The State v Sitwayi and Others

• Jurisdiction: South Africa
• Judge: de Villiers JP
• Judgment Date: 21 August 1961
• Citation: 1961 (4) SA 538 (E)
• Hearing Date: 21 August 1961
• Court: Eastern Cape Division

de Villiers, J.P.:

Mr. Nöthling for the State has made application for leave to prove the statement made by the last witness, a young Bantu woman Mfaku, the statement made by her to the Police immediately after H the killing of the deceased, the subject of this trial. His application is based on the ground that he is entitled to show by this statement that the witness has been consistent. He correctly admits that any such statement as he may be allowed to prove will not be probative of the facts contained in that statement but will only be admissible to show that she has been consistent.

Mr. Rogers attacked this witness' evidence in two respects. He cross-examined her as to the fact whether she and the first witness Joanah had, or had not, been communicating to one another whom they had

de Villiers JP

recognised as the assailants in the crime on the night in question, and when she denied that there had been any such communication, her evidence given by her at the preparatory examination in which she admitted this fact was put to her. That is a perfectly legitimate form of A cross-examination and Mr. Rogers then asked her why did she tell a lie earlier and elicited no answer.

The second attack was in the peroration of his cross-examination where he put it to the witness that she was confused; it was a moment of excitement; at night and she is either now just guessing or drawing on B her imagination, or, he suggested, that the people she mentioned now are people named by other persons.

But as I assess the cross-examination there has been no suggestion of recent fabrication, nor of a conspiracy to falsely accuse people, nor the suggestion that the evidence that she gives now is an afterthought.

C The cases relied upon by Mr. Nöthling are both contained in the same volume of the South African Law Reports 1951 (1). The first is the case of R v Vlok at p. 26. That case came before His Lordship Mr. JUSTICE VAN WINSEN in the Cape Provincial Division. The head-note reads as follows:

D 'During the cross-examination of a Crown witness the suggestion was made that such witness was now giving evidence which she had not given at the preparatory examination. The witness replied that she had made a similar statement when making a declaration to the police prior to her giving evidence in the preparatory examination. The Crown sought to lead evidence through a detective to whom the statement was made to prove that such statement had...