The North West High Court in Mahikeng has overturned a life imprisonment sentence for rape after finding that the trial court failed to properly establish whether a 16-year-old complainant understood the difference between truth and lies before taking her testimony.
In the judgment, Judge President R.D. Hendricks upheld the appeal by Thato Ngake (“Ngake”), who had been convicted alongside co-accused in the Klerksdorp Regional Court on charges of rape. The conviction carried additional orders declaring Ngake unfit to possess firearms and requiring his registration as a sex offender.
The appeal centered on a fundamental procedural failure during the original trial. When the 16-year-old complainant was called to testify, the Regional Magistrate conducted what the High Court deemed an inadequate inquiry under section 164 of the Criminal Procedure Act (“CPA”).1
The court record reveals that when asked if she understood “the meaning and import of an oath,” the complainant clearly responded: “No I do not know.” Despite this admission, the magistrate proceeded with only superficial questions before admonishing her to tell the truth.
Section 164 of the CPA requires that before a witness can give unsworn evidence, the court must be satisfied that the person understands what it means to speak the truth and the implications of lying. The High Court found this standard was not met.
“The enquiry should not be superficial when determining whether the witness has sufficient intelligence to appreciate the distinction between right and wrong, truth and falsehood, and to recognise the implications of saying what is not true,” the judgment states.
The court emphasised that the magistrate failed to properly ascertain whether the complainant understood the difference between truth and lies, instead relying on her simple affirmative responses without deeper investigation.
The judgment referenced comprehensive guidance from the Constitutional Court in Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development,2 which established that knowledge of what it means to tell the truth is “in fact a pre-condition for admonishing a child to tell the truth.” The Constitutional Court had warned that admitting evidence from a child who does not understand truth-telling would undermine the accused’s right to a fair trial and create too great a risk of conviction based on unreliable evidence.
Judge President Hendricks ruled that testimony from a witness who has not been properly sworn, affirmed, or admonished “lacks the status and character of evidence and is inadmissible.” This finding effectively removed the complainant’s evidence from consideration entirely.
With the complainant’s testimony excluded, the High Court analysed the remaining evidence and found it insufficient to sustain the conviction. The evidence included testimony from the complainant’s mother, police officers who made arrests and collected DNA samples, and a first report witness. Significantly, DNA testing of samples from both the appellant and complainant proved negative for the presence of the appellant’s semen.
“It is quite apparent that the guilt of the appellant as an accused person was not proved beyond reasonable doubt,” Judge President Hendricks concluded. “In the absence thereof, the accused is entitled to his acquittal.” The court noted that while appeal courts typically defer to trial court factual findings, the failure to properly admonish the complainant constituted “a fatal misdirection” that alone warranted overturning the conviction.
The High Court’s order was comprehensive, overturning not only the conviction and life sentence but also the ancillary orders regarding firearm possession and sex offender registration. Most significantly, the court ordered Ngake’s immediate release from custody.
You can read the full Ngake v S appeal judgement here.
Written by Theo Tembo
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