LAW OF EVIDENCE

MODULE ACLL151

COURSE DESIGN LENGTH 200 HOURS

THE INSTITUTE OF PEOPLE’S MANAGEMENT 2022

 Published by:
Institute of People Management of Zimbabwe
IPMZ, 15 Argyle Road Avondale, Harare

Year: 2022

© IPMZ. All rights reserved. No part of this publication may be

reproduced, stored in a retrieval system, or transmitted, in any form or by any means,
electronic, mechanical, photocopying, recording or otherwise, without the prior
permission of the IPMZ.
 Contents

Course Objectives ......................................................................................... 1

Chapter 1
The Nature of Law of Evidence ..................................................................... 3
Chapter Learning Objectives ................................................................................. 3
1.1 Introduction ................................................................................................... 3
1.2 Evidence Law Defined..................................................................................... 4
1.3 Nature of Evidence Law .................................................................................. 5
1.4 Functions of The Law Of Evidence ................................................................... 5
1.5 Sources of Law of Evidence ............................................................................ 6
1.5.1 Legislation .................................................................................................. 6
1.5.2 Case Law/Precedent .................................................................................... 7
1.5.3 English Common Law .................................................................................. 8
1.5.4 Constitution of Zimbabwe ............................................................................ 8
1.6 Definition of Terms ......................................................................................... 8
1.7 Revision Questions ......................................................................................... 9

Chapter 2
Classification of Evidence ........................................................................... 10
Chapter Learning Objectives ............................................................................... 10
2.1 Introduction ................................................................................................. 10
2.2 The Best Evidence Rule ................................................................................ 11
2.2.1 Documentary Evidence .............................................................................. 11
2.2.2 Real Evidence............................................................................................ 12
2.2.3 Direct Evidence ......................................................................................... 12
2.2.4 Circumstantial Evidence ............................................................................. 12
2.3 Definition of Terms ....................................................................................... 13
2.4 Revision Questions ....................................................................................... 13
 LAW OF EVIDENCE

Chapter 3
Relevancy and Admissibility ....................................................................... 14
Chapter Learning Objectives ............................................................................... 14
3.1 Introduction ................................................................................................. 14
3.2 Meaning of Relevance................................................................................... 15
3.3 Admissions and Confessions .......................................................................... 15
3.3.1 Admissions ................................................................................................ 15
3.4 Testimony/Oral Evidence .............................................................................. 17
3.5 Previous Consistent Statements (PCS) ........................................................... 17
3.6 Definition of Terms ....................................................................................... 21
3.7 Revision Questions ....................................................................................... 21

Chapter 4
Character and Opinion Evidence ................................................................ 22
Chapter Learning Objectives ............................................................................... 22
4.1 Introduction ................................................................................................. 22
4.2 Character Evidence in Civil Cases .................................................................. 23
4.2.1 Character in Issue ..................................................................................... 23
4.3 Similar Fact Evidence .................................................................................... 24
4.3.1 Similar Fact Evidence in Arbitration Proceedings .......................................... 25
4.4 Opinion Evidence ......................................................................................... 27
4.4.1 Expert Opinion Evidence ............................................................................ 27
4.5 Relevant Lay Opinion Evidence...................................................................... 29
4.6 The Rule in Hollington V Hewthorn ................................................................ 30
4.7 Definition of Terms ....................................................................................... 31
4.8 Revision Questions ....................................................................................... 32

Chapter 5
HEARSAY ..................................................................................................... 33
Chapter Learning Objectives ............................................................................... 33
5.1 Introduction ................................................................................................. 33
5.2 Hearsay Evidence ......................................................................................... 34
5.3 The Applicability of Hearsay Evidence in Employment Cases ........................... 35
5.3.1 Res Gestae................................................................................................ 37
5.4 Spontaneous Exclamations ............................................................................ 37
5.5 Statutory Exceptions ..................................................................................... 37
5.5.1 Public Documents ...................................................................................... 37
5.6 Definition of Terms ....................................................................................... 39
5.7 Revision Questions ....................................................................................... 39

