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S v Pilane (1362/16) [2017] ZASCA 71; 2017 (2) SACR 154 (SCA) (1 June 2017)

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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable

Case No: 1362/16

In the matter between:

THE STATE APPELLANT

and

NKOKETSANG ELLIOT PILANE RESPONDENT

Neutral Citation:The State v Pilane (559/16) [2017] ZASCA 71 (1 June 2017)

Coram:Cachalia and Wallis JJA and Molemela, Gorven and Mbatha AJJA

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Heard:3 May 2017

Delivered:1 June 2017

Summary: Witnesses in criminal trial: administration of the oath: may be administered by interpreter: s 165 of Criminal Procedure Act 51 of 1977

ORDER

On appeal fromNorth West Division of the High Court, Mahikeng (Hendricks J and Djaje AJ sitting on appeal from the regional court).

1 The appeal is upheld.

2 The order of the high court is set aside.

3 The conviction and sentence imposed by the regional court are reinstated.

4 The matter is remitted to the high court for the appeal to proceed on the merits.Murder of crows pdf free download windows 10.

JUDGMENT


Molemela AJA (Cachalia and Wallis JJA and Gorven and Mbatha AJJA concurring):

[1] Mr Nkoketseng Elliot Pilane (the respondent) was convicted of rape in the Rustenburg Regional Court (the regional court) andsentenced to 10 years’ imprisonment. The respondent subsequently appealed to the North West Division of the High Court (HendricksJ and Djaje AJ) (high court). The high court found that insofar as the oath taken by the three witnesses for the state was administeredby the interpreter and not the judicial officer, it had been done irregularly. It consequently considered the evidence of suchwitnesses to be unsworn and therefore inadmissible. It held that by allowing the court interpreter to administer the oath, theregional court had committed an irregularity that vitiated the proceedings. It consequently set aside the conviction and sentenceimposed by the regional court.

[2] Aggrieved by the high court’s decision, the Director of Public Prosecutions (DPP) subsequently applied to this court forspecial leave to appeal, on a question of law in terms of s 311 of the Criminal Procedure Act 51 of 1977 (CPA), against the highcourt’s judgment. Special leave to appeal was granted on a limited basis. The point of law to be decided upon was identifiedas ‘the interpretation of s 165 of the CPA: the swearing in of witnesses by an interpreter ─ does that constitute aproper administration of the prescribed oath?’

[3] The crisp issue to be decided is whether the fact that the witnesses testifying against the respondent were sworn in by theinterpreter at the regional court constituted a proper administration of the prescribed oath. If it did not, then the evidencemust be treated as unsworn.

[4] In dealing with the point of law raised in this matter, it is important to examine a few applicable sections of the CPA. Section161 provides that unless otherwise provided in any other section of the CPA or in terms of any other law, a witness shall giveevidence orally at criminal proceedings. Section 162 requires a witness to testify under oath and stipulates how the oath mustbe administered. It provides as follows:

162 Witness to be examined under oath:-

(1) Subject to the provisions of sections 163 and 164, no person shall be examined as a witness in criminal proceedings unless heis under oath, which shall be administered by the presiding judicial officer or, in the case of a superior court, by the presidingjudge or the registrar of the court, and which shall be in the following form:-“I swear that the evidence that I shall give,shall be the truth, the whole truth and nothing but the truth, so help me God.”

(2) If any person to whom the oath is administered wishes to take the oath with uplifted hand, he shall be permitted to do so.’

[5] In terms of s 163, a witness who objects to taking the prescribed oath or who does not consider it binding on their conscienceshall instead make an affirmation prescribed in that section. Section 164 makes provision for a judicial officer to admit the evidenceof a witness who is unable to understand the import of the oath or affirmation if that judicial officer has admonished the witnessto tell the truth.

