- S V M 2018 (2) SACR 573 (SCA)
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?”