From: The Registrar, Supreme Court of Appeal

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

S v Nkululeko Sidney Katoo

In a judgment delivered today, the Supreme Court of Appeal has ordered the re-trial of a man accused of rape, alternatively unlawful sexual intercourse with an ‘imbecile’ in contravention of the Sexual Offences Act of 1957.

The SCA’s judgment clarifies a provision in the Criminal Procedure Act 51 of 1977 that disqualifies people from testifying because of mental illness or imbecility of mind due to intoxication or drugs or the like, and who are thereby deprived of the proper use of their reason. The SCA emphasises that before a potential witness is disqualified, he or she must be suffering either from (a) a mental illness or (b) imbecility of mind due to intoxication, drugs or the like. In addition to this requirement, the law requires that such a person must be deprived by the condition in question of the proper use of his or her reason.

Only if the two requirements collectively are satisfied can the person be disqualified as an incompetent witness.

In the case before it, the trial judge had wrongly ruled that a young girl was an incompetent witness because the evidence established that, in the outdated terminology of the Criminal Procedure Act 51 of 1977, she was an ‘imbecile’. The SCA pointed out that this did not automatically disqualify her. ‘Imbecility’ was not a mental illness. It was not proved that she suffered from imbecility of mind that deprived her of the proper use of her reason.

The SCA pointed out that in the past South African courts have permitted persons suffering from mental disorders as well as ‘imbeciles’ to testify, subject to their being competent to do so. The question whether a witness was ‘competent’ to testify raised a different issue, namely whether he or she understood the nature and import of the oath or affirmation.

The trial judge had therefore wrongly excluded her evidence. The State’s application for a ‘question of law reserved’ [a procedure that permits the prosecution to appeal on points of law decided in the course of a criminal trial] therefore had to be granted.

The SCA also pointed out that the trial court judge had wrongly allowed evidence about the complainant’s previous sexual history; and that he had wrongly assumed that propositions put on behalf of the accused were ‘evidence’, while in fact the accused had not testified. The SCA ordered that the accused be retried on the main charge.