THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
CASE NO. 642/2002

In the matter between

THE STATE
Appellant

and

NKULULEKO SIDNEY KATOO
Respondent
___________________________________________________________
CORAM:
HARMS, CAMERON, MTHIYANE, CLOETE JJA

et JAFTA AJA

HEARD:
2 NOVEMBER 2004

DELIVERED:    30 NOVEMBER 2004
___________________________________________________________

Summary: Criminal Procedure Act 51 of 1977 s 194 – incompetence of a
witness afflicted with mental illness or imbecility
___________________________________________________________

JUDGMENT
___________________________________________________________
JAFTA AJA

[1] The respondent was arraigned in the High Court (Port Elizabeth)
before Pillay AJ, sitting with assessors, on two charges: first, of
kidnapping (s 13 of the Sexual Offences Act 23 of 1957) and, second, of

rape (alternatively sexual intercourse with an imbecile under s 15(1)(a) of
the said Act). After the conclusion of the state’s case he closed his
without testifying or calling any witnesses in his defence. He was
acquitted on both counts.
[2] During the course of the trial, the prosecution sought to call the
complainant, a 16 year old female. The trial judge ruled that she was not
competent to testify in the light of the provisions of s 194 of the Criminal
Procedure Act 51 of 1977 (‘the Act’). The prosecution requested that the
issue be reserved as a question of law. The trial judge refused to do so.
This led to an application to this court for leave to have the question
reserved. The application was referred for oral argument. The respondent
declined to participate in the hearing before this court.
[3] The question formulated is –
‘whether the court was correct in law in refusing the state an opportunity to present
the evidence of the complainant on the charges preferred?
The answer, I believe, must be sought not only in s 194 read in isolation
but also read in context with other provisions of the Act.
[4] The relevant facts are the following. The complainant lived with
her parents and their other children at a house in Extension 3,
Phillipsville, Hankey. On 13 July 2001 she was in the company of other
children at the back of the house. She later went to stand at the gate in

front of the house, waiting for her father who had gone to town. She
disappeared and her whereabouts were unknown until the next morning
when she was found with the respondent in his room. She was later taken
to a doctor for a medical examination, which revealed that she had
recently had sexual intercourse. A complaint was laid against the
respondent who was subsequently charged.
[5] During the trial the respondent admitted that he had engaged in
sexual intercourse with her. The defence on the rape charge raised and
advanced in cross-examination on his behalf was that the intercourse was
consensual and, as far as the alternative count of intercourse with an
imbecile was concerned, that he did not know that she was an imbecile
(dolus being an element of the crime).
[6] In order to prove that the respondent must have been aware of the
fact that the complainant was incapable of consenting to sexual
intercourse as she obviously was an imbecile, the prosecution led (apart
from the evidence of members of her family) evidence of a clinical
psychologist, Mr du Toit, who had examined her and prepared a report on
her mental capacity. Du Toit stated that the complainant suffered from
severe mental retardation and that she could consequently be described as

an imbecile. He found that as a result of the mental retardation the
complainant had a ‘very limited capacity to exercise her will and make
choices’, and that her mental age was that of a four-year-old child. Du
Toit was, however, not able to determine whether the complainant could
distinguish truth from falsity.
[7] Relying on the psychologist’s testimony, the trial court made the
ruling mentioned. In this regard the trial judge said:
‘As authority for the proposition that the witness can be so called, [counsel for the
prosecution] relies on S v J [1989 (1) SA 524 (A)]. Now it is true that there are
sections in this judgment where the appeal court, dealing with a conviction for sexual
intercourse with an imbecile, expressed regret that the complainant had not been
called as a witness. I do not, however, believe that it is authority for the proposition
that she can be so called.
Section 194 of the Act makes it clear that mentally incompetent persons, whether the
incompetence is due to mental illness or intoxication or narcotic abuse, shall not be
competent to give evidence while so afflicted or disabled.
Now the State case has been, through a senior psychologist Dr du Toit, that she is
severely mentally retarded to the point where she may be described as an imbecile.
She is 16 years old, but has the mental age of a 4 year old. He expressed doubt, as a

