Recent Case: Law of evidence

• Jurisdiction: South Africa
• Pages: 421-433
• Date: 16 August 2019
• Citation: (2012) 25 SACJ 421
• Published date: 16 August 2019
• Author: Lirieka Meintjes-van der Walt

Law of evidence

LIRIEKA MEINTJES-VAN DER WALT

University of Fort Hare

1. Hostile witnesses

In general a party who ca lls a witness does so in the belief t hat the

witness will provide the court w ith evidence similar to the account

provided earlier in a pre-trial s tatement. Normally, when counsel calls

a witness on direct exam ination, the part y calling the witness is not

to attack the credibilit y of or cross-exami ne the witness called. Such

a party can not ask questions about or introduce evidence of a prior

inconsistent statement, bias or bad character. Also, the call ing party

cannot ask leading questions to the witness i n order to get the witness

to say what is desired. However, in terms of section 190(2) of the

Criminal Pro cedure Act 51 of 1977:

‘Any such party who has called a witness who has given evidence in any

such proceedings (whether that witness is or is not, in the opinion of the

court, adverse to the party calling him), may, after such party or the court

has asked the witness whether he did or did not previously make a statement

with which his evidence in the said proceedings is inconsistent, and after

sufcient particulars of the alleged previous statement to designate the

occasion when it was made have been given to the witness, prove that he

previously made a statement with which such evidence is inconsistent.’

Therefore, when a witness makes statements that are in contr adiction

to the former statement or refuses to answer questions, the pa rty

who called the witness can apply to the judge to have the witness

Recent cases 421

(2012) 25 SACJ 421

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