ADMINISTERING OF AN OATH BY AN INTERPRETER IN THE MAGISTRATES’ COURT: AN EVALUATION OF RECENT CASE LAW

Abstract

The High Court of South Africa, in different divisions, had the opportunity to consider whether an interpreter, in the Magistrates’ Court, is permitted to administer an oath. The High Court has come up with two different answers to this question. First, the High Court, in Pilane v S ((CA 10/2014) [2015] ZANWHC 10; 2016 (1) SACR 247 (NWM)), decided that in the Magistrates’ Court, only a presiding officer is permitted to administer an oath. This was based on the fact that section 162 of the Criminal Procedure Act (51 of 1977 (CPA)) only permits a presiding officer to administer the oath. Secondly, it has decided, in S v Maloma ((A376/2015) [2015] ZAGPPHC 496) and Mkhari v S ((A433/15) [2016] ZAGPPHC 186), that interpreters, in terms of section 162 and section 165 of the CPA, are permitted to administer an oath.
This submission provides a critical evaluation of the recent case law in order to elicit the principles applicable to the administering of the oath in the Magistrates’ Court. The provisions of section 162 and section 165 of the CPA will be discussed first, in order to provide the background. A discussion of the recent case law will follow. The facts and the decision of the cases will be presented and followed by the discussion of these decisions in light of the current jurisprudence on the issue.
After the discussion, the contribution will elicit the principles that must be followed when interpreters administer an oath to witnesses. The contribution is limited to the administering of an oath in criminal matters.