Law Of Evidence WITNESSES
DEFINITIONS:
Competence:
Whether a particular person has the mental capacity to testify.
SECTIONS:
Sec 192 of the CPA:
Every person not expressly excluded by the Act from giving evidence is
competent & compellable, subject to Sec 206.
Sec 206:
The law, which was i...
DEFINITIONS:
Competence:
Whether a particular person has the mental capacity to testify.
SECTIONS:
Sec 192 of the CPA:
Every person not expressly excluded by the Act from giving evidence is
competent & compellable, subject to Sec 206.
Sec 206:
The law, which was in force in respect of criminal proceedings on The 30th
of May 1961 with respect to competence & compellability, is applicable in
cases not provided for in the Criminal Procedure Act.
Sec 8 of the Civil Proceedings Act:
Everyone is competent & compellable unless otherwise provided.
Sec 194:
No person afflicted with mental illness due to intoxication or drugs or the
like & who is there by deprived of the proper use of his reason shall be
competent while so afflicted.
Sec 195:
Clearly states that a spouse is competent to give evidence on behalf of the
prosecution, but that he can be compelled to testify only in certain
circumstances.
Sec 196:
States that the spouse of an accused is a competent as well as a compellable
witness in defence of that accused, whether such accused is jointly charged
with somebody else or not.
Sec 157(2) of the CPA:
Ito this sec, upon separation of trials, the co-accused may the give evidence
against 1 another, but it is advisable that the accused, which the state
intends, calling on to give evidence, should 1st be sentenced.
,QUESTIONS:
Question 1: Fully comment on the following statement “A co-accused
isn’t a competent witness for the state, whether to prove the case
against him or against the accused” (5)
Co-Accused:
Were accused persons are tried together, they are referred to as co-accused.
Co-Accused as prosecution witness:
Co-accused is not a competent witness for the state, whether to prove the
case against himself or against the co-accused, because he is also an
accused.
There may be circumstances where the state may call someone, who had
previously been a co-accused, to testify. This happens when this person is
no longer a co-accused in that case.
It can happen in the following cases: (EXCEPTIONS)
1. Withdrawing the charge against the co-accused.
2. By finding the co-accused not guilty.
3. By co-accused entering a plea of guilty.
4. If trial of the accused & his co-accused are separated for some valid
reason.
Sec 157(2) of the CPA:
Ito this sec, upon separation of trials, the co-accused may the give evidence
against 1 another, but it is advisable that the accused, which the state
intends, calling on to give evidence, should 1st be sentenced.
Question 2: On the 19th April 2006, Peter celebrates receiving his LLB
degree at a well-known restaurant. His wife & daughter of 6 are there to
celebrate with him. A family member who is a freelance photographer
takes pictures during the course of the evening. Unfortunately, Peter
who has a drinking problem drives home while under the influence. A
policeman notices him swerving his car across the road just before
crashing into a parked car. Luckily, no 1 is injured, but Peter is
arrested & charged with driving under the influence. Answer the
following:
(a): Discuss the competence of Peter’s daughter to testify on behalf of
the state (5)
Competence:
Whether a particular person has the mental capacity to testify.
GR: All people are competent & those who are competent must be compelled
, to testify.
Exceptions to the GR where a person is not competent to testify:
Children:
No statutory provision barring children under a certain age from testifying &
also no particular age above which a child is competent to testify.
Children are therefore subject to the same GR as presumed competency as
all other persons.
Provided that they:
1. Understand what it means to tell the truth.
2. Have sufficient intelligence &
3. Can communicate effectively.
❖ Thus, Peter’s daughter is not competent to testify on behalf of the state,
due to the above facts.
Question 2 (b): Discuss the competence & compellability of Peter’s now
ex wife to testify on behalf of the state (7)
Compellability:
GR: Those who are competent may be compelled to testify.
Witnesses who are competent but cant be compelled to testify:
Spouses:
GR at common law was that the spouse of an accused could not testify for or
against such accused.
This rule doesn’t apply to civil proceedings.
With respect to criminal proceedings, specific rules are in force, depending
upon whether the spouse is a state witness, a defence witness or a witness
for the co-accused.
❖ The facts of the Q fall with spouse as state witness because…
Spouse as state witness: (Against your husband)
1. Sec 195: Clearly states that a spouse is competent to give evidence on
behalf of the prosecution, but that he can be compelled to testify only in
certain circumstances.
2. This exception only applies to matters dealing with the well being of, &
relationship between, the married couple, as well as the well being of the
children of the relationship or any child that is in the care of either of the
spouses, incest or the sexual exploitation of children or mentally disabled
persons.
3. This sec also applies to people who were married when the relevant crime
was committed, even though the marriage was dissolved in the
meantime.
❖ Generally Peter’s wife would not have been compellable to testify against
him, but since they are divorced & it’s in the well being of their daughter,
she is competent & compellable to testify against him.
Question 3: Mr G is president of Africa Holdings, a CO listed on the
JSE. S is his vice president. They are charged with fraud amounting to
R4million in respect of the CO’s funds relating to insider trading of the
CO’s shares:
Both accused have talked to their wives on numerous occasions
regarding their insider trading & tax evasion. Discuss the competence &
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