ASPIRANT PROSECUTOR PROGRAMME - Study Guide - 2025-part-8_1.pdf

In S v Zwelibanzi & another 2005 (2) SACR 484 (E) Jones J ordered that full board and lodging be paid to the accused for the duration of the trial. The learned judge held that no violence was done to the wording of the section if accused is regarded as a person who attends the trial as potential witness for the defence. It is possible to have accused paid as a witness under certain circumstances like it happened in Zwelibanzi case. But generally it would need legislative intervention so that the system of payment is used accountably, otherwise each and every accused may end up demanding payment as a witness/ potential witness for the defence. The purpose behind this section should be looked into which is to ensure that victims of crime should not incur any liability for the wrongs done to them. Section 191A - Witness services (1) The Minister has the power to determine services to be provided to a witness who is required to give evidence in any court of law. (2) The Minister may make regulations relating to – (a) the assistance of, and support to, witnesses at courts (b) the establishment of reception centres for witnesses at courts; (c) the counselling of witnesses; and (d) any other matter which the Minister deems expedient to prescribe in order to provide services to witnesses at courts (3) … (4) … (5) Any regulation made under this section must be submitted to parliament before publication in gazette. This section is aimed at ensuring that witnesses are kept in a welcoming environment upon arrival in court, there should be a waiting room wherein the witnesses will be accommodated whilst they are waiting to be taken inside the courtroom, and they are not supposed to be mingling with accused persons because that may cause more trauma to them. Witnesses should also be catered for by professionals like social workers, psychologists so that they can be helped from different effects they encountered as a result of the crimes committed against them. This is a process of redressing them to almost where they were prior to being victims of crime. - 309 - The other relevant legislation is the Witness Protection Act 112 of 1998. Section 192 - Every witness competent and compellable unless expressly excluded Every person not expressly excluded by this Act from giving evidence shall, subject to provisions of section 206, be competent and compellable to give evidence in criminal proceedings. A number of sections such as 195 and 196 contain specific provisions in respect of competence and compellability and section 206 provides that the law as to the competence, compellability or privileges of witness in cases not specifically provided for shall be the law as it stood on 30 May 1961. A competent witness is a witness whose evidence may be received in court, whereas compellable witness is one who is competent and in addition can be forced to testify, and provisions of section 189 must be noted. In re R v Demingo & others 1951 (1) SA 36 (A) at 43, it was decided that judicial officers should not give evidence in cases over which they are presiding. In Caccia v Muller 1929 CPD 77, it was decided that advocates and attorneys are competent to give evidence in cases in which they are appearing, but it has been emphasized that this course is highly undesirable. In R v Becker 1929 AD 167: ‘The prosecutor is not an incompetent witness. It is undesirable that he should give evidence.’ It is highly irregular for the prosecutor to give evidence in the form of unsworn statement from the bar (R v Dunga 1939 CPD 7; R v Kirsten 1950 (3) SA659 (C)). Section 193 - Court to decide upon competency of witness The court in which criminal proceedings are conducted shall decide any question concerning the competency or compellability of any witness to give evidence. It simply means that it is the duty of that judicial officer or judge to decide on the competency or compellability of the witness to give evidence, since this is a matter of law. Whenever a court is in terms of section 193, required to decide on the competency of a witness due to his or her state of mind, as contemplated in section 194, it now has the power, in terms of section 194A to order that the witness be examined by a medical practitioner, a psychiatrist or a clinical psychologist designated by the court, who would then be required to furnish the court with a - 310 - report on the competency of the witness to give evidence. The requirement is that this should be done in the interests of justice. Section 194 - Incompetency due to state of mind No person appearing or proved to be afflicted with mental illness or to be labouring under any imbecility of mind due to intoxication or drugs or the like, and who is thereby deprived of the proper use of his reason, shall be competent to give evidence while so afflicted or disabled. Incompetence only lasts for so long as the mental illness lasts. The fact that a person is deaf and dumb does not make the witness incompetent so long as communication can be made through an interpreter, see S v Naidoo 1962 (2) SA 625 (A). It is not always necessary to hold a trial within trial to determine whether a person is a competent witness (S v Zenzile 1992 (1) SACR 444 (C)). A court may base its decision on its own observation of the witness (S v Dladla 2011 (1) SACR 80 (KZP) at. Section 194A - Evaluation of competency of witnesses due to state of mind (1) For purpose of section 193, whenever a court is required to decide on the competency of a witness due to his or her state of mind, the court may order that the witness be examined by a medical practitioner, a psychiatrist, or clinical psychologist designated by the court, who must furnish the court with a report on the competency of the witness to give evidence. (2) A medical practitioner, psychiatrist or clinical psychologist designated by the court in terms of subsection (1) who is not in the full time service of the State, must be compensated for his or her services in connection with the enquiry from public funds in accordance with a tariff determined by the Minister in consultation with the cabinet member responsible for national financial matters. (3) If the contents of a report contemplated in subsection (1) are not disputed, the report is admissible as evidence upon production. Section 194A was inserted by section 10 of Act 8 of 2017, which came into effect on 02 August 2017. It was said in the case of S v Katoo 2005 (1) SACR 522 (SCA) that since section 193 requires a court to determine the competence of a witness, the trial court should, before concluding that she was incompetent, have conducted a proper investigation into the cause of what was claimed to be the imbecility of the witness. The procedure in the Katoo case is acceptable and recognized as part of our procedural and evidential system of justice. - 311 - Section 195 - Evidence for prosecution by husband or wife of accused (1) The wife or husband of an accused shall be competent, but not compellable, to give evidence for the prosecution, but shall be compellable if he or she is charged with – (a) any offence committed against the person of either of them or of a child of either of them or who is in care of either of them. (b) any offence under Chapter 8 of the Child Care Act, 1983 (Act 74 of 1983), committed in respect of any child of either of them. (c) any contravention of any provision of section 31(1) of the Maintenance Act, 1998 (d) bigamy; (e) incest as contemplated in section 12 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007; (f) abduction; (g) any contravention of any provision of section2, 8, 10, 12, 12A, 17 or 20 of the Sexual Offences Act 23 of 1957 (gA) any contravention of any provision of section 17 or 23 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007; (h) perjury committed in connection with or for the purpose of any judicial proceedings instituted or to be instituted or contemplated by the one of them against the other, or in connection with or for the purpose of criminal proceedings in respect of any offence included in this subsection (i) the statutory offence of making a false statement in any affidavit or any affirmed, solemn or attested declaration if it is made in connection with or for the purpose of any such proceedings as are mentioned in paragraph (h). (2) For the purpose of the law of evidence in criminal proceedings, ‘marriage’ shall include a customary marriage or customary union concluded under the indigenous law and custom of any of the indigenous people of the Republic of South Africa or any marriage concluded under any system of religious law. In general, a spouse of an accused person can testify on behalf of the prosecution, but he or she cannot be forced to do so. However, it remains his or her discretion to either testify or not, except for the offences listed under section (1) subsections (a) – (i). At common law the accused’s spouse was not a competent witness for either prosecution or the defence. Prior to 03 October 1988, a spouse remained an incompetent and non-compellable witness. Section - 312 - 195 and 196 were therefore amended by sections 6 and 7 of the Law of Evidence Amendment Act 45 of 1988. The result is that a spouse is now a competent - but not ordinarily a compellable witness - against another spouse in criminal proceedings, whether for the prosecution or a co-accused. In S v Mgcwabe 2015 (2) SACR 517 (ECG), the court ruled that the fact that a marriage relationship has been severely damaged does not negate in any way, the immunity set out in section 195 (1), therefore a spouse remains competent but non- compellable witness against his or her spouse. Section 196 - Evidence of accused and husband or wife on behalf of accused (1) An accused and the wife or husband of an accused shall be a competent witness for the defence at every stage of criminal proceedings, provided that – (a) an accused shall not be called as a witness except upon his own application; (b) the wife or husband of an accused shall not be a compellable witness where a co-accused calls that wife or husband as a witness for the defence (2) The evidence which an accused may give in his own defence at joint criminal proceedings, shall not be inadmissible against a co-accused by reason only that such accused is for any reason not a competent witness for the prosecution against such co-accused. (3) An accused may not make an unsworn statement at his trial in lieu of evidence but shall, if he wishes to give evidence, do so on oath or, by affirmation. According to the case law S v Taylor 1991 (2) SACR 69 (C), the term ‘husband’ and ‘wife’ includes the former spouse of an accused when required to testify as to events which occurred during subsistence of the marriage. Prior to 3 October 1988, section 196 (1) (b) provided that the spouse of an accused could not be called as a witness for the defence except upon the application of the accused. Section 197 - Privileges of accused when giving evidence An accused who gives evidence at criminal proceedings shall not be asked or required to answer any question tending to show that he has committed or has been convicted or charged with any offence other than the offence with which he is charged, or that he is of bad character, unless- (a) he or his legal representative asks a witness any question with a view to show his own good character or conduct of the defence involves imputation of character of the complainant or any witness of the prosecution; - 313 - he gives evidence against any other person charged with the same offence, or offence with same facts. the proceedings against him are such as are described in section 240 or 