S v TAFIRENYIKA 2013 (2) ZLR 566 (H)

Flynote

Evidence — credibility — sexual case — child witness — when court may accept such evidence as reliable

Headnote

It is a well-established rule of our law that judicial officers are required to warn themselves of the danger ... This however does not detract from the ability of the court to satisfy itself on the issues of competency when confronted by a child witness. It is not suggested that a court will, in all cases, require a child interviewer to be a specialist in order to adduce evidence from a child. There is no principle of law that says that it is inconceivable that a child of tender age will not be able to recapitulate the facts in his or her memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in future.

As a general rule, it can be said that in a case where a child explains relevant events at the crime scene without improvement or embellishment, and at the same inspires the confidence of the court, his or her deposition does not require any corroboration whatsoever. A child of tender age, it is now accepted, is incapable of having any malice or ill-will against any person. The competency of a child to give evidence is determined by the common law. It relates to whether the child has sufficient intelligence, sense and reason in order to understand the difference between truth and falsehood and recognise that it is wrong to lie. This is determined by the presiding judicial officer after the judicial officer, as well as the prosecution and the defence, have had an opportunity to question the child.

This approach accords with article 12(1) of the UN Convention on the Rights of the Child, 1989, which requires signatories to the convention to accord to "the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child." These rights are only extended to children who are capable of forming their own views and those views are only given due weight according to the age and maturity of the child in question. The courts can rely on evidence tendered by a child if it inspires its confidence and there was no embellishment or improvement in it.