Chapter 6
Competence and Compellabity ................................................................... 40
Chapter Learning Objectives ............................................................................... 40
6.1 Introduction ................................................................................................. 40
6.2 Competence and Compellability ..................................................................... 41
6.3 Compellability .............................................................................................. 41
6.4 Competence in Civil Proceedings ................................................................... 41
6.5 Definition of Terms ....................................................................................... 42
6.6 Revision Questions ....................................................................................... 42

Chapter 7
privilege ...................................................................................................... 43
Chapter Learning Objectives ............................................................................... 43
7.1 Introduction ................................................................................................. 43
7.2 The Concept of Privilege ............................................................................... 44
7.3 Types of Privilege and Reasons ..................................................................... 44
7.3.1 Privilege Relating to Legal Profession .......................................................... 44
7.3.2 Privilege of Confidential Communications .................................................... 45
7.3.3 Privilege in Public Interest .......................................................................... 46
7.4 Definition of Terms ....................................................................................... 47
7.5 Revision Questions ....................................................................................... 47

Chapter 8
Corroboration ............................................................................................. 48
Chapter Learning Objectives ............................................................................... 48
8.1 Introduction ................................................................................................. 48
 LAW OF EVIDENCE

8.2 Corroboration and The Need for Corroboration ............................................... 49

8.2.1 Single Witness Evidence............................................................................. 49
8.2.1.1 Approach of courts ................................................................................. 49
8.3 Definition of Terms ....................................................................................... 51
8.4 Revision Questions ....................................................................................... 51

Chapter 9
Burden and Standard of Proof .................................................................... 52
Chapter Learning Objectives ............................................................................... 52
9.1 Introduction ................................................................................................. 52
9.2 The Standard and Burden of Proof and Evidential Duties in Civil Trials ............. 53
9.3 Distinction Between Onus and Evidentiary Burden .......................................... 53
9.4 The Incidence of the Burden of Proof ............................................................ 53
9.5 The Term ‘Prima Facie’ Case ......................................................................... 54
9.6 Absolution from The Instance ....................................................................... 54
9.7 Civil Standard of Proof .................................................................................. 54
9.8 Onus in Defamation Cases ............................................................................ 56
9.9 Definition of Terms ....................................................................................... 57
9.10 Revision Questions ..................................................................................... 58
 LAW OF EVIDENCE

Course Objectives
By the end of the course, you will be able to:

1. Use and apply the rules of evidence.

2. Apply the rules clearly and concisely in writing.

STUDY GUIDE
Firstly we would like to welcome you to this course and particularly to the “Law of
Evidence” module. We further congratulate you for taking this module, which
encompasses the rules and legal principles that govern the proof of facts in legal
proceedings. These rules determine what evidence must or must not be considered by
the court in reaching its decision. Therefore, evidence is key and without evidence
there can be no proof. Proving facts through the presentation of evidence means
convincing the court should accept a particular version of events.

Literature
Prescribed books

Bellengere, A. (2019). The law of evidence in South Africa: Basic principles (2nd ed.).
Oxford.

Schwikkard, P. J. & Van der Merwe, S. E. (2016). Principles of evidence (4th

edition). Juta.

Zeffert, D. T. & Paizes, A.P. (2017). The South African Law of Evidence (3rd edition).
LexisNexis.

Legislation

Constitution of Zimbabwe of 2013

The Civil Evidence Act 08:01.

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Criminal Procedure and Evidence Act [Chapter 9:07].

Recommended books

Bellengere, A. (2019). The law of evidence in South Africa: Basic principles (2nd ed.).
Oxford.
Hoffmann, L. H. & Zeffertt, D. (2003). The S.A. law of evidence (4th ed.).
Lexis/Nexis/Butterworth.

Lansdown, A. V. & Campbell, J. (1982). SA criminal law & procedure. vol 5.

Reid, R. (1997). Criminal procedure in Zimbabwe. Legal Resources Foundation.

Schwikkard, P. J. & Van der Merwe, S. E. (2016). Principles of evidence (4th

edition). Juta.
Zeffert, D. T. & Paizes, A.P. (2017). The South African Law of Evidence (3rd edition).
LexisNexis.
Use of prescribed books

We assumed most students would not be able to access the prescribed books and ensured the
module covers all the key information that is required for you, the student to pass the
examinations. However, you, students are recommended to purchase the prescribed book in
order to fully comprehend this course, the complexities of systems delivery to achieve real
and lasting benefits from technology solutions. In order for you to understand the subject, we
encourage you to access the referenced materials.

