LAW OF EVIDENCE

BWR 320

SEMESTER TEST 1
 UNIT 1

COMPETENCE & COMPELLABILITY

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 UNIT 1: COMPETENCE & COMPELLABILITY

INTRODUCTION ...................................................................................................................................................................... 4
COMPETENCE, COMPELLABILITY & PRIVILEGE ......................................................................................................................... 4
PRIVILEGE AGAINST SELF-INCRIMINATION ............................................................................................................................... 5
ATTORNEY-CLIENT PRIVILEGE.......................................................................................................................................................... 5
GENERAL RULES ...................................................................................................................................................................... 5
GENERAL PRINCIPLES & PROCEDURAL MATTERS ..................................................................................................................... 6
RECALCITRANT WITNESS................................................................................................................................................................. 6
SECTION 189 (1) OF THE CPA .......................................................................................................................................................... 7
CHILDREN ............................................................................................................................................................................... 8
A CHILD’S CAPACITY TO GIVE EVIDENCE ......................................................................................................................................... 8
RULES APPLIED TO THE OATH OF CHILDREN WHEN TESTIFYING .................................................................................................... 8
TESTIFYING AGAINST THEIR PARENTS ............................................................................................................................................. 8
THE TEST FOR TRUSTWORTHINESS OF A CHILD .............................................................................................................................. 9
MENTALLY DISORDERED & INTOXICATED WITNESSES ............................................................................................................. 10
DEAF & SPEECHLESS PERSONS .............................................................................................................................................. 10
ACCUSED .............................................................................................................................................................................. 11
INCRIMINATION OF CO-ACCUSED ................................................................................................................................................. 11
ACCUSED BECOMING A STATE WITNESS ....................................................................................................................................... 11
CAUTIONARY RULE........................................................................................................................................................................ 12
SPOUSES .............................................................................................................................................................................. 13
WHO ARE SPOUSES....................................................................................................................................................................... 13
THE COMPETENCE & COMPELLABILITY OF A SPOUSE AS A WITNESS ........................................................................................... 13
CIVIL CASES ................................................................................................................................................................................... 15
CRIMINAL CASES ........................................................................................................................................................................... 15
WHEN CAN A SPOUSE BE COMPELLED TO TESTIFY (S195)? .......................................................................................................... 16
SPOUSES AS CO-ACCUSED ............................................................................................................................................................ 16
FORMER SPOUSES ........................................................................................................................................................................ 16
JUDICIAL OFFICERS ............................................................................................................................................................... 17
OFFICERS OF THE COURT ...................................................................................................................................................... 17
FOREIGN HEADS OF STATE & DIPLOMATS .............................................................................................................................. 18
MEMBERS OF PARLIAMENT .................................................................................................................................................. 18
PRESIDENT ........................................................................................................................................................................... 18
STUDY OUTCOMES ................................................................................................................................................................ 19

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 INTRODUCTION

❖ MOST PEOPLE ARE COMPETENT witnesses NOT ALL witnesses are COMPELLABLE

❖ Certain classes of witnesses are excluded from giving evidence

 These rules relate to the competence & compellability of witnesses

COMPETENT WITNESS COMPELLABLE WITNESS

A witness is QUALIFIED & ABLE to A witness is LAWFULLY OBLIGATED TO

LAWFULLY give evidence give evidence

A witness is ALLOWED TO & MAY GIVE

A witness MUST GIVE EVIDENCE
EVIDENCE

The Law allows a party to compel the

The law allows the party to testify
witness to testify

COMPETENCE, COMPELLABILITY & PRIVILEGE

A witness who wishes to A witness is competent if A witness is compellable if

COMPELLABILITY
COMPETENCE
PRIVILEGE

claim privilege is still he may lawfully give he is obliged to testify

required to enter the evidence A non-compellable witness
witness-box & then raise An incompetent witness has the right to refuse to
the privilege as the reason does not have capacity to testify at all
for not answering the testify
question

