When the truth lies elsewhere: A comment on the admissibility of prior inconsistent statements in light of S v Mathonsi 2012 (1) SACR 335 (KZP) and S v Rathumbu 2012 (2) SACR 219 (SCA)

• Jurisdiction: South Africa
• Date: 16 August 2019
• Author: Adrian Bellengere
• Citation: (2013) 26 SACJ 175
• Pages: 175-185
• Published date: 16 August 2019

COMMENT

When the truth lies elsewhere:

A comment on the admissibility of

prior inconsistent statements in light

of S v Mathonsi 2012 (1) SACR 335

(KZP) and S v Rathumbu 2012 (2)

SACR 219 (SCA)

ADRIAN BELLENGÈRE AND SHELLEY WALKER

University of KwaZulu-Natal, Durban

1. Introduction

There can be few more frustrat ing experiences for a prosecutor than

to call a witness to testif y on the strength of the witnes s’s sworn

statement, only for the witness to perform an about-tur n in the witness

box and testify in favour of the defence, or develop a sudden case of

amnesia. Part of this f rustration must inevit ably stem from the long-

standing rule of common law, derived from English law, that in such

cases the witness’s sworn statement may be used solely for purposes

of impeaching and cross-ex amining him a nd may not be tendered

into court as proof of the facts contai ned therein. Quite often this

will mean that the prosec ution is left stranded, without suf f‌icient

evidence even to place the accused on his defence, let alone achieve a

conviction. Recently, however, this rule was revisited by the KwaZulu-

Natal Provincial Division of the High Cour t (‘the KZP’) in S v Mathons i

(2012 (1) SACR 335 (KZP)), followed shortly by the decision of the

Supreme Court of Appeal (‘the SCA’) in S v Rathumbu 2012 (2) SACR

219 (S CA ).

2. The rationale behind the rule

Considering that the rule was applied with such consis tency for

so many years, it is surprisingly di ff‌icult to pinpoint its rationale

with any degree of certaint y. For the most part, the leading South

African commentators merely rest ate the rule, without addressing its

175

(2013) 26 SACJ 175

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