241 and the notice under those sections has been given to him; or the proof that he has committed or has been convicted of such other offence is admissible evidence to show that he is guilty of the offence with which he is charged. Section 197 gives the accused a shield, which not only gives him a right to refuse to answer certain questions but even prohibits the questions being asked (see R v Sikurlite 1964 (4) SA 788 (FC). There are four classes of questions prohibited which tend to show, (i) that he has committed; (ii) that he has been convicted of, (iii) that he has been charged with any offence other than that which forms the subject of the current charge; or (iv) that he is of ‘bad character’. In R v Malindi 1963 (4) SA 677 (FC) and 1966 (4) SA 123 (PC), it was indicated that a question tends to show ‘bad character’ if it suggests that the accused has a disposition to commit the offence with which he is charged. The shield does not protect the accused against questions which are relevant to an issue before court. A judge has a discretion to exclude cross-examination even if it would be technically permissible in terms of section 197, if it would unduly prejudice the accused. The discretion had to be exercised in the light of the principles governing relevance: the cross-examination must be relevant to the issue of credibility, and it must not prejudice the accused being cross- examined in the conduct of his defence to the extent that his right to a fair trial is undermined. Section 198 - Privilege arising out of marital state (1) A husband or wife shall not at criminal proceedings be compelled to disclose any communication which his wife or her husband made during the marriage (2) subsection (1) shall also apply to a communication made during the subsistence of a marriage or a putative marriage which has been dissolved or annulled by a competent court. A witness who is not the de jure spouse of the accused is not entitled to invoke the privilege relating to marital communications set out in this section – S v Johardien 1990 (1) SA 1026 (C). It was held in that case that a woman who was married by Muslim rites, and whose marriage was potentially polygamous, could not invoke the privilege even though her marriage was de facto a monogamous one. - 314 - Section 199 - No witness compelled to answer question which the witness’s husband or wife may decline No person shall be compelled to answer any question or to give any evidence, if the question or evidence is such that under the circumstances, the husband or wife of such person, if under examination as a witness, may lawfully refuse and cannot be compelled to answer or give it. The effect of this section is that one may refuse to answer or give evidence in respect of where the other party would claim privilege on. The scope of marital privilege as contained in section 198 (1) has been broadened by entitling a spouse to refuse to disclose a communication made by him or her to the other spouse on the ground that his or her spouse could have so refused in terms of section 198 (1). Section 200 - Witness not excused from answer establishing civil liability on his part A witness in criminal proceedings may not refuse to answer any question relevant to the issue by reason only that the answer establishes or may establish a civil liability on his part. Exposure to civil liability does not entitle a witness to invoke the privilege conferred by that section. See Wessels NO v Van Tonder en ‘n ander 1997 (1) SA 616 (O) at 620-1. Section 201 - Privilege of legal practitioner No legal practitioner qualified to practise in any court, whether within the Republic or elsewhere, shall be competent, without the consent of the person concerned, to give evidence at criminal proceedings against any person by whom he is professionally employed or consulted as to any fact, matter or thing with regard to which such practitioner would not on the thirtieth day of May, 1961, by reason of such employment or consultation, have been competent to give evidence without such consent: Provided that such legal practitioner shall be competent and compellable to give evidence as to any fact, matter or thing which relates to or is connected with the commission of any offence with which the person by whom such legal practitioner is professionally employed or consulted, is charged, if such fact, matter or thing came to the knowledge of such legal practitioner before he was professionally employed or consulted with reference to the defence of the person concerned. The Appellate Division in S v Safatsa and Others 1988 (1) SA 868 (A) decided in favour of the view that the privilege is not merely a rule of the law of evidence but is indeed founded on an individual’s fundamental right to consult freely with a legal adviser. What is covered by the privilege— - 315 - The privilege includes everything confidentially said or communicated between legal practitioner and client by way of legal advice or for the purposes of litigation. A mere friendly conversation is not covered (S v Green 1962 (3) SA 899 (D)). A relationship of legal adviser and client must exist otherwise the communication is not privileged. The proviso clearly stipulates that, when the client is charged with a criminal offence, relevant matters which come to the knowledge of the legal practitioner before he or she was professionally employed or consulted by that client are not covered by the privilege. The accused can be questioned about those matters and is obliged to answer. In addition, if a client makes a confession to an attorney without seeking that attorney’s legal advice in connection therewith, the confession is not privileged information (S v Kearney 1964 (2) SA 495 (A)). The communication must have been for the purpose of obtaining legal advice, otherwise it is not protected. Whether it was a professional conversation is a question of fact, but the answer can be inferred from a circumstance such as payment to a legal adviser (R v Fouché 1953 (1) SA 440 (W)). Whether the relationship of attorney and client, from which privilege flowed, in fact, existed and whether the communication was confidential are questions of fact which have to be decided on the facts. Who can claim the privilege— If a question is put to the legal practitioner which encroaches upon the privilege, it is the duty of the legal practitioner to claim that privilege on behalf of the client. The legal practitioner acts as an agent for the client. If the client waives the privilege, the legal practitioner is obliged to answer. When the accused’s evidence does not correspond with what counsel for the defence has put to the other witnesses, the accused is often asked whether his or her version was given to counsel for the defence. Such a question is in order because it is important to know whether an explanation which is now given was given earlier in circumstances in which one would expect it to have been given. In this manner the question tests the credibility of the evidence (R v Davies 1956 (3) SA 52 (A) at 57F and 59A; S v Green 1962 (3) SA 899 (D) at 902A). The accused may not be asked: “What did you say to your legal representative?” - 316 - 202 Privilege from disclosure on ground of public policy or public interest Except as is in this Act provided and subject to the provisions of any other law, no witness in criminal proceedings shall be compellable or permitted to give evidence as to any fact, matter or thing or as to any communication made to or by such witness, if such witness would on the thirtieth day of May, 1961, not have been compellable or permitted to give evidence with regard to such fact, matter or thing or communication by reason that it should not, on the grounds of public policy or from regard to public interest, be disclosed, and that it is privileged from disclosure: Provided that any person may in criminal proceedings adduce evidence of any communication alleging the commission of an offence, if the making of that communication prima facie constitutes an offence, and the judge or judicial officer presiding at such proceedings may determine whether the making of such communication prima facie does or does not constitute an offence, and such determination shall, for the purpose of such proceedings, be final. This provision provides for a privilege on the basis of “public Policy” or “public interest” As a result of the findings of the Constitiutional Cout in Shabalala and Others v AttorneyGeneral, Transvaal and Another 1995 (12) BCLR 1593 (CC), 1996 (1) SA 725 (CC) there is no blanket privilege on the contents of the police docket. However, this does not mean that the State is not entitled to privilege. Three categories of public interest are contemplated in section 202: (a) Identity of informers—An informer’s identity and the information he or she conveys is protected from disclosure. No question may be put and no document entered as evidence which could reveal the identity of the informer or the content of the information. In Suliman v Hansa (2) 1971 (4) SA 69 (D) The following four fundamental conditions set out the prerequisites for privilege: 1. The communications must originate in a confidence that they will not be disclosed; 2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties; 3. The relation must be one which in the opinion of the community ought to be sedulously fostered; and 4. The injury that would inure to the relation by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of litigation. (b) Other police methods—Methods used by the police to detect crimes can be kept secret. The Constitutional Court in Shabalala and Others v AttorneyGeneral, Transvaal and Another 1995 (12) BCLR 1593 (CC), 1996 (1) SA 725 (CC) pars and of the order regarding the defence’s right of access to the prosecutor’s docket, specifically indicated that the methods of investigation employed by the police would be regarded as protected information. (c) State privilege – this category refers to the correspondence between State entities and between the State and international entities. - 317 - Note for practice: National Director of Public Prosecutions v King (86/09) ZASCA 8: “litigation privilege no longer applies to documents in the police docket that are incriminating, exculpatory or prima facie likely to be helpful to the defence. This means that an accused is entitled to the content in the docket ‘relevant’ for the exercise or protection of that right. The entitlement is not restricted to statements of witnesses or exhibits but extends to all documents that might be ‘important for an accused to properly ‘adduce and challenge evidence’ to ensure a fair trial’. The blanket privilege has not been replaced by a blanket right to every bit of information in the hands of the prosecution. Litigation privilege does still exist, also in criminal cases, albeit in an attenuated form as a result of these limitations. Litigation privilege is in essence concerned with what is sometimes called work product and consists of documents that are by their very nature irrelevant because they do not comprise evidence or information relevant to the prosecution or defence. 203 Witness excused from answering incriminating question No witness in criminal proceedings shall, except as provided by this Act or any other law, be compelled to answer any question which he would not on the thirtieth day of May, 1961, have been compelled to answer by reason that the answer may expose him to a criminal charge. This provision is aimed at encouraging witnesses to promote the administration of justice by providing information and giving evidence in court. Duty of the court to warn - the Appellate Division in S v Lwane 1966 (2) SA 433 (A) stated that there is a duty on a judicial officer to warn a witness against self incrimination, otherwise the incriminating statement is not admissible in a subsequent criminal trial against the witness. This section must be read together with section 204 and 205 – circumstances in which a witness may not claim the privilege in terms of section 203. 