[6] The key provision, s 165 of the CPA, provides as follows:

Oath, affirmation or admonition may be administered by or through interpreter or intermediary

Where the person concerned is to give his evidence through an interpreter or an intermediary appointed under section 170A (1), theoath, affirmation or admonition under section 162, 163 or 164 shall be administered by the presiding judge or judicial officeror the registrar of the court, as the case may be, through the interpreter or intermediary or by the interpreter or intermediary in the presence or under the eyes of the presiding judge or judicial officer, as the casemay be.’ (My emphasis.)

[7] The high court did not refer to s 165 in its judgment. Counsel for the respondent pointed out that the text of s 165 that wasreferred to the high court during the appeal hearing was as set out in a leading text-book which, at the time, had omitted thewords or by the interpreter or intermediary in the presence or under the eyes of the presiding judge or judicial officer, as the casemay be.Once s 165 is read with the inclusion of the words ‘or by the interpreter or intermediary in the presence or under the eyes of the presiding judge or judicial officer, as the casemay be’, it is plain that this is a procedure expressly authorised by the CPA. It also accords with long-established practice in criminal courts at all levels throughout South Africa.

[8] It is common cause that in this case the oath was administered to the witnesses by the interpreter in the presence of the judicialofficer, as appears from the following passages in the record:

Court: Full names and surname?

Witness: ….

Court: Let her take the oath.

Interpreter: Sworn in, Your Worship.’

The part relating to the complainant’s resumption of her evidence after an adjournment is captured as follows in the transcript:

Court: The witness is still under oath.

Interpreter: Confirmed, Your Worship.’

The same procedure was followed in respect of the other witnesses.

[9]Counsel for the respondent contended that the high court had correctly relied on this court’s judgment in Matshivha v The State[1] in concluding that the oath had not been properly administered. Matshivha dealt with the admissibility of the evidence of a young witness. This court dealt comprehensively with the interpretation of s 162read with s 164. No reference whatsoever was made to s 165 or to the involvement of an interpreter in the swearing in of a witness in that judgment.Matshivha is thus distinguishable. The high court’s reliance on that judgment was therefore misplaced.

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[10] The respondent’s counsel also submitted that the administration of the oath can only take place in the presence of thejudicial officer if the latter is aware of the content of the oath being administered by the interpreter. He argued that beforethe oath is administered, the responsibility resting on the shoulders of the judicial officer is to satisfy himself or herselfthat the witness who is about to testify does not fall into the category of those who may, instead of being sworn in, affirm interms of s 163 or are admonished as contemplated in s 164. This, so the argument went, could be done by posing certain questionsto the witness. He further submitted that the judicial officer must first ask the witness whether they have any objection to takingthe prescribed oath and then enquire whether they regard the oath as binding on their conscience.

[11] The difficulty with this interpretation is that it imposes a burden on the judicial officer that is not a requirement in theCPA. Section 163(1) of the CPA 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 bindingon their conscience. None of the provisions of the CPA stipulate that the administration of the oath must ordinarily be precededby any enquiry on the part of the judicial officer. The enquiries suggested by counsel are sometimes made before the oath is administered,but it is not a defect in the proceedings if they are not made.

[12] Another contention advanced by the respondent was that s 165 enables the judicial officer to administer the oath through theinterpreter, but does not authorize the judicial officer to instruct the interpreter to administer the oath on his own. This contentionlacks merit, as it simply disregards the words ‘or by the interpreter’ in the last part of s 165. It was also submittedthat an interpretation that accepted that an interpreter has the authority to administer the oath is flawed, as it is tantamountto the judicial officer abdicating his responsibility to an interpreter. As authority for this submission, counsel relied on thefollowing remarks made by this court in Motsisi v The State:[2]

The duty to ensure that a witness has properly taken the oath, affirmation or admonition is imposed on a presiding judicial officer.It is the judicial officer who has to be satisfied that the witness comprehends what it means to speak the truth. The fact thata judicial officer may utilise the services of an interpreter or an intermediary or a registrar of the court to communicate witha witness does not relieve the judicial officer of the duty to perform this function, but what it does is that it provides thejudicial officer with a means of utilising the assistance of these functionaries to perform his or her functions. Their vital roleis limited to ensuring, because of their skill, that questions by the court to the child [witness] are conveyed in a manner that the child [witness] can comprehend and that theanswers given by the child [witness] are conveyed in a manner that the court will understand”’.

