Forensic orality and the politics of voice: Decolonising evidentiary practices in South African Courts

Forensic orality and the politics of voice: Decolonising evidentiary practices in South African Courts

Enongene Mirabeau Sone

Issue: Vol. 7 No.6 2026 Article 16 pp. 1649 – 1665
DOI: https://doi.org/10.38159/ehass.20267616 Published online 23rd July 2026

37 Downloads

DOWNLOAD PDF

ABSTRACT

This article demonstrates that forensic orality—truth produced through voice, narrative performance, silence, memory, and embodied speech—remains foundational to evidentiary justice in post-apartheid South Africa. Although the judiciary inherited a deep commitment to written legalism, recent jurisprudence affirms the courtroom as an emphatically oral arena, where credibility and truth are shaped not only by the evidentiary record but also by how stories are narrated, how evidence is submitted within the adversarial system, and how judicial officers listen. Through a purposive analysis of post-2015 cases—including O’Sullivan v NDPP (2016) on testimonial reliability; S v Masiya (2017) and S v Mzozo (2018) on gendered vulnerability; the Coligny trial (2017–2020) on racialised listening; S v Baba (2020) on narrative contradiction; S v Chauke (2021) on interpreter distortion; S v Khoza (2022) on digital orality; and protest-related jurisprudence from Senekal to #FeesMustFall—the study reveals how voice remains entangled with race, gender, class, language, and trauma. Guided by decolonial legal theory, feminist jurisprudence, and the epistemic injustice framework, the article argues that persistent colonial hierarchies of listening continue to undermine Black, rural, female, marginalised, and traumatised witnesses. However, land-restitution hearings, such as Tafelkop (2019) and District Six (2021–2023), demonstrate the corrective potential of Indigenous oral memory as a form of juridical truth-telling. The article advances a decolonial evidentiary framework centred on multilingual listening, the recognition of Indigenous epistemologies, trauma-informed adjudication, and the systematic integration of digital orality into contemporary forensic practice—offering a model for transforming South African courtroom listening and strengthening evidentiary justice.

Keywords: Forensic Orality, Politics of Voice, Decolonial Evidence, South African Courts, Oral Testimony, Epistemic Injustice, Indigenous Knowledge Systems

BIBLIOGRAPHY

South African Cases

S v Baba, 2020 (South Africa, High Court).

S v Chauke, 2021 (Supreme Court of Appeal).

S v Khoza, 2022 (South Africa, Regional/High Court).

S v Langa, 2016 (South Africa, High Court).

S v Masiya, 2017 (Supreme Court of Appeal).

S v Mzozo, 2018 (South Africa, High Court).

S v Okumba, 2019 (South Africa, High Court).

Gender-Based Violence and Child Testimony

The State v Mortimer Saunders (Courtney Pieters murder case), 2017–2018 (Western Cape High Court).

Racialised Listening / Public Violence

State v Mahlangu and Others (Senekal Violence Case), 2020–2021 (Free State High Court).

State v Schutte & Doorewaard (Coligny Case), 2017–2020 (North West High Court; Supreme Court of Appeal).

State v Schutte and Another, North West High Court, Mmabatho (2017); appeal decided in State v Schutte and Another, Supreme Court of Appeal (South Africa) (2020).

Civil and Constitutional Matters

Madzodzo and Others v Minister of Basic Education and Others, 2017 (Eastern Cape High Court).

Land Claims Court and Restitution Cases

Coligny Case (2017–2020)

Coligny Case (2017–2020) and Senekal Protest Hearings (2020–2021).

District Six Working Committee v Minister of Rural Development, 2021–2023 (Land Claims Court).

Mabena Community v Minister of Rural Development, 2020 (Land Claims Court).

Tafelkop Community Claim v Minister of Land Reform, 2019 (Land Claims Court).

Legal Commentary and Reports

African Gender Institute. (2017–2023). Reports on GBV jurisprudence in South Africa. Cape Town: University of Cape Town.