204 Incriminating evidence by witness for prosecution Whenever the prosecutor at criminal proceedings informs the court that any person called as a witness on behalf of the prosecution will be required by the prosecution to answer questions which may incriminate such witness with regard to an offence specified by the prosecutor- the court, if satisfied that such witness is otherwise a competent witness for the prosecution, shall inform such witness- that he is obliged to give evidence at the proceedings in question; that questions may be put to him which may incriminate him with regard to the offence specified by the prosecutor; that he will be obliged to answer any question put to him, whether by the prosecution, the accused or the court, notwithstanding that the answer may incriminate him with regard to the offence so specified or with regard to any offence in respect of which a verdict of guilty would be competent upon a charge relating to the offence so specified; - 318 - (iv) that if he answers frankly and honestly all questions put to him, he shall be discharged from prosecution with regard to the offence so specified and with regard to any offence in respect of which a verdict of guilty would be competent upon a charge relating to the offence so specified; and (b) such witness shall thereupon give evidence and answer any question put to him, whether by the prosecution, the accused or the court, notwithstanding that the reply thereto may incriminate him with regard to the offence so specified by the prosecutor or with regard to any offence in respect of which a verdict of guilty would be competent upon a charge relating to the offence so specified. (2) If a witness referred to in subsection (1), in the opinion of the court, answers frankly and honestly all questions put to him- (a) such witness shall, subject to the provisions of subsection (3), be discharged from prosecution for the offence so specified by the prosecutor and for any offence in respect of which a verdict of guilty would be competent upon a charge relating to the offence so specified; and (b) the court shall cause such discharge to be entered on the record of the proceedings in question. (3) The discharge referred to in subsection (2) shall be of no legal force or effect if it is given at preparatory examination proceedings and the witness concerned does not at any trial arising out of such preparatory examination, answer, in the opinion of the court, frankly and honestly all questions put to him at such trial, whether by the prosecution, the accused or the court. (4) (a) Where a witness gives evidence under this section and is not discharged from prosecution in respect of the offence in question, such evidence shall not be admissible in evidence against him at any trial in respect of such offence or any offence in respect of which a verdict of guilty is competent upon a charge relating to such offence. (b) The provisions of this subsection shall not apply with reference to a witness who is prosecuted for perjury arising from the giving of the evidence in question, or for a contravention of section 319 (3) of the Criminal Procedure Act, 1955 (Act 56 of 1955). This section provides the State with a tool to encourage the co-operation of co-perpetrators or accomplices to testify on behalf of the State. You will often hear the term “s204 witness” in criminal proceedings. This is a witness who has specific knowledge of the details of the planning and/or commission of an offence. Usually the State will not be able to prove certain facts unless the information is provided by one of the perpetrators. The s204 witness is not automatically exempt from prosecution. The provisions require that: 1. The State inform the court that the witness will be required to answer question which will incriminate him/her in a criminal offence 2. The State informs the court of the specific offence/s which the witness might incriminate him/herself 3. The witness must answer all relevant questions frankly and honestly despite the answers causing him/her to be implicated in the specified offence/s or any offence which is a competent verdict of the specified offence/s. 4. Only if the court is satisfied that the evidence was frankly and honestly given, the court may order that the witness is discharged from prosecution on the specified offence/s. 5. If the court is not satisfied with the evidence of the witness – the court does not discharge the witness from prosecution and the evidence presented by the witness may be admissible against him/her at a trail where he/she is prosecuted. - 319 - 205 Judge, regional court magistrate or magistrate may take evidence as to alleged offence (1) A judge of a High Court, a regional court magistrate or a magistrate may, subject to the provisions of subsection (4) and section 15 of the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002, upon the request of a Director of Public Prosecutions or a public prosecutor authorized thereto in writing by the Director of Public Prosecutions, require the attendance before him or her or any other judge, regional court magistrate or magistrate, for examination by the Director of Public Prosecutions or the public prosecutor authorized thereto in writing by the Director of Public Prosecutions, of any person who is likely to give material or relevant information as to any alleged offence, whether or not it is known by whom the offence was committed: Provided that if such person furnishes that information to the satisfaction of the Director of Public Prosecutions or public prosecutor concerned prior to the date on which he or she is required to appear before a judge, regional court magistrate or magistrate, he or she shall be under no further obligation to appear before a judge, regional court magistrate or magistrate. (2) The provisions of sections 162 to 165 inclusive, 179 to 181 inclusive, 187 to 189 inclusive, 191 and 204 shall mutatis mutandis apply with reference to the proceedings under subsection (1). (3) The examination of any person under subsection (1) may be conducted in private at any place designated by the judge, regional court magistrate or magistrate. (4) A person required in terms of subsection (1) to appear before a judge, a regional court magistrate or a magistrate for examination, and who refuses or fails to give the information contemplated in subsection (1), shall not be sentenced to imprisonment as contemplated in section 189 unless the judge, regional court magistrate or magistrate concerned, as the case may be, is also of the opinion that the furnishing of such information is necessary for the administration of justice or the maintenance of law and order. This section is not concerned with testimony in court, but rather with the ability to gather the necessary information during the investigation of an offence. Section 205 attempts to assist the State gather information which can assist in the investigation of an offence and possibly the institution of prosecution in respect of that offence. Someone who has information regarding an offence but does not want to give it to the police can be forced, by the application of this section, to furnish it under oath. It provides the State with a tool to obtain information which would otherwise be protected in terms of the Protection of Personal Information Act. To give effect to this provision the following procedure must be followed: 1. The police / investigator must prepare an affidavit which sets out the crimes which are under investigation; the information which is required; and the person/s who is in possession of the information. 2. The prosecutor, if satisfied that the information is required for the purpose of gathering evidence to prosecute the specified crime, must issue a subpoena in the name of the person specified by the investigator. 3. The subpoena must contain the following details – name of the person required for examination; crime under investigation; information which will be requested; date and place of the examination. 4. A magistrate must authorize the issue of the subpoena. 5. The person named in the subpoena or anyone authorized by the named person (in the case of juristic persons) may provide the requested information in writing prior to the date mentioned in the subpoena. 6. If the information is provided to the satisfaction of the prosecutor, the person will not be required to present him/herself before the judge/magistrate. - 320 - This section is commonly used to secure information in regard to bank account records; cellphone records; or any information kept by service providers in the ordinary course of their business. However, the section can be used to access any relevant information. The information gathered, is not evidence unless it is presented during the trial in the ordinary manner of presenting evidence. 206 The law in cases not provided for The law as to the competency, compellability or privilege of witnesses which was in force in respect of criminal proceedings on the thirtieth day of May, 1961, shall apply in any case not expressly provided for by this Act or any other law. 207 Saving of special provisions in other laws No provision of this Chapter shall be construed as modifying any provision of any other law whereby in any criminal proceedings referred to in such law a person is deemed a competent witness. 208 Conviction may follow on evidence of single witness An accused may be convicted of any offence on the single evidence of any competent witness. This section allows the court to convict an accused on the evidence of a single witness. This means that if the court is satisfied with the evidence of a witness, a conviction may follow even though the evidence is not corroborated by any other witness or any other evidence. The courts have however, recognized the dangers which will be present in accepting the uncorroborated evidence of a single witness and to minimize the risk, the Cautionary Rule was formulated. In R v Mokoena 1932 OPD 79 the court said that the provision of s208 should only be applied when the single witness is clear and satisfactory in every material respect, has no interest or prejudice against the accused, did not contradict him or herself, has not made a previous inconsistent statement, had proper opportunity for observation, etc. More recently the rule was explained in S v Sauls and Others - 1981 (3) SA 172 (A): The absence of the word "credible" in s 208 of the Criminal Procedure Act 51 of 1977, which provides that "an accused may be convicted on the single evidence of any competent witness", is of no significance; the single witness must still be credible, but there are, as Wigmore on Evidence vol III para 2034 at 262 points out, "indefinite degrees in this character we call credibility". There is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of the single witness. The trial Judge will weigh his evidence, will consider its merits and demerits and, having done so, will decide whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told. The cautionary rule referred to in R v Mokoena 1932 OPD 79 at 80 may be a guide to a right decision but it does not mean "that the appeal must succeed if any criticism, however - 321 - slender, of the witnesses' evidence were well founded". It has been said more than once that the exercise of caution must not be allowed to displace the exercise of common sense. Many subsequent judgements have confirmed and applied this approach – including Rugnanan v S ZASCA 166 (unreported SCA case no 259/18, 10 December 2020): “The cautionary rule does not require that the evidence of a single witness must be free of all conceivable criticism. The requirement is merely that it should be substantially satisfactory in relation to material aspects or be corroborated. As mentioned above, the magistrate’s judgment demonstrated that the complainant’s evidence was evaluated with caution. She was found to be a straightforward witness whose version remained constant notwithstanding protracted cross-examination.” 