Method of study

This book is your primary learning resource. You may refer to the prescribed and reference
books in order to improve your knowledge and understanding of the material in the course
and enrich your learning experience. It should be borne in mind that law is dynamic;
therefore, you should attempt to remain up to date with current developments in this area.
You should read journals (hard copy or online) that cover the Law of Evidence as often as
possible. Review questions and exercises are given at the end of each Study Chapter. These
are meant to test your understanding of the concepts covered in the module. In addition, the
exercises are meant to test your capability to apply the theoretical knowledge you have gained
to real world scenarios. Please attempt all the questions to test your understanding.

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 Chapter 1
THE NATURE OF
LAW OF
EVIDENCE

Chapter Learning Objectives

Upon completion of this chapter, you will be able to:

1. define the law of evidence

2. explain the nature of the law of evidence
3. discuss the sources of law of evidence

1.1 Introduction
The law of evidence is a part of adjectival law that deals with evidence and proof in
the context of resolving factual disputes. As a result, it governs the presentation of
evidence in a court of law. As a result, in this chapter we will concentrate on the
nature of the law of evidence, its functions, and the sources of the law of evidence.

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Chapter 1 THE NATURE OF LAW OF EVIDENCE

1.2 Evidence Law Defined

Because evidence and the law of evidence are two separate things, it is critical that we
first discuss the concept of “evidence” in general. The word “evidence” comes from
the Latin word “evidentia,” which means “to exhibit clearly, to make clear to the eye,
to discover clearly certain, to ascertain, or to prove.”1 As a result, evidence is anything
that can be used to establish or reject the presence or nonexistence of a claimed fact.
The party who asserts the presence of a fact must prove it, whereas the party who
denies it must disprove its existence or prove its non-existence.

However, even facts that have traditionally been regarded evidence may not be
evidence in the perspective of the law of evidence. Evidence is, in most cases,
something that is produced to a court for the purpose of establishing or disproving a
point. To put it another way, evidence is a method of persuading a court of the truth or
falsity of a contested fact between the parties in their pleadings.

Evidence is defined as a means whereby any alleged matter of fact, the truth of which
is submitted to investigation, is proved and includes statements by defendants,
admission, judicial notices, presumptions of law, and observation by the court in its
judicial capacity.2

Therefore, the law of evidence has been defined by different authors according to
their perceptions but with similar messages. One author defines it as:

“… the system of rules and standards by which the admission of proof at the trial of a
lawsuit is regulated”.3

Furthermore, Robert Arthur Melin4 has made an attempt to define evidence law in a
more comprehensive way. He defined it as follows:

 Facts that may be considered in court? This is the issue of relevant evidence that
one should adduce before the court to support his allegation.
 Facts in issue. The facts in issue are the things you will need to prove in order for
your case to succeed. This will depend upon the cause of action or legal basis

1
Schwikkard & Van der Merwe: Principles of Evidence. Juta (4 th edition – 2016)
2 Ibid.
3 Mason Ladd, McCormick: Handbook of the Law of Evidence, 54 MICH. L. REV. 158 (1955).
4 Melin, Robert Arthur, Evidence in Ethiopia, ,(1940), Addis Ababa Haile Selassi.

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 LAW OF EVIDENCE

which entitles you to commence legal proceedings. For example, in a case of

negligence, a person must show that the other party owed them a duty of care, that
this duty was breached and that the person suffered damage as a result. A person
claiming breach of contract must first show the existence of a contract, namely:
 That there was an agreement between the parties,
 That the parties intended to create a legal relationship and;
 That consideration (that is, something of value) was provided as part of the
bargain.
 Facts relevant to facts in issue
 The methods of securing consideration of these facts
 By proof
 Real (e.g. documentary, exhibits) evidence
 Oral evidence
 Certain facts, which need not be proved e.t.c

1.3 Nature of Evidence Law

It is critical to first comprehend the role of evidence law in the context of other laws.
Laws can be divided into two categories: substantive and adjectival.5 Adjective laws
deal with the procedure for bringing cases in court, proving them, and generally
upholding the rights and obligations established by substantive laws. While
substantive laws specify rights and responsibilities. This makes up the majority of the
law, and it appears to be the most essential component, as it establishes what rights,
privileges, and obligations one person has against or owes another. The rights,
advantages, and obligations conferred by such legislation, however, will be
meaningless unless they can be enforced. As a result, adjective law is as relevant to
substantive law. As a result, the law of evidence is classified as adjective law, along
with procedural laws, both criminal and civil.

