THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 550/2017
In the matter between:

SOBAHLE MACINEZELA (aka MACIMELA)

APPELLANT
and

THE STATE

RESPONDENT

Neutral citation:
Macinezela v The State (550/2017) [2018] ZASCA 32 (26 March
2018)
Coram:

Navsa, Majiedt, Dambuza and Mocumie JJA and Hughes AJA

Heard:

15 February 2018

Delivered:

26 March 2018

Summary:
Criminal Procedure – before a witness testifies in a criminal trial in
appropriate circumstances an inquiry must be held into whether he or she
understands the nature and import of the oath or affirmation as provided in ss 162(1)
and 163 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 s 164 of that Act into whether he or she

understands the difference between truth and falsehood ─ failure of trial court to hold
an inquiry into whether a mentally ill witness understands the difference between
truth and falsehood renders the evidence of that witness inadmissible.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: Eastern Cape Local Division, Mthatha (Brooks and Alkema JJ
sitting as court of appeal).

The following order is made:
1.
The appeal succeds.
2.
The order of the high court is set aside and replaced with the following:
„(a) The appeal is upheld.
(b) The conviction and sentence are set aside.‟
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Dambuza JA (Navsa, Majiedt and Mocumie JJA and Hughes AJA concurring)
[1] This appeal, against a conviction of rape and a consequent sentence of life
imprisonment, is with the leave of this court. The appellant was convicted and
sentenced by the Regional Court, Mount Frere, Eastern Cape. He had pleaded not
guilty to the charge of rape in terms of s 3 of the Criminal Law (Sexual Offences and
related matters) Amendment Act 32 of 2007 (the Act). His appeal against the
conviction and sentence was dismissed by the full bench of the Eastern Cape Local
Division, Mthatha.  The central issue in this appeal is the admissibility of the evidence
of the complainant who was alleged to be „mentally unstable‟.1

1 Different expressions, such as „mentally unstable, not mentally sound and mentally retarded‟, were
used at the trial to describe the complainanat‟s mental condition.

[2] The complainant and the appellant are relatives. At the time of the incidents
which gave rise to the charge against the appellant, he was married to the
complaint‟s maternal aunt. The complainant, who was 28 years old at the time,
resided with the appellant and his wife at Cwalinkungu in Mount Frere, Eastern Cape.
It was common cause at the trial that on a number of occasions during March 2015,
the appellant and complainant had sexual intercourse.

[3] The appellant was charged with having raped the complainant on more than
one occasion. His defence was that there was a love relationship between himself
and the complainant and that the complainant had consented to sexual intercourse
with him. Before the trial commenced, the prosecutor asked that the charge sheet be
amended to reflect that the complainant was „not mentally stable‟. The amendment
was effected and the trial proceeded.

[4] At the trial the complainant and her maternal uncle testified on behalf of the
State. The complainant testified that she and the appellant had sex on a number of
occasions and that she had not consented to it. The uncle testified that the
complainant was not mentally sound. The appellant was the only defence witness. In
convicting the appellant, the magistrate reasoned, amongst other things, that the
appellant had been aware that the appellant was „not mentally sound‟, and that even
if „she may have consented to sexual intercourse such consent was not recognised
by virtue of her mental illness or mental retardness‟. The magistrate also remarked
that he had also observed that the complainant was „not completely sane‟, citing the
fact that she appeared not to know her age and that she had read incorrectly the date
on which she was alleged to have sent a text message to the appellant.

[5] Although the magistrate made no express credibility findings in relation to
those who testified, it is evident from his judgment that he accepted the evidence of
both State witnesses, particularly the complainant, and rejected the appellant‟s
evidence that the complainant had consented to sexual intercourse.

[6] On appeal, the high court confirmed the findings of the trial court that the
complainant was „mentally retarded‟ or „intellectually challenged‟, referring, as the trial
court had also done, to her simplistic responses to questions and her inability to tell
her date of birth. The high court also found that, given the period of more than a year
during which the appellant had stayed with the complainant, he must have been
aware of the complainant‟s mental condition. It found the complainant‟s evidence to
be satisfactory in all material respects and was of the view that the complainant
would not have made reports of sexual intercourse to her maternal uncle and the
appellant‟s wife, and would not have testified in court if it had not occured. That court
also confirmed the magistrate‟s finding that no substantial and compelling
circumstances existed to justify a departure from the statutorily prescribed minimum
sentence of life imprisonment.