209 Conviction may follow on confession by accused An accused may be convicted of any offence on the single evidence of a confession by such accused that he committed the offence in question, if such confession is confirmed in a material respect or, where the confession is not so confirmed, if the offence is proved by evidence, other than such confession, to have been actually committed. THIS SECTION DOES NOT DEAL WITH THE ADMISSIBLITY OF A CONFESSION – SEE SECTION 217 This section is not applicable to the circumstances where the accused enters a plea of guilty in terms of s112 of the CPA. The section is relevant in the circumstances where the only evidence presented is the confession of the accused made prior to the trial. It requires one of two things to be present in addition to a confession before the court can convict on the basis of that confession, namely: 1. confirmation of the confession in a material respect; examples of such confirmation – R v Blyth 1940 AD 355 Mrs Blyth sent a note reading as follows to the police: “This is a confession to the fact that I murdered my husband Lindsay Harry Blyth on 2 January 1939 by arsenical poisoning”. Thereafter, arsenic was found in the body of her deceased husband. R v M a t a u n g 1949 (2) SA 414 (O) a confession to stock theft and proof that stock was missing were sufficient for a conviction. S v Mjoli and Another 1981 (3) SA 1233 (A) in which the majority held that confirmation in a material respect can also be found in the statement and answers an accused gives in terms of section 115. Confirmation can even be found in informal admissions, in other words admissions which are not noted in terms of section 115(2)(b). The inference here is that other informal admissions made outside court can also materially confirm evidence. Or - 322 - 2. proof by means of evidence other than the confession that the offence was in fact committed This requirement is met but evidence which proves that the crime did in fact occur and must be presented through evidence not emanating for the accused. Admissions made by the accused is insufficient to satisfy this requirement. NOTE: CONFIRMATION OF THE CONFESSION – means that the contents of the confession is confirmed by other evidence. PROOF OF THE OFFENCE BY OTHER MEANS – refers to evidence not contained in the confession such as objective facts. 210 Irrelevant evidence inadmissible No evidence as to any fact, matter or thing shall be admissible which is irrelevant or immaterial and which cannot conduce to prove or disprove any point or fact at issue in criminal proceedings. Relevance is decided in the factual complex of each particular case. In principle the relevance of a fact is determined by the probative value it has regarding the facts in dispute; and the relevance of a fact determines the admissibility of evidence regarding that fact. But relevant evidence can also be disallowed where the evidential value thereof is overshadowed by the danger of (a) unfair prejudice caused thereby, (b) confusion of points in issue and (c) excessive delay, waste of time or unnecessary duplication of evidence. It is possible to classify facts which create questions of relevance/admissibility into four main groups: (i) facts of little evidential value; (ii) facts which are not in dispute but are similar to those in dispute; (iii) facts which only apply to the credibility of the witness (iv) previous consistent statements. The question of relevance and admissibility commonly arise in the following categories: (i) facts of little evidential value; Evidence which seeks to establish character or motive can be seen as irrelevant however in certain circumstances it can be admissible – see: (R v Matthews and Others 1960 (1) SA 752 (A) The accused were members of a gang who were charged with the murder of a member of a competing gang. The activities of both gangs were admitted to prove how strong the motive of the accused was to murder a member of the other gang. Evidence of the motive raised the probability that the accused had deemed it necessary to murder a member of another gang in order to terrorise the public more effectively and to establish - 323 - dominance over the other gang. In order to prove the motive to establish such dominance, the leading of evidence of the actions of the other gang members who were not before the court was also relevant. (ii) facts which are not in dispute but are similar to those in dispute; The general rule is that evidence which prove facts which are similar to facts in issue and do not prove the issues which are in dispute, are inadmissible. However, the Doctrine of Similar Facts makes provision for certain similar fact evidence to be admissible in certain circumstances. Similar fact evidence is allowed when it discloses such a general system or modus operandi of the perpetrator that it can be inferred logically that the same individual was responsible for both sets of facts. In S v Banana 2000 (2) SACR 1 (Z) Gubbay CJ said: “Thus the test in every case must be not whether the events sought to be proved by the prosecution are strikingly similar to the offence charged, but whether their probative contribution is such as to outweigh the prejudice to the accused”. The court assesses prejudice to the accused with reference to inter alia whether the evidence merely shows a tendency rather than having a direct link to the offence. Rebuttal of alibi or denial—In R v Dhlamini 1960 (1) SA 880 (N) the charge was that the accused had stabbed a woman to death. He alleged that at the time of the offence he was at a dance party ten miles away. However, proof was admitted that he had stabbed another woman with a knife in the vicinity of the murder ten minutes before the alleged time of offence. (iii) facts which only apply to the credibility of a witness; While credibility is not a side issue, facts which are used merely to test credibility are secondary matters which have nothing to do with the points in issue. Generally a witness’s reply under cross examination on a collateral matter is final in the sense that the crossexaminer may not adduce evidence to contradict such reply. General evidence of bad character may not be adduced in terms of section 227 (iv) previous consistent statements As a general rule – previous consistent statements are inadmissible. Self corroboration has no evidential value. However there are exceptions: 1. To rebut an allegation of recent fabrication – the previous consistent statement will only rebut the suggestion of fabrication and does not serve as proof of the content or as corroboration of the similar version on the witness stand. S v Winnaar 1997 (2) SACR 352 (O) 2. The charge in sexual cases – the Sexual Offences and Related Matters Amendment Act, 32 of 2007 provides specifically that evidence of a previous consistent statement will be admissible in a criminal case involving a sexual offence and that the court cannot draw a negative inference in circumstances where there is no such previous consistent statement. (The specific requirements for admissibility will not be discussed in this guide) 3. Earlier identification of a person who is pointed out in court— the pointing out or identification of the accused before court as the perpetrator of the offence has very little - 324 - and often no evidential value because it is found that the mere presence of the accused in the accused dock is highly suggestive that s/he is the perpetrator. Therefore the fact that the witness identified the accused at some other place without the suggestion of his/her involvement in the offence will be admissible. It is on this basis that evidence of identification parades is admitted. 211 Evidence during criminal proceedings of previous convictions Except where otherwise expressly provided by this Act or the Child Justice Act, 2008, or except where the fact of a previous conviction is an element of any offence with which an accused is charged, evidence shall not be admissible at criminal proceedings in respect of any offence to prove that an accused at such proceedings had previously been convicted of any offence, whether in the Republic or elsewhere, and no accused, if called as a witness, shall be asked whether he has been so convicted. The provisions of this section clearly state that the evidence of previous convictions of the accused is inadmissible unless it is relevant to the elements of an offence for which the accused is currently charged. However, if the accused tenders evidence of his/her previous convictions, the evidence will be admissible. When is evidence of previous convictions relevant: 1. Proof of previous convictions for receiving stolen property, or for an offence involving fraud or dishonesty, is admissible in order to counter timeously an allegation that the accused did not know that the goods were stolen. 2. Proof of previous convictions for the purpose of establishing similar facts will be admissible when relevant. (Note the Doctrine of Similar Fact) 3. After conviction, the proof of previous convictions are relevant for the court to determine an appropriate sentence. 4. During Bail Application, the proof of previous convictions is necessary to assist the court to evaluate and apply the provisions of S60. NOTE FOR PRACTICE: Bail Applications are not a purely criminal matter. Previous convictions are relevant during bail applications. The previous convictions impact on the schedule of the offence and the onus or burden of proof of the parties. The accused is compelled to disclose his/her previous convictions. Failure to disclose the previous convictions can lead to further criminal prosecution. - 325 - 212 Proof of certain facts by affidavit or certificate (1) Whenever in criminal proceedings the question arises whether any particular act, transaction or occurrence did or did not take place in any particular department or subdepartment of the State or of a provincial administration or in any branch or office of such department of subdepartment or in any particular court of law or in any particular bank, or the question arises in such proceedings whether any particular functionary in any such department, subdepartment, branch of office did or did not perform any particular act or did or did not take part in any particular transaction, a document purporting to be an affidavit made by a person who in that affidavit alleges— (a) that he is in the service of the State or a provincial administration or of the bank in question, and that he is employed in the particular department or subdepartment or the particular branch or office thereof or in the particular court or bank; (b) that— (i) if the act, transaction or occurrence in question had taken place in such department, subdepartment, branch or office or in such court or bank; or (ii) if such functionary had performed such particular act or had taken part in such particular transaction, it would in the ordinary course of events have come to his, the deponent’s, knowledge and a record thereof, available