❖ A competent & compellable witness may not refuse to enter the witness box or to take oath Unless
he is specifically exonerated from doing so

PRIVILEGE AGAINST SELF-INCRIMINATION

❖ PRIVILEGE
ATTORNEY-CLIENT PRIVILEGE

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PRIVILEGE AGAINST SELF-INCRIMINATION

 The witness CAN ONLY CLAIM THIS RIGHT when question is posed

 Can only claim the right not to answer & assert privilege

Once
Enter Wait for the The right is
Sworn in question has
witness box question invoked
been asked

ATTORNEY-CLIENT PRIVILEGE

 May claim professional privilege when the question is posed

Attorney is sworn in, Once question has The attorney can On the ground of his
placed in witness box been asked then refuse to client's professional
& waits for question answer privilege

GENERAL RULES
The parties themselves CANNOT agree
to the admission of evidence by a
Every person is presumed In SA the PARTIES to a civil witness
competent & compellable to give suit are competent
evidence witnesses
If that witness is NOT competent
by virtue of any rule or law
UNLESS statute or common law can be compelled by
competent to testify
provides otherwise opponent to give
on his own behalf
evidence

∴ Competence & compellability is regulated In other words, the plaintiff

by statutory provisions can call the defendant as a
witness and vice versa

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CRIMINAL LAW

❖ Every person is competent & compellable to give evidence in criminal proceedings

S 192 of CPA 51 of 1977
 unless expressly excluded

CIVIL LAW
❖ Includes any inherited English law rule PRIOR to 30 May 1961

Every person is competent & compellable to give evidence in civil proceedings

S 8 of CPEA 25 OF 1965
 Unless excluded from doing so by the Act or any other law

❖
 unless expressly excluded
GENERAL PRINCIPLES & PROCEDURAL MATTERS

RECALCITRANT WITNESS

A RECALCITRANT WITNESS is A COMPETENT & COMPELLABLE WHO REFUSES

TO ATTEND PROCEEDINGS

• WITNESS
Criminal sanctions may be imposed if a witness refuses
to attend proceedings without just excuse

Criminal sanctions BECAUSE Any witness

deemed COMPETENT &
COMPELLABLE MUST
May be brought before court May be tried and attend the proceedings
on warrant of arrest punished for refusal

EXCEPTION

UNLESS the recalcitrant CAN PRESENT A JUST in terms of section 189(1)

witness EXCUSE FOR REFUSAL of the CPA

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 SECTION 189 (1) OF THE CPA

IF ANY PERSON AT CRIMINAL PROCEEDINGS IS REQUIRED TO GIVE EVIDENCE &

REFUSES TO BE SWORN OR TO MAKE AN AFFIRMATION AS A WITNESS

The court may in a summary manner

enquire into such refusal or failure
The purpose

TO allows the court to determine whether the person refusing or failing to

attend the proceedings has a just excuse for not attending

If witness DOES NOT PROVIDE A

SATISFACTORY EXCUSE THE COURT MAY
Sentence the witness to
imprisonment for a period
Sentence the witness to imprisonment for a period not exceeding 5 not exceeding 2 years
years where the criminal proceedings in question relate to offence
in Part III of Schedule 2

ATTORNEY-GENERAL, TRANSVAAL v KADER

 A just excuse can take the form of REFUSAL BECAUSE IT’S HUMANELY INTOLERABLE to give evidence
 In this case the court held that the determination of humanly intolerable action is a question of fact.
 FACTS 
• Respondent
 was detained in solitary confinement before he was called as a state witness & was interrogated
• It 
was so traumatic for him that he had to receive psychiatric treatment
• Herefused to testify as a state witness when he was called on the following grounds:

