S v Tshomi and Another

• Jurisdiction: South Africa
• Judge: Vos J
• Judgment Date: 25 August 1982
• Citation: 1983 (1) SA 1159 (C)
• Hearing Date: 25 August 1982
• Court: Cape Provincial Division

Vos J:

The witness is the investigating officer. He was giving evidence and there was an adjournment for tea. After the adjournment cross-examining counsel, Mr MacWilliam, asked the F witness whether during the adjournment he read his statement, to which the answer was yes. On that Mr MacWilliam asked the Court to order that the statement be handed over by the prosecutor to himself, Mr MacWilliam. In other words, the contention was that the privilege which normally attaches to witnesses' statements had been forfeited.

G In support of this argument or this request he referred to Hoffman on Evidence at 213, where the learned author says:

"A prosecutor whose witness has refreshed his memory by reading his statement before he enters the witness-box is not obliged to hand it over to the defence."

It remains privileged. And the learned author continues:

H "It is submitted that the position is different if the witness were to refresh his memory with it once he has entered the witness-box."

Now that statement is slightly ambiguous. It could mean that if he does it while he is in the witness-box, but that the position is different if he leaves the witness-box during an adjournment. The learned author, at 347, says much the same thing, namely:

"If in criminal proceedings a prosecution witness were...