The oath has always been a thorn in the flesh of unbelievers of all stripes. In it a person calls upon God to guarantee his honesty in giving evidence in court or his reliability in performing his official duties. There may be other uses to which the oath may also be put. In fact, the great British freethinker of the nineteenth century, Charles Bradlaugh, identified other forms of the oath, but they are less important.

Bradlaugh himself experienced its pernicious effects first hand when he was elected as the the member of parliament for the constituency of Northampton in the general election of 1880 and was required to take the oath of office before he could take up his seat in parliament. His request that he confirms instead of swears, was summarily dismissed. When he later relented and consented to take the oath simply so that he could fulfil his duties to his constituents , religious parliamentarians refused to allow him to do so because they knew by then what his views on religion were and that his oath would be meaningless. Bradlaugh subsequently tried to give his maiden speech but was arrested while doing so and imprisoned in the Tower of London. After his release, he was again expelled on two separate occasions from the House of Commons and his seat declared vacant. These actions resulted in numerous court cases and two by-elections in his constituency between 1880 and 1885 which he easily won again. It was only after the general election of 1885 during which his most important religious opponents lost their seats, that parliament finally passed legislation to allow irreligious office bearers who object to the oath to confirm instead. The legislation, passed in 1888, marked the end of an era. (See President Charles Bradlaugh MP (1971) by David Tribe in this regard. As can be seen from the title, Bradlaugh was, like Richard Dawkins today, a republican.)

 

Shortly before the Bradlaugh debacle, the possibility was created in Britain that witnesses can confirm instead of swear that they will speak the truth when they give evidence in court. It was as a result of this innovation that Bradlaugh insisted on the same right for elected members of parliament. The South African law of evidence, which is modelled on that of the British, also allows for those who object to taking the oath to confirm instead. The Criminal Procedure Act 51 of 1977 provides, moreover, that children who do not understand the import of the oath may testify without taking it. In addition, those who are required to take an oath of office in this country, may also in terms of the law confirm instead. I shall revert to these aspects later.

 

The question that naturally arises is whether the oath effective in ensuring that people keep their promises and tell the truth. In order to answer that question, it is necessary to look at the nature of the oath and the way in which it is applied in practice. It is important to note that in South Africa and throughout the Western World, the oath is based on the Christian religion. Paradoxically though it may seem, it is contrary to Scripture. Jesus condemned the practice to swear in the Sermon on the Mount (Matthew 5:33 – 37) and urged people to keep their word in its absence. The authorities, however, thought otherwise and today the oath is regarded as indispensable for the effective functioning of the legal system. The principles on which it rests are clearly set out in the works of the jurists of the Middle Ages: by taking the oath in promising to tell the truth, an appeal is made to the Christian Trinity (Yahweh, Jesus and the Holy Ghost) to guarantee the veracity of what is being said. Gods such as Allah, Ahura-Mazda, Shiva or any other deities one cares to think of, are simply not good enough. Secondly, it is a prerequisite that those who take the oath must believe in divine punishment (that is to say in the existence of the hell) for the oath to be binding on his or her conscience. The reason for this is obvious; if the witness lies but is not caught out, prosecuted for perjury and punished, only a omniscient God will know of his or her dishonesty and after death consign the person to hell for everlasting punishment. The fear thereof is supposed to deter a person from intentionally telling an untruth.

 

Although the oath was widely used by the early Middle Ages, it’s efficacy was soon undermined. The Church father Augustine, whom one would expect to urge people to tell the truth, defined a lie 1600 years ago in such a manner that it was possible to tell an untruth to another person without being guilty of perjury. This practice he justified through the use of a so-called “mental reservation”. All a witness had to do was to add a qualification in his head to what he was saying in order to make the statement true. He could then, according to Augustine, not be blamed for the listener’s “misunderstanding”.The eminent seventeenth century jurist Hugo Grotius, again, argued in his De Iure Belli ac Pacis (1625) that the falsity of a statement is determined by the person to whom it is made. He claimed, for instance, that it is impossible to lie to a liar. These type of rationalisations, needless to say, undermined respect for the truth and often rendered the oath worthless.

 

As belief in the literal truth of the Bible waned in modern times, the oath became a useless anachronism. Few people believe in the hell these days which raises the question how the oath is supposed to deter witnesses from lying in court. While it these considerations leave most of the legal fraternity cold, they do seem to bother a few isolated individuals. When a magistrate decided in the matter of S v Khan that witnesses, who were Muslims, should confirm instead of taking the oath because it would be ineffective and will not prevent them from lying, the conviction was set aside by the High Court on the ground that the magistrate had committed an irregularity. Even more absurd is the eagerness of judicial officers to administer the oath to all and sundry, irrespective of their beliefs (and without explaining to witnesses exactly what the oath is). Even those who are not Christians and do not believe in the Trinity are required to take it. This practice is encouraged by the High Court. In one case, that of S v Gallant, the magistrate likewise required the Muslim witnesses to confirm because he erroneously thought that they would object to taking the oath. The proceedings were also found to be irregular by the High Court. Although the judges did not say so expressly, they probably thought that Muslims believe in the same god as the Christians and that it amounts to unfair discrimination if they are not allowed to take the oath. It is of course nowadays fashionable to believe that all theists believe in the same god but it is hardly a new idea. Its origin has been traced back to the English poet and mystic William Blake who wrote a book in 1795 with the title “All Gods are One”. The willingness of the Courts to require all witnesses to take the oath has some strange consequences. I was in court on occasion when a Hindu did so. I couldn’t help wondering at the time to which one of the approximately 360,000 gods in the Hindu pantheon the man referred when he said: “…so help me God”?