[7] This appeal is founded, broadly, on two grounds. The first is that the trial is
tainted by a material irregularity emanating from the manner in which the
complainant‟s mental condition was introduced into the proceedings. The complaint is
that the appellant was never given an opportunity to make submissions on the
proposed amendment to the charge sheet to that effect. There was also no ruling by
the court on the proposed amendment. Consequently, the trial court‟s finding that the
charge sheet was duly amended and that the complainant‟s „mental disability‟ was
established is wrong. The second ground is that both the trial court and the high court
failed to properly consider whether the complainant was in fact „mentally disabled‟ as
envisaged in the Act.

[8] For a proper perspective of the issues that arise in this appeal, a closer
account of the proceedings at the start of the trial is required. After the appellant had
pleaded to the charge, the prosecutor called the complainant as the first witness for
the State. When the complainant took the witness stand, the prosecutor addressed
the court as follows:
„Your Worship, there is something that I have just missed regarding to complainant. When I
consulted with her, Your Worship, I found that she is not mentally stable, to a certain extent,
Your Worship. May I apply, Your Worship, to also insert same on the charge sheet, Your
Worship?‟.

[9] The magistrate remarked that the amendment sought would have „no effect‟
(presumably on the charge against the appellant and the applicable sentencing
regime). He said:
„[T]he facts will still be the same if the basis for invoking Section 512 was the fact that it was
more than once, you have the same effect. In other words if for instance it was just a
question of mental illness, it will still fall under that category, whether it was more than once
or not. So it doesn‟t make much of a difference.‟

[10] The magistrate then explained to the appellant that it had been „placed on
record by the State that during consultation it transpired that the complainant was not
mentally sound‟. Immediately thereafter the complainant was sworn in in the usual
course and she proceeded to testify. The trial proceeded to finality and the appellant
was found „guilty as charged‟.

[11] As already stated, in his evidence the complainant‟s uncle described the
complainant as „not mentally sound‟. His opinion was based on the fact that the
complainant had not passed Sub A at school and was receiving a social grant. On
cross examination he explained that:
„When you are looking at her you would think that she is mentally sound, but if you are
staying with her you would observe from her conduct that what she is doing is not supposed
to be done by somebody her age.‟

[12] This being the only evidence that was led before the trial court on the
complainant‟s mental capacity, it is clear that the pertinent antecedent issue of
whether the complainant‟s evidence would be admissible arose. The primary issue
that arises is whether the proper procedure was followed when it became apparent at
the outset that  the complainant might not understand the nature and import of the
oath or affirmation as provided for in s164 of the Act. Regrettably, that issue was not
identified by the magistrate, the prosecutor and the defence.

2 This is a reference to the Criminal Law (Sexual Offences and related matters) Amendment Act 32 of
2007.

[13] It is trite that the principal method of adducing evidence in a trial is by oral
evidence of a competent witness.3 Section 192 of the Criminal Procedure Act 51 of
1977 (CPA) provides that:
„Every person not expressly excluded by this Act from giving evidence shall, subject to the
provisions of section 206, be competent and compellable to give evidence in criminal
proceedings‟.4

[14] The general rule, therefore, is that everyone is presumed to be a competent
and compellable witness. In terms of s 194 of the CPA, persons who suffer from
mental disorder and intoxication are not competent to give evidence in certain
circumstances.5 Importantly, that section does not decree a blanket exclusion of the
evidence of people suffering from intellectual incapacity. It is only where the
intellectual capacity results in an inability to reason properly that the affected person
is disqualified from testifying. In S v Katoo 2005 (1) SACR 522 (SCA), at para 11 this
court set out the parameters for assessing whether an affected person may give
evidence. It said:
„The first requirement of the section is that it must appear to the trial court or be proved that
the witness suffers from (a) mental illness or (b) that he or she labours under imbecility of
mind due to intoxication or drugs or the like. Secondly, it must also be established that as a
direct result of such mental illness or imbecility, the witness is deprived of the proper use of
his or her reason. Those two requirements must collectively be satisfied before a witness can
be disqualified from testifying on the basis of incompetence‟.

