The Director of Public Prosecutions Kwazulu-Natal v John Mekka

The respondent John Mekka was convicted of rape and indecent assault and sentenced to 10 years imprisonment by the regional court in Durban. The complainant was a 9-year-old girl named Mandy Ngwenya who was in Standard 2. Before testifying, the magistrate established her age, asked if she understood the difference between truth and lies (which she confirmed), and warned her to tell the truth without administering the oath. The magistrate acknowledged she did not inquire whether the complainant understood the nature and import of the oath before admonishing her to tell the truth, believing that due to the child's tender age she would not have understood the nature and import of the oath. On appeal, the Natal Provincial Division held that the magistrate's failure to inquire whether the complainant understood the nature and import of the oath constituted an irregularity rendering her evidence inadmissible, and set aside the conviction and sentence. The Director of Public Prosecutions appealed to the Supreme Court of Appeal under section 311 of the Criminal Procedure Act 51 of 1977.

• Whether section 164(1) of the Criminal Procedure Act 51 of 1977 requires a formal inquiry to be conducted before making a finding that a witness does not understand the nature and import of the oath
• Whether the magistrate's failure to conduct such an inquiry rendered the complainant's evidence inadmissible
• Whether the magistrate implicitly made the finding required by section 164(1) based on the complainant's self-evident youth and immaturity
• Whether a finding that a witness understands the difference between truth and falsehood is required under section 164(1)

The appeal was upheld. The order of the Natal Provincial Division was set aside and the conviction and sentence imposed by the regional court were re-instated.

Section 164(1) of the Criminal Procedure Act 51 of 1977 does not expressly require that a formal inquiry must precede the finding that a person does not understand the nature and import of the oath or affirmation. An inquiry is not necessary in all circumstances to make such a finding. The mere youthfulness of a witness may justify a finding that the witness does not understand the nature and import of the oath. What is required is that the presiding judicial officer must exercise judgment that a witness, due to ignorance arising from youth, defective education or other cause, does not understand the nature or import of the oath or affirmation. Such a finding can be made implicitly based on the witness's observable characteristics and the presiding officer's conduct in proceeding directly to admonish the witness to tell the truth rather than administering the oath.

The court noted that whether an inquiry must be held to determine if a witness understands the difference between truth and falsehood is a question that was not decided in S v B and did not need to be decided in this case, as such an inquiry was in fact conducted. The court also observed that while a formal recorded finding under section 164(1) is preferable, it is not required (citing S v Stefaans 1999 (1) SASV 182 (K) at 185i). The court reiterated the principle of stare decisis as formulated in Bloemfontein Town Council v Richter 1938 AD 195 at 232, emphasizing that the Supreme Court of Appeal is bound by its own decisions unless there has been some manifest oversight, misunderstanding, or palpable mistake.

This case affirms and applies the principle established in S v B 2003 (1) SA 552 (SCA) regarding the requirements of section 164(1) of the Criminal Procedure Act. It clarifies that a formal inquiry is not always necessary before making a finding that a witness does not understand the nature and import of the oath, and that such a finding can be based on observable factors such as the witness's youth. This is significant for criminal proceedings involving child witnesses, as it provides flexibility in the application of section 164(1) while maintaining the requirement that the presiding officer must make a determination (whether express or implied) that the witness does not understand the oath. The case also reinforces the doctrine of stare decisis by refusing to depart from a recent Supreme Court of Appeal decision.