Bad practice continues: Who must administer an oath in criminal proceedings?

January 27th, 2016
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By Ronald Rikhotso

Despite the provisions of s 162(1) of the Criminal Procedure Act 51 of 1977 (the CPA), supported by precedents of decided cases, the practice of allowing court interpreters to administer the oath in criminal proceeding still continues, especially in remote areas. This often occurs when the presiding judicial officer is not familiar with the language that is commonly used at that particular district where he or she presides, thereby allowing witnesses to be sworn in by interpreters.

Section 162(1) of CPA provides: ‘Subject to the provisions of sections 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 the 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”’.

In S v Mashava 1994(1) SACR 22 (T) it was held that the oath must be administered by a judicial officer and not the interpreter. In the event that the oath is not administered by the judicial officer as prescribed by s 162, the witnesses are not properly sworn in and their evidence is, therefore, inadmissible.

The Supreme Court of Appeal was faced with the same question in 2014 and made the following findings in Matshiva v S [2014] 2 All SA 141 (SCA): ‘The reading of section 162(1) makes it clear that, with the exception of certain categories of witnesses either falling under section 163 or 164, it is peremptory for all witnesses in criminal trials to be examined under oath. … 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’ (at para 10).

In 2015 the North West Division was faced with a similar question in S v Pilane (NWM) (unreported case no CA 10/2014, 17-9-2010) (Hendricks J), wherein the regional court in Rustenburg, heard the testimony of three witnesses, who were not properly administered under oath, and convicted the accused of rape and sentenced him to three years imprisonment. On appeal, the sole question was whether s 162(1) had been complied with. Is it permissible for the court interpreter, as opposed to the magistrate, to administer the oath? The court held that because the evidence of all three witnesses was not given under oath, in terms of the peremptory provisions of s 162(1) of CPA, it followed that there was no admissible evidence against the appellant. The conviction and sentence were set aside.

Section 165 provides that: ‘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’.

From this section it is also clear that even where evidence is tendered to in court, with the assistance of an interpreter or intermediary, the oath, affirmation or admonition under s 162, 163 or 164 must still be administered by the presiding judge, judicial officer or registrar of court. However, since the interpreter is present, such oath, affirmation or admonition can be administered through him or her. The legislation is clear that an oath can be administered by a court interpreter. Even where the oath and evidence is administered through a court interpreter, the provisions of r 68 of magistrates’ court rules must be heeded. Such an interpreter must be a competent interpreter who has taken an oath or made an affirmation in terms of the rules that he or she will interpret truly and correctly. In S v Siyotula 2003 (1) SACR 154 (E), the evidence of two witnesses and the accused were interpreted by an interpreter who had not been properly sworn in as an interpreter. The interpreter also administered the oath to the accused. The accused’s evidence had to be disregarded as the interpreter was not sworn in and thus the oath could not be administered by him.

Conclusion

From my point of view, the interpretation of s 162 and 165 provides a clear general practice for the oath to be administered by a presiding judge, judicial officer or Registrar of court. The phrase ‘Registrar of court’ in my view is not wide enough to include court interpreters. Therefore, the oath administered by the interpreter causes irregularity and as a result the evidence given by the witnesses tend to be inadmissible since they were not properly sworn in.

Ronald Rikhotso LLB (University of Limpopo) is an attorney at RS Rikhotso Attorneys in Burgersfort.

This article was first published in De Rebus in 2016 (Jan/Feb) DR 18.

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