1.4 Functions of The Law Of Evidence

The law of evidence’s main duty is to decide whether facts are legally acceptable to
prove the facts in question. The facts in question (facta probanda) are the facts that

5 Zeffert and Paizes: The South African Law of Evidence. LexisNexis (3rd edition- 2017).

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Chapter 1 THE NATURE OF LAW OF EVIDENCE

must be proven in order for a side to win.6 The facta probantia are the pertinent facts
that tend to prove or deny the facts in question. In a paternity case, for example, the
father’s identity will be a factum probandum.7 Sexual contact with the putative father
will be established as a factum probans. The substantive law, in general, determines
the facts in question. The rules of process, particularly the law of evidence, on

the other hand, determine the facts relevant to the facts in dispute.8

1.5 Sources of Law of Evidence

With the exception of Criminal Law, Zimbabwe’s law is mainly uncodified. There is
no one single source of law in Zimbabwe; the law is derived from various sources and
has various sources and has various origins. Therefore, the sources of Zimbabwean
law of evidence are as follows:
 Legislation;
 Case law interpreting the legislation;
 The English common law and legislation enacted up to 1 June 1927; and
 The Constitution.

1.5.1 Legislation
Legislation refers to the law validly enacted by the legislative authority of Zimbabwe
and assented to by the President of Zimbabwe. In Zimbabwe, the legislative authority
of Zimbabwe vests in the President and Parliament of Zimbabwe, which is the
Primary Legislation by virtue of s116 and s117. The legislature derives its authority
from the people, vested and exercised in accordance with the provisions of the
Constitution.9

The Legislature of Zimbabwe can confer powers on any authority to create binding
laws. Currently the Legislature of Zimbabwe is a bicameral system consisting of a
National Assembly and the Senate. Legislation brought through the National

6
Ibid.
7 Op cit.
8 Adrian Bellengere et al: The Law of Evidence in South Africa, Basic Principles. Oxford (2nd edition –
2019).
9 Section 117(1) of the Constitution of Zimbabwe.

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 LAW OF EVIDENCE

Assembly must be scrutinised by the Senate before the President assents to it. Both
houses have the power to initiate, prepare, consider, and reject legislation.10

The method of passing legislation is entrenched in the Fifth Schedule of the

Constitution. All legislation in Zimbabwe is styled Acts of Parliament or Statutes.
Other authorities such as the President, acting unilaterally, and ministries can pass
legislation known as Statutory Instruments, or Subsidiary Legislation. Subsidiary or
Subordinate Legislation consists of the following:

 Regulations made by a minister for purposes specified in the Enabling Act of

Parliament.
 Byelaws created by specified local authorities such as Urban or Rural Councils,
acting under powers given to them by the relevant Acts of Parliament.
 Proclamations issued by the President for purposes such as dissolving Parliament.
 Rules of the superior courts to facilitate procedure and their operations.
 Regulations made by the President under the Presidential Powers Temporary
Measures Act.

However, in terms of s134 of the Constitution the statutory instruments inter

alia must not infringe or limit the rights and freedoms set in the Constitution and must
be laid before the National Assembly in accordance with its Standing Orders and
submitted to the Parliamentary Legal Committee for scrutiny.

1.5.2 Case Law/Precedent

Precedent refers to past decisions of the superior courts. Precedents establish the legal
position of cases tried in the courts and establish the reasoning for decisions made by
the judges in each particular case. Conversely, precedents, therefore, guide the courts
in making future decisions in similar cases brought before them. Zimbabwe relied on
precedents of South African origin or those of any jurisdiction in which English law
and Roman–Dutch law are applied and the precedents of Rhodesia.

