Most parents might be asking themselves a few questions about a minor child having to appear at court as a witness and if a minor can appear as a witness what the legal position is.
It important to know what a minor child is. A minor is a child under the age of 18. He/ she lacks full legal capacity and cannot litigate or enter into a contract without the assistance of a guardian.
What is expected from a minor child in court?
The Common Law provides that every child may testify provided that:
- The child can appreciate the duty to speak the truth;
- The child has sufficient intelligence to understand the proceedings;
- The child can communicate effectively enough to understand his/ her testimony;
A child’s evidence must be approached with caution and the court must be satisfied regarding the competence of the child to give evidence. Like all other witnesses’ children must be sworn in before they testify.
What happens if a child is unable to understand the nature of the proceedings?
If the child is unable to understand what it is to take the oath the court is allowed to admonish the in terms of Section 164(1) of the Criminal Procedure Act. This means that the court will make a formal statement to caution the child about his/ her testimony and to make sure that the minor child fully understands the oath. The Judge or Magistrate interviews the child to establish if he/she is competent to give evidence. This generally takes place in Judges’ chambers or in closed court rooms.
How must the court deal with the evidence?
Once competency is established the court will allow the minor child to lead evidence in court. The Criminal Law Amendment (Sexual Offences Act) 32 of 2007 enacted certain rules about how the court must deal with evidence of a child complainant in sexual matters when the court is evaluating the evidence of a child.
In S v QN 2012 (1) SACR 380 T the court remarked that it is not improper to rely on the evidence of a minor child. In doing this the court should look at whether, the child was clear and satisfactory in all material aspects.
Children as young as 4 years can testify in court whereas in some cases you find that the child is too young and immature to give evidence in court. You might notice that in criminal cases matters court will proceed in closed court or have the perpetrator removed from court to enable the child to give evidence without any fear. A social worker must also be appointed to assist in sexual offences involving a minor child to take the child into an isolation room and allow the child to demonstrate and tell what really took place on the day of the incident. Such evidence is recorded and used in court.
In all essence a minor child can testify as a witness in court provided the above requirements are met. Protect a child and prevent crime.
Should you have any questions do not hesitate to call us on 031 003 0630 or email Jessica@schwenninc.co.za
Written by: Portia Dlamini