S v Mokoena

• Jurisdiction: South Africa
• Judge: Spilg J
• Judgment Date: 28 May 2010
• Docket Number: CC 469/08
• Court: Witwatersrand Local Division
• Hearing Date: 28 May 2010
• Citation: 2010 JDR 0727 (GSJ)

Spilg J:

Mr Tlouane who appears for both accused has applied to recall Mr Abraham Letshele. Firstly it is for the purpose of introducing the section 112 statement made by Mr Letshele when he pleaded guilty to charges relating to the same offence for which the accused before me has been indicted.

Secondly he wishes to introduce the statement, should the

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accused either admit making it or authorising it to be made, for the purpose of testing the credibility of the witness and for this purpose alone. The application has made from the Bar literally minutes after the court excused Mr Letshele.

Two issues arise. One is the reason for not seeking to introduce this evidence during the cross-examination of Mr Letshele and the other is a substantive law issue as to whether or not the section 112 statement can be admitted and used at all for the purpose of testing Mr Letshele's credibility.

Miss Ngobeni, for the State, contends both that the State is prejudiced by the introduction of this evidence after the witness had been excused and also on certain substantive grounds that will be set out later.

The explanation for the delay is as follows: Mr Tlouane had received the section 112 statement, after requesting it, a day before Mr Letshele gave evidence. He had raised with Ms Ngobeni his wish to introduce it but was told that she would object. For this reason he believed that the appropriate course was to make an application separately and after Mr Letshele had given his evidence. Mr Tlouane accepts that this was an inappropriate way of dealing with the matter.

In my view the standard procedure adopted by any defence, when seeking to introduce a document that may be objected to, is by advising the court of these facts and then the court will hear argument on whether or not the document may be introduced. There may be occasions when the court considers it prudent that the witness be excused during argument so as to preclude the witness being pre-cognised of the

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purpose and import of the line of cross-examination to be adopted. To the extent that this may have weighed with Mr Tlouane in making his decision, the answer is simply that the court would ensure that the witness is excused when argument is presented.

However, the error cannot preclude Mr Tlouane from seeking to recall the witness after he has given evidence particularly where, as in this case, it was applied for within minutes of the witness being excused. I am satisfied that it was a bona fide decision made by Mr Tlouane and the only basis upon which a court would not condone the recalling of the witness is if there was prejudice to the State or prejudice to the witness of such a nature that may undermine the fair trial of this matter.

Once the issue is characterised as a balancing the interests of securing a fair trial on the one hand, and the inconvenience to the State, then the simple delay of minutes in seeking to put further questions to the witness - and the State accepting that there is no prejudice per se in...