The maxim stare decisi at non-queta movere best sums up the use of case law in
Zimbabwe. The maxim means to stand by old decisions and not disturb settled points.

10 Section 130 of the Constitution of Zimbabwe.

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Chapter 1 THE NATURE OF LAW OF EVIDENCE

Supreme Court decisions in Zimbabwe are binding on all interior courts. High court
ruling also binds the lower courts such as the Magistrates’ Courts.

The advantage of precedents is that they ensure informality and consistency in the
application of the law and they maintain certainty and equality of the law in similar
circumstances.

1.5.3 English Common Law

The English common law and legislation enacted up to 1 June 1927 are also sources
of the law of evidence in Zimbabwe. These are used mainly where the statutes are
silent on a specific topic or issue (therefore, they can be used subject to some
qualifications).

1.5.4 Constitution of Zimbabwe

The Constitution of Zimbabwe is the supreme law of the land and any law, practice,
custom or conduct inconsistent with it is invalid to the extent of the inconsistency. Its
supremacy stretches to the extent of binding every person, natural or juristic,
including the State and all executive, legislative, and judicial institutions and agencies
of government at every level and expect fulfillment of imposed
obligations.11 Therefore, Zimbabwe has Constitutional Supremacy instead of
parliamentary Supremacy.

The current Constitution of Zimbabwe is a homegrown constitution whose process

took close to three years. It was ushered through Constitution of Zimbabwe
Amendment (No. 20) Act, 2013. The Constitution is the parent act of every other
legislation. Therefore, all acts of parliament subordinate to it must be intra vires the
constitution or within the confines of constitutionality.

1.6 DEFINITION OF TERMS

Evidence - a means whereby any alleged matter of fact, the truth of which is
submitted to investigation, is proved and includes statements by defendants,
admission, judicial notices, presumptions of law, and observation by the court in its
judicial capacity.

11 Section 2 of the Constitution of Zimbabwe reads – Supremacy of Constitution.

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 LAW OF EVIDENCE

Law of Evidence - the system of rules and standards by which the admission of proof
at the trial of a lawsuit is regulated.

Facta Probantia - the pertinent facts that tend to prove or deny the facts in question.

1.7 REVISION QUESTIONS

1) Define the law of evidence (2)
2) Explain the difference between substantive law and adjectival law and give an
example of each (6)
3) Briefly explain the relationship between “proof” and the law of evidence (6).
4) Describe the nature of the law of evidence (5)
5) Discuss the sources of the law of evidence (10)
6) Analyse the functions of the law of evidence (5)
7) What do you understand by:
a) (i)facta probanda
b) (ii) facta probantia
c) (iii) factum probandum (9)

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 LAW OF EVIDENCE

Chapter 2
CLASSIFICATION OF
EVIDENCE

Chapter Learning Objectives

Upon completion of this chapter, you will be able to:
1. Explain the different classes of evidence
2. Describe the evidence rule

2.1 Introduction
This chapter focuses on the different classes of evidence law enforcement agents that
one may come across when conducting an investigation. Therefore, the classes of
evidence will be discussed as follows:
 direct evidence
 circumstantial evidence
 primary and secondary evidence
 forensic evidence
 expert evidence

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Chapter 2 CLASSIFICATION OF EVIDENCE

2.2 The Best Evidence Rule

The ‘Best Evidence Rule’ is used to describe primary evidence as distinguished from
secondary evidence.12 Primary evidence is evidence which itself suggests that it is the
best evidence or put negatively, does not itself suggest the existence of better
evidence. The law regards primary evidence as the most reliable and requires it to be
produced, if available, to the exclusion of certain less reliable evidence. The term is of
importance mainly in relation to documents, of which the original or an admission of
the contents is said to be primary, and must generally be produced. On the other hand,
secondary evidence by its nature itself suggests the existence of better evidence, and
is rejected by the law if the better or primary evidence is available. Thus, in relation to
documents, a copy of a document may not generally be given. In the above context,
the best evidence rule simply states that the best available evidence must be given
when it is available.13

