The child in this case claimed she had been raped by a relative of her father’s, starting from when she was nine years old. The case against the accused seemed strong, and the regional (senior) magistrate convicted him and sentenced him to life imprisonment. But when he appealed, the high court found the child had not been properly sworn in: his conviction was set aside, along with his life sentence, and the man walked free. This case, from the KwaZulu Natal province of South Africa, is replicated in many countries, every day, because legal technicalities related to fair trial are so often ignored. As SA observes Human Rights Day, 2019, here’s a plea: could the courts at least pledge to ensure they get the technicalities right? It would make a great impact of the human rights of every person brave enough to go through the trauma of reporting rape and giving evidence in a trial.

Read the judgment

Judge Johan Ploos van Amstel reviewed the facts of the disturbing case before him in the high court, Pietermaritzburg.

The child witness had told the regional magistrate that the accused, a relative of her father’s, had had sex with her on more than one occasion, said the judge. He would visit her family to have tea and he would also watch television in a separate building where she and her brother slept. It was said that on some occasions he would switch off the light in the room to create the impression that he had left. But in fact he would get under the blankets with the child and rape her.

She was nine years old the first time this happened, and it would happen on other occasions until she was 12.

On the last occasion, she said, he came into a room where she was helping with the laundry. She said he threw her on the bed, unzipped his pants and had sexual intercourse with her. “He warned her not to tell anyone and threatened to kill her if she did.”

The child then went to Johannesburg where she stayed with her cousin. While she was there she wrote a letter to her sister saying what the man had done to her. The cousin with whom she was staying discovered the letter among the child’s clothes, took her to the doctor for an examination and reported the matter to the police. The man was then arrested. While he admitted that he visited the girl’s family he denied he had ever interfered with her.

The regional magistrate convicted him and sentenced him to life imprisonment.

He later appealed, saying the evidence of the child should not have been accepted by the court. Her evidence was inadmissible, according to the man’s counsel, because the magistrate had not established that she was a competent witness.

The basis for this submission was counsel’s claim that the magistrate had not established that the girl understood the difference between the truth and lies, and what the consequences would be of telling lies.

Dealing with this submission the judge said that the magistrate had asked the child, then aged 13, whether she knew what was meant by taking an oath, and if she understood the consequences of taking the oath.

She replied that she knew about taking an oath, but she did not know what the consequences would be “after taking the oath”.

At this, the magistrate changed tack and asked if she knew the difference between telling lies and telling the truth. She said she did, and the magistrate the admonished her to tell the truth.

The judge said he was satisfied that the magistrate was correct in deciding the child should not take the oath. But, he asked, did the magistrate do enough to establish “that she understood the difference between telling the truth and telling lies, and the potential consequences of telling lies”?

The magistrate had asked only a single question of the child: did she know the difference between telling lies and telling the truth? “Without more”, said the judge, this was not enough to establish that the child understood “what it means to speak the truth, that it is important to speak the truth and that it is wrong to tell lies.”

Since the magistrate had not established this information, she was not a competent witness. “She could not have been admonished to speak the truth.”

“Her evidence was therefore inadmissible, and the conviction cannot stand.”

The judge concluded that, given these circumstances, the appeal had to succeed, and both conviction and sentence were set aside.

Clearly, the rights of the accused were respected by the high court in this decision. The rights of the child, however, were, just as clearly, disregarded by the magistrate.

He did not properly consider the child witness before him, and her answers to his question. He did not make sure that he questioned her properly to establish that she was a competent witness before admonishing her to speak the truth. In other words, he did not take the trouble to do his job properly. Just another question or two to prove whether she truly understood the need to tell the truth and the difference between truth and lies, and the conviction and sentence might well have been upheld.

As a result of his less than rigorous approach to the prosecution, the child’s right to justice has been denied.

Children appear in the courts every day, as witnesses or complainants. It is hardly unusual for a magistrate to consider whether to swear them in, admonish them to tell the truth, or disqualify them as witnesses. There is no excuse for a magistrate to get such a basic procedure wrong.

Unfortunately, in this case, the judge did not admonish the magistrate for messing up. Clearly the magistrate ought to have known better, but if the judge had directed some clear words of criticism, the magistrate – and his superiors – would have been forced to take note.

  • Newsletter, Judicial Institute for Africa (Jifa), Human Rights Day, 21 March 2019