RECENT CASE LAW

 

Defeating the anomaly of the cautionary rule and children's testimony - S v Haupt 2018 (1) SACR 12 (GP)

 

 

1 Introduction

The origins of the cautionary rule lie in the practice of warning the jury against certain kinds of witnesses, notably accomplices, complainants in sexual cases and young children. This comes from the notion that these witnesses could not safely be relied upon without some kind of corroboration or other form of evidence confirming their trustworthiness. The presiding officer was also required to show that he or she had kept the warning given to the jury in mind. In this way the cautionary rule persisted even when the jury system was abolished (Zeffert & Paizes Essential Evidence (2010) 308-309).

The starting point in any criminal matter is that the state must prove the guilt of the accused beyond any reasonable doubt. This must never be lost sight of even where a number of cautionary rules apply. The purpose of the cautionary rule is to assist the court in deciding whether or not the onus on the state has been discharged (S v Hanekom 2011 (1) SACR 430 (WCC) at par 8). It should accordingly be borne in mind that satisfying the rule does not in itself guarantee a conviction. The rule is merely an aid in establishing the truth. The final analysis is whether the court is satisfied beyond reasonable doubt that all the evidence presented is essentially true (S v Francis 1991 (1) SACR 198 (A) at 205f).

The cautionary rule relating to the evidence of children entails that the presiding officer should fully appreciate the dangers of accepting the evidence of children. In this regard children's evidence is considered in the same light as that of accomplices and complainants in sexual cases (Prior to 1998, the law took the view that the cautionary rule as it applies to accomplices had to be applied to the evidence of complainants in sexual cases. This rule was, however, abolished by the Supreme Court of Appeal in S vJackson 1998 (1) SACR 470 (A). It was further held in S v M 1999 (2) SACR 548 (SCA) at 554-555 that the approach applied in the former case also applied to all cases in which an act of a sexual nature was an element and thus also to the evidence of children. Section 60 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 now also provides that a court may not treat the evidence of a complainant in a sexual offence with caution on account of the nature of the offence). In terms of the cautionary rule a court should not easily convict unless the evidence of the child has been treated with due caution. Where the child is also the sole witness the evidence will be regarded with even more caution (S v Mokoena 1932 OPD 79 at 80). As a consequence the court will seek corroboration, even though corroboration of a child's evidence is not required by law or by practice. A child's evidence, if not corroborated, will therefore be scrutinised with great care in terms of this rule and will be accepted with great caution (R v Manda 1951 (3) SA 158 (A)).

There is no particular age below which the cautionary rule applies. The degree of corroboration or other factors required to reduce the danger of reliance on the child's evidence will vary with the age of the child and the other circumstances of the case (R v Manda 1951 (3) SA 158 (A); Woij v Santam Insurance Co Ltd 1981 (1) SA 1020 (A). Note that a child means a person under the age of eighteen years. Refer to s 28(3) of the Constitution of the Republic of South Africa, 1996). The court does not enumerate the factors that could increase or lessen the danger, nor does it define the class of children to whom the danger of reliance on the child's evidence is applicable (Joubert et al The Law of South Africa Vol 9 Evidence (2005) par 832). However, the younger the child the greater the likelihood that the court will require substantial confirmation of the evidence (R v Bell 1929 CPD 478; De Beer v R 1933 NPD 30; R v W 1949 (3) SA 772 (A); R v J 1958 (3) SA 699 (SR)).

In R v Manda (1951 (3) SA 158 (A) at 163) the court emphasised that the dangers inherent in reliance upon the uncorroborated evidence of a young child should not be underrated. The court explained (at 163) that the danger involved in the evidence of children can be attributed (among a number of factors) to their "imaginativeness and suggestibility" ... "that require their evidence to be scrutinised with care, amounting perhaps to suspicion" (the court did not elaborate on the other factors). However, in R v J (1958 (3) SA 699 (SR)) the court held that although there may be circumstances that necessitate special caution, "the exercise of caution should not be allowed to displace the exercise of common sense" (at 90).

