- S V Masoka and Another 2015 (2) SACR 268 (ECP)
Two accused persons were standing trial before the magistrates’ court in Humansdorp in the Eastern Cape on a charge of robbery.
During cross-examination of accused 2 by the public prosecutor, it was put to accused 2 that the State/prosecution had obtained a witness statement from Mr Thanduxolo. Before the content of such statement was put to accused 2, Mr Van Wyk, who appeared on behalf of accused 2, objected thereto. After discussions with both the prosecutor and Mr Van Wyk, the trial magistrate put the following information on record:
“1. The plea explanation disclosing the name and address of the alibi witness occurred on 3 February 2014;
2. the defence attorney, Mr Van Wyk, had consulted with the alibi witness Thanduxolo on 4 February 2014;
3. after the aforesaid events the prosecutor requested the investigating officer to trace the witness and obtain a witness statement from him, which the investigating officer did, and he furnished the prosecutor with such statement on 11 February 2014;
4. the State case proceeded without the prosecutor calling Thanduxolo as a witness, and without alerting the defence that it had obtained such a statement, and without it making such statement available to the defence;
5. the prosecutor closed the State case on 10 March 2014 whereafter the two accused presented their evidence;
6. accused 2 completed his evidence-in-chief on 10 March 2014 when he was confronted by the prosecutor with a statement taken from his own witness.”
Based on the above facts, the trial magistrate sent the case to the High Court in Port Elizabeth for special review (the review court).