COMPETENCE AND COMPELLABILITY
GENERAL
General rule for both
All witnesses are presumed competent and compellable in civil and criminal cases
- S192 CPA every person is competent and compellable to give evidence
unless excluded (Crim)
- S8 CiPEA every person is competent and compellable to give evidence
unless excluded (Civ)
Competence v compellability
- Competence the witness is lawfully qualified and able to give evidence.
- Compellable the witness is lawfully obliged to give evidence.
Competence and compellability with privilege
- A C&C witness may not refuse to enter the witness box but they can
claim privilege when the question is posed.
GENERAL PRINCIPLES
Refusal of a witness to attend proceedings
A C&C witness must attend proceedings
- Recalcitrant witness C&C witness who refuses to attend proceedings.
S189(1) CPA the court may enquire into the refusal
- The court must determine whether the person has a just excuse.
, o If the excuse is not satisfactory 2yrs or 5yrs prison (depending on
the offence).
Just excuse lawful excuses and humanly intolerable
- Kader the determination of humanly intolerable is a question of fact
o K was psychologically scarred.
o Testifying would cause him to be ostracized from his community.
- Nel v Le Roux a witness is not compelled if it is in conflict with his
constitutional rights
o Parties cannot consent to the admission of evidence from a witness
who is not C&C.
o The court must decide whether a witness is C&C by their testimony
or their observations.
WITNESSES EXCLUDED FROM GIVING EVIDENCE
Children
Not prohibited by common law / statute but approached with caution
- The prosecutor’s discretion to allow child witnesses depends on
o Availability of other witnesses.
o Seriousness of offence with which parent is charged.
Very young child can testify if:
- Appreciate the duty to tell the truth.
- Have sufficient intelligence.
- Can communicate effectively.
, Oath / affirmation for children
- Can be sworn in if the child understands the nature and religious sanctity
of the oath
o If not court must caution the child to speak the truth.
Woji v Santam Test for trustworthiness
- No requirement that a child’s testimony needs to be corroborated rather
an enquiry is needed into the child’s trustworthiness.
- Trustworthiness depends on
o Power of observation capacity of child to observe.
o Power of recollection capacity of child to remember.
o Power of narration capacity of child to understand and answer
questions.
Other factors for trustworthiness S v Herholdt
- Competency test can child understand the difference between a truth
and a lie.
Testifying against parents
- General rule children are C&C to testify against parents
o R v Zulu undesirable for children to be compelled.
Mentally disordered and intoxicated witness
S194 CPA
- Intoxicated person will only become C&C when sober.
GENERAL
General rule for both
All witnesses are presumed competent and compellable in civil and criminal cases
- S192 CPA every person is competent and compellable to give evidence
unless excluded (Crim)
- S8 CiPEA every person is competent and compellable to give evidence
unless excluded (Civ)
Competence v compellability
- Competence the witness is lawfully qualified and able to give evidence.
- Compellable the witness is lawfully obliged to give evidence.
Competence and compellability with privilege
- A C&C witness may not refuse to enter the witness box but they can
claim privilege when the question is posed.
GENERAL PRINCIPLES
Refusal of a witness to attend proceedings
A C&C witness must attend proceedings
- Recalcitrant witness C&C witness who refuses to attend proceedings.
S189(1) CPA the court may enquire into the refusal
- The court must determine whether the person has a just excuse.
, o If the excuse is not satisfactory 2yrs or 5yrs prison (depending on
the offence).
Just excuse lawful excuses and humanly intolerable
- Kader the determination of humanly intolerable is a question of fact
o K was psychologically scarred.
o Testifying would cause him to be ostracized from his community.
- Nel v Le Roux a witness is not compelled if it is in conflict with his
constitutional rights
o Parties cannot consent to the admission of evidence from a witness
who is not C&C.
o The court must decide whether a witness is C&C by their testimony
or their observations.
WITNESSES EXCLUDED FROM GIVING EVIDENCE
Children
Not prohibited by common law / statute but approached with caution
- The prosecutor’s discretion to allow child witnesses depends on
o Availability of other witnesses.
o Seriousness of offence with which parent is charged.
Very young child can testify if:
- Appreciate the duty to tell the truth.
- Have sufficient intelligence.
- Can communicate effectively.
, Oath / affirmation for children
- Can be sworn in if the child understands the nature and religious sanctity
of the oath
o If not court must caution the child to speak the truth.
Woji v Santam Test for trustworthiness
- No requirement that a child’s testimony needs to be corroborated rather
an enquiry is needed into the child’s trustworthiness.
- Trustworthiness depends on
o Power of observation capacity of child to observe.
o Power of recollection capacity of child to remember.
o Power of narration capacity of child to understand and answer
questions.
Other factors for trustworthiness S v Herholdt
- Competency test can child understand the difference between a truth
and a lie.
Testifying against parents
- General rule children are C&C to testify against parents
o R v Zulu undesirable for children to be compelled.
Mentally disordered and intoxicated witness
S194 CPA
- Intoxicated person will only become C&C when sober.
