Thapi Matsaneng is accused of murder in that on the 23rd of May 2018 she unlawfully and intentionally shot and killed Raymond Ntshele in their shared home in Thaba Nchu. Thapi pleaded not guilty to the charge in terms of section 115 of the Criminal Procedure Act 51 of 1977, and explained to court that while she did shoot Raymond, she did so in protection of her life. She explained that a fight had broken out between them, that Raymond had beaten her with closed fists, and that he had obtained a knife from their kitchen when she discharged his pistol in his direction to stop him from stabbing her. These admissions by Thapi were recorded by the court in terms of section 220 of the Criminal Procedure Act 51 of 1977.
The state only has three witnesses at its disposal:
i) The investigating officer who was called to the crime scene on the
evening of the incident will explain what he found on the scene
ii) A friend of the deceased, who will testify that the deceased would simply
never hit a woman, and that he never saw him abuse Thapi in any way.
iii) Thapi and the deceased’s 6-year-old son, Tshepo, who told the police that
he was in the room when his mother shot his father.
Answer the following questions:
3.1 What type of admissions did Thapi make in this case? (1)
3.2 What will the effect be of such an admission (as mentioned in 3.1) on the rest
of the proceedings? (5)
3.3 Despite the admissions, the prosecutor elects to call Tshepo to testify. Will
Tshepo be competent to testify? (6)
3.4 If the prosecutor believes that Tshepo is too young to testify, will the court
grant an application for the appointment of an intermediary? Refer to case law
in your answer. (8)
3.5 Would you advise Thapi’s legal representative to cross-examine the state
witnesses? Explain your answer. (3)
3.1 Thapi made an admission of shooting Raymond intentionally and unlawfully in order to protect herself from harm.
3.2 The effect of Thapi's admission is that it establishes the actus reus (guilty act) of the offense of murder. However, it raises the question of whether she had the necessary mens rea (guilty mind) for murder. By admitting to shooting Raymond in self-defense, she is invoking the defense of private defense. This will require the prosecution to prove that her actions were not justifiable and that she did not act in reasonable fear of her life or bodily harm.
3.3 Tshepo will be competent to testify as long as he can understand the difference between telling the truth and lying, and is able to communicate what he witnessed. Competency is evaluated based on the child's capacity to understand the nature of the oath and comprehend and recount events accurately.
3.4 If the prosecutor believes that Tshepo is too young to testify, they can apply for the appointment of an intermediary. In the case of S v Dladla, the court held that the appointment of an intermediary is permissible if the court is satisfied that it is necessary to assist a complainant or witness to give full and accurate evidence. The court will consider factors such as the age of the witness, their mental capacity, and their ability to understand and answer questions.
3.5 It would be advisable for Thapi's legal representative to cross-examine the state witnesses in order to challenge their version of events and present an alternative narrative that supports Thapi's claim of self-defense. Cross-examination allows Thapi's legal representative to highlight any inconsistencies or contradictions in the witness statements, probe their credibility, and raise doubts about the deceased's character and alleged actions. It is an important tool for the defense to challenge the prosecution's case and present a strong defense strategy.
3.1 Thapi made admissions of shooting Raymond Ntshele in their shared home in Thaba Nchu on the 23rd of May 2018. She admitted that she shot him intentionally and explained that it was done in self-defense.
3.2 The effect of Thapi's admissions would be that the court will accept them as true facts, as they were recorded in accordance with section 220 of the Criminal Procedure Act 51 of 1977. This means that Thapi's admission of shooting Raymond will be considered as an established fact in the proceedings, potentially shifting the burden of proof to the prosecution to prove that the shooting was not done in self-defense.
3.3 Tshepo, who is the 6-year-old son of Thapi and the deceased, would generally not be competent to testify in court due to his age. Generally, children under the age of 14 are considered to lack the necessary understanding to give reliable testimony. However, the court has the discretion to allow a child witness to testify if they are found to possess the necessary competence and understanding.
3.4 If the prosecutor believes that Tshepo is too young to testify, they may apply to the court for the appointment of an intermediary. An intermediary is a person appointed by the court to assist a child witness in communicating their evidence to the court. The decision to grant the application for the appointment of an intermediary will depend on the specific circumstances of the case and the assessment of the court as to whether it would be in the best interests of justice and the child's well-being.
Case law:
- In S v SJ, the court held that the appointment of an intermediary is permissible when there is evidence that a child witness may be experiencing emotional distress or difficulty in communicating with the court.
- In S v LB, the court emphasized the importance of ensuring that child witnesses are afforded the necessary support and assistance to provide reliable and admissible evidence. The decision to appoint an intermediary should be guided by principles of fairness, justice, and the overarching goal of protecting the rights and well-being of the child.
3.5 It would be advisable for Thapi's legal representative to cross-examine the state witnesses. Cross-examination is an essential part of the adversarial process and allows the defense to challenge the evidence presented by the prosecution. Thapi's legal representative can use cross-examination to challenge the credibility, reliability, or knowledge of the state witnesses, such as the investigating officer and the deceased's friend. This can help to undermine the prosecution's case and strengthen Thapi's defense, particularly regarding her claim of self-defense.
3.1 Thapi made an admission of shooting Raymond Ntshele, but pleaded not guilty to the charge of murder. She explained to the court that she shot him in self-defense because he was violently attacking her with closed fists and had obtained a knife.
3.2 The effect of Thapi's admission will depend on how the court interprets it. While she admitted to shooting Raymond, she pleaded not guilty to murder and claimed self-defense. The court will consider her admission as evidence against her, but it doesn't necessarily mean that she will be found guilty. The court must still weigh all the evidence presented and determine if her actions constituted murder or self-defense.
3.3 Tshepo, the 6-year-old son, may be considered competent to testify depending on his age and ability to understand and answer questions. Competence to testify is determined by the court on a case-by-case basis, considering factors such as intelligence, understanding of the nature of an oath, and capacity to communicate.
3.4 If the prosecutor believes Tshepo is too young to testify, they may apply for the appointment of an intermediary. According to the case law, the court may grant such an application if it is satisfied that the intermediary is necessary to enable the child witness to give evidence effectively. The court will consider the child's age, maturity, and the potential for emotional harm in determining whether to appoint an intermediary.
3.5 Whether Thapi's legal representative should cross-examine the state witnesses is a strategic decision. Cross-examination is an opportunity to challenge the witnesses' credibility, expose inconsistencies, and highlight any potential bias or motive. It allows Thapi's legal representative to present the alternate narrative of self-defense and undermine the prosecution's case. However, it also carries the risk of strengthening the prosecution's case if the cross-examination is ineffective or if witnesses provide strong testimony against Thapi. The decision should be based on a careful assessment of the strength of the prosecution's case and the potential benefits and risks of cross-examination.