Durban - Criticising a Verulam magistrate’s shoddy procedure in swearing in a child victim in a sexual assault case, the Supreme Court of Appeal has overturned the 10-year sentence and conviction of a KwaZulu-Natal man.
In a judgment last week, Judge Zukisa Tshiqi, with two judges concurring, said the magistrate had not asked proper questions when she administered the oath to a 14-year-old boy who was testifying in the case against Geallal Raghubar.
Raghubar took the matter to the Supreme Court of Appeal after he had lost his appeal in the Pietermaritzburg Appeal Court.
The judge said the magistrate had only asked “elementary questions” about the boy’s name, age and level of education to determine whether he was competent to testify.
She also said the magistrate’s leading question about the oath centred on whether or not the boy believed in God and that he would be punished if he lied.
“The question (about God) is not helpful. It was impossible to gather from it whether the complainant understood what it means to speak the truth and to take the oath.”
The magistrate’s question was: “And do you believe that if you promised God to speak the truth about something… that if you went on and spoke lies, getting somebody in big trouble, do you believe that God would know and would punish you for doing that?”
She said the boy’s evidence could not be relied on because the magistrate had not carried out the correct enquiry to ensure that he had understood the oath and the conviction could not stand.
Judge Tshiqi added that even if the oath had been handled correctly, the magistrate had not exercised caution when he dealt with the evidence of the boy, who was six when the incidents allegedly occurred, and the only witness.
“There were contradictions in the boy’s evidence and, while he spoke of several incidents of assault, the charge sheet referred to only one.
“It appears that the court merely paid lip service to the cautionary rule because it ignored several contradictions in the State’s case.”
Childline’s KZN director Linda Naidoo said the case was a sad indictment on the criminal justice system.
“There are so many challenges and a long process to even get a child prepared for court, so it is disappointing when this happens at the trial,” she said.
Naidoo said that there was adequate training for magistrates dealing with sexual assault cases against children.
“It is extremely difficult for children to testify about sexual assault and to meet the requirements of the criminal justice system because a shadow of doubt could mean no conviction.
“There are very competent magistrates who know how to properly deal with these cases and they should be better utilised so that children are treated fairly,” she said. - The Mercury