The court's stance in R v Manda accords with societal views that were prevalent until the 1960s, namely, that children are inherently more unreliable than adult's as witnesses (Spencer & Flin The Evidence of Children: The Law and Psychology (1993) 286-287). Conversely, subsequent research in cognitive psychology and child development have challenged these conventional views and led to a realisation that children's ability to be reliable witnesses has been greatly undervalued. This is coupled with research on the reliability of adults' testimony, which has shown that adults' memories may be just as susceptible to suggestion and misinformation (Spencer & Flin 286-287). This has resulted in an awareness that the gap between the abilities of children and adults as witnesses has been exceedingly exaggerated (Schwikkard "Getting somewhere slowly" in Artz & Smythe (eds) Should we Consent? Rape Law Reform in South Africa (2008)79).

It is therefore unsurprising that this rule has its critics (see for example Whitear-Nel 2011 "Law of Evidence: Cautionary rule: Single child witness" SACJ 382 at 396; Schwikkard in Artz & Smythe (eds) Should we Consent? Rape Law Reform in South Africa 79) and that the South African Law Commission in its report in 2002 (SALC Sexual Offences Report Project 107 (2002) at 186) recommended that the cautionary rule relating to children should be abolished unequivocally. The abolition of the cautionary rule in respect of the evidence of children is by no means a novel idea. The trend internationally has been to abolish this cautionary rule. England abrogated the cautionary rule applicable to children's evidence through section 34(2) of the Criminal Justice Act 1988. In Canada the Supreme Court of Appeal rejected the cautionary rule more than two decades ago (R v W (R) (1992) 74 CCC 3(d) 134; S v B (G) (1990) 56 CCC (3d) 200). Regionally, in Namibia the cautionary rule relating to children's evidence has been abolished by the insertion of section 164(4) of the Criminal Procedure Act (51 of 1977; through subsection 2b of the Criminal Procedure Amendment Act 24 of 2003) stating that the evidence of a child should not be regarded as inherently unreliable nor should such evidence be regarded with special caution because of the fact that the witness is a child. Nonetheless, sixteen years later the rule is still being applied in relation to children's testimony in South Africa. This rule recently formed part of a decision in S v Haupt (2018 (1) SACR 12 (GP)) and is the subject of this discussion.

 

2 Facts

The complainant in the case and also the main witness for the state, was a fifteen year-old girl. At the time of the incident she was almost 12 years old. She testified three years later that the appellant, her mother's boyfriend who resided with them, had on various occasions touched her on her breasts and her vagina. According to her testimony the appellant did so by putting his hand underneath her T-shirt and by placing his hand on her vagina whilst she had a panty on (par 6-9). She also testified that she did not confide in anyone about the incidents at the time, as the appellant was the breadwinner of the family and she was afraid that should he leave they would be left destitute (par 10). The state also led evidence of a Dr Rawat, who testified that the complainant's external genitalia were swollen, tender and red, but the hymen was intact (par 11).

To contextualise the evidence tendered by the state it is necessary to take note of the fact that the appellant was charged with "the crime of rape" by "inserting his finger into her vagina" as well as with "the crime of sexual assault" by "sucking her breasts and private parts" (par 5).

The appellant testified in his defence. He denied the allegations against him and stated that the false charges were laid subsequent to a financial quarrel with the complainant's mother (par 12). The appellant was convicted on two counts of attempted rape and sexual assault and was sentenced to respectively twelve years and six years imprisonment which sentences were to run concurrently (par 1). The appellant's name was also entered into the register for sex offenders (par 1).

The appellant then applied for leave to appeal against his conviction and sentences which was granted by the High Court (par 2). The appellant submitted that the trial court had erred in returning a guilty verdict in that the state had failed to prove its case beyond a reasonable doubt. His submission was based on the fact that the complainant was not only a single witness but also a minor child whose evidence ought to have been be treated with extra caution. The appellant further submitted that the complainant's evidence was unclear and contradictory and thus unreliable in material respects (par 13).

 

3 Judgment

In addressing the matter, the High Court commenced by confirming that it is trite that the proper approach to evidence is to look at the evidence holistically in order to determine whether the guilt of the accused has been proven beyond a reasonable doubt (par 16).

