A magistrate’s failure to ensure that a witness understood what it meant to take the prescribed oath has resulted in an Atlantis man’s rape conviction and 16-year sentence being set aside.
Lance Bessick was tried in the Atlantis regional court for the rape of a 14-year-old girl, after allegedly spiking her cooldrink, and later intimidating her to prevent her from telling anyone.
He was convicted in July 2009.
However, he took the case to the Western Cape High Court and his appeal was heard by a full Bench.
In a judgment handed down on Tuesday, Judge Robert Henney said the case against Bessick was largely based on the evidence of the complainant, who was 15 when she testified.
Before testifying, the magistrate had asked her whether she understood the meaning of the words “oath” and “affirmation”.
She didn’t and this prompted the magistrate to, on an informal basis, hold an enquiry to establish whether the complainant understood the difference between the truth and a lie.
The magistrate found that she understood the importance of telling the truth but ruled that she did not know the meaning of the words “oath” and “affirmation”, and therefore could not take the prescribed oath.
Instead, the magistrate permitted her to give unsworn evidence in terms of Section 164 of the Criminal Procedure Act.
The complainant’s testimony was the only direct evidence on the merits of the case.
The question before the judges in the appeal was whether the complainant’s evidence, which was not given under oath, was admissible.
Judge Henney did not agree with the method adopted by the magistrate. He said that when a witness indicated that he or she did not understand the word “oath”, there were certain steps to take. First, a presiding officer should ensure that the witness did not understand the nature and meaning of the oath or affirmation. This meant explaining the meaning of the oath, especially to a young witness, in a clear and simple manner.
It was not enough to simply ask if the complainant understood the words “oath” and “affirmation”.
“Unsophisticated and young, inexperienced witnesses, with a lack of education and a limited vocabulary, would often not know the meaning of a specific word or words. But if the meaning of a word or concept is explained, they may understand it.
“This is where the role of a presiding officer, especially in a criminal trial where young children often testify, is important,” he said.
He found that the complainant’s evidence was inadmissible and set aside the conviction and sentence.
Judge Anton Veldhuizen and Acting Judge Joey Moses agreed.