A Courtroom Misdiagnosis: A Historical Overview of the South African Approach to Evidence of Persons with Communication Disabilities Before 1996
Author Mahlubandile Ntontela
Affiliations: LLB LLM PGDip in Labour Law Practice PGDip in Drafting and Interpretation of Contracts. Lecturer, Department of Criminal Law and Procedure, Nelson Mandela University
Source: Fundamina, Volume 29 Issue 1, p. 29-52
Over the past centuries, the English and South African jurisdictions have struggled with the best approach to hearing evidence of persons with impaired speech. The English courts’ challenges in hearing such evidence have led to the courts there developing legal principles for receiving evidence of witnesses with communication disabilities. Unfortunately, these principles have led to courts misdiagnosing witnesses with communication disabilities. Consequently, the courts treated witnesses with communication disabilities similarly to witnesses with mental illness. Accordingly, under English law and later also under South African law, for some time, people with communication disabilities were detained indefinitely without trial. Such detention was subject to pardon by a designated government official. This contribution examines how the courts have ill-treated persons with communication disabilities in England and South Africa during the nineteenth and twentieth centuries. The study uses a periodisation theory to critically argue how witnesses with speech impairment were unfairly treated in both jurisdictions during this period before the promulgation of the Constitution of the Republic of South Africa, 1996.