(1) He would be psychologically scarred for life

(2) He would be ostracised by his community

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 CHILDREN

A CHILD’S CAPACITY TO GIVE EVIDENCE

 There is no statutory provision governing a child’s capacity to give evidence

 In other words, there is NO statutory or common law prohibition against children giving evidence
 But the evidence of children is approached with caution

 Young children are allowed to testify, BUT in order to testify they must meet 3 REQUIREMENTS

Appreciate the duty of Have sufficient Can communicate

speaking the truth intelligence effectively

RULES APPLIED TO THE OATH OF CHILDREN WHEN TESTIFYING

 A child who is competent may be sworn in

 However, a child will only be sworn in once the court is satisfied the child understands the nature
& religious sanction of the oath

 WHAT IF THE CHILD IS UNABLE TO UNDERSTAND

The child may give evidence without taking the oath

But ONLY IF the court WARNS the child to

speak the truth

TESTIFYING AGAINST THEIR PARENTS

 GENERAL RULE  Children are competent & compellable to testify against their parents.

 However, in R v Zulu it was pointed out that it is in principle undesirable that children should be
compelled to do so

 The decision to call a child to testify rests in the DISCRETION OF THE PROSECUTOR.

The availability of other witnesses

 PROSECUTOR’S DECISION DEPENDS ON
The gravity of the offense the parent is accused of
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 THE TEST FOR TRUSTWORTHINESS OF A CHILD

The test for trustworthiness of a child was formulated & established in WOJI V SANTAM
FACTS OF THE CASE
 The Only eyewitnesses to car the accident were two children (10 years old)
 They testified at trial about the incident that happened when they were 5 years old
 Trial court dismissed the claim because the children’s testimony was not corroborated

APPEAL
 It is not a statutory requirement that a child's testimony has to be corroborated

LEGAL QUESTION
 Question trial court must ask itself is whether the young witness's testimony is trustworthy

This case states that the trustworthiness of a child depends on certain factors

THE CHILD'S TRUSTWORTHINESS DEPENDS ON

• THE CHILD’S POWER OF OBSERVATION = whether the child has the capacity to observe accurately

• THE CHILD’S POWER OF RECOLLECTION = whether the child is able to remember what happened

• THE CHILD’S POWER OF NARRATION = whether the child has the capacity to understand the questions &
to frame and express intelligent answers

❖ TO ASSESS TRUSTWORTHINESS the court should also take other factors into account
 Does the child appear to be honest

 Does the child have a consciousness of the duty to speak the truth?

 The nature of the evidence given by the child

S V HEROLDT
 Rape of 5 year old child
 The accused appealed against the conviction based on the competency of the child to testify
 The Magistrate used a competency test to determine whether the child could understand the difference
between truth and falsehood
 Court found that the competency test was age-appropriate 9|Page
 MENTALLY DISORDERED & INTOXICATED
WITNESSES

No one who appears to have a mental illness or who is clearly suffering from mental
brought on by intoxication, drugs, or similar circumstances and who is consequently
S 194 of the CPA
deprived of the proper use of reason is permitted to serve as a witness while suffering
from that illness or disability.

❖ A PERSON IS NOT A COMPETENT WITNESS IF

• MENTALLY ILL
• INTOXICATED
S v KATOO
• UNDER THE INFLUENCE OF DRUGS
• DEPRIVED OF PROPER USE OF REASON

• INTOXICATED PERSON  COMPETENT & COMPELLABLE ONCE SOBER

• MENTALLY ILL PERSON IS  A COMPETENT WITNESS IF NOT DEPRIVED OF USE OF REASON

DEAF & SPEECHLESS PERSONS

 Deaf & speechless persons are deemed competent & compellable IF they can communicate with
the court
 Communication takes the form of sign language

 The CPA states that in the case of deaf & speechless persons sign language QUALIFIES AS oral
evidence

 The person responsible for the interpretation of the sign language MUST ALSO BE SWORN IN

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 ACCUSED
The accused is The accused is not