In so doing the High Court referred to S v Hadebe 1998 (1) SACR 422 (SCA) at 426f-426h where it was stated that:

"But, in doing so, one must guard against a tendency to focus too intently upon the separate and individual parts of what is, after all, a mosaic of proof. Doubt about one aspect of the evidence led in a trial may arise when that aspect is viewed in isolation. Those doubts may be set at rest when it is evaluated again together with all the other available evidence. That is not to say that the broad and indulgent approach is appropriate when evaluating evidence. Far from it. There is no substitute for a detailed and critical examination of each and every component in a body of evidence. But, once that has been done, it is necessary to step back a pace and consider the mosaic as a whole. If that is not done, one may fail to see the wood from the trees."

In order to conform to this approach the High Court examined a variety of factors, such as the fact that the complainant was a minor child testifying in a case of a sexual nature in which she was a single witness as well as the time between the alleged crime and the testimony and the testimony itself (par 17-20). The High Court highlighted that as the state relied on the complainant's evidence it was imperative for her testimony to be clear and reliable in all material respects (par 18). The court found that in casu this was not the case. The court per Bagwa J held that whilst the complainant was quite clearly an intelligent child, her powers of free recollection, narration and capacity to frame and express appropriate answers were found wanting in some instances. This furthermore manifested in periods of silence or sheer inability to respond to some questions. In some instances she even stated that she did not want to answer the question. Given the charges, the relevant testimony was, the court found, inadequate and at variance with the charges in material respects (par 20). Bagwa J, indicated that, for example "putting a hand to a breast" is totally irreconcilable with "sucking breasts and private parts of the complainant" (par 20). In addition, he stressed the fact that the complainant had not voluntary told anyone about the alleged incidents until being prompted about it by her mother (par 24).

In conclusion, the High Court held that, having weighed the strengths, weaknesses, probabilities and improbabilities, it was not persuaded that the state had proven its case beyond reasonable doubt. The court furthermore stated that the trial court had not applied the cautionary rule adequately in evaluating the complainant's evidence thereby constituting another misdirection. The appeal accordingly succeeded and the conviction and sentence were set aside (par 18, 26-27).

 

4 Analysis and comments

An assessment of S v Haupt reveals that the High Court approached the matter of how to assess the evidence of the child witness (and thus children) from two perspectives. On the one hand it endorsed the cautionary rule referring to the case of Woij v Santam Insurance Co Ltd (1981 (1) SA 1020 (A) at 1027H-1028A) where the latter court stated the following:

"The question which the trial Court must ask itself is whether the young witness's evidence is trustworthy. Trustworthiness ... depends on factors such as the child's power of observation, his power of recollection, and his power of narration on the specific matter to be testified. In each instance the capacity of the particular child is to be investigated. His capacity of observation will depend on whether he appears 'intelligent enough to observe'. Whether he has the capacity of recollection will depend again on whether he has sufficient years of discretion 'to remember what occurs' while the capacity of narration or communication raises the question whether the child has 'the capacity to understand the question put, and to frame and express intelligent answers' ..."

It should be noted that although Woij v Santam Insurance Co Ltd recognised children's individuality, the court's decision was based on the premise that children are inherently unreliable witnesses (Schwikkard "The abused child: a few rules of evidence considered" 1996 Acta Juridica148 at 152).

On the other hand, the High Court followed a more enlightened approach by evaluating the evidence of the child in a fashion similar to that of any other witness in a criminal case. This can be seen from the fact that the court with reference to S v Hadebe (supra) and S v Chabalala (2003 (1) SACR 134 (SCA) at 139i-140a) stressed that the correct approach to a criminal trial is (paras 16, 25):

"[T]o weigh up all the elements which point towards the guilt of the accused against those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities, and improbabilities on both sides and, having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt about the accused's guilt."

In casu there were good reasons for treating the child's evidence with caution, which were so noted by the court. This includes the inability of the complainant to answer certain fundamental questions, inconsistencies and contradictions and the lapse of a significant time between the incident complained of and the trial. There were also questions of suggestibility on the part of the mother (par 20-24). The conclusion of the High Court (par 18) that the trial court did not apply the cautionary rules adequately in evaluating the complainant's evidence is therefore undoubtably correct and is supported by the writer hereof.

However, it is submitted by writer hereof, that the same result would have been achieved by the High court without the application of the cautionary rule. By focusing on the case holistically and weighing up all the elements the High Court would be able to, and in fact was able to, base its decision on the basis of the case before the court and not on a generalised notion that children are unreliable witnesses.