to him, would have been kept; and (c) that it has not come to his knowledge— (i) that such act, transaction or occurrence took place; or (ii) that such functionary performed such an act or took part in such transaction, and that there is no record thereof, shall, upon its mere production at such proceedings, be prima facie proof that the act, transaction or occurrence in question did not take place, or as the case may be, that the functionary concerned did not perform the act in question or did not take part in the transaction in question. (2) Whenever in criminal proceedings the question arises whether any person bearing a particular name did or did not furnish any particular officer in the service of the State or of a provincial administration with any particular information or document, a document purporting to be an affidavit made by a person who in that affidavit alleges that he is the said officer and that no person bearing the said name furnished him with such information or document, shall, upon its mere production at such proceedings, be prima facie proof that the said person did not furnish the said officer with any such information or document. (3) Whenever in criminal proceedings the question arises whether any matter has been registered under any law or whether any fact or transaction has been recorded thereunder or whether anything connected therewith has been done thereunder, a document purporting to be an affidavit made by a person who in that affidavit alleges that he is the person upon whom the law in question confers the power or imposes the duty to register such matter or to record such fact or transaction or to do such thing connected therewith and that he has registered the matter in question or that he has recorded the fact or transaction in question or that he has done the thing connected therewith or that he has satisfied himself that the matter in question was registered or that the fact or transaction in question was recorded or that the thing connected therewith was done, shall, upon its mere production at such proceedings, be prima facie proof that such matter was registered or, as the case may be, that such fact or transaction was recorded or that the thing connected therewith was done. (4) (a) Whenever any fact established by any examination or process requiring any skill— (i) in biology, chemistry, physics, astronomy, geography or geology; (ii) in mathematics, applied mathematics or mathematical statistics or in the analysis of statistics; (iii) in computer science or in any discipline of engineering; - 326 - (iv) in anatomy or in human behavioural sciences; (v) in biochemistry, in metallurgy, in microscopy, in any branch of pathology or in toxicology; or (vi) in ballistics, in the identification of fingerprints or bodyprints or in the examination of disputed documents, is or may become relevant to the issue at criminal proceedings, a document purporting to be an affidavit made by a person who in that affidavit alleges that he or she is in the service of the State or of a provincial administration or any university in the Republic or any other body designated by the Minister for the purposes of this subsection by notice in the Gazette, and that he or she has established such fact by means of such an examination or process, shall, upon its mere production at such proceedings be prima facie proof of such fact: Provided that the person who may make such affidavit may, in any case in which skill is required in chemistry, anatomy or pathology, issue a certificate in lieu of such affidavit, in which event the provisions of this paragraph shall mutatis mutandis apply with reference to such certificate. (b) Any person who issues a certificate under paragraph (a) and who in such certificate wilfully states anything which is false, shall be guilty of an offence and liable on conviction to the punishment prescribed for the offence of perjury. (5) Whenever the question as to the existence and nature of a precious metal or any precious stone is or may become relevant to the issue in criminal proceedings, a document purporting to be an affidavit made by a person who in that affidavit alleges that he is an appraiser of precious metals or precious stones, that he is in the service of the State, that such precious metal or such precious stone is indeed a precious metal or a precious stone, as the case may be, that it is a precious metal or a precious stone of a particular kind and appearance and that the mass or value of such precious metal or such precious stone is as specified in that affidavit, shall, upon its mere production at such proceedings, be prima facie proof that it is a precious metal or a precious stone of a particular kind and appearance and the mass or value of such precious metal or such precious stone is as so specified. (6) In criminal proceedings in which the finding of or action taken in connection with any particular fingerprint, bodyprint, bodily sample or crime scene sample is relevant to the issue, a document purporting to be an affidavit made by a person who in that affidavit alleges that he or she is in the service of the State and that he or she is in the performance of his or her official duties— (a) found such fingerprint, bodyprint, bodily sample or crime scene sample at or in the place or on or in the article or in the position or circumstances stated in the affidavit; or (b) dealt with such fingerprint, bodyprint, bodily sample or crime scene sample in the manner stated in the affidavit, shall, upon the mere production thereof at such proceedings, be prima facie proof that such fingerprint, bodyprint, bodily sample or crime scene sample, was so found or, as the case may be, was so dealt with. (7) In criminal proceedings in which the physical condition or the identity, in or at any hospital, nursing home, ambulance or mortuary, of any deceased person or of any dead body is relevant to the issue, a document purporting to be an affidavit made by a person who in that affidavit alleges— (a) that he is employed at or in connection with the hospital, nursing home, ambulance or mortuary in question; and (b) that he during the performance of his official duties observed the physical characteristics or condition of the deceased person or of the dead body in question; and (c) that while the deceased person or the dead body in question was under his care, such deceased person or such dead body had or sustained the injuries or wounds described in the affidavit, or sustained no injuries or wounds; or (d) that he pointed out or handed over the deceased person or the dead body in question to a specified person or that he left the deceased person or the dead body in question in the care of a specified person or that the deceased person or the dead body in question was pointed out or handed over to him or left in his care by a specified person, shall, upon the mere production thereof at such proceedings, be prima facie proof of the matter so alleged. - 327 - (8) (a) In criminal proceedings in which the collection, receipt, custody, packing, marking, delivery or despatch of any fingerprint or bodyprint, article of clothing, specimen, bodily sample, crime scene sample, tissue (as defined in section 1 of the National Health Act), or any object of whatever nature is relevant to the issue, a document purporting to be an affidavit made by a person who in that affidavit alleges — (i) that he or she is in the service of the State or of a provincial administration, any university in the Republic or anybody designated by the Minister under subsection (4); (ii) that he or she in the performance of his or her official duties— (aa) received from any person, institute, state department or body specified in the affidavit, a fingerprint or bodyprint, article of clothing, specimen, bodily sample, crime scene sample, tissue or object described in the affidavit, which was packed or marked or, as the case may be, which he or she packed or marked in the manner described in the affidavit; (bb) delivered or dispatched to any person, institute, state department or body specified in the affidavit, a fingerprint or bodyprint, article of clothing, specimen, bodily sample, crime scene sample, tissue or object described in the affidavit, which was packed or marked or, as the case may be, which he or she packed or marked in the manner described in the affidavit; (cc) during a period specified in the affidavit, had a fingerprint or bodyprint, article of clothing, specimen, bodily sample, crime scene sample, tissue or object described in the affidavit in his or her custody in the manner described in the affidavit, which was packed or marked in the manner described in the affidavit, shall, upon the mere production thereof at such proceedings, be prima facie proof of the matter so alleged: Provided that the person who may make such affidavit in any case relating to any article of clothing, specimen, bodily sample, crime scene sample or tissue, may issue a certificate in lieu of such affidavit, in which event the provisions of this paragraph shall mutatis mutandis apply with reference to such certificate. (b) Any person who issues a certificate under paragraph (a) and who in such certificate wilfully states anything which is false, shall be guilty of an offence and liable on conviction to the punishment prescribed for the offence of perjury. (9) In criminal proceedings in which it is relevant to prove— (a) the details of any consignment of goods delivered to the Railways Administration for conveyance to a specified consignee, a document purporting to be an affidavit made by a person who in that affidavit alleges— (i) that he consigned the goods set out in the affidavit to a consignee specified in the affidavit; (ii) that, on a date specified in the affidavit, he delivered such goods or caused such goods to be delivered to the Railways Administration for conveyance to such consignee, and that the consignment note referred to in such affidavit relates to such goods, shall, upon the mere production thereof at such proceedings, be prima facie proof of the matter so alleged; or (b) that the goods referred to in paragraph (a) were received by the Railways Administration for conveyance to a specified consignee or that such goods were handled or transshipped en route by the Railways Administration, a document purporting to be an affidavit made by a person who in that affidavit alleges— (i) that he at all relevant times was in the service of the Railways Administration in a stated capacity; (ii) that he in the performance of his official duties received or, as the case may be, handled or transshipped the goods referred to in the consignment note referred to in paragraph (a), shall, upon the mere production thereof at such proceedings, be prima facie proof of the matter so alleged. (10) (a) The Minister may in respect of any measuring instrument as defined in section 1 of the Trade Metrology Act, 1973 (Act 77 of 1973), by notice in the Gazette prescribe the conditions and requirements which shall be complied with before any reading by such measuring instrument may be accepted in criminal proceedings as proof of the fact which it purports to prove, and if the Minister has so prescribed such conditions and requirements and upon proof that such conditions and requirements have been complied with in respect of any particular measuring instrument, the measuring instrument in question shall, for the purposes of proving the fact - 328 - which it purports to prove, be accepted at criminal proceedings as proving the fact recorded by it, unless the contrary is proved. (b) An affidavit in which the deponent declares that the conditions and requirements referred