The State v Pilane

Mr Nkoketseng Elliot Pilane (the respondent) was convicted of rape in the Rustenburg Regional Court and sentenced to 10 years' imprisonment. Three witnesses for the state testified against him, with the oath being administered by the court interpreter rather than the judicial officer. The respondent appealed to the North West Division of the High Court (Hendricks J and Djaje AJ), which found that the oath had been administered irregularly because it was administered by the interpreter and not the judicial officer. The high court considered the evidence of such witnesses to be unsworn and therefore inadmissible, and it set aside the conviction and sentence. The Director of Public Prosecutions subsequently applied for special leave to appeal to the Supreme Court of Appeal on a question of law in terms of s 311 of the Criminal Procedure Act 51 of 1977 (CPA), specifically regarding the interpretation of s 165 of the CPA.

• Whether witnesses testifying through an interpreter may be sworn in by the interpreter rather than the judicial officer
• Whether the administration of the oath by the interpreter in the presence of the judicial officer constitutes proper administration of the prescribed oath under s 165 of the Criminal Procedure Act 51 of 1977
• Whether the evidence of witnesses sworn in by an interpreter is admissible in criminal proceedings

The appeal was upheld. The order of the high court was set aside. The conviction and sentence imposed by the regional court were reinstated. The matter was remitted to the high court for the appeal to proceed on the merits (as the high court had not considered the merits, having found the evidence inadmissible).

Section 165 of the Criminal Procedure Act 51 of 1977 expressly authorises an interpreter to administer the oath to a witness who is to give evidence through an interpreter, provided this is done in the presence or under the eyes of the presiding judicial officer. The swearing in of witnesses by an interpreter under these circumstances constitutes a proper administration of the prescribed oath. The judicial officer is not abdicating responsibility by allowing the interpreter to administer the oath; rather, the officer is exercising a power expressly conferred by the CPA. Evidence given by witnesses sworn in by an interpreter in the presence of the judicial officer is admissible.

The court observed that the provisions of the CPA do not stipulate that the administration of the oath must ordinarily be preceded by any enquiry on the part of the judicial officer. While enquiries are sometimes made before the oath is administered, it is not a defect in the proceedings if they are not made. Section 163(1) contemplates that it is the witness who will raise an objection they may have to taking the oath; in the absence of objection, the oath may simply be administered and the court accepts that the witness regards the oath as binding on their conscience. The court also noted that interpreters who are employed by the Department of Justice are sworn in upon taking their appointment, and evidence of a witness who testifies through an interpreter that has not been sworn is inadmissible.

This case provides authoritative clarification on the proper interpretation of s 165 of the Criminal Procedure Act 51 of 1977. It confirms that an interpreter may lawfully administer the oath to witnesses in criminal proceedings, provided this is done in the presence or under the eyes of the presiding judicial officer. The judgment affirms long-established practice in South African criminal courts and rejects a restrictive interpretation that would have rendered inadmissible evidence properly taken through interpreters. The case is significant for criminal procedure in South Africa, particularly in ensuring that the use of interpreters does not create technical barriers to the administration of justice.