Abstract
Modern-day research studies conducted on the victimisation of children in South Africa show that South African children in particular experience and witness exceptionally high levels of crime and consequently represent a significant portion of the victims and witnesses that have to appear in court to testify about these crimes. In South Africa, as in many other countries, a child is, however, permitted to testify in a criminal court only once the presiding officer is satisfied that the child is competent to be a witness. The competency test, though, presents a critical initial challenge for child witnesses, as it focuses on their ability to answer questions about the concepts of truth and lies. These inquiries can be intimidating and confusing, especially to younger children, and may result in children who would otherwise have been capable of giving evidence being prevented from giving their testimony. Various legal and psychological fraternities have accordingly called for the abolition or amendment of the truth-lie competency requirement. Recent psychological research about the potential of a child to lie has once again raised fundamental questions about the competency inquiry, suggesting that an assessment of children's understanding of truth and lies has no bearing on whether the child will in fact provide truthful evidence in court. These empirical findings precipitated the amendment of competency rules by various countries such as the United Kingdom and Canada. The findings likewise raise serious questions and or doubt about the suitability of the South African competency requirements. The purpose of this paper is to review the current South African position with a view to proposing suggestions for meaningful legal reform.
 
Highlights
Contemporary research studies conducted on the victimisation of children in South Africa show that South African children in particular experience and witness exceptionally high levels of crime
Modern-day research studies conducted on the victimisation of children in South Africa show that South African children in particular experience and witness exceptionally high levels of crime and represent a significant portion of the victims and witnesses that have to appear in court to testify about these crimes
The above evaluation of the competency rules utilised by Canada, the United Kingdom and New Zealand illustrates that to a large extent these correlate with the earlier recommendations made by the South African Law Commission, namely that section 164(1) of the South African Criminal Procedure Act be amended such that "all witnesses should be regarded as competent to testify if they can understand the questions put to them and can in return give answers that the court can understand."128 Such an amendment would conform to the principles set out in article 12 of the CRC and the aforementioned Guidelines
Summary
Contemporary research studies conducted on the victimisation of children in South Africa show that South African children in particular experience and witness exceptionally high levels of crime. The incidence of child rape and sexual assault upon minors, for example, has reached epidemic proportions.. The incidence of child rape and sexual assault upon minors, for example, has reached epidemic proportions.1 These studies indicate a trend towards a decrease in the age of these victims, while the use of brute force directed against them is escalating.. Population-based prevalence studies show that the most common forms of violence against children reported in South ⃰. Senior Lecturer at the Department of Mercantile Law, College of Law, University of South Africa. E-mail: The Protection of Child Victims and Witnesses in a Post-Constitutional Criminal
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