to in paragraph (a) have been complied with in respect of the measuring instrument in question shall, upon the mere production thereof at the criminal proceedings in question, be prima facie proof that such conditions and requirements have been complied with. (11) (a) The Minister may with reference to any syringe intended for the drawing of blood or any receptacle intended for the storing of blood, by notice in the Gazette prescribe the conditions and requirements relating to the cleanliness and sealing or manner of sealing thereof which shall be complied with before any such syringe or receptacle may be used in connection with the analysing of the blood of any person for the purposes of criminal proceedings, and if— (i) any such syringe or receptacle is immediately before being used for the said purpose, in a sealed condition, or contained in a holder which is sealed with a seal or in a manner prescribed by the Minister; and (ii) any such syringe, receptacle or holder bears an endorsement that the conditions and requirements prescribed by the Minister have been complied with in respect of such syringe or receptacle, proof at criminal proceedings that the seal, as thus prescribed, of such syringe or receptacle was immediately before the use of such syringe or receptacle for the said purpose intact, shall be deemed to constitute prima facie proof that the syringe or the receptacle in question was then free from any substance or contamination which could materially affect the result of the analysis in question. (b) An affidavit in which the deponent declares that he had satisfied himself before using the syringe or receptacle in question— (i) that the syringe or receptacle was sealed as provided in paragraph (a) (i) and that the seal was intact immediately before the syringe or receptacle was used for the said purpose; and (ii) that the syringe, receptacle or, as the case may be, the holder contained the endorsement referred to in paragraph (a) (ii), shall, upon the mere production thereof at the proceedings in question, be prima facie proof that the syringe or receptacle was so sealed, that the seal was so intact and that the syringe, receptacle or holder, as the case may be, was so endorsed. (c) Any person who for the purposes of this subsection makes or causes to be made a false endorsement on any syringe, receptacle or holder, knowing it to be false, shall be guilty of an offence and liable on conviction to the punishment prescribed for the offence of perjury. (12) The court before which an affidavit or certificate is under any of the preceding provisions of this section produced as prima facie proof of the relevant contents thereof, may in its discretion cause the person who made the affidavit or issued the certificate to be subpoenaed to give oral evidence in the proceedings in question, or may cause written interrogatories to be submitted to such person for reply, and such interrogatories and any reply thereto purporting to be a reply from such person, shall likewise be admissible in evidence at such proceedings. (13) No provision of this section shall affect any other law under which any certificate or other document is admissible in evidence, and the provisions of this section shall be deemed to be additional to and not in substitution of any such law. This section is intended to allow the State to prove certain types of evidence by way of an affidavit. The subsections create certain circumstances in which such affidavits may be adduced as evidence. The subsections also provide specific requirements for the affidavits to become admissible. The affidavits which comply with the requirement of the specific subsection will become prima facie proof of the facts contained in the affidavit. This means that unless evidence is adduced to rebut the contents of the affidavit – the contents will be accepted by the court. - 329 - An affidavit that meets the requirements of s 212 of the CPA will constitute prima facie proof of the matters stated in it. Section 212 may be utilised by both the prosecution and the defence. State departments, provincial administrations, courts of law, and banks Section 212(1) of the CPA provides that the fact that an act, transaction or occurrence took place in any state department, provincial administration, court of law or bank, or that a functionary in any one of these departments performed or did not perform a particular act or transaction, may be proved by affidavit. The affidavit will constitute prima facie proof provided the following requirements are met: (a) the maker of the affidavit is in the service of the State and employed by one of the institutions referred to in the subsection; (b) the act, transaction or occurrence would in the ordinary course of event have come to the deponent's knowledge and a record of it would have been kept, alternatively (c) it has not come to the deponent's knowledge that the act, transaction or occurrence took place and there is no record of such act, etc. Denial of information furnished If the issue in criminal proceedings is whether a particular person furnished a specified officer of the state or provincial administration with certain information, in terms of s 212(2) of the CPA, a denial by the officer in question in the form of an affidavit will constitute prima facie proof that the person did not furnish the officer with any such information or document. Official acts In terms of s 212(3) of the CPA where a person is authorised by law to register or record something, proof of the registration, recording and anything connected with the registration or recording may be provided by an affidavit deposed to by the person authorised in law to perform the act of registering or recording. Facts requiring specialised skills Section 212(4) of the CPA, although more detailed, contains similar provisions to those contained in s 22(1) of the CPEA. Section 212(4) provides for evidence of fact by an examination or process requiring the following skills: (i) in biology, chemistry, physics, astronomy, geography or geology; (ii) in mathematics, applied mathematics or mathematical statistics or in the analysis of statistics; (iii) in computer science or in any discipline of engineering; - 330 - (iv) in anatomy or in human behavioural sciences; (v) in biochemistry, in metallurgy, in microscopy, in any branch of pathology or in toxicology; or (vi) in ballistics, in the identification of finger prints or palm-prints or in the examination of disputed documents The document provided by the witness must: i. Be an affidavit ii. Allege that the deponent is in the service of the State or of a provincial administration or is in the service of or is attached to the South African Institute for Medical Research or any university in the Republic or any other body designated by the Minister for the purposes of this subsection by notice in the Gazette, and iii. Allege that he or she has established such fact by means of such an examination or process The person who may make such affidavit may, in any case in which skill is required in chemistry, anatomy or pathology, may issue a certificate in lieu of such affidavit, in which event the provisions of this paragraph shall mutatis mutandis apply with reference to such certificate. Any person who issues a certificate under paragraph (a) and who in such certificate w willfully states anything which is false, shall be guilty of an offence and liable on conviction to the punishment prescribed for the offence of perjury.” Prosecutors frequently rely on this section to submit into evidence Forensic Reports, such as DNA Analysis; Chemical analysis of narcotic substances; ballistic analysis; post mortem reports; etc. The court requires strict compliance with the provisions of the section. See S v Kwezi 2007 (2) SAC R 612 (E): the court held that medical evidence had not been properly admitted in terms of s 212(4) where the affidavit did not specify that the deponent was in the service of the state. The court found that the presiding officer, in light of the unrepresented accused's objections, had erred in taking judicial notice of the fact that district surgeons are in the service of the state. Dlamini 2004 (1) SACR 179 (NC) : the deponent stated that she had conducted an examination requiring skills in genetics. Genetics is not one of the fields mentioned in subsections (i) to (iv) of section 212(4)(a) nor was there any information to justify an inference that it forms part of one of the sciences that are mentioned in those provisions. The conviction was set aside on review. Precious metal and stones The existence and nature of a precious metal or stone may, in terms of s 212(5) of the CPA be proved by affidavit deposed to by an appraiser in the service of the State. - 331 - Fingerprints, body-prints, bodily samples and crime scene samples Prosecutors will rely on this section to tender evidence of the police official who attended a crime scene and collected evidence. (usually an official employed at the Local Criminal Records Center – LCRC) The police official will compile an affidavit in terms of s212(6) which will indicate: i. He/she is in the service of the state ii. He/she collected specific exhibits at the specific scene iii. The exhibits were marked with certain identifying tags or numbers iv. The place and conditions under which the exhibits be stored. Dead bodies Prosecutors rely on section 212(7) to tender evidence of the “body chain” – the movement of the deceased body after a person is declared dead until the post mortem examination is conducted by the pathologist. Requirements: i. An affidavit which states that – ii. He/she is employed or in connection with the hospital, nursing home, ambulance or mortuary; iii. He/she has observed the conditions and characteristics of the body during the performance of her official duties; iv. any injuries received whilst the body was in the care of the deponent must be recorded and v. He/she must state from whom she received the body and in whose care she left the body. Chain of custody Section 212(8) makes provision for receipt, custody, packing, marking, delivery or dispatch of any object. Prosecutors will rely om this section to tender the evidence concerning the “chain of custody” of an exhibit such as a firearm/knife; drugs; money; bullets or cartridges; etc. The affidavit of the witness will usually refer to s212(6) – collection of the exhibit and s212(8) – the movement of the exhibit. Requirements: i. an affidavit ii. deposed to by a person in the service of the State or the South African Institute of Medical Research, any university in the Republic or any body designated by the Minister under sub-s (4). - 332 - NOTE FOR PRACTICE: Prosecutors must be careful when simply handing in medical reports. In certain circumstances, even though the affidavit / certificate may meet the requirements of the section, it may be necessary to present the oral evidence of the doctor. Note the comments of the court in S v MM 2012 (2) SACR 18 (SCA) at , “As appears to be an increasing feature of cases such as these the doctor’s report was simply handed in by consent and the doctor was not called to give evidence. That practice is generally speaking to be deprecated. It means that there is no opportunity for the doctor to explain the frequently subtle complexities and nuances of the report; to clarify points of uncertainty and to amplify upon its implications and the reasons for any opinions expressed in the report. That may make the difference between a conviction and an acquittal or perhaps a conviction on a lesser charge. Depending on the areas where there is a lack of clarity, the lack of clarification may either benefit or