[13] Those remarks pertained to the enquiry that a court must embark upon prior to admonishing a witness as contemplated in s 164.When read in their proper context, they do not support the respondent’s argument. The provisions of s 164 are not applicablein this matter. To the extent that counsel also purported to rely on this court’s judgment in S v Machaba & another,[3] that case dealt with the provisions of s 162. The provisions of s 165 were not referred to at all in that matter. Counsel’sreliance on obiter dicta made in a different context is equally misplaced.

[14] Where a witness testifies through the interpreter, the interpreter is empowered to administer the oath if the judicial officerso prefers and if the interpreter does so in the presence or under the eyes of such judicial officer. In doing so, judicial officersare not abdicating their responsibilities; they are doing what is permissible in terms of the CPA. The phrase ‘in the presenceor under the eyes of the presiding judge or judicial officer’ reflects the legislature’s intention to ensure that theprocess unfolds under the observation of the judicial officer. As correctly mentioned in S v Mahlaba & others,[4]s 165 complements s 162 by extending the authority to administer the oath, affirmation and admonition to sworn interpreters[5] and intermediaries, if witnesses that are about to be examined testify through them. The swearing in of witnesses under those circumstances constitutes a proper administration of the prescribed oath.[6]

[15] For all these reasons, it follows that the appeal must succeed. The merits of the appeal were not considered by the highcourt, as it took the view that there was no admissible evidence. Consequently, the conviction and sentence imposed by the regionalcourt must be re-instated and the case remitted to the high court for a hearing of the appeal on the merits.

[16] In the result, I grant the following order:

1 The appeal is upheld.

2 The order of the high court is set aside.

3 The conviction and sentence imposed by the regional court are reinstated.

4 The matter is remitted to the high court for the appeal to proceed on the merits.

PDF

____________________

M B Molemela

Acting Judge of Appeal


Appearances:

For Appellant: N J Carpenter (prepared heads)

S V Dlamini 1999 (2) Sacr 51 (cc)

J Neveling (appeared)

with him D G Jacobs)

Instructed by: National Director of Public Prosecutions, Mmabatho

National Director of Public Prosecutions, Bloemfontein

For Respondent: J Engelbrecht SC (with him M Augoustinos)

Instructed by: S C Mosito Attorneys

c/o D C Kruger Attorneys, Mahikeng

Symington & De Kok Attorneys, Bloemfontein


[1]Matshivha v The State[2013] ZASCA 124; 2014 (1) SACR 29 (SCA).

S v dlamini 1999 (2) sacr 51 (cc)

[2]S v Motsisi & others (513/11) [2012] ZASCA 59 (2 April 2012) at para 15.

[3]S v Machaba & another [2015] ZASCA 60; 2016 (1) SACR 1 (SCA) at para 8 & 9.

[4]Unreported judgment of FSHC, Case No 42/2015, delivered on 24 May 2016.

[5]Interpreters who are in the employ of the Department of Justice are sworn in upon taking their appointment. Rule 61 (1) of theUniform Rules of Court provides that evidence be given in a language which the court or a party or its representative does notunderstand must be interpreted by a competent interpreter who has taken an oath ‘to interpret faithfully and to the bestof his ability in the languages concerned.’ The oath for interpreters who execute their functions at the Magistrates’Court is provided for in Rule 68 of the Magistrates Courts’ Rules. Evidence of a witness who testifies through an interpreterthat has not been sworn is inadmissible. See S v Naidoo1962 (2) SA 625 (A); S v Kwali1967 (3) SA 193 (A).

[6]S v Maloma(No A376/2015) [2015] ZAGPPHC 496 (11 June 2015).

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