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- S V M 2018 (2) SACR 573 (SCA)

Relevant legislation
Section 194 of the Criminal Procedure Act 51 of 1977 (“the CPA”) provides as follows:

“194. Incompetency due to state of mind

No person appearing or proved to be afflicted with mental illness or to be labouring under any imbecility of mind due to intoxication or drugs or the like, and who is thereby deprived of the proper use of his reason, shall be competent to give evidence while so afflicted or disabled.”

Section 164 of the CPA provides as follows:

“164. When unsworn or unaffirmed evidence admissible

(1) Any person, who is found not to understand the nature and import of the oath or the affirmation, may be admitted to give evidence in criminal proceedings without taking the oath or making the affirmation: Provided that such person shall, in lieu of the oath or affirmation, be admonished by the presiding judge or judicial officer to speak the truth.

(2) If such person wilfully and falsely states anything which, if sworn, would have amounted to the offence of perjury or any statutory offence punishable as perjury, he shall be deemed to have committed that offence, and shall, upon conviction, be liable to such punishment as is by law provided as a punishment for that offence.”

The accused was convicted of rape in contravention of section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 before the regional court in Mount Frere* in the Eastern Cape (“the trial court”). He was sentenced to life incarceration.

The appeal to the High Court in Mthatha by the accused was unsuccessful whereupon both his conviction and sentence were confirmed.

Upon further appeal by the accused to a full bench of five judges before the Supreme Court of Appeal in Bloemfontein (“the SCA”), the evidence as presented before the trial court, was analysed.

From this analysis it appeared that the complainant (a 28-year-old female) and the accused are relatives; the latter was, at the time, married to the complainant’s maternal aunt*; the complainant resided with the accused and his wife at Cwalinkungu in Mount Frere; it was common cause that on a number of occasions during 2015 the accused and complainant had sexual intercourse; and that, according to the accused, there was a love relationship between himself and the complainant and that the latter had consented to sexual intercourse with him.

It further appeared that after the accused had pleaded not guilty to the charge, the public prosecutor called the complainant as the first witness for the State.

When the complainant took the witness box, the prosecutor addressed the trial court as follows:

“Your Worship, there is something that I have just missed regarding the complainant. When I consulted with her, Your Worship, I found that she is not ‘mentally stable’, to a certain extent, Your Worship. May I apply, Your Worship, to also insert same on the charge-sheet, Your Worship?”


[This is an extract of the discussion of this court case that is published in Servamus: October 2020. If you are interested in reading the rest of the discussion, contact Servamus’s offices by sending an e-mail to: This email address is being protected from spambots. You need JavaScript enabled to view it. or phoning (012) 345 4660. Ed.]

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Servamus - October 2020

In the early morning hours of 2 June 2019, Bernard Groenewald, a truck driver, pulled over along the N1 near Touws River in the Western Cape, when a petrol bomb was thrown into his truck. As he tried to jump out of his truck to escape, he broke his ankle and was unable to flee the scene.
By Kotie Geldenhuys
On 6 September 2020, the SAPS commemorated the lives of 40 police officials who had paid the highest price during the period 1 April 2019 to 31 March 2020.
By Annalise Kempen
The untimely death of Suna Venter, an SABC journalist, in June 2017, is confirmation that threat assessment and management in the workplace is essential.
By Kotie Geldenhuys
We are all familiar with the term “bullying” and all too often images of learners who are bullied by teasing, isolation and physical assaults, come to mind.
By Kotie Geldenhuys

Pollex - October 2020

Read More - Pretorius and Others v Minister of Justice and Correctional Services and Others 2018 (2) SACR 501 (GP)
Three applicants, who are all members of the same family, were involved in this application before the High Court in Pretoria.
Read More - S V M 2018 (2) SACR 573 (SCA)
Relevant legislation Section 194 of the Criminal Procedure Act 51 of 1977 (“the CPA”) provides as follows:
Read More - Rautenbach v Minister of Safety and Security (nowadays called the Minister of Police) 2017 (2) SACR 610 (WCC)
Introduction Mr Rautenbach instituted civil action for damages in the sum of R346 750 against the Minister of Police before the High Court in Cape Town arising from Mr Rautenbach’s alleged unlawful arrest and detention at the local police station in Mossel Bay*.
Read More - S V Kruse 2018 (2) SACR 644 (WCC)
Mr Kruse, the accused, is deaf and mute (Afrikaans: “doofstom”).

Letters - October 2020

Congratulations to the subscribers who won the following books in this year’s book competitions:
It is with deep regret and much sadness that I learnt of the passing of W/O Herman de Bruin on 7 September 2020.
October Magazine Cover

Servamus' Mission

Servamus is a community-based safety and security magazine for both members of the community as well as safety and security practitioners with the aim of increasing knowledge and sharing information, dedicated to improving their expertise, professionalism and service delivery standards. It promotes sound crime management practices, freedom of speech, education, training, information sharing and a networking platform.