prejudice an accused. Neither result is desirable. Magistrates and judges who are confronted with these reports without explanation do not have the requisite medical knowledge to flesh out their full implications. Unless therefore there can be no confusion, for example in a case where the fact of rape is admitted and the only issue is one of identification of the perpetrator, it will generally be desirable for the doctor to give evidence in support of his or her report. In this case it was undoubtedly necessary and the fact that the doctor was not called has rendered the consideration of this appeal far more complicated than it should have been.” Measuring instruments Section 212(10) of the CPA makes provision for the Minister to give notice of the conditions and requirements that need to be complied with in order for measurements recorded by specified measuring instruments to constitute rebuttable proof of facts recorded by such instruments. A question that arose in S v Eke 2016 (1) SACR 135 (ECG) was whether the state could prove the accuracy of a gas chromatograph, used to measure the blood alcohol levels of the accused, by way of a certificate issued in terms of s 212(4) or whether an affidavit in terms of s 212(10) was required. On this issue the court considered two conflicting decisions: S v Ross 2013 (1) SACR 77 (WCC) and S v Van der Sandt 1997 (2) SACR 116 (W), discussed in the notes to s 210(4). It preferred the latter decision which was to the effect that a certificate could be used for this purpose. The court concluded that the state had failed to submit a s 212(10) affidavit because it erroneously and inexplicably believed it did not have to. The court's insistence on strict compliance with procedures was underpinned by an appreciation of the fact that s 212 significantly lightened “the burden of the state in proving facts relating to forensic questions”. - 333 - Discretion to call for oral evidence Section 212(12) provides a discretion on presiding officers to subpoena deponents to give oral evidence or to require them to submit to interrogatories. The scope of s 212 It is made explicit in s 212(13) of the CPA that s 212 should not be interpreted as affecting the admissibility of otherwise admissible evidence and that it must “be deemed to be additional and not in substitution” to any other law. NOTE FOR PRACTICE: If the affidavit/certificate complies with the above-mentioned requirements, and if the document (affidavit/certificate) is submitted to court, it shall constitute prima facie proof of the fact(s) thus established. The word shall as contained in the section, indicate that the court is compelled to accept the document and that the fact(s) contained in that document becomes prima facie proof. The court has no choice or discretion regarding this type of evidence and no further requirements / qualifications is legally necessary. Prima facie proof means that credible proof to the contrary by means of rebutting evidence is still possible. In the absence of such proof to the contrary, the prima facie proof will become conclusive proof. Veldhuizen 1982 (3) SA 413 (A) : "The word `prima facie evidence' cannot be brushed aside or minimized. As used in this section they mean that the judicial officer will accept the evidence as prima facie proof of the issue and, in absence of other credible evidence, that prima facie proof will become conclusive proof." Trust Bank of Africa Ltd v Senekal 1977 (2) SA 587 (T): "Merely to cast suspicion on the correctness of the fact or facts prima facie established and mere theories or hypothetical suggestions will not avail the defendant; the defendant's answer must be based on some substantial foundation of fact." - 334 - NOTE FOR PRACTICE: The mere fact that the defence indicate that they do not accept the contents of the affidavit/certificate, does not affect the value of the prima facie proof at all. They must submit substantial admissible evidential material to rebut the contents of the document. If not, the prima facie proof will become conclusive. It often happens that legal representatives request the court to instruct the prosecutor to present viva voce evidence in lieu of the 212(4) statement. Their request is based on the argument that the accused has the right to subject witnesses to cross examination and if the State does not call the deponent it infringes upon the rights of the accused-so is alleged. In Britz supra the court held in this regard as follows: “ I should point out that before the coming into operation of the present Criminal Procedure Act of 1977, affidavits of the type under discussion would only have been admissible if there was no objection. That was under s 229[sic] of the previous Act. The present Act does not render such absence of objection as a condition for the handing up of an affidavit such as that under discussion.” See also Tshabalala 1999(1) SACR 412 (C). Abel 1990 (2) SACR 367 (C): "In terms of these sections the certificate is prima facie proof of its contents, provided, of course, it complies with the requirements of the sections. It follows that in the absence of other credible evidence, the prima facie proof will become conclusive proof". Britz 1994 (2) SACR 687 (W): “The fact that an accused places the correctness of the certificate in issue, as did the appellant in the Farenden case and the appellant in the present case, is not sufficient to affect the prima facie value of the certificate. The appellant has to adduce evidence to counter the prima facie value of the certificate. That follows from decisions such as R v Chizah 1960 (1) SA 435 (A)... A document drawn up in terms of the relevant sub – section of 212 becomes prima facie proof upon its submission to court. The admissibility of the statement is not dependent on consent from the magistrate and it is admissible evidential material irrespective of whether the accused or his legal representative admits or objects thereto provided it complies with the requirements of the section! - 335 - Section 35(3)(i) of the Constitution of South Africa Act 106 of 1996 - does not give an accused a right to cross examination. Challenging evidence is not synonymous to cross examination. See in this regard Ndhlovu 2002 (2) SACR 325 (SCA) where the court (with reference to the submission of hearsay evidence) makes the following ruling in paragraph : “ It has correctly been observed that the admission of hearsay evidence 'by definition denies an accused the right to cross-examine', since the declarant is not in court and cannot be cross- examined. I cannot accept, however, that 'use of hearsay evidence by the State violates the accused's right to challenge evidence by cross-examination', if it is meant that the inability to cross-examine the source of a statement in itself violates the right to 'challenge' evidence. The Bill of Rights does not guarantee an entitlement to subject all evidence to cross- examination. What it contains is the right (subject to limitation in terms of s 36) to 'challenge evidence'. Where that evidence is hearsay, the right entails that the accused is entitled to resist its admission and to scrutinise its probative value, including its reliability. The provisions enshrine these entitlements. But where the interests of justice, constitutionally measured, require that hearsay evidence be admitted, no constitutional right is infringed. Put differently, where the interests of justice require that the hearsay statement be admitted, the right to 'challenge evidence' does not encompass the right to cross-examine the original declarant.” (Compare Section 166(1) of the CPA – ACCUSED IS ENTITLED TO CROSS-EXAMINE A WITNESS CALLED BY THE STATE) 212A Proof of certain facts by affidavit from person in foreign country Whenever in criminal proceedings the question arises whether any particular act, transaction or occurrence did or did not take place— (a) in any particular department or subdepartment of a state or territory outside the Republic; (b) in any particular department or subdepartment of an administration in such state or territory which is similar to a provincial administration in the Republic; (c) in any branch or office of a department or subdepartment contemplated in paragraph (a) or (b); (d) in any particular court of law in such state or territory; or (e) in any particular institution in such state or territory which is similar to a bank in the Republic, or whenever the question arises in such proceedings whether any particular functionary in any such department, subdepartment, branch, office, court or institution did or did not perform any particular act or did or did not take part in any particular transaction, the provisions of subsections (1), (2) a n d (3) of section 212 shall mutatis mutandis apply: Provided that for the purposes of this section a document purporting to be an affidavit shall have no effect unless— it is obtained in terms of an order of a competent court or on the authority of a competent government institution of the state or territory concerned, as the case may be; it is authenticated in the manner prescribed in the rules of court for the authentication of documents executed outside the Republic; or - 336 - (c) it is authenticated by a person, and in the manner, contemplated in section 8 of the Justices of the Peace and Commissioners of Oaths Act, 1963 (Act No. 16 of 1963). The admissibility and evidentiary value of an affidavit contemplated in subsection (1) shall not be affected by the fact that the form of the oath, confirmation or attestation thereof differs from the form of the oath, confirmation or attestation prescribed in the Republic. A court before which an affidavit contemplated in subsection (1) is placed, may, in order to clarify obscurities in the said affidavit, at the request of a party to the proceedings order that a supplementary affidavit be submitted or that oral evidence be heard: Provided that oral evidence shall only be heard if the court is of the opinion that it is in the interests of the administration of justice and that a party to the proceedings would be materially prejudiced should oral evidence not be heard. This section, similar to s212 provides a mechanism for the admissibility of evidence by way of affidavit, which seeks to prove that an act, transaction or occurrence did or did not take place in a: i. department, ii. subdepartment, iii. provincial administration (similar to that of South Africa), iv. court of law or v. bank. The difference here is that the act, transaction or occurrence must have or have not took place in a State or territory outside the Republic of South Africa. The requirements for the admissibility of the affidavit as set out in s212(1), (2) & (3) will apply, with the necessary changes. 