CALLING OF WITNESS BY COURT MUST BE DONE WITH IMPARTIALITY

S v MASOOA 2016 (2) SACR 224 (GJ)

 

Evidence — Witness — Calling by court — In terms of s 167 and s 186 of Criminal Procedure Act 51 of 1977 — In considering whether or not to receive further evidence in terms of provisions, court must adopt absolute impartiality — Court must also ensure strict neutrality maintained in way questions asked — Accused also to be afforded opportunity to call further evidence, should potentially adverse evidence be produced — Court to ensure that motive for directing further evidence under s 186 not partisan and that it is essential for just decision of case — Section 167 of Act complements s 186 insofar as calling or recalling of witnesses appears essential to court for just decision of case.

 

A court must adopt absolute impartiality when considering whether or not to receive further evidence in terms of s 186 of the Criminal Procedure Act 51 of 1977. If further evidence is directed, then the court must ensure that strict neutrality is maintained in the way questions are asked. The accused must also be afforded an opportunity to call further evidence in rebuttal, should any potentially adverse evidence be produced. A court cannot avoid the consequences of a post facto complaint of bias if the evidence turns out unfavourably for the accused. What it must ensure is that the motive for directing further evidence under s 186 is not partisan and that it is essential to receive it for the just decision of the case.

Section 167, which provides for the calling of any person ‘who has been subpoenaed to attend such proceedings or who is in attendance at such proceedings’ and for the recalling of any witness who has testified in the proceedings, complements s 186 insofar as the calling or recalling of a witness appears to the court to be essential to the just decision of the case. It is, however, confined to a witness who has already been subpoenaed or who has already testified.

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