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Oct/Nov exam portfolio answers 2021
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- University Of South Africa (Unisa)
Oct/Nov exam portfolio answers 2021
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Ashleigh Hala Student number 55612792 LEV3701October/November 2021
SECTION 1
1.1 Section 208 of the Criminal Procedure Act 51 of 1977 allow for the courts to
convict a person or give a judgement against a person based on the evidence
brought forward by a single witness, as long as the court is satisfied that the
evidence is sufficient and satisfactory. In the case of S v Sauls it was held that
there is no specific test to apply when looking at the credibility of a single witness.
The degree of caution that the court will need to apply will depend on the other
circumstances in the case, such as other available evidence, etc.
The case of S v Jackson is an important case in terms of dealing with cases of a
sexual nature. In this case, it was held that the cautionary rule that used to exist in
these cases was abolished. During this case, it was also held that the burden falls
on the state to prove the guilt of the accused beyond reasonable doubt and
reason must be given for stating that the evidence of the witness is perhaps
unreliable. The judge in S v Jackson held that courts still need to exercise caution
when a case is of a sexual nature and will be to the judge’s discretion. The judge
will also need to consider what the witness has to say, the way the witness
presents the evidence, and the circumstances and issues raised by the case.
South African law follows that if there is another basis for considering that the
evidence is unreliable, then caution must be applied. Here evidence that can be
relied upon is where it relates to identification.
Section 60 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007 provides that a court must not approach evidence with
caution when there is the case of a single witness in criminal proceedings
involving an alleged sexual offence solely based on the nature of the offence.
When applying the above to the facts of the case, it can be seen that when
applying section 208 of CPA and section 60 of the Criminal Law Amendment Act,
the complainant’s evidence, being from a single witness, does hold value and is
enough to convict the perpetrator if the courts find it satisfactory and sufficient. As
seen in S v Jackson, the court cannot use caution in this case purely because it is
of a sexual nature. The court will need to consider other factors and also rely on
the complainant’s friend’s statement too to validate the complainant’s accusation.
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, Ashleigh Hala Student number 55612792 LEV3701
October/November 2021
The court will also need to consider the probative value of the evidence in order to
determine its admissibility.
1.2 The co-accused as a defence witness applies where X and Y are jointly
charged and thus co-accused. This means that X may testify in defence of Y and
vice versa. Both accused would be competent witnesses, as they both have the
mental capacity to testify, however, in terms of compellability, X may not be
compelled to testify in Y’s defence because X is also accused and vice versa.
The co-accused as a prosecution witness, results in the co-accused not being a
competent witness for the state to prove a case against him/herself because
he/she is also accused. There can be exceptions to this rule, whereby the state
can call someone who was previously a co-accused to testify. Section 157(2) of
the CPA also states that the court can order a separation of trials at any point to
ensure that one accused is no longer a co-accused in the case.
When applying the above facts to the issues of the case, the two young men
involved in the rape of the complainant will be co-accused and will therefore both
be competent defence witnesses, however they cannot be compelled to testify
against each other. The men would also not be competent prosecution witnesses,
as they are co-accused, unless the court ordered a separate trial resulting in them
no longer being co-accused.
1.3 The right to silence is now protected by section 35(1)(a) and 35(3)(h) of the
Constitution and can be described as the absence of a legal obligation to speak.
However, South African law seems to be divided upon the issue as to whether
silence at trial can be used as evidence to establish guilt beyond reasonable
doubt. The case of Thebus held that if evidence is required and no response is
given, then the court can be justified in concluding that the evidence is sufficient,
by way of the absence of an explanation, and prove that the accused is in fact
guilty. The case of S v Monyane and Others also provided that silence can be
used as an item of evidence to prove guilt, as was held by the SCA.
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