S v J N (RCA 62/2023) [2024] ZAWCRD 16 (12 September 2024)

Constitutional law — Presidential powers — appointment of commissions under s 84(2)(f) — not administrative action under s 33 but constrained by legality and good faith; Commissions Act — statutory jurisdictional fact that subject matter be a >matter of public concern= — objectively required before vesting coercive powers; Audi alteram partem — no duty to afford pre-appointment hearing absent legitimate expectation or clear necessity; Terms of reference — must be sufficiently certain to define inquiry; Separation of powers — exceptional restraint required before compelling head of state to give oral evidence.

Criminal law – Sexual offences – Rape requires proof of penetration; medical evidence and testimony of examining doctor often critical. Child witness – evidence to be treated with caution and interpreter accuracy important. Procedure – failure to call medical witness may render rape conviction unsafe; permissible verdicts include indecent assault. Constitutional/administrative law – excessive delay in providing records and processing appeals infringes right of access to court.

Criminal law – evidence – single child witness – cautionary approach where witness intoxicated; corroboration – medical evidence (J88 and clinical notes) as potential corroboration for strangulation; appellate review of credibility findings – limits on disturbing trial court findings; evaluation of inconsistencies and alternative causes for injuries (vomiting/rubbing) in assessing proof beyond reasonable doubt.

Trusts – removal of trustee under s 20(1) Trust Property Control Act – fiduciary duties – misappropriation, unauthorised payments, unilateral acts and litigating without authority; Master’s exclusive discretion under s 16(2) to investigate/appoint administrator – limits on High Court ordering appointment; intervention by beneficiary; costs de bonis propriis and attorney-and-client costs.