S v Pilane

I refer to the article ‘Bad practice continues: Who must administer an oath in criminal proceedings?’ (2016 (Jan/Feb) DR 18). Subsequent to Pilane v S (NMW) (unreported case no CA10/2014, 5-3-2015) (Hendricks J) the review court in the unreported judgment of S v Maloma (GP) (unreported case no A376/2015, 11-6-2015) (Bam J) correctly ruled that: ‘The oaths administered to the witness by the interpreter … was correct in law’.

Ambrose Mfayela, regional magistrate, Scottburgh

Who must administer an oath?

In the article by Ronald Rikhotso ‘Bad practice continues: Who must administer an oath in criminal proceedings?’ (2016 (Jan/Feb) DR 18), the question of who must administer an oath in criminal proceedings is asked. In the article the author indicates that the oath cannot be administered by the court interpreter. In view of the full Bench decision in S v Maloma (GP) (unreported case no A376/2015, 11-6-2015) (Bam J) this assertion is not correct. In the Maloma judgment the court had to consider the question whether it is correct in law that an interpreter in a criminal trial may administer the oath to witnesses.

In referring to the judgment in S v Pilane (NWM) (unreported case no CA10/2014, 5-3-2010) (Hendricks J), which Mr Rikhotso also refers to as authority for his view, the court finds that: ‘What, however, the North West Court, with respect, did not consider, are the provisions of section 165. This may be due to the fact that counsel appearing for the appellant and the State, … failed or neglected to draw the Court’s attention to that section, and for that matter, the country wide long standing practice of the application thereof in all our criminal courts’ (Maloma at para 9).

The court then quotes s 165, which reads as follows: ‘Where the person concerned is to give his evidence through an interpreter or an intermediary appointed under section 170A (1), the oath, affirmation or admonition under section 162, 163 or 164 shall be administered by the presiding judge or judicial officer or 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 case may be (emphasis added)’(Maloma at para 10).

The court then proceeded (in Maloma at para 12): ‘Subsequently, in the matter of Machaba and Another v The State [[2015] 2 All SA 552 (SCA)], the Supreme Court of Appeal, in paragraphs [8] and [9] of the judgment, with reference to Pilane, confirmed that it is peremptory in terms of section 162 that either the presiding judge, or the registrar in the case of a superior court should administer the oath to witnesses. The question whether it was justified in law that the interpreter was empowered to administer the oath, was not addressed and the Court was clearly not called upon to consider Section 165. The Court merely referred to the provisions of section 162. Accordingly the decision in Machaba, with respect, did not solve the problem.’

The court then came to the following conclusion: ‘Accordingly, in conclusion, it is found that the administration of the oath by the interpreter in this matter was consistent with the provisions of section 162, read with section 165, and that no irregularity was committed’ (Maloma at para 16).

The end result is, therefore, that the interpreter can administer the oath to a witness in criminal proceedings in the presence and under the eyes of the presiding judicial officer in view of the provisions of s 165 of the Criminal Procedure Act 51 of 1977.

Gerhard van Rooyen, magistrate, Emlazi

Prisoners of poverty

The annual report of the Judicial Inspectorate for Correctional Services (2014/15) (www.judicialinsp.dcs.gov.za, accessed 31-3-2016) has once again shown (as it has for the last 20 years) that thousands of detainees who have not yet been convicted of a crime languish in already overcrowded jails simply because they are too poor to afford bail.

The South African Institute of Race Relations has warned in a study that the country’s overpopulated prisons are being swelled by nearly 7 500 detainees who cannot afford to pay for their release in 2015.

Institute analyst Kerwin Lebone was quoted in an article (African News Agency ‘IRR urges lawmakers to assist poverty stricken prisoners’ www.mg.co.za, accessed 31-3-2016) as saying: ‘The figures are concerning for several reasons. The first is that a great many people who have not been convicted of any crime are in jail simply because they are too poor to afford bail – they are what we describe as prisoners of poverty. … The presence of so many remand detainees in our jails compounds the prison overcrowding crisis faced by the Department of Correctional Services. … There is a significant cost to the taxpayer in housing this number of remand detainees and these resources could be more effectively employed elsewhere in the criminal justice system’.