This application of a more holistic or enlightened approach can be compared to that of the court in Director of Public Prosecutions v S (2000 (2) SA 711 (T)). In Director of Public Prosecutions v S the court followed the approach of S v Jackson (1998 (1) SACR 470(A) and, referring to trends in countries such as Canada, Ireland, the United Kingdom, Australia and New Zealand, held that the proper approach was not to insist on the application of the cautionary rule as though it was a matter of rote, but to consider each case on its own merits. Although the evidence in a particular case might call for a cautionary approach, this was not a general rule. The court stressed that it could not be said that the evidence of children, in sexual and other cases, where they were sole witnesses, obliged the court to apply the cautionary rules before a conviction could take place (see S v Jackson (1998 (1) SACR 470 (A) at 715G-H. In the case under discussion the court a quo applied the cautionary rule in respect of all three aspects, namely, the evidence of children in sexual cases where they are single witnesses)^. What was required of the state, the court held, was to prove the accused's guilt beyond all reasonable doubt. This might require the court to apply the cautionary rule. In S v M (1999 (2) SACR 548 (A) at 501) Shakenovsky AJ also held that the correct approach was not to apply a general cautionary rule, but to look at the evidence as a whole and the reliability of what had been placed before the court.

Despite what appears to be the application of a more enlightened approach by the judiciary, other recent case suggests the contrary. In S v Hanekom (2011 (1) SACR 430 (WCC) the magistrate was criticised for not taking sufficient notice of the two cautionary rules applicable to the case (the complainant was both a sole witness and a child) and for failing to apply them with the degree of attention to detail demanded by the particular circumstances of the case. According to Saner AJ the magistrate had merely paid lip service to the rules (at par 7). The court referred to R v Manda (1951 (3) SA 158 (A) and S v Viveiros ([2000] 2 All SA 86 (SCA), stating that because of the potentially unreliable and untrustworthy nature of the evidence, it fully intended to follow the warning against accepting the evidence of children (at par 9-10). In Maema v S ([2011] ZASCA 175 (unreported case 147/, 2011, 29/09/2011) at par 14) the Supreme Court of Appeal per Shongwe JA, referring also to R v Manda, uncritically accepted the application of the cautionary rule to the evidence of children. In S v Raghubar (2013 (1) SACR 389 (SCA) as well the trial court was criticised for merely paying lip-service to the cautionary rule in respect of a sole child witness aged fourteen.

As was already alluded to above the rule has its critics. Whitear-Nel ("Law of Evidence: recent cases" 2011 SACJ 382 at 396) expresses the concern, and in my view rightly so, over the fact that the court in the Hanekom case did not refer to recent research in the arena of child psychology and development, which shows that children's ability to give reliable evidence has been greatly underestimated. Whitear-Nel states (at 398) that in light of the recent acceptance of the cautionary rule in cases such as Hanekom and Maemu v S it is becoming evident that the cautionary rule is not likely to be abolished without a constitutional challenge. She emphasises that the time is ripe for change and that South Africa's crime rate with high levels of child abuse and low rates of conviction for such crimes demands that the issue be reconsidered. She stresses, and rightly so, that it is inappropriate or even irresponsible to continue to blindly rely on the authority of old cases such as R v Manda and Woij v Santam Insurance Co Ltd to justify the application of the cautionary rule to children (2011 SACJ 382 at 398).

Whilst calling attention to the fact that the trend internationally has been to abolish this cautionary rule (Schwikkard in Artz & Smythe (eds) 79) furthermore, Schwikkard emphasises that as the rule is based on discredited beliefs, its application is more likely to lead to error than to the discovery of truth (Schwikkard 1996 Acta Juridica 154). A strong argument was therefore made by Schwikkard, which is supported by me, that just as the cautionary rule applicable to complainants in sexual cases was found to be irrational and based on stereotyped notions and was therefore abolished, so too should the cautionary rule applicable to children be abolished. She submits that the cautionary rules applicable to children are prima facie discriminatory in that witnesses are disadvantaged on the basis of age and that this infringement of the equality clause will not pass constitutional scrutiny in terms of the limitation clause (Schwikkard 1996 Acta Juridica 154).