Centre for Applied Legal Studies. (2018–2023). Court monitoring reports on public violence cases and protest trials. Johannesburg: University of the Witwatersrand.

Legal Resources Centre (LRC). (2021–2023). District Six restitution monitoring reports. Cape Town: LRC.

Secondary Sources

Amanor, K. S. Land, Memory and Citizenship in Africa: Contestations of Belonging. London: Routledge, 2019.

Caruth, Cathy. Unclaimed Experience: Trauma, Narrative, and History. JHU Press, 2016.

Fanon, F. Black Skin, White Masks. London: Pluto Press, 1986.

Finnegan, Ruth. Oral Literature in Africa. Open Book Publishers, 2012.

Fricker, Miranda. Epistemic Injustice: Power and the Ethics of Knowing. Oxford: Oxford University Press, 2007. https://doi.org/10.1093/acprof:oso/9780198237907.001.0001.

Himonga, C., and F. Diallo. “‘Human Rights, Plural Legal Systems, and the Integration of Customary Law in South Africa.’” African Human Rights Law Journal 17 (2017): 1-27.

Himonga, C., and S. Nkosi. “ African Customary Law In The South African Legal System: Post-Apartheid Developments and Constitutional Challenges, (), In .” In African Customary Law in South Africa: Post-Apartheid and Living Law Perspectives, edited by C. Bennett T., Himonga C., and Andrews P. Cape Town, South Africa: aa, 2020.

Kavuro, C. “The Role of Oral Tradition in African Customary Law.” Journal of African Law 62, no. 1 (2018): 54–66.

Maldonado-Torres, N. “‘On the Coloniality of Being’, Cultural Studies” 21, no. 2 (2007): 240–70.

Mama, A. Beyond The Masks: Race, Gender and Subjectivity. London: Routledge, 1995.

Mbembe, Achille. On the Postcolony. Vol. 41. Univ of California Press, 2001.

McFadden, P. “‘Sexual Pleasure as Feminist Choice’ Feminist Africa” 1 (2001): 50–60.

Ncube, W. “Language, Culture, And the Limits of Legal Translation in African Courts.” Comparative and International Law Journal of Southern Africa 43, no. 3 (2010): 297–318.

Nnaemeka, O. “‘Nego-Feminism: Theorizing, Practicing, and Pruning Africa’s Way’, Signs.” Journal of Women in Culture and Society 29, no. 2 (2005): 357–85.

Ong, Walter J. Orality and Literacy: The Technologizing of the Word. London: Routledge, 1982. https://doi.org/10.4324/9780203328064.

Schoon, A. The Digital Voice: Media, Mobile Phones and The Transformation of Oral Testimony in Africa. Johannesburg: Wits University Press, 2021.

Wiredu, K. Cultural Universals and Particulars: An African Perspective. Bloomington, IN: Indiana University Press, 1996.

Wiredu, Kwasi. Philosophy and an African Culture. Cambridge University Press, 1980.

ABOUT AUTHOR(S)

Enongene Mirabeau Sone is Professor of African Literature and Cultural Studies and Chair of the Department of Arts at iYuniversithi Walter Sisulu, South Africa. He is a Catalyst Fellow and Research Associate at the Centre of African Studies and the Institute for Advanced Studies in the Humanities, University of Edinburgh. He has held visiting professorships at the University of Florida, Wayne State University, the University of Pennsylvania, SOAS University of London, and Xi’an Jiaotong–Liverpool University. He earned his BA, MA, and MPhil in African Literature from the University of Dschang, Cameroon, and a PhD in African Oral Literature from the University of KwaZulu-Natal, South Africa. With extensive teaching experience at universities in Cameroon, Burundi, Eswatini, and South Africa, he has made significant contributions to advancing African literary scholarship and mentoring emerging scholars.

TO CITE ARTICLE

Sone, Enongene Mirabeau. “Forensic orality and the politics of voice: Decolonising evidentiary practices in South African Courts,” E-Journal of Humanities, Arts and Social Sciences 7, no.6 (2026): 1649 – 1665. https://doi.org/10.38159/ehass.20267616