COMPETENT

NOT COMPELLABLE
THE ACCUSED IN HIS competent to testify in compellable he can only
OWN TRAIL his own defence, whether be called as a witness on
or not charged jointly his own application & if
with another person he chooses to testify

INCRIMINATION OF CO-ACCUSED
※ An accused who chooses to testify may incriminate a co-accused when giving evidence on his own
behalf

※ Therefor an accused's competence is limited to giving testimony in his own defence

※ An accused who chooses to testify in his own defence may in process give testimony helpful to
co-accused

※ BUT because the accused testifies by his own choice, he cannot be compelled to give evidence
that is helpful to co-accused nor can he be compelled to give evidence for the state

ACCUSED BECOMING A STATE WITNESS

❖ An accused can become a witness for the state against his former co-accused by terminating his
status as an accused in the same proceedings as the co-accused

❖ Such a CHANGE OF STATUS CAN BE ACHIEVED in the following ways

1. If the charge against the accused is withdrawn NOLLE PROSEQUI

2. If the accused is found not guilty & discharged

3. If the accused pleads guilty and the trials of the accused and his co-accused are separated

4. If the trials of the accused and his co-accused are separated for another valid reason

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CAUTIONARY RULE

※ The cautionary rule is applied when an accused person, who was previously involved in the alleged
crime, becomes a witness for the state.
※ The purpose of the cautionary rule is to assist the court in deciding whether or not guilt was proven
beyond a reasonable doubt
※ The rule acknowledges that an accused who becomes a witness might have a vested interest in the
outcome of the case & could potentially provide unreliable or biased testimony.

※ CIRCUMSTANCES IN WHICH ACCUSED CAN BECOME STATE WITNESSES:

1. If charge against accused is withdrawn

 If the charges against an accused are withdrawn by the state  nolle prosequi
 Not the same as acquittal can be prosecuted again
 Section 204 of CPA provides protection for the witness if they testify honestly.

2. If found not guilty & discharged

 If an accused is found not guilty and discharged by the court, the state can stop the prosecution
under Section 6(b) of the CPA
 The accused may not be prosecuted again for the same offense
 However the accused may be called as a witness for state in the trial of co-accused

3. If accused pleads guilty & trials are separated

 Its Desirable that the accused should be convicted & sentenced before being called as witness
for state against former co-accused
 Otherwise the risk of evidence being falsified in the hope of passing greater portion of blame to
remaining accused or of receiving lighter sentence

4. Separated for another reason

 When the trials of co-accused are separated for reasons other than guilty pleas
 It's also advisable for the accused to be convicted & sentenced before becoming a state
witness.
 This approach minimizes the risk of evidence distortion to influence blame distribution or
sentencing outcomes

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 SPOUSES

WHO ARE SPOUSES

※ For the purpose of competence & compellability of spouse we 1ST determine who are spouses
※ In law of evidence a marriage includes:

 Marriages in terms of indigenous law & any system of religious law

 Civil unions ito The Civil Union Act

 Solemnized same-sex unions

THE COMPETENCE & COMPELLABILITY OF A SPOUSE AS A WITNESS

※ The position regarding the competence & compellability of a spouse to be called as a witness for or
against the other spouse depends on the nature of the proceedings

∴ competence & compellability of a spouse depends on the nature of the proceedings

THE NATURE OF THE PROCEEDINGS

CIVIL CASE CRIMINAL CASE

A WITNESS FOR THE ACCUSED A WITNESS FOR THE STATE

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 PROCEEDINGS

CIVIL CASE CRIMINAL CASE

competent & compellable competent & compellable

witness FOR THE OTHER witness AGAINST THE A SPOUSE AS A WITNESS
SPOUSE OTHER SPOUSE

