The Supreme Court has declared the trial on the case against Abdool Azarde Goolamally as null. As such, the case has been remitted to the Intermediate Court for a fair trial before a different magistrate. The judgment on appeal came on 28 September 2021.
As a refresher, Abdool Goolamally had been found guilty in 2019 for ‘attempt upon chastity of a child under the age of 12’ and had been sentenced to 3 years’ imprisonment. The offence has been allegedly committed in 2013 when the accused was driving a 4 year old child back home after having picked her up from school.
Based on the oral evidence given by the child in court, the case was then resolved. At time of testifying, the victim was above 9 years old. The magistrate was convinced of the credibility of the evidence presented and considered the testimony of the child as “unchallenged” and “deposed remarkably and in a convincing manner”. As there was no legal requirement for additional evidence in support of the testimony, the accused was found guilty.
The judgment was appealed, inter alia, on the procedural ground that the child being above nine years old, the testimony should have been given under oath. However, after having ascertained that the child had sufficient intelligence to make statements in court, the Magistrate had asked the child to promise to speak the truth following which her testimony was accepted. It should be highlighted that this procedure would normally apply to any child victim who is under the age of nine; and in this case, the procedure was wrongly applied. Due to this procedural flaw, the Supreme Court allowed the appeal and the trial was, therefore, deemed null. After taking into account the legitimate interests of the victim and society in relation to the serious nature of the offence, the case has been remitted to the Intermediate court for a re-trial.
The Supreme Court took this opportunity to clarify and demystify this particular area of the law which they considered to be a “source of considerable difficulty for some of our law practitioners and magistrates.”