212B Proof of undisputed facts If an accused has appointed a legal adviser and, at any stage during the proceedings, it appears to a public prosecutor that a particular fact or facts which must be proved in a charge against an accused is or are not in issue or will not be placed in issue in criminal proceedings against the accused, he or she may, notwithstanding section 220, forward or hand a notice to the accused or his or her legal adviser setting out that fact or those facts and stating that such fact or facts shall be deemed to have been proved at the proceedings unless notice is given that any such fact will be placed in issue. The first mentioned notice contemplated in subsection (1) shall be sent by certified mail or handed to the accused or his or her legal adviser personally at least 14 days before the commencement of the criminal proceedings or the date set for the continuation of the proceedings or within such shorter period as may be condoned by the court or agreed upon by the accused or his or her legal adviser and the prosecutor. If any fact mentioned in such notice is intended to be placed in issue at the proceedings, the accused or his or her legal representative shall at least five days before the commencement or the date set for the continuation of the proceedings or within such shorter period as may be condoned by the court or agreed upon with the prosecutor deliver a notice in writing to that effect to the registrar or the clerk of the court, as the case may be, or orally notify the registrar or the clerk of the court to that effect in which case the registrar or the clerk of the court shall record such notice. (4) If, after receipt of the first mentioned notice contemplated in subsection (1), any fact mentioned in that notice is not placed in issue as contemplated in subsection (3), the court may deem such fact or facts, subject to the provisions of subsections (5) and (6), to have been sufficiently proved at the proceedings concerned. - 337 - If a notice was forwarded or handed over by a prosecutor as contemplated in subsection (1), the prosecutor shall notify the court at the commencement of the proceedings of such fact and of the reaction thereto, if any, and the court shall thereupon institute an investigation into such of the facts which are not disputed and enquire from the accused whether he or she confirms the information given by the prosecutor and whether he or she understands his or her rights and the implications of the procedure and where the legal adviser of the accused replies to any question by the court under this section, the accused shall be required by the court to declare whether he or she confirms such reply or not. The court may on its own initiative or at the request of the accused order oral evidence to be adduced regarding any fact contemplated in subsection (4). The section provides the prosecution with a tool to formally eliminate issues which do not appear to be in issue. 1. The prosecution delivers in writing a notice of facts which in the circumstances of the particular case, do not appear to be in issue. 2. The notice must be delivered 14 days prior to the hearing of the matter (unless other period agreed by the parties) 3. The defense must file a notice with the clerk of court or deliver to the prosecutor a notice which specifies which facts will be placed in dispute. 4. If the defense does not file the notice which describes the disputed facts, the court will accept that the facts are undisputed. Note: this section only applies to matters where the accused is legally represented. 213 Proof of written statement by consent In criminal proceedings a written statement by any person, other than an accused at such proceedings, shall, subject to the provisions of subsection (2), be admissible as evidence to the same extent as oral evidence to the same effect by such person. (a) The statement shall purport to be signed by the person who made it, and shall contain a declaration by such person to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that, if it were tendered in evidence, he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or which he did not believe to be true. If the person who makes the statement cannot read it, it shall be read to him before he signs it, and an endorsement shall be made thereon by the person who so read the statement to the effect that it was so read. A copy of the statement, together with a copy of any document referred to in the statement as an exhibit, or with such information as may be necessary in order to enable the party on whom it is served to inspect such document or a copy thereof, shall, before the date on which the document is to be tendered in evidence, be served on each of the other parties to the proceedings, and any such party may, at least two days before the commencement of the proceedings, object to the statement being tendered in evidence under this section. If a party objects under paragraph (c) that the statement in question be tendered in evidence, the statement shall not, but subject to the provisions of paragraph (e), be admissible as evidence under this section. If a party does not object under paragraph (c) or if the parties agree before or during the proceedings in question that the statement may be so tendered, the statement may, upon the mere production thereof at such proceedings, be admitted as evidence in the proceedings. - 338 - ( f ) When the documents referred to in paragraph (c) are served on an accused, the documents shall be accompanied by a written notification in which the accused is informed that the statement in question will be tendered in evidence at his trial in lieu of the State calling as a witness the person who made the statement but that such statement shall not without the consent of the accused be so tendered in evidence if he notifies the prosecutor concerned, at least two days before the commencement of the proceedings, that he objects to the statement so being tendered in evidence. (3) The parties to criminal proceedings may, before or during such proceedings, agree that any written statement referred to in subsections (2) (a) and (b) which has not been served in terms of subsection (2) (c) be tendered in evidence at such proceedings, whereupon such statement may, upon the mere production thereof at such proceedings, be admitted as evidence in the proceedings. (4) Notwithstanding that a written statement made by any person may be admissible as evidence under this section— (a) a party by whom or on whose behalf a copy of the statement was served, may call such person to give oral evidence; (b) the court may, of its own motion, and shall, upon the application of any party to the proceedings in question, cause such person to be subpoenaed to give oral evidence before the court or the court may, where the person concerned is resident outside the Republic, issue a commission in respect of such person in terms of section 171. (5) Any document or object referred to as an exhibit and identified in a written statement tendered in evidence under this section, shall be treated as if it had been produced as an exhibit and identified in court by the person who made the statement. (6) Any person who makes a statement which is admitted as evidence under this section and who in such statement wilfully and falsely states anything which, if sworn, would have amounted to the offence of perjury, shall be deemed to have committed the offence of perjury and shall, upon conviction, be liable to the punishment prescribed for the offence of perjury. This section provides for evidence to be tendered to the court, without oral testimony. It is also notable that the section referred to a “written statement” – which means that is does not have to be an affidavit. The requirements: i. The document must be signed by the person who made it and must declare that the facts are true to the best of his/her knowledge. ii. Must further declare that he/she is aware that the statement will be tendered as evidence and that making a false statement, knowing it to be false may cause him/her to be liable to criminal prosecution. iii. A copy of the written statement must be provided to the defense prior to the date on which the document is to be tendered as evidence. iv. No time period is specified however, a reasonable period is required. v. The defense must, at least two (2) days prior date of evidence being tendered, object to the statement being tendered as evidence. vi. An agreement with regard to the admissibility of the document must be reached before the commencement of the proceedings. vii. If no objection is submitted or if the parties agree to the admissibility – the document will be on mere production be admitted as evidence. viii. The party tendering the document / statement can still call the witness to present oral evidence. In that circumstance the stamen can no longer be used in terms of s213. - 339 - 214 Evidence recorded at preparatory examination admissible at trial in certain circumstances The evidence of any witness recorded at a preparatory examination- (a) shall be admissible in evidence on the trial of the accused following upon such preparatory examination, if it is proved to the satisfaction of the court- (i) that the witness is dead; (ii) that the witness is incapable of giving evidence; (iii) that the witness is too ill to attend the trial; or (iv) that the witness is being kept away from the trial by the means and contrivance of the accused; and (v) that the evidence tendered is the evidence recorded before the magistrate or, as the case may be, the regional magistrate, and if it appears from the preparatory examination record or it is proved to the satisfaction of the court that the accused or, as the case may be, the State had a full opportunity of cross-examining such witness; (b) may, if such witness cannot, after a diligent search, be found for purposes of the trial of the accused following upon such preparatory examination, or cannot be compelled to attend such trial, in the discretion of the court, but subject to the provisions of subparagraph (v) of paragraph (a), be read as evidence at such trial, if it appears from the preparatory examination record or it is proved to the satisfaction of the court that the accused or, as the case may be, the State had a full opportunity of cross-examining such witness. Prepatory examination was a common procedure used to establish whether there was sufficient evidence available before a matter was set down for trial in the High Court. Since the introduction of the Regional Courts, the procedure is very rarely used. The mechanisms provided in this section are very similar to those available in S222 of this act and s3 of the Law of Evidence Amendment Act 45 of 1988 – see discussion under s216 & s222 215 Evidence recorded at former trial admissible at later trial in certain circumstances The evidence of a witness given at a former trial may, in the circumstances referred to in section 214, mutatis mutandis be admitted in evidence at any later trial of the same person upon the same charge. It must immediately be noted that the provisions of the section do not make the record of a former trial automatically admissible. The proviso “in certain circumstances” ensures that there must be satisfactory reasons provided for the previous record to be admitted in the latter proceedings. Further, the requirements for admissibility set out in s214 must be met before the evidence is deemed admissible. The following requirements must be satisfied: i. The court must be satisfied that the unavailable witness is dead, incapable of giving evidence, too ill to attend the trial or is being kept away from the trial by the accused. ii. The evidence must have been recorded in either a magistrates' or regional court and the accused or state (as the case may be) must have had the opportunity of cross-examining the witness. - 340 - iii. The court has a discretion in terms of s 214(b) to admit evidence from preparatory examination (or former trial) if the witness cannot be found after a diligent search or cannot be compelled to attend the trial, provided once again that the evidence has been recorded in the magistrates' or regional court and the accused or state had an opportunity to cross-examine the witness. The original record of judicial proceedings may be proved in terms of s 235 by a certified copy which “shall be prima facie proof that any matter purporting to be recorded thereon was correctly recorded”. 216...... [S. 216 repealed by s. 9 of Act 45 of 1988 (wef 3 October 198

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