n South African Journal of Criminal Justice - When the truth lies elsewhere : a comment on the admissibility of prior inconsistent statements in lightof 2012 (1) SACR 335 (KZP) and 2012 (2) SACR 219 (SCA) : comment

Volume 26, Issue 2
  • ISSN : 1011-8527
  • E-ISSN: 1996-2118



There can be few more frustrating experiences for a prosecutor than to call a witness to testify on the strength of the witness's sworn statement, only for the witness to perform an about-turn in the witness box and testify in favour of the defence, or develop a sudden case of amnesia. Part of this frustration must inevitably stem from the longstanding 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-examining him and may not be tendered into court as proof of the facts contained therein. Quite often this will mean that the prosecution is left stranded, without sufficient 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 Court ('the KZP') in (2012 (1) SACR 335 (KZP)), followed shortly by the decision of the Supreme Court of Appeal ('the SCA') in 2012 (2) SACR 219 (SCA).

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