2.2.1 Documentary Evidence

Thus, with documents, the original must generally be produced. A copy of the original
that is, secondary evidence may be allowed where; the original is in the possession or
power of an opponent, who refuses or omits to produce it after notice to produce. The
original is in the possession of a third party, not legally compellable to produce it,
who refuses to do so when served with a subpoena duces tecum. The original has been
lost or destroyed and it is proved that a proper search has been made for it. The
original cannot be brought to court, perhaps because it is physically impossible to do
so, or it is not legally allowed, for example, in the case of “Public Documents”.14
Specifically s 11 of the CEA of 08:01 provides that except as otherwise provided in
this Act or any other enactment, a copy of a document shall not be admissible to
prove the document’s contents, unless:
(a) all the parties to the civil proceedings concerned consent to the production of
the copy; or
(b) the court in its discretion permits the production of the copy, being satisfied that
the original document—
(i) has been destroyed or is irretrievably lost; or

12 Op cit note 1.
13 Ibid.
14 Hoffman & Zeffertt South African Law of Evidence 4 ed at pp 25-36.

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 LAW OF EVIDENCE

(ii) is in the possession of another party to the civil proceedings, who refuses to
produce the original document; or
(iii) is in the possession of a person who cannot be required by law to produce the
original; or
(iv) is outside Zimbabwe; or
(v) for any other good and sufficient cause, cannot reasonably or practicably be
produced.

2.2.2 Real Evidence

These are tangible, material objects produced in evidence in court. The court is then in
a position to reach its own conclusions based on its own perceptions of the real
evidence. Real evidence generally requires some oral evidence either to introduce it or
to explain it.15

2.2.3 Direct Evidence

Direct evidence of a fact is the assertion of a person who claims to have perceived it
with his own senses. In other words direct evidence is evidence directly proving a fact
in issue, for example, when a witness claims he saw the accused stab someone.16

2.2.4 Circumstantial Evidence17

Circumstantial evidence is proof of a fact or set of facts from which one could infer the
fact in question. Therefore, note should be taken that evidence will only be admissible
(allowed into court) if it is relevant. Evidence will be relevant where its existence
tends to indicate that one of the facts in issue is more or less likely. Basically, the
court will ask whether the evidence you are trying to introduce would help to decide
the issue(s) before it. For example, in proving a breach of duty in a negligence claim,
evidence about current financial hardship is unlikely to be relevant.

Evidence can either be:

 directly relevant, where it includes an observation, perception or description of a
fact in issue; or
 Circumstantially relevant, where the Judge can use it to draw an inference which
goes towards proving a fact in issue. Things like a person’s past habits or the
existence of a motive can often be used as circumstantial evidence.

15 Ibid.
16 Op cit.
17 Ibid.

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Chapter 2 CLASSIFICATION OF EVIDENCE

Circumstantial evidence can sometimes be very persuasive. For example, in a case of

personal injury arising out of a machinery malfunction, the fact that an employer had
been seen inspecting the machine the previous day might be used by a court to infer
that they were aware that it was not working properly.

2.3 Definition of Terms

Real evidence - These are tangible, material objects produced in evidence in court.

Direct evidence - is evidence directly proving a fact in issue, for example, when a
witness claims he saw the accused stab someone.

Circumstantial evidence - is proof of a fact or set of facts from which one

could infer the fact in question.

2.4 Revision Questions

1. Differentiate primary evidence from secondary evidence (5).

2. Write short notes on the following:

(a) direct evidence,
(b) circumstantial evidence,
(c) primary,
(d) secondary evidence and
(e) expert evidence

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 Chapter 3
RELEVANCY AND
ADMISSIBILITY

Chapter Learning Objectives

Upon completion of this chapter, you should be able to:
1. Explain relevance and admissibility

2. Describe previous consistent statements and the circumstances under

which they can be admitted in a court of law

3.1 Introduction
One should bear in mind that if judges had to examine all facts which might in the
slightest degree have some relevance to an issue, cases would go on forever. In law
therefore, when evidence is said to be irrelevant, it means either that as a matter of
common sense it is totally irrelevant, or that for the purposes of the trial it is not
sufficiently relevant. The degree of relevance which the law requires is not uniform.
The court should consider all material which may assist it to reach a proper
conclusion. But the value of some evidence is overweighed by the problems it creates
(may cause prejudice, confusion or raise difficult questions of credibility). Balancing
the competing considerations is, within the limits of fairly wide general principles, a
matter for the discretion of the judicial officer. Therefore, in this chapter we will look
at relevance and admissibility of evidence. Relevance and admissibility will be
defined. Further admissions and confessions will be discussed in detail. Previous
consistent statements will also be discussed.