It should be noted that advocates for the abolition of the cautionary rule do not suggest that there may not be good reason for treating a child's evidence with caution, but argue that the issue should be decided on the basis of the case before the court and not on a generalised and unsubstantiated perception that children are unreliable witnesses (Schwikkard 2011 SACJ 382 at 396. This is in line with the notion held in S v Jackson 1998 (1) SACR 470 (A) where the court stated with regar d to the former cautionary rule relating to sexual cases (at 476) that, "evidence in a particular case might call for a cautionary approach, but that is a far cry from the application of a general cautionary rule.").

Section 9 of the Constitution of the Republic of South Africa, 1996 (hereinafter the Constitution) affords everyone the right to equality, and section 9(1) guarantees the right to equality before the law and equal protection and benefit of the law. Sections 9(3) and 9(4) describes how this equality should be realised, namely by prohibiting unfair discrimination by the state and by private entities on a non-exclusive list of grounds. One of the grounds listed in section 9(3) is "age". The effect of this is that any distinction between children and others based on their age will be scrutinised in terms of the Constitution to determine whether it complies with the prohibition on unfair discrimination (Bekink & Brand in Davel (ed) Introduction to Child Law in South Africa (2000) 178; Albertyn & Goldblatt "Equality" in Woolman et al (eds) Constitutional Law of South Africa 2 ed loose-leaf updates 35-69). In Christian Lawyers Association v Minister of Health (2005 (1) SA 509 (T)) the High Court considered age as a ground for discrimination. In the case in question the applicants challenged the validity of the provisions of the Choice on Termination of Pregnancy Act 92 of 1996 on the grounds that girls under the age of 18 years should not be able to choose to terminate their pregnancies without parental consent as they were not capable of making the decision alone. The court rejected this challenge and concluded that the Act made informed consent, and not age, the basis for its regulation of access to termination of pregnancy. Mojapelo J emphasised that everyone is equal before the law and has the right to equal protection and benefit of the law and that any distinction between women on the grounds of age would infringe these rights (Christian Lawyers Association v Minister of Health 2005 (1) SA 509 (T) at 528E).

The Constitutional Court has developed a detailed test to be followed when confronted with claims of unfair discrimination. This test assists the court in its decision on whether the state or a private party has unfairly discriminated against any person. The test was first set out in Harksen v Lane (1998 (1) SA 300 (CC)) at par 54. It should be noted that although the test was developed under the Interim Constitution it has been followed under the Final Constitution. See National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC), 1998 (12) BCLR 1517 (CC) at par 15.

The Constitutional Court tabulated the test along the following lines (1998 (1) SA 300 (CC) at par 53):

"(a) Does the challenged law or conduct differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate government purpose? If it does not then there is a violation of section 9(1). Even if it does bear a rational connection, it might nevertheless amount to discrimination.

(b) Does the differentiation amount to unfair discrimination? This requires a two-stage analysis:

(i) Firstly, does the differentiation amount to "discrimination"? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.

(ii) Secondly, if the differentiation amounts to "discrimination", does it amount to "unfair discrimination"? If it has been found to have been on a specified ground, then unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation. If, at the end of this stage of the enquiry, the differentiation is found not to be unfair, then there will be no violation of sections 9(3) and 9(4).

(c) If the discrimination is found to be unfair then a determination will have to be made as to whether the provision can be justified under the limitations clause."

In essence, the test means that a preliminary enquiry must be conducted to establish whether the provision or conduct differentiates between people or categories of people. This is a threshold test in that if there is no differentiation then there can be no question of a violation of section 9(1). If a provision or conduct does differentiate between people or categories of people, a two-stage analysis must follow. The first stage concerns the question whether the differentiation amounts to discrimination. The test here is whether the law or conduct has a rational basis. This is the case where the differentiation bears a rational relation to a legitimate government purpose. If the answer is no, the law or conduct violates section 9(1) and fails at the first stage. If, however, the differentiation is shown to be rational the second stage of the enquiry is activated, namely whether the differentiation, even if it is rational, nevertheless amounts to unfair discrimination under section 9(3) or 9(4) (Ngcukaitobi "Equality" in Currie & De Waal The Bill of Rights Handbook 6 ed (2013) 209 at 216. Note, however, that the Constitutional Court held in National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC), 1998 (12) BCLR 1517 (CC) at par 18 that this does not mean that in all cases the rational connection enquiry of the first stage must inevitably precede the second stage. According to the Constitutional Court the rational connection enquiry would clearly be unnecessary in a case in which a court holds that the discrimination is unfair and unjustifiable. A court need not perform both stages of the enquiry.If the discrimination is on a specified ground, it would be presumed to be unfair. If the discrimination occurs on an unspecified ground the complainant will have to establish that the discrimination was unfair (Albertyn & Goldblatt 35-75).

