Testimonial competency consists of four basic mental functions: perception, memory, communication and morality. A witness with basic proficiency in three of the components – perception, memory and communication – will generally be able to provide the court with factual information on a specific personal experience during questioning. Swearability, the moral component of competency, refers to a witness understanding the difference between truth and falsehood, and conveying the willingness to be truthful. This component of competency hinges on the witness’s cognitive as well as moral development.
Witness reliability relates to the reporting of factual truth – whether a child witness gives an accurate account of personally experienced reality when questioned about it during a trial. Although witness reliability is also associated with the witness’s cognitive and moral development, various contextual factors have the potential for a negative impact on his or her actual account of events during testimony. Witness credibility, however, refers to the credibleness of the evidence brought before the court. Evaluating credibility is a subjective matter, in which the legal evaluator’s knowledge of the aspect in question plays an important role. Witness competency and, respectively, the reliability and credibility of evidence have to be approached as closely related but separate phenomena.
The Equality clause of the Constitution requires that discrimination based on the prejudicial stereotyping of children with disabilities be abolished. “[E]very attempt must be made to find reasons why they should be permitted to give evidence, rather than why they should not be allowed to testify.”[1] It is thus crucial for the South African courts to clarify any distinctions that are made between moral competency and witness reliability. The following examples serve to illustrate the challenges in this regard:
[1] Pillay 2012 SAJP 319.
Witness reliability relates to the reporting of factual truth – whether a child witness gives an accurate account of personally experienced reality when questioned about it during a trial. Although witness reliability is also associated with the witness’s cognitive and moral development, various contextual factors have the potential for a negative impact on his or her actual account of events during testimony. Witness credibility, however, refers to the credibleness of the evidence brought before the court. Evaluating credibility is a subjective matter, in which the legal evaluator’s knowledge of the aspect in question plays an important role. Witness competency and, respectively, the reliability and credibility of evidence have to be approached as closely related but separate phenomena.
The Equality clause of the Constitution requires that discrimination based on the prejudicial stereotyping of children with disabilities be abolished. “[E]very attempt must be made to find reasons why they should be permitted to give evidence, rather than why they should not be allowed to testify.”[1] It is thus crucial for the South African courts to clarify any distinctions that are made between moral competency and witness reliability. The following examples serve to illustrate the challenges in this regard:
- A competent witness is not necessarily a reliable witness.
- Inaccuracies in testimony may have nothing to do with unreliability (lie-telling and therefore dishonesty), but with developmental immaturities or limitations concomitant to developmental disabilities, which are competency issues.
- Furthermore, the evidence of a child with limited competency is not necessarily characterised by limited reliability.
[1] Pillay 2012 SAJP 319.