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IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO.: CC201/05

In the matter between:

THE STATE

AND

NGAMOLA RAPHAEL KASEBEDILE

MMABATHO

TLHAPI AJ

REASONS

TLHAPI AJ:

[1] The accused was charged with the rape of a six year old and appeared before the Regional Magistrate at Kudumane. He was convicted of rape on the 30^th June 2005 and was referred for sentence to this Court in terms of Section 52 of the Criminal Law Amendment Act 107 of 1997.

The State as well as the Defence submitted that the proceedings were not in accordance with justice as a result of the procedures to be followed in the appointment of an intermediary and I agreed with them. The conviction was set aside, to be followed by my reasons enunciated below.

[2] It became apparent when the complainant was about to testify that she could not talk or was afraid and the Court granted an application for the use of an intermediary. Apart from these observations nothing formal was placed before the court for consideration. The prosecutor was also uncertain as to whether systems were in place for the court to make use of intermediaries and the matter was adjourned to a further date.

[3] When the complainant testified on the 28^th August 2003 the following irregularities occurred:

3.1 There is indication on reading the record that the court made use of an intermediary and there was no objection from the legal representative of the accused;

3.2 No further details as to the name, the qualifications, the duration of service in the profession or that the oath was taken or an affirmation of the intermediary appears from the record.

[4] In S v Booi 2005 (1) SACR 599 (BD) the following was laid down:

4.1 Sufficient facts had to be placed before the court upon which it would be in a position to decide that the witness would be exposed to “undue mental stress or suffering” if testimony was heard without the assistance of an intermediary;

4.2 The fact that the witness was a young victim or where the accused’s legal representative had indicated that there was no objection to the use of an intermediary did not amount to sufficient factors being placed before the court to consider such application. The court had a responsibility to ensure that sufficient facts were placed before it to allow meaningful consideration of the application;

4.3 The court has to fulfil the requirements for the appointment of an intermediary as laid down by section 170A of the Criminal Procedure Act 51 of 1977. The record had to reflect that an application was made, the name of the intermediary; the profession or qualification of the intermediary; the period served in such class or category as established by the Minister; the fact that the oath or affirmation was administered before testimony was led. Further the record should reflect that the intermediary undertook to convey correctly to the court information communicated to her by the witness before evidence is led.

4.4 The appointment of an intermediary does not constitute a once off appointment to be used in every other case where such services are required. Every application has to be considered afresh.

[5] As already indicated the record does not reflect that the above requirements were observed by the court. It was held in the Booi case, supra, that the accused was not given a fair trial and the conviction was set aside and a trial de novo ordered

[6] The conviction is therefore set aside and a trial de novo before a differently constituted court is ordered.

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V V TLHAPI

ACTING JUDGE OF THE HIGH COURT

DATED : 4 OCTOBER 2005

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