If the discrimination is found to be unfair a court will proceed to the final stage of the enquiry as to whether the provision can be justified under section 36 of the Constitution, the limitation clause (Albertyn & Goldblatt 35-80). This final stage, according to the Constitutional Court, "involve[s] a weighing of the purpose and effect of the provision in question and a determination as to the proportionality thereof in relation to the extent of its infringement of equality" (Harksen v Lane 1998 (1) SA 3009 (CC) at par 52). However, this stage only applies to discrimination in terms of law of general application since it is only such discrimination that can be justified under the limitation clause (Albertyn & Goldblatt 3581).

As was stated above the cautionary rule originated from the notion that the evidence of these witnesses could not safely be relied upon without some kind of corroboration in the form of other evidence confirming their trustworthiness. This rule differentiates between children and other witnesses on the ground of age. The rule also differentiates between children in sexual cases and children in other criminal cases (see Section 60 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 that provides that a court may not treat the evidence of a complainant in a sexual offence with caution on account of the nature of the offence. See also S v M 1999 (2) SACR 548 (SCA) at 554-555 where the court held that the approach applied in S v Jackson 1998 (1) SACR 470 (A) also applied to all cases in which an act of a sexual nature was an element and thus also to the evidence of children). It is hence submitted that as the rule is based on outdated and discredited beliefs about the trustworthiness of child witnesses and is void of a clear rationale for its application it will be difficult to pass constitutional muster. It therefore calls for abolition of the cautionary rule as a rule of general application.

Notwithstanding the abovementioned criticism, the legislature has to date not enacted legislation abolishing the cautionary rule, nor has the judiciary done so through the development of the common law. It should be noted that in terms of sections 173 of the Constitution the courts have the inherent power to develop the common law, taking into account the interest of justice. When fulfilling this power courts must do so in a manner that promotes the spirit, purport and objects of the Bill of Rights (see s 39(2) of the Constitution). The duty and power to develop the common law have manifested themselves in a few important constitutional decisions in recent times. See for example Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC); Petersen v Maintenance Officer, Simon's Town Maintenance Court 2004 (2) SA 56 (C); S v Thebus 2003 (6) SA 505 (CC); Masiya v Director of Public Prosecutions, Pretoria 2007 (5) SA 30 (CC). It is however not within the scope and extent of this article to analyse the legal position extensively). In lieu of this deferment, it is submitted that the onus to approach the judiciary to develop the common law will have to fall on NGOs, such as the Centre for Child Law.

 

5 Conclusion

As was alluded to above, the essential question in any criminal matter is whether the state has proven its case beyond a reasonable doubt. The cautionary rule should not be allowed to be a substitute for the test of proof beyond a reasonable doubt. Judicial officers are expected to evaluate evidence properly and objectively. This should be conducted as a whole and against all probabilities in order to arrive at a just and fair conclusion. Judicial officers are trusted to weigh the evidence correctly in order to distinguish between trustworthy and unreliable evidence (See S v Haupt par 16; S v Hadebe at 426f-426h; S v Chabalala at 139i-140a). If the witness's evidence is found to be unreliable, the court may reject it. Even though it may be necessary in a particular case to approach the evidence of the child with caution it does not mean that a general cautionary rule should be applied. S v Haupt represents an example of such a case and illustrates that it is possible to reach a fair conclusion without the application of a general cautionary rule.

In conclusion it is submitted by writer hereof that the abolition of the cautionary rule should no longer be postponed but should receive serious attention. A call is accordingly made to NGOs to challenge the constitutionality of the rule, thereby ensuring that child witnesses receive equal protection and benefit of the law similar to that of other witnesses in criminal cases.

Mildred Bekink

Senior Lecturer, University of South Africa