trained expert, as to whether or not she can tell the difference between truth and
falsehood.
In those circumstances, it seems to me to be clearly a situation governed by section
194 of the Act. There is nothing in the judgment of S v J to indicate that the
prohibition in that section against calling an imbecile as a witness was considered.’
[8] Section 194 provides:
‘No person appearing or proved to be afflicted with a 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.’
[9] The section must read in the context of sections 192 and 193 which
precede it. Section 193 provides that the court before which criminal
proceedings are conducted must decide any question concerning the
competency of any witness. According to s 192 every person is
competent to give evidence in a criminal trial unless expressly excluded
by the Act from doing so.
[10] Section 194 stipulates specific requirements for determining
whether or not a particular witness is incompetent. The history of the

provision is instructive, although its wording is clear. Section 225 of the
Criminal Procedure Act of 1955 had a similar provision in these terms:
'No person appearing or proved to be afflicted with idiocy, lunacy, or insanity, or
labouring under any imbecility of mind arising from intoxication or otherwise,
whereby he is deprived of the proper use of reason, shall be competent to give
evidence while so afflicted or disabled.'
This gave rise to interpretation problems as appears from the judgment of
Jansen JA in  S v Thurston and another 1968 (3) SA 284 (A) at 289C-F:
‘Die strekking van die artikel is egter nie vanselfsprekend nie. Skynbaar  (altans
volgens die Afrikaanse redaksie deur die Goewerneurgeneraal onderteken) is dit nie
elke geestesgebrek wat onbevoegdheid meebring nie, slegs dié waardeur die persoon
“van die behoorlike gebruik van sy sinne beroof word” (“is deprived of the proper use
of reason”). In wye sin kan dit seker gesê word van enige persoon met 'n
geestesgebrek van een of ander aard, maar dit is beswaarlik denkbaar dat die
Wetgewer dit so bedoel het - dit sou die kwalifikasie oorbodig maak behalwe ten
opsigte van “verstandsverbystering voortspruitende uit dronkenskap of andersins”.
Juis hierdie gedagtegang kan aanleiding gee tot 'n interpretasie wat die kwalifikasie
tot laasgenoemde geval beperk. Die  Engelse redaksie is veral vatbaar daarvoor. Ook
in Rex v Burger, 1938 CPD 37, is die kwalifikasie in 'n bykans presies

ooreenstemmende artikel skynbaar aldus verstaan. Daar word nie uitdruklik mee
gehandel nie, maar die aanvaarding dat as 'n getuie 'n idioot is, sy sonder meer 'n
onbevoegde getuie is, dui sterk daarop.’
Pursuant to the recommendations of the Botha Commission of Inquiry
into Criminal Procedure and Evidence the present Act was amended to
remove the uncertainty and to bring our law in conformity with other
systems. (Cf the authorities referred to by Jansen JA at 289F-290E and
also Wigmore Evidence in trials at common law (1979 ed) vol 2 para
498-499, Bellamy [1986] Cr App R 222, and R v D [2002] 2 Cr App R
36.)
[10] The first requirement of the section is that it must appear to the trial
court or be proved that the witness suffers from (a) 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.

[11] The evidence led in the present case falls short of establishing that
those requirements were met. The psychologist’s evidence does not
indicate that the complainant suffered from any mental illness. It merely
establishes that she was, in the outdated terminology of the Act, an
imbecile. Imbecility is not a mental illness and per se did not disqualify
her as a witness. It is only imbecility induced by ‘intoxication or drugs or
the like’ that falls within the ambit of the section (and then only when the
witness is deprived of the proper use of his or her reason). It is also clear
from the evidence thus far led that the complainant was not deprived of
the proper use of her reason because she had a limited mental capacity.
[12] The trial court had a duty properly to investigate the cause of her
imbecility before concluding that she was incompetent. Section 193
enjoins a trial court to enquire into this issue and decide whether a
witness is in fact incompetent. This may be done by way of an enquiry
whereby medical evidence on the mental state of the witness is led or by
allowing the witness to testify so that the court can observe him or her
and form its own opinion on the witness’s ability to testify. In the past
courts in this country have permitted persons suffering from mental
disorders as well as imbeciles to testify subject to their being competent

