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Summary BWR320 Unit 1-5
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BWR320 - COMPETENCE AND COMPELLABILITYCertain classes of Ws are excluded from giving evi. These rules relate to the competence &
compellability of Ws
COMPETENCE & COMPELLABILITY
● COMPETENCE: When a (W) witness is qualified and able to lawfully give evidence or
act as a W (MAY give evidence)
● COMPELLABLE: When a person is lawfully obliged to give evidence (MUST give evi)
● Most people are competent Ws, but not all Ws are compellable to give evidence
COMPETENCE & COMPELLABILITY AND PRIVILEGE
● A competent and compellable W may not refuse:
○ to enter the W box or
○ to take the oath/affirmation unless he/she is specifically exonerated from doing
so (privilege)
● Privilege against self-incrimination:
○ The W can only claim this right when the question is posed
○ Right is then invoked
● Attorney-client privilege:
○ The attorney will be sworn in and placed in the W box
○ May claim professional privilege when the question is posed.
LEGAL RULES APPLICABLE TO COMPETENCE & COMPELLABILITY
● CIVIL LAW:
○ Section 8 of the Civil Proceedings Evidence Act 25 of 1965
○ Every person shall be competent & compellable to give evi in civil proceedings
unless excluded from doing so by the Act/by any other law
○ Includes any inherited English law rule prior to 30 May 1961
● CRIMINAL LAW:
○ Section 192 of the Criminal Procedure Act 51 of 1977
○ Every person is both competent & compellable to give evi in criminal proceedings
unless expressly excluded
● GENERAL RULES:
○ All Ws are presumed competent & compellable in criminal and civil matters
○ If a W is NOT competent by virtue of any rule/law, the parties themselves cannot
agree to the admission of evi by that W
“Humanly intolerable”
● Criminal sanctions may be imposed if a W refuses to attend proceedings without a “just
excuse”
○ A “just excuse” includes humanly intolerable actions
● Nel v Le Roux 1996:
○ A W is not compelled to act if it is in conflict with his constitutional rights
, ○ The parties cannot consent to the admission of an incompetent Ws’ evidence:
■ The court must decide whether the W is competent/compellable either by:
● Testimony during a TWAT or
● On the basis of its own observations
GENERAL PRINCIPLES RELATING TO COMPETENT AND COMPELLABLE WITNESSES
● A competent and compellable witness MUST attend the proceedings
● Recalcitrant witness = a C & C W who refuses to attend proceedings
● Section 189(1) CPA:
○ The court may in a summary manner enquire into such refusal/failure
○ Purpose = to determine whether the person failing to attend proceedings has a
just excuse for not attending
○ If the excuse is not satisfactory to the court, the court may sentence the W to
imprisonment:
■ for a period not exceeding two years OR
■ where the criminal proceedings relate to an offense referred to in part II of
Schedule 2, to imprisonment for a period not exceeding 5 years
○ JUST EXCUSE is not limited to lawful excuses, such as privilege
○ JUST EXCUSE is also if it is humanly intolerable:
■ Attorney General, Transvaal v Kader:
● R was detained in solitary confinement before he was called as a
state W & was “interrogated”
● It was so traumatic that he had to receive psychiatric treatment
● He refused to testify as a state W when he was called on the
following grounds:
○ (i) He would be psychologically scarred for life, and
○ (ii) He would be ostracized by his community
● The court held that the determination of “humanly intolerable” is a
question of fact.
CLASSES OF WITNESSES THAT ARE EXCLUDED FROM GIVING EVIDENCE
1. CHILDREN:
● Not prohibited from testifying by common law/statute, but testimonies of children are
approached with caution.
