Recent Case: Law of evidence

• Jurisdiction: South Africa
• Date: 24 May 2019
• Pages: 411-421
• Author: Jo-Marí Visser
• Citation: (2017) 30 SACJ 411
• Published date: 24 May 2019

Law of evidence

JO-MARÍ VISSER

University of the Free State

1 Admissibility at subsequent proceedings of evidence

adduced during bail proceedings

In S v Miya 2017 (2) SACR 461 (GJ) four accused persons were on

trial for murder, when the state prosecutor objected to defence

counsel using a statement made by a state witness in that wit ness’s

bail application. This state witness i nitially appeared alongside the

four accused persons as accused number 5, but the state decided to

withdraw charges against h im provided that he testied for the state in

terms of s 204 of the Cri minal Procedure Act 51 of 1977. In a separate

but related case (known as the ‘Sandton case’), the state witness

appeared as accused and submitted an af davit in support of his bail

application. When counsel for accused 1 in the current cas e indicated

that he wanted to use the witness’s bail application afdavit from the

‘Sandton case’ for purposes of cross- examination, the state objecte d,

and the court allowed arguments on the pa rties’ positions (at para [1]).

Counsel for accused 1, supported by counsel for the other three

accused, argued that the defence was entitled to use the witness’s bail

application afdavit because the witness was no longer an accused in

the case and therefore no longer enjoyed relevant constitutional and

legislative protections. He further arg ued that denial of the use of the

afdavit would prevent the defence from testing the credibility of t he

witness during cross- examination, which would violate the accused’s

right to a fair trial in ter ms of s 35(3) of the Constitution of the Republic

of South Africa, 1996 (at para [2]).

The state, arguing in support of it s objection, submitted that the

defence could only be entitled to use the witness’s afdavit if it complies

with the requirements set out in s 60 (11B)(c) of the Criminal Procedure

Act 51 of 1977 (at para [3]). This section provides the following:

‘The record of bail proceedings, excluding the information in paragraph (a),

shall form part of the record of the trial of the accused following upon such

bail proceedings: Provided that if the accused elects to testify during the

course of the bail proceedings the court must inform him of her of the fact

that anything he or she says, may be used against him or her at his or her

trial and such evidence becomes admissible in any subsequent proceedings.’

(Own emphasis added.)

The court needed to decide whether the state wit ness could claim

the protection offered by s 60(11B)(c) of the Criminal Procedure Act

Recent cases 411

(2017) 30 SACJ 411

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