WITNESS FOR THE ACCUSED WITNESS FOR THE STATE

spouse of an accused spouse of an accused

testify for the accused testify for the co-accused is a competent cannot be compelled
witness to testify

spouses can be
spouses need to spouses need to spouses need to spouses not requird compelled where the
be competent be compellable be competent to be compellable accused is charged with

sexual offences offences against offences under Perjury/ false

Breach of MPA Bigamy Incest Abduction
under SOA spouse/children CCA affidavit
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CIVIL CASES
※ The spouse is a competent & compellable witness FOR & AGAINST THE OTHER SPOUSE
※ Spouses may claim the protection of marital privilege [section 198]

 Even though the opposing party may compel the spouse to take the witness box
the witness can claim marital privilege & refuse to disclose communication
made between them during the course of their marriage

 This applies even if the marriage was dissolved or annulled after the communication
took place

CRIMINAL CASES

※ A SPOUSE AS A WITNESS FOR THE ACCUSED

FOR THE STATE

※ A SPOUSE AS A WITNESS FOR THE ACCUSED

 A spouse is a competent witness for the accused whether or not the accused is charged
jointly with another person

 If the spouse is called to testify for the accused such spouses need to be both competent &
compellable

 If a spouse is called to testify for the co-accused such a spouse is competent but not
compellable

※ A SPOUSE AS A WITNESS FOR THE STATE

 The spouse of an accused is a competent witness for the state, but as a rule she cannot
be compelled to testify

The rule of non-compellability is based on the principle that the marital

relationship between the accused & spouse should be protected.
WHEN CAN A SPOUSE BE COMPELLED TO TESTIFY (S195)?

 Spouses of the accused cannot be forced to testify against each other unless the accused is
charged with any of the following crimes

 Offence against a spouse or their children

 Certain offences under Child Care Act
 Breach of the Maintenance Act In the crimes listed here the rule of non-
 Bigamy
compellability principle loses its validity because
 Incest
these crimes are directed against the spouse, their
 Abduction
children or such crimes affect the marriage.
 Sexual offences under Sexual Offenses Act
 Perjury or making a false affidavit

SPOUSES AS CO-ACCUSED
※ Where spouses are charged jointly as co-accused neither of them can be called as a witness
for the state
∴ Neither of them can be compelled to testify for the State

※ If either of them testifies in his or her own behalf & incriminates the other party
 such evidence & testimony will be admissible
 even though that spouse cannot be compelled to testify for the state

The former spouse is only competent & compellable if called

by the accused to testify on his behalf
FORMER SPOUSES

S V TAYLOR

 The court decided that the words wife or husband include the former spouse of an accused
if she is required to testify to events which occurred STANTE MATRIMONIO

 If the former spouse is called as a witness by the state she is competent to testify about
these events, but not compellable

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 JUDICIAL OFFICERS

❖ Judges are NOT COMPETENT to give evidence in case over which they preside or presided

❖ If judge has knowledge of fact in dispute:

 Must recuse herself

 After recusal can be called as witness

OFFICERS OF THE COURT

 ATTORNEYS

 ADVOCATES THEY ARE ALL COMPETENT & COMPELLABLE WITNESSES

 PROSECUTORS

 Even though they are deemed competent & compellable it is extremely undesirable for them to
testify in cases wherein they are professionally involved

 Can assert legal professional privilege with regards to communications with clients

 TESTIFYING IN CASES WHERE THEY ARE PROFESSIONALLY INVOLVED

 Compromises their independence

 Puts their credibility at stake

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 FOREIGN HEADS OF STATE & DIPLOMATS

❖ Foreign heads of state & diplomats are IMMUNE FROM CIVIL & CRIMINAL JURISDICTION OF
SA COURTS

THUS, THEY ARE NOT COMPELLABLE AS WITNESSES

MEMBERS OF PARLIAMENT

❖ Pending accomplishment of their business in parliament, members of parliament CANNOT BE

