Recent Case: Evidence

• Jurisdiction: South Africa
• Pages: 265-268
• Published date: 03 September 2019
• Citation: (2004) 17 SACJ 265
• Author: Nicci Whitear-Nel
• Date: 03 September 2019

Cases



265

defects in the record and one wonders whether the decision in

Zondi's

case

would have been the same had it been established that the accused definitely

did not have any part in the disappearance of the tapes.

Evidence

NICCI WHITEAR-NEL

University of KwaZulu-Natal, Pietermaritzburg

Admissibility

In the case of

S v Tsotetsi (1)

2003 (2) SACR 623 (N) the prosecution sought to

introduce a pointing out and accompanying statement made by accused

No.1. The prosecution objected on the basis that the statement had not been

freely and voluntarily made. Accused No.1 alleged that the pointing out and

the statement were fabricated by the police and then attributed to him. A trial

within a trial then ensued on the admissibility of the statement and pointing

out.

During the course of the trial within a trial the pro forma statement, with

the relevant parts blacked out, was handed up as an exhibit. The prosecution

then made an application for the court to be apprised of the full contents of

the statement in order for the prosecutor to cross examine the accused on the

contents of the statement. The purpose of the cross-examination was to seek

to show that the pointing out and statement was attributable to the accused —

and thus go to his credibility. The prosecutor did not seek to cross examine in

order to prove the truth of the contents of the statement. The prosecutor

relied on the earlier judgment of

S v Lebone

1965 (2) SA 837 (A), particularly

the dictum of Rumpff JA to the effect that '[d]ie inhoud van 'n bekentenis kan

dus relevant word, in sekere omstandighede, in verband met die vraag of die

verklaring vrywillig afgele is en dan sal kruisverhoor oor die inhoud toegelaat

word vir sover dit deur die omstandighede geregverdig is' (at 841). The court

interpreted this dictum as not laying down any hard and fast rules, but simply

giving the court a discretion as to whether to admit the statement for the

purposes of exploring credibility. The court then enquired into the facts and

circumstances of the case in order to determine whether it would be fair to

admit the statement for purposes of a credibility assessment.

Visser AJ indicated that he took particular note of the need of society to

bring criminals to book, the high rate of crime in the country, the enormous

financial implications of crime and of bringing criminal to book, as opposed

to the interests of the accused person who must be regarded as innocent until

(2004) 17 SACJ 265

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