IN THE HIGH COURT OF
In the matter between:
KALAKE MOFUBETSOANA PLAINTIFF
DIRECTOR OF PUBLIC PROSECUTIONS
Delivered by the Honourable Mr. Justice G. N.
MofoloOn the 29th day of May, 2006
This is a case in which the plaintiff claims his vehicle
In course of the defence case it appears Mr. Mapetla
for the defencewas not satisfied with the evidence of D.W.4 who,
according to him seemedto resile from his evidence. He says he
was of a mind to declare the witnesshostile but since it was in
course of the witnesses evidence-in-chief
desisted for it
would amount to cross-examining his own witness, somethingthe
Court would not allow and this placed him in an invidious position.
Onreflection, and following a later discovery he had decided the
witnessesconduct was so suspicious it was necessary to have
the witness recalled anddeclared a hostile witness.
Mr. Mapetla, according to
him, this arises from the conduct of thewitness on 23/02/06 when
the witness left Court at 4.45 p.m. in company ofplaintiff and
his wife towards the traffic circle and this made Mr.
Mapetlawonder as to the relationship between D.W.4 and
plaintiff since D.W.4 wasto testify the following morning of
24/02/06 and given the evidence D.W.4tendered, he was asking
himself as to the relationship between D.W.4 andthe plaintiff.
Because of D.W.4s inconsistent statement, it was desirablethat
D.W.4 be recalled to be impeached.
Mr. Ntlhoki has opposed the application saying a
hostile witness isimpeached during cross-examination and Mr.
Mapetla has allowed hisopportunity slip and it is too late to
recall D.W.4 to declare him a hostilewitness.
The English practice appears to rely on exercise of
discretion to allow
evidence to be
given any time before delivery of verdict, etc and theSupreme
Court of Eire has held that the judge has a discretion to allow
awitness to be called up to the time when the jury returns its
verdict seePeople (A-G) v. OBrien (1963) IR 65. It
does seem, however, that in ourpractice the discretion of the
Court to allow or disallow recalling is alsodiscretionary.
In Pauley v. Marine and Trade Insurance Co. Ltd (2)
1964 (3) SA637 (W.L.D.). The defence had called witnesses and
after examining themthey were cross-examined including the
witness to be recalled. Instead ofclosing the defence case the
defence had made an application for the recallof a witness (as in
this case) and as to whether or not a witness could berecalled
Trollip J. made reference to Wigmore on Evidence, 3rd
ed. Vol. VIpara. 189 as follows:
It can rarely occur that during the putting in of a
partys case at largethe recall of a witness once dismissed by
him becomes necessary inorder to obtain facts which could not
have been put during thewitnesses examinations on the original
call. Nevertheless, the cross-examination of an intervening
witness may develop such a situation.Moreover, inadvertent
omissions constantly and unavoidably occur andrepetitions become
desirable sometimes for clearness sake. The chiefdanger to be
guarded against is the unfair misleading of the opponent,who may
have dismissed his own witness.
Accordingly, while it does not seem to be maintained
that there arecases in which a recall may be demanded as of
right, it is conceded thatthe allowance of a recall upon the
general principle rests entirely withthe trial Courts
And in the famous
case against the Queen in the House of Lords in1820 (129 E.R.
976 at p.987) judges seem to agreed that the only effect ofa
subsequent discovery would be to allow the witness to be called back
forfurther cross-examination, if still within reach, which may be
done uponthat or other reasonable ground.
It was on this basis that the witness was recalled and
am of the viewthat exercising its discretion justly, it is
desirable that D.W.4 be recalled forthere are reasonable grounds
for his recall.
G. N. MOFOLOJUDGE
For the Plaintiff: Mr.
For the Defendants:
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