[15] In this case there is no indication from the record whether, apart from the
allegation by the prosecutor at the start of the trial, the magistrate had himself formed
a view in respect of the complainant‟s mental capacity. The application made by the
prosecutor for amendment of the charge sheet on account of the complainant‟s

3 D T Zeffert and A P Paizes The South African Law of Evidence 2 ed (2009) at 805.
4 Section 206 of the Criminal Procedure Act 51 of 1977  refers to the law relating to express exclusions
from the generally accepted competency and compellability provided as it was on 30 May 1960.
5 Section 194 provides that: „No person appearing or proved to be afflicted with mental illness or to be
labouring under any imbecility of mind due to intoxication or drugs or the like, and who is thereby
deprived of the proper use of his reason, shall be competent to give evidence while so afflicted or
disabled.‟ (My Emphasis.)

mental condition clearly called for vigilance in considering the proper approach to her
evidence.

[16] A court confronted with the difficulty of a potentially mentally ill witness may
opt to seek expert medical evidence on the effect thereof on the witness‟ cognitive
faculties, or it may allow the witness to testify in order to assess his or her
competency. Where, as in this case, the court allows the witness to testify, the
provisions of ss 162, and 163 of the CPA come into play. Section 162(1)6 commands
that all witnesses must testify under oath. Section 163 provides for administration of
affirmation in lieu of oath in certain circumstances. These sections must be read with
s 164 which provides that:
„(1) Any person, who is found not to understand the nature and import of the oath or
affirmation, may be admitted to give evidence in criminal proceedings without taking the oath
or making the affirmation: Provided that such person shall, in lieu of the oath or affirmation,
be admonished by the presiding judge or judicial officer to speak the truth.
(2) If such person wilfully and falsely states anything which, if sworn, would have amounted
to the offence of perjury or any statutory offence punishable as perjury, he shall be deemed
to have committed that offence, and shall, upon conviction, be liable to such punishment as
is by law provided as a punishment for that offence‟.

[17] In S v Matshivha 2014(1) SACLR (SCA) 29 at paras 10 and 11 this court set
out clearly the material determinants for admissibility of evidence under ss 162, 163
and 164. It said that:
„The reading of s162(1) makes it clear that, with the exception of certain categories of
witnesses falling under either s163 or s164, it is peremptory for all witnesses in criminal trials
to be examined under oath. And the testimony of a witness who has not been placed under
oath properly, has not made a proper affirmation or has not been properly admonished to
speak the truth as provided for in the Act, lacks the status and character of evidence and is
inadmissible.

6 Section 162 of the CPA provides: „Subject to the provisions of section 163 and 164, no person shall
be examined as a witness in criminal proceedings unless he is under oath, which shall be
administered by the presiding judicial officer or, in the case of a superior court, by the presiding judge
or the registrar of court, and which shall be in the following form:
“I swear that the evidence I shall give, shall be the truth, the whole truth and nothing but the truth, so
help me God”.‟

Section 164(1) is resorted to when a court is dealing with the admission of evidence of a
witness who, from ignorance arising from youth, defective education or other cause, is found
not to understand the import of the oath or affirmation. Such a witness, must, instead of
being sworn in or affirmed, be admonished by the judicial officer to speak the truth. It is clear
from the reading os s164(1) that for it to be triggered there must be a finding that the witness
does not understand the nature and import of the oath. The finding must be preceded by the
form of enquiry by the judicial officer, to establish whether the witness understands the
nature and import of the oath. If the judicial officer should find after such an enquiry that the
witness does not possess the required capacity to understand the nature and import of the
oath, he or she should establish whether the witness can distinguish between truth and lies,
and if the inquiry yields a positive outcome, admonish the witness to speak the truth‟.
(footnotes omitted)7

[18] Although these remarks were made in respect of child witnesses, they are
equally applicable in respect of mentally ill witnesses. The inquiry ordered under s
164(1) applies to any person who is found not to understand the nature and import of
the oath or affirmation for the reasons stated in that section, including defective
education or other cause. It is for that reason that this Court, in Motsisi v S [2012]
ZASCA 59 (2 April 2012), set aside a conviction of rape. There the trial court had
failed to establish that the complainant who was allegedly mentally retarted was able
to distinguish between truth and falsehood.

