n South African Journal of Criminal Justice - The substantive use of a prior inconsistent statement : comment

Volume 26, Issue 1
  • ISSN : 1011-8527
  • E-ISSN: 1996-2118



Previously, proof of a prior inconsistent statement of a testifying witness merely had an impact on the credibility of that witness in that it showed inconsistency. The content of the statement could never be presented as the truth. Recently, however, the Supreme Court of Appeal changed this rule in 2012 (2) SACR 219 (SCA) and allowed a previous inconsistent statement as probative evidence (the Supreme Court of Appeal essentially already opened the door for this to happen in 2002 (2) SACR 325 (SCA)). This was after the Kwazulu-Natal High Court did the same in 2012 (1) SACR 335 (KZP). This comment considers whether this clear break from the common law is the right decision in view of certain hearsay concerns and the position in comparable foreign jurisdictions. It comes to the conclusion that the new approach should be supported, provided that the reliability of the statement can be established and certain procedural safeguards are adhered to.

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