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...