● Very young children may testify provided that they:
○ Appreciate the duty to speak the truth
○ Have sufficient intelligence
○ Can communicate effectively
● Rules pertaining to oath/affirmation where children testifies:
○ Children can be sworn in if the court is satisfied that the child understands the
nature and religious sanction of the oath
○ If the child is not able to understand the nature & religious sanction of the oath,
they may give evi without oath but only if the court cautions the C to speak truth
● Testifying against parents:
, ○ General rule: Children are C & C to testify against their parents but in principle, it
is undesirable that children be compelled to do so (R v Zulu 1947)
● The prosecutor's discretion depends on
■ Availability of other Ws
■ The seriousness of the offense with which the parent is charged
● Test for the trustworthiness of a child was formulated in Woji v Santam Insurance Co
○ The only eyeWs to a car accident were two children (10 years old) who testified
at trial about an incident that had occurred when they were 5 years old
○ The trial court dismissed the claim because the children's testimony was not
corroborated
○ Appeal: No statutory req that a child's testimony has to be corroborated. The
question that the trial court must ask itself is whether the young W’s testimony is
trustworthy
○ Trustworthiness depends on:
■ Power of observation= whether a child has the capacity to observe
accurately
■ Power of recollection= whether a child is able to remember what
happened
■ power of narration= whether a child has the capacity to understand the
questions put and to frame & express intelligent answers
○ Other factors:
■ Does the child appear to be honest? (Consciousness of duty to speak the
truth)
■ Nature of the evidence given by the child
■ S v Heroldt (2018)
● Rape of 5-year-old child
● The accused appealed against the conviction based on the
competency of the child (complainant)to testify
● The Magistrate used a competency test to determine whether the
child could understand the difference between truth & falsehood
● The court found that the competency test was age-appropriate
2. MENTALLY DISORDERED AND INTOXICATED WITNESSES:
● Section 194 CPA:
○ The following persons are not competent Ws while so afflicted (S v Katoo):
■ Mentally ill
● A mentally ill person/intellectually challenged person who is not
deprived of proper use of reason is a competent W
■ Intoxicated/under the influence of drugs
● An intoxicated person will become competent and compellable
when he/she becomes sober
■ Deprived of proper use of reason
3. DEAF AND SPEECHLESS PERSONS:
, ● Sign language is considered to be oral evidence ito the CPA
● Such a W will be competent & compellable if they can communicate with the court
○ This is usually done through an interpreter who must also be sworn in
4. ACCUSED PERSONS:
● NB! Accused in his own trial will be competent, but not compellable
○ Accused can only be called as a W if he elects to testify in his own proceedings
● An accused person is competent to testify in his/her own defence, whether/not they are
charged jointly with another person
● Incrimination of co-accused:
○ An accused person’s competence is limited to giving testimony in his/her own
defence
○ An accused who elects to testify in his/her own defence may in the process give
testimony that might be helpful/incriminate to the co-accused, but because the
accused testifies of his/her own violation, the accused can’t be compelled to give
evi that’s helpful to the co-accused
○ An accused person is not compellable to give evi for the state
○ NB! The accused can become a W for the state against a former co-accused by
terminating his/her status as accused in the same proceeding (“S204 State Ws'')
5. SPOUSES:
● “Marriage” includes:
○ Marriages ito indigenous law/religious law systems
○ Civil unions
○ Solemnized same-sex unions
● Competence & compellability of spouses depends on the nature of the proceedings:
Civil Matters Criminal Matters
- A S is a C & C W for/against the other spouse (W - A spouse is a competent W for the accused
for an opposing party) BUT may claim marital (jointly/severely charged)
privilege (Sec 198) - If the spouse is called to testify for the accused,
- A W can be compelled to take the W box but can that spouse is competent and compellable.
invoke the marital privilege & refuse to disclose the - If the spouse is called to testify for the CO-
communication between spouses during the course accused, that spouse is competent but NOT
of the M/Ms which were dissolved/annulled after the compellable.
communication took place
○ NB!! When can a spouse be compelled to testify?
■ Spouses of the accused cannot be forced to testify against each other
unless the crime falls into one of the categories ito Section 195
● Offense against the spouse/any child of them
● Certain offenses under the Child Care Act
● Contravention of the Maintenance Act
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