 

The irrational devotion of the courts to the oath has on occasion led to a miscarriage of justice. In the 1990’s I appeared for the State in a court application for the extradition of Taiwanese nationals from South Africa to Taiwan on charges of fraud. The application consisted of statements taken from witnesses in Taiwan that made out a deadly case against the fugitives. The statements were, however, not under oath; the witnesses had merely been asked whether they confirm what they had said is the truth to which they had replied in the affirmative. The respondents (fugitives) were represented by Adv Eben Jordaan SC, who was later appointed as a judge and subsequently presided in the so-called Boeremag case. He argued against the admission of the statements as evidence in the application on the basis that no reliance could be placed on them as they were not under oath. Extradition should for that reason be refused. My argument that there was no reason to mistrust the witnesses when they say that they are telling the truth was rejected. The court also dismissed my contention that it would be absurd and contrary to the interest of justice to expect of the authorities of a Buddhist country to employ a uniquely Christian ritual just to keep us happy. In the end extradition was refused, much to the consternation and disgust of the Taiwanese authorities. But perhaps they should be glad that they are at least rid of their miscreants. South Africans, though, should be extremely worried that this country is willing to give refuge and protection to foreign criminals on the basis of such an outmoded and archaic doctrine as the oath.

 

The rulings that I have referred to naturally raise questions about the status of confirmation as an alternative to the oath. The problem is that these two phenomena are not treated as equals by the law. The oath is regarded as by far the more important of the two. A witness may only confirm if he informs the court that he objects to taking the oath. The presiding officer in a trial may not of his own accord require the witnesses to confirm instead of swear (as happened in S v Khan and S v Gallant (supra)). It is regarded as a gross irregularity. These principles also worked against a finding of admissibility of the statements in the Taiwan case. The problem was that the law requires in extradition proceedings that statements presented in support of an application for extradition must be under oath. The court was not at liberty to make a finding that since the assurance of the witnesses that they are telling the truth resemble confirmation, the documents may be admitted on that basis. Apart from that, there is still in some legal quarters prejudice against witnesses who wish to confirm instead of swear. In a reported case from England dating from 1962 (R v Clark) the court rejected the evidence of an unbeliever because he had preferred to confirm after refusing to take the oath.

 

It is an open secret that the oath does not deter witnesses from lying. Accused persons in particular, know that if they are guilty of the crimes with which they are charged, it can only work to their advantage if they lie when giving evidence. No one is ever prosecuted for perjury if his evidence is rejected as mendacious and prosecutions for the making of two contradictory affidavits (a contravention of section 319 of Act 56 of 1955) seldom take place. It would of course be ideal if the oath could be abolished and all witnesses required to confirm instead that they are speaking the truth when they testify. Presiding officers should moreover inform witnesses before they testify that if they are found to be untruthful they will be prosecuted. Active steps should then be taken to do so against those who are found to be lying.

 

Preference is also given to the oath for office bearers although they may “solemnly affirm” instead if they choose to do so. Before the new constitutional dispensation of 1994, an oath of office was only required in a few isolated instances. This changed radically with the adoption of the Constitution, Act 108 of 1996. Although the Constitution specifically states in section 9(3) that the state may not not unfairly discriminate on the grounds of religion, conscience and belief, it does exactly that by requiring office bearers to take the oath and so undergo a Christian ritual upon appointment. It also does not prescribe the oath for all officials in the Republic (it only does so for politicians and judicial officers in certain provisions and schedule 2) but it was felt by those in power that all public servants should be required to swear allegiance to the Constitution. That way, it was hoped, they will not make themselves guilty of unconstitutional conduct. Whether it has achieved that goal is extremely doubtful, but it certainly had unintended adverse consequences. Take for instance the oath that was introduced by section 32 of the National Prosecuting Act of 1998. If a prosecutor forgets to take the oath, the courts subsequently held, all the convictions in those cases in which he or she had successfully prosecuted will be set aside by a higher court on review or appeal. As might be expected, this caused cynics to express the view that the actual reason for the introduction of the oath was that it was meant to create yet another technical ground on which criminals can escape the consequences of their actions.

 

While one can see the need for measures (such as the one I suggested above) to ensure that witnesses who testify in court are honest, it is much less clear why officials, whether elected or appointed, should be required to take an oath or affirm when they assume duty. Doing so will certainly not make people more industrious, competent or virtuous. If the law had been such that an automatic dismissal were to follow after a court ruled that an official has breached his or her oath of office or solemn affirmation, these rituals would have been more meaningful. Although I cannot help finding them slightly ridiculous, their real value seems to be political and I think they were probably introduced with the twin aims of fostering patriotism and a respect for the Constitution. Even so, in my view the oath should be scrapped and only the religiously neutral affirmation retained.

 

Having said all that, I should perhaps conclude on a lighter note. While a certain judge presided in the unopposed divorce court, the plaintiff, a woman, entered the witness stand to testify. After stating her full names, she was requested by the registrar to take the oath whereupon she was asked: “Do you swear that you will tell the truth, the whole truth and nothing but the truth? Raise your right hand and say ‘so help me God’.” Raising her hand, she replied “I do”. Immediately the judge intervened. “No, no madam” he said. “When you get married you say ‘I do’. When you get divorced you say ‘so help me God’.”