Prisoners of poverty must fall – and I call on the Minister of Justice and Correctional Services, Michael Masutha or Deputy Minister John Jeffery to take urgent, definitive steps in this regard.

Chris van der Maas, attorney, Knysna

The controversial judgment – Janusz Walus

On 10 April 1993, the late Chris Hani was brutally killed by Janusz Walus. This murder was pre-meditated and politically motivated by the right wing elements who wanted to plunge the country into turmoil following the unbanning of the African National Congress (ANC) and the release of the late Nelson Mandela. There is no doubt whatsoever in my mind, that this atrocity cannot be condoned. Following a fair trial the assassin, Mr Walus, and Clive Derby-Lewis were both convicted of murder and were sentenced to death. The death sentences were later commuted to life imprisonment after the death penalty was declared ultra vires by our Constitution. The applications for amnesty by Mr Derby-Lewis and Mr Walus before the Truth and Reconciliation Commission were refused. Mr Derby-Lewis was released on medical parole last year.

The application by Mr Walus for release on parole was heard by the duly constituted parole board and was eventually recommended. The Minister of Justice and Correctional Services, Michael Masutha, refused to allow Mr Walus to be released, which brought about an application for a review of his decision by Mr Walus to the High Court Gauteng Division, Pretoria (Walus v Minister of Correctional Services and Others (GP) (unreported case no 41828/2015, 10-3-2016) (Janse van Nieuwenhuizen J).

I have read the judgment and I heard radio discussions on the issue. I understand and appreciate that for the family of the deceased, nothing can ever bring him back or fill the void left by him in their lives.

During the course of the hearing the judge inquired of counsel whether, 23 years after the brutal killing, it was not time for the family to move forward. This was, as I understand it, merely an inquiry made by the judge as to brood over one’s sorrow is to embitter one’s grief.

I read nothing in the judgment which dealt with this aspect other than for the judge to remark that the family of the deceased had rejected the attempted apology of Mr Walus and of the fact that they declined to meet with him. The judge found that there was nothing which was flawed in the process before the parole board and that there was no valid reason by Minister Masutha to override that decision. On the basis of this finding, coupled with her finding that Mr Walus qualified to be released on parole, she arrived at her conclusion.

It is noted that the minister lodged an Application for Leave to Appeal and it is inappropriate for me to comment on his prospects of success. In due course the application will be heard and argued and I am sure that an educated and properly motivated judgment in respect of the application will be handed down.

From a practitioner’s perspective we are confronted daily with findings handed down by our judiciary. Some decisions find favour with us, while others do not and the appeals process is there to ensure that justice is seen to be done. We also have to bear in mind that all our judges are left with difficult issues to determine which they must decide impartially, fairly and competently after applying their minds to all the information placed before them and apply the law.

What is unacceptable though, in my view, is the constant criticism that our judiciary hands down decisions which show lack of transformation laced with Apartheid-type discrimination and that our judges are counter revolutionary. Personal attacks on judges are also unacceptable.

We of the legal profession are enjoined to support our judges and magistrates by appreciating and recognising that they do apply their minds, as best as possible, in the matters placed before them for which they need to be shown the respect which they are entitled to. Hopefully, by us setting this example, we can play our part, small though it may be, in bringing an end to the debilitating plethora of statements, which perpetuate racial hatred.

Leslie Kobrin, attorney, Johannesburg

• On 14 April in the Gauteng Division, Pretoria, Janse van Nieuwenhuizen J dismissed the State’s application for leave to appeal the parole of Janusz Walus. – Editor

This article was first published in De Rebus in 2016 (May) DR 4.