Study unit 3:
Witnesses
Study outcomes
After completion of this study section you should be able to:
• know the rules pertaining to the competence and
compellability of the different types of witness and be able
to apply these on factual settings;
• be able to explain under which circumstances a party can be
compelled to supply evidentiary material; and
• be able to discuss how consultation with witness are
regulated and be able to distinguish between civil and
criminal proceedings in this regard.
Introduction
• general rule
• every person is presumed to be competent and
compellable
• procedural aspects
• cannot consent to the admission of the evidence of an
incompetent witness
• dispute regarding competence and compellability
• trial within a trial
• own observations
Introduction
• competent and compellable witness who refuses to attend
proceedings ?
• warrant of arrest
• witness who refuse to attend of to testify ?
• trial and sentence
Types of witnesses
a) Children
b) Mentally disordered persons
c) Deaf and speechless persons
d) The accused
e) The accused and the co-accused
f) Spouses
g) Husband an wife as co-accused
h) Other persons
a) Children
• testify on condition
• duty to speak the truth;
• sufficiently intelligence; and
• communicate efficiently
• oath, affirmation or warning ?
• competent and compellable to testify against parents ?
• R v Zulu
• cautionary rule
(b) Mentally disordered persons
• section 194 CPA
• incompetent
• mental illness or labouring under any imbecility of mind
• certain level of incapacity or simple mindedness
• affected but is still able to properly communicate his version to
• conduct give impression of incapacity
• trial within a trial
• own observations
• S v Zenzile
• do not understand simple questions
c) Deaf and speechless persons
• competent and compellable
• communicate properly
• evidence may be heard about a deaf mute person’s ability to
communicate properly
• s 161 (2) CPA
• oral evidence includes sign language
d) The accused
• competent and not compellable
• may testify in own defence
• cannot be called as a witness
• accused who testifies
• may be recalled
• section 167 CPA
e) The accused and the co- accused
• testify in his own defence
• co-accused
• force another accused ?
• prosecution can't call the accused
• accused status change
• charge against accused is withdrawn (section 204 CPA)
• accused is found not guilty and acquitted
• trials is separated
• cautionary rule
f) Spouses
Civil
• competent
• compellable
Criminal
• spouse testifies for defence
• section 196 CPA
• competent and compellable
• co-accused ?
f) Spouses
• spouse testifies for prosecution:
• section 195 CPA
• competent but not compellable
• crimes competent and compellable
• children, maintenance matters, certain sexual offences
non compellability based on the marriage relationship
• loses its validity
• spouse compellable
g) Husband and wife as co-accused
• rules regarding 'accused and the co- accused'
• competent for prosecution ?
• testifies in own defence
• may incriminate other party
• evidence admissible
h) Judicial officers
• presiding officer not competent to testify
• in case over which he/she is presiding;
• personal knowledge of fact in issue
• after recusing ?
• summons only with leave of the High Court
• legal representative competent ?
i) Members of the National Assembly and
National Council of Provinces
• competent and compellable
• only compellable after completion of duties in Parliament
j) State President
• competent and compellable
• only compellable under highly exceptional circumstances
k) Heads of state and Diplomats
• immunity
• compellable ?
The obligation to supply evidentiary material
Statutory provisions
• obligated to supply evidentiary material
• section 37 CPA
• blood sample
Inherent competency
• blood tests in litigation
• drunk driving cases
The obligation to supply evidentiary material
• paternity disputes
• Seetal v Pravitha
• Nell v Nell
Anton Piller order
• if a person is in possession of evidentiary material, and
• the danger exists
• an application for an Anton Piller order can be brought
before the court
Consultations with witnesses
• freely consult with witnesses
Civil
• proceedings have not started
• no limitations
• proceedings have commenced
• differentiate between case where
• witness has not yet testified
• witness has already testified
Consultations with witnesses
Criminal
• Shabalala case
Preparation
Study unit 4
Documentary evidence
Textbook: Chapter 20
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