COMPELLED TO ATTEND COURT AS Witness or defendant in civil proceedings

Witness in criminal proceedings

❖ Also applies to members of National Council of Provinces

PRESIDENT

※ President of RSA v SARFU

 President is competent & compellable
 Ordering a compelling President to testify should only be issued in exceptional circumstances
 Factors to be taken into account:

Special dignity Importance of

President’s
& status of president’s
busy schedule
President work

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 STUDY OUTCOMES

(a) Define & explain what is meant by the concept’s competence & compellability
o Competence refers to a person's ability to lawfully give evidence
o Compellability refers to a person's legal obligation to give evidence

(b) Explain with examples that competent & compellable witnesses may not refuse to enter
the witness box to take the oath or affirmation
o A competent & compellable witness cannot refuse to enter witness box or take oath/affirmation.
o For instance, if a witness wishes to rely on the privilege against self-incrimination, they must
enter the witness box, be sworn, and only then can they assert their right not to answer
based on privilege

(c) Explain the general procedural matters relating to the compellability of recalcitrant
witnesses, including the meaning of just excuse as expounded in Attorney-General,
Transvaal v Kader
o A recalcitrant witness is a competent & compellable witness who refuses to attend
proceedings.
o Section 189(1) of the Criminal Procedure Act allows the court to inquire into the refusal &
impose punishment if there's no just excuse
o Just excuse can extend beyond lawful excuses & may also include situations where it's
humanly intolerable to give evidence as illustrated in the case of Attorney-General, Transvaal
v Kader.
(d) Explain & apply the general rule with regard to the competence and compellability of
witnesses
o The general rule is that everyone is presumed to be both competent & compellable to give
evidence unless statutory provisions or specific laws regulate otherwise.
o In South Africa, parties to a civil suit are regarded as competent witnesses & can testify on
their own behalf or be compelled to testify on behalf of their opponent.
o The court must decide questions of competence & compellability & the examination can be
done through a trial within a trial or based on the court's observations.

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(e) Explain in detail and apply to a set of facts the competence and compellability of the
following categories of witnesses:

1. Children:

• Children can testify if they appreciate the duty of speaking truth, have sufficient intelligence,
and can communicate effectively.

• They can be sworn in if they understand the oath's nature & religious sanction, or they can
give evidence without taking the oath after admonishment.

• Competent & compellable to testify against their parents, but compelling them is discretionary

2. Mentally Disordered & Intoxicated Persons:

• A person with mental illness or intoxicated is not competent while afflicted.

• Intoxicated individuals regain competence when sober

• The court can investigate mental disorder concerns through a trial within a trial or its observations

3. Deaf & Speechless Persons:

• Competent & compellable if they can communicate with the court.

• Gesture-language is included in oral evidence for deaf and speechless persons.

5. Judges & magistrates

• Not competent to testify in cases they preside or have presided over.
• They recuse themselves if they have personal knowledge of a disputed fact.

6. Spouses:
• Competence & compellability depend on the nature of proceedings.
• In civil cases, spouses can be witnesses for or against each other.
• In criminal cases, a spouse can testify for defense and is competent but not compellable for the
prosecution, except for specific crimes involving them.

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 7. Accused Persons:
• Accused can testify in their own defense at any stage of criminal proceedings.
• Accused can't be compelled but can apply to be witnesses.
• An accused who has given evidence may be recalled by the court.

8. Accused and Co-Accused:

• Accused can give evidence favorable to co-accused voluntarily.
• An accused cannot be compelled to give evidence for co-accused.
• The accused's competence is restricted to their own defense.
• To become a prosecution witness, the accused must change their status by withdrawal of
charges, not guilty discharge, or separate trials.

9. Officers of the Court:

• Attorneys, advocates, & prosecutors are competent witnesses in cases they're involved in
• But it's generally undesirable for them to testify.

10. Heads of State and Diplomats:

• The President is competent & compellable, but compelling is exceptional due to the status of
the office.
• Foreign heads of state & diplomatic agents have immunity from SA courts' jurisdiction.

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