to do so. See S v Thurston (supra); S v J 1989 (1) SA 525 (A); R v K 1957
(4) SA 49 (O) and S v Malcolm 1999 (1) SACR 49 (SE).
[13] That approach is in harmony with the presumption contained in s
192 to the effect that every person is a competent witness. But the fact
that someone is a competent witness does not mean that that person can
be sworn as a witness. That raises a discrete issue, namely whether the
witness understands the nature and import of the oath or affirmation,
which must be dealt with under s 164 (see S v B 2003 (1) SACR 52
(SCA)). In addition, the intention of the state here was not to rely on the
truth of the evidence of the complainant; it was to demonstrate to the
court that she was an imbecile and that that fact would have been
apparent to anyone – in other words, a procedure akin to an inspection in
loco.
[14] It is regrettable that, once again, it becomes necessary to repeat the
admonition on the importance of lower courts following decisions of
higher courts. S v J was binding on the court a quo and the trial judge
should have followed it. In De Kock NO and others v Van Rooyen 2004
(2) SACR 137 (SCA) Cameron JA said at 146 f-g:

‘It is necessary to repeat the admonition. Consistency, coherence, certainty and
predictability in our new constitutional order require the due application of the
decisions of higher Courts. Disregarding them wastes precious resources. It also
imperils public understanding of the Constitution and its implications by creating an
impression of incoherence, irrationality and unpredictability.’
See also Blaauwberg Meat Wholesalers v Anglo Dutch Meats (Exports)
2004 (3) SA 160 (SCA) para 20 and the cases there cited.
[15] In the circumstances of the present case I am satisfied that the
answer to the reserved question of law must be ‘yes’. This finding then
gives rise to the question ‘what steps’ this court should direct (s 322(4)
read with s 324). The ruling made by the trial court amounted to a serious
irregularity. The state was deprived of the oportunity of leading evidence,
which was palpably admissible on the plain wording of the section. The
evidence was material for its case on count 2. A miscarriage of justice
occurred. The accused, on the other hand, although he has had to suffer
all the prejudices that follow from a trial, will not be materially
prejudiced by a trial de novo. He has not yet testified, the trial was brief
and there is no suggestion that witnesses for the defence are no longer
available. It is therefore an appropriate case to allow a new prosecution if

the state is so minded. (R v Gani 1957 (2) SA 212 (A) 222.) However, the
question reserved did not affect the acquittal on count 1 (kidnapping) and
that count cannot form the subject of any retrial.
[15] Before concluding this judgment there are two issues to which I
should refer. The first relates to the trial court allowing evidence on the
complainant’s previous sexual experience to be introduced into the record
of the proceedings. Section 227(2) of the Act stipulates that evidence of a
complainant’s sexual experience, which does not relate to the incident
giving rise to the trial, may not be adduced without leave of the court and
that such leave may be granted only if the court is satisfied that it is
relevant. Consistently with this provision trial courts must vigilantly
protect complainants’ privacy and dignity by allowing evidence of past
sexual experience to be led only where the requirements of the section are
met. In S v M 2002 (2) SACR 411 (SCA) Heher AJA said at 425j - 426b:
‘One is here dealing with an issue which requires of a trial court great sensitivity and
about which strongly conflicting views may be held ... There is a responsibility on
practitioners and the courts to uphold the spirit of the legislation. In the case with
which we are concerned, all appreciation of the statutory requirements and niceties
seems to have escaped the trial court.’

[16] In the present matter the requirements of s 227(2) were not
complied with before the evidence pertaining to the complainant’s
previous sexual experience was adduced. The leading of such evidence
should have been prevented.
[17] The other issue relates to the weight attached by the trial judge to
the defence version which was put to state witnesses under cross-
examination. It was treated as if it were evidence when the trial court
considered its verdict on the merits. As the respondent failed to place any
version before the court by means of evidence, the court’s verdict should
have been based on the evidence led by the prosecution only.
[18] In the result the following order is made:
1.
The application for the reservation of the question of law is granted
in terms of s 317(5) of the Criminal Procedure Act.
2.
The reserved question of law is answered in the affirmative.
3.
Under s 324 of the Act, the respondent may be retried on count 2.

__________________________

C N JAFTA

ACTING JUDGE OF APPEAL

HARMS JA
)
CAMERON JA
)CONCUR
MTHIYANE JA )
CLOETE JA
)