What is the principle of orality
This principle entails that evindce should be given orally And the opposition has the right to confront the witness and question their eveince by way of cross examination - side: persons under 18 can give witness by means of gestures or any non verbal expressions - and can give evidence through an interpreter that needs ru be sworn in
What is the general rule for oral evidence
In both civil and criminal cases both parties need to give witness by Oral evidence
What are the consequences of lying under oath?
Can be charged with perjury
What section deals with the form of oath
Section 162
Oaths and affirmations
Must be done by the presiding officer or registrar If person is not religious they can take an affirmation to tell the truth
When can a person not take an oath and what Is done as a replacement?
If a person does not understand the importance of a oath such as a child or does not have the mental capacity to understand They may be admonished to speak the truthIt has the same legal effect and consequences of an oath
Section 179(1)CPA ⭐️
1. When a criminal case is pending 2. And the witness is under the BIOLOGICAL or MENTAL age of 18 3. And it has evident that the questioning would cause undue stress or suffering to the person 4. The court may make use of an intermediary so that the witness can give evidence through them
Section 170A(2)(a) intermediaries with children
1. When the court makes use an intermediary Non of the parties may directly question the witness Thus no cross examinations etc Only the court can question the witness without the intermediary
Section 170A(2)(b)
The intermediary is not required to relay the question verbatim unless instructed to by the court Or the opposing party objects
What is the role of an intermediary with a child witness
1. The intermediary is not initiate a line of questioning, only relay the question to the witness 2. Am intermediary is a court official, and usually is a social worker or a psychologist 3. They are required to be unbiased
Section 170A(3) of CPA
Place of questioning with an intermediary 1. Must be an informal setting to put the witness at ease 2. Anyone that could potentially upset or cause stress to the witness Must be out of sight and hearing of the witness 3. The court and parties should be an,e to see and hear the witness directly or through electronic devices
Section 158(2)(a) ⭐️of CPA
The court can decide Or a prosecutor can apply 2. It have the witness or the accused give evidence by means of CCTV 3. provided they receive consent
Section 158(3)
Section 158(2)(a) can apply provide that the following factors are met and the required facilities are readily available 1. It would prevent unreasonable delay 2. save costs3. Convenient 4. In the interest of public safety or the interest of justice 5. Or prevent the likelihood of harm against the person that testifying
S v DImingo
Not all the consideration of section 158(3) have to be met for it to be applied
What is evidence on commission and when can it be used? Section 171(1)(a)
Evidence on commission is when the witness is question in another court and recorded for the purposes of the trail because the witness is unable to be at the trail physically It is used when 1. Criminal case is pending 2. And it is in the interest if justice that th witness testify3. But the witness cannot attend with causing great inconvenience or unnecessary delay 4. The witness is resident in South Africa the state of the accused can then make an application to have evidence on commission
Commission on evidence procedure
1. Application must be granted 2. Court must issue a commission to the magistrate in the area of the witness 3. Magistrate summons the witness to their court 4. Witness takes the oath 5. Questioning takes place 6. Evidence is recorded read back to witness and signed by magistrate 7. Once signed it is returned to the court that gave the commission 8. Parties have the right to inspect the recorded evidence
Interrogation
Similar to commission in both procedure and underlying principles• Parties compile list of questions; court may add questions of own• Interrogatories sent to court in witness's jurisdiction• Court summons witness and puts questions to witness and recordsanswers• Record returned to court that issued interrogatories and read asevidence at trial and forms part of evidential material[Rule 38(5) of Uniform Rules of Court and s 39 of Superior Courts Act 10 of 2013 [High Court] and s 52 of Magistrate's Court Act 32 of 1944 [Magistrate's Court]]