macimela) v The State

The appellant was convicted of rape and sentenced to life imprisonment by the Regional Court, Mount Frere, Eastern Cape. The complainant was 28 years old and the appellant's relative who resided with him and his wife. At trial, it was common cause that sexual intercourse occurred on multiple occasions during March 2015. The appellant's defence was that there was a consensual love relationship. At the start of trial, the prosecutor sought to amend the charge sheet to reflect that the complainant was "not mentally stable". The magistrate allowed this without formal ruling or allowing defence submissions. The complainant was then sworn in using the ordinary oath without any inquiry under section 164 of the Criminal Procedure Act into whether she understood the nature and import of the oath or could distinguish between truth and falsehood. The only evidence of her mental condition was from her uncle who stated she was "not mentally sound", based on her failure to pass Sub A at school and receiving a social grant. The magistrate and subsequently the high court accepted this and convicted the appellant, finding that even if consent was given, it was invalid due to her mental condition. The high court dismissed the appeal.

• Whether the trial court conducted the proper inquiry required by sections 162, 163 and 164 of the Criminal Procedure Act 51 of 1977 before admitting the evidence of a mentally ill witness
• Whether a witness alleged to be mentally unstable can be sworn in using the ordinary oath without an inquiry into whether she understands the nature and import of the oath
• Whether failure to conduct an inquiry under section 164 into whether a witness can distinguish between truth and falsehood renders that witness's evidence inadmissible
• Whether the conviction can stand when based on inadmissible evidence

The appeal succeeded. The order of the high court was set aside and replaced with an order upholding the appeal and setting aside both the conviction and sentence.

Before a witness testifies in a criminal trial, where there are indications that the witness may not understand the nature and import of the oath or affirmation due to intellectual incapacity or mental illness, an inquiry must be held as provided in sections 162(1), 163 and 164 of the Criminal Procedure Act 51 of 1977. Where a witness is found not to understand the nature and import of the oath or affirmation due to intellectual incapacity, an inquiry must be held in terms of section 164 into whether he or she understands the difference between truth and falsehood. This inquiry is mandatory and goes to the competence of the witness. The failure of a trial court to conduct such an inquiry renders the evidence of that witness inadmissible, as testimony that has not been given under proper oath, affirmation, or admonition to speak the truth after a proper section 164 inquiry lacks the status and character of evidence. A conviction based on such inadmissible evidence cannot stand.

The court made general observations about the importance of balancing sensitivity to victims of sexual violence with proper adherence to procedural requirements. The court noted that pronouncements about affording victims of sexual violence the full protection of the law (referring to S v Nondzamba and S v Acting Regional Magistrate, Boksburg) are undermined when proper care is not taken to ensure that evidence led is admissible. The court emphasized that the failure to conduct proper inquiries results in injustice to both complainants and accused persons. While these observations underscore the policy considerations at play, they do not form part of the binding legal principle but rather provide context for why proper procedure is so important.

This case is significant in South African criminal procedure and evidence law as it clarifies and reinforces the mandatory procedural requirements when dealing with witnesses who may not understand the nature and import of the oath or affirmation due to mental incapacity. It establishes that courts cannot take shortcuts in admitting such evidence, even in sensitive cases involving sexual violence. The judgment provides clear guidance on the application of sections 162, 163, 164 and 194 of the Criminal Procedure Act, emphasizing that an inquiry into whether a witness can distinguish between truth and falsehood is a prerequisite to admissibility. The case serves as an important reminder to judicial officers and prosecutors that failure to conduct proper inquiries into witness competency will result in inadmissible evidence and overturned convictions. It balances the need to protect vulnerable complainants with the fundamental requirement that all evidence must be properly admitted according to law.