S v Mafuya and Others (2)

• Jurisdiction: South Africa
• Judge: Stegmann J
• Judgment Date: 28 February 1992
• Counsel: Miss E Kilian for the State H A Knopp for accused No 1 at the request of the Court Miss G Y Sidwell for accused No 2 at the request of the Court Miss R M Robinson for accused No 3 at the request of the Court
• Hearing Date: 18 February 1992
• Court: Witwatersrand Local Division

Stegmann J:

The Court is engaged in a trial within a trial. Miss Kilian, who appears on behalf of the State and is presently leading the evidence of the investigating officer, Warrant Officer Smit, seeks to refer to the contents of the very document the admissibility of which is presently in E issue. She submits that it is necessary for her to do so for the purpose of demonstrating, as she is trying to do, that accused No 1, who is alleged to have made the statement, used his own knowledge of the facts dealt with in it and was not merely repeating allegations said to have been put to him by the police and of which he had no knowledge. Her purpose in doing this is to attack the credibility of accused No 1. Miss F Kilian has referred to the case of S v Motlhabakwe en Andere 1985 (3) SA 188 (NC).

Mr Knopp objects to the State's making any reference, at this stage, to the contents of the statement. His attitude is that the question of admissibility must first be decided before there is any such reference. He has argued that, if the Court should take into account the contents of the statement, it may prove prejudicial to accused No 1 inasmuch as the G statement may ultimately be ruled inadmissible, and yet the Court will know its contents. This objection relates, I may say, not only to the contents of what was recorded in the written statement before Lieutenant Colonel Van Niekerk, but it also relates more particularly to the oral statement apparently previously made to Warrant Officer Smit. The objection is that such prior oral statement can never be admissible in any event, except insofar as it was afterwards reduced to writing and the H written version may be held to be admissible. Mr Knopp argues that I am not bound by the decision relied on by Miss Kilian.

In the course of argument I raised the question whether the correct solution to the problem may perhaps be to ask the assessors to withdraw so that any possibility of prejudice would be limited to my having...