[19] An inquiry into whether a potential witness can distinguish between truth and
falsity goes to whether the witness is competent in the first place. On the other hand,
a question directed to a witness on whether he or she understands the nature and
import of the oath and affirmation goes to whether the witness should be caused to
take the oath or affirmation, or should be admonished to speak the truth in terms of s
164(1).8

[20] In this case the oath or affirmation could not, in the circumstances, be
administered in the ordinary course. At the very least an inquiry in terms of s164

7 See also other authorities cited in 7 Du Toit et al Commentary on the Criminal Procedure Act (Service
58, 2017) at 22-67.
8 Du Toit (supra) at 22-70.

should have been conducted. Clearly, none of these considerations occupied the
mind of the magistrate in this matter. As a result, he never conducted an inquiry into
whether the complainant could distinguish between truth and falsehood. The failure
to hold such inquiry is fatal.

[21] This appeal and many other similar cases illustrate the injustice that can be
suffered by both complainants and accused as a result of failure by courts to properly
ascertain whether a witness is able to disnguish between truth and falsehood. In S v
Nondzamba 2013(2) SACR 333 (SCA) this court highlighted the sensitivity of our
courts to victims of sexual violence and the courts‟ determination to ensure that such
victims are afforded the full protection of the law.9 Such pronouncements are
undermined when proper care is not taken to ensure that evidence led is admissible.

[22] The following order is therefore issued:

1.
The appeal succeeds.
2.
The order of the High Court is set aside and replaced with the following:
„(a) The appeal is upheld.
(b) The conviction and sentence are set aside.‟

___________________
N Dambuza
Judge of Appeal

9 At para 13, with reference to the remarks made by the Constitutional Court in S and Another v Acting
Regional Magistrate, Boksburg and Another 2011(2) SACR 274 (CC) paras 22 and 23.

APPEARANCES
For the Appellant:
E Crouse
Instructed by:
Mthatha Justice Centre

Legal Aid South Africa, Bloemfontein

For the Respondent:
M F Mzila

Instructed by:
The Director of Public Prosecutions, Mthatha

The Director of Public Prosecutions, Bloemfontein

SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

26 March 2018

STATUS

Immediate

Please note that the media summary is intended for the benefit of the media and does
not form part of the judgment of the Supreme Court of Appeal.

Macinezela v The State (550/2017) [2018] ZASCA 32 (26 March 2018)

Today the Supreme Court of Appeal (SCA) upheld an appeal against the Eastern Cape Local
Division, Mthatha. The central issue on appeal concerned the admissibility of the evidence of
an allegedly mentally unstable complainant.

The appellant was charged with having raped the complainant, to whom he was related, on
more than one occasion. Prior to the commencement of the trial, the prosecutor asked that
the charge sheet be amended to reflect that the complainant was ‘not mentally stable’. The
amendment was effected, and the trial proceeded. Although the magistrate made no express
credibility findings in relation to those who testified, it is evident that he accepted the
allegations regarding the complainant’s mental status. However, he failed to hold an inquiry
into whether the complainant understood the difference between truth and falsehood, given
her alleged mental condition. On appeal, the high court confirmed the magistrate’s finding that
the complainant was ‘mentally retarded’ and confirmed the magistrate’s finding in respect of
conviction and sentence.

The SCA held that the appeal raised the question whether the proper procedure was followed
when it became apparent that the complainant might not understand the nature and import of
the oath or affirmation as provided for in s164 of the Criminal Procedure Act 51 of 1977
(CPA). It found that this issue was regrettably not identified by the magistrate, the prosecutor
and the defence. The SCA affirmed the general rule that before a witness testifies in a
criminal trial, in appropriate circumstances, an inquiry must be held into whether he or she

understands the nature and import of the oath or affirmation as provided in ss 162(1) and 163
of the CPA. Where a witness is found not to understand the nature and import of the oath or
affirmation due to mental incapacity, an inquiry must be held in terms of s 164 of the CPA into
whether he or she understands the difference between truth and falsehood. The SCA
concluded that in the present matter, the magistrate’s failure to hold an inquiry into whether
the mentally ill complainant understood the difference between truth and falsehood rendered
her evidence inadmissible.