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Chapter 4 CHARACTER AND OPINION EVIDENCE

3.2 Meaning of Relevance

Evidence is relevant if it is logically probative or disapprobative of some matter
which requires proof.18 Relevance is essentially a matter of reason and common sense
and it is also a matter of degree. When evidence is said to be irrelevant in law, it
means that either as a matter of common sense it is totally irrelevant, or that for the
purposes of the trial it is not sufficiently relevant.19

The criterion of relevance is applied to evidence in both a positive and negative form.
That is to say, it is generally true to say that relevant evidence is admissible and
irrelevant evidence is inadmissible. However, each of these propositions is subject to
qualification. Ordinarily, all relevant evidence is admissible. There are exceptions to
this general rule, for example, in the case of hearsay evidence which is frequently
relevant but nevertheless inadmissible. The above statements embody the inclusionary
rule. In contrast, s 252 of the CPEA and s 26 CEA embody an exclusionary rule:
“No evidence as to any fact, matter or thing shall be admissible which is irrelevant
or immaterial and cannot conduce to prove or disprove any point or fact at issue in
the case which is being tried.”

Further Section 26 of the Civil Evidence Act states that,

Evidence that is irrelevant or immaterial and cannot lead to the proving or disproving
of any point or fact in issue shall not be admissible.

3.3 Admissions and Confessions

Admissions and confessions are two different labels; and it is important to distinguish
them below:

3.3.1 Admissions
An admission may be broadly defined as a statement which tends to disprove the case
of the party who made the statement. The rationale is that a person is unlikely to state
something contrary to his/her own interests unless what he/she states is true. There are
formal and informal admissions:

18 DPP v Kilbourne 1973 AC 729.

19 The case of R v Trupedo 1920 AD 58.

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 LAW OF EVIDENCE

 Formal – these are statements made expressly for purposes of a trial in pleadings
in order to save on time.
 Informal – these are out of court admissions and these cannot be admitted in court.

A statement can be an admission no matter how, when and to whom it was made.
There are three broad grounds upon which an admission may be found not to be free
and voluntary. These are:
Physical coercion - This relates to actual physical violence or the threat thereof
(reasonable treat).
1. Undue influence - This is induced by any promise or threat proceeding from a
person in authority. A person in authority is a person holding a position which may in
itself strongly affect a weak/ignorant person. Persistent questioning of an accused by
the police may amount to undue influence, even if not accompanied by an express
threat. Certain rules for the guidance of the police interviewing accused persons and
suspects have been approved by judges both in England and SA, these rules are
known as the Judges Rules. In terms of the judge’s rules, a suspect should be warned
of the nature of the investigation before he or she is invited to make/give
explanations. On being arrested and formally charged, he/she should be warned that
he/she is not obliged to make any statement after arrest, a prisoner should not be
questioned at all if he/she volunteers a statement; he/she should not be crossed
examined on it and should be asked only such questions as may be necessary to elicit
points of ambiguity. If one of a number of co-accused makes a statement, the others
may be informed of it but should not be told that they ought to reply to it. It is
irregular to confront one accused with another who has confessed for the purpose of
inducing the former to confess. The judges’ rules are administrative directions and do
not have the force of law. The fact that the rules have been contravened will
therefore, not automatically render a statement inadmissible. What is important is
whether or not the admission was voluntary and the matters mentioned on the judge’s
rules merely some of the facts which will be considered.

2. Legal compulsion - The general rule of the criminal law is that nobody may
be compelled to incriminate himself/herself by replying to questions which he/she
was legally obliged to answer. There are statutory exceptions. Admissions in civil

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Chapter 4 CHARACTER AND OPINION EVIDENCE

cases are dealt with in s 36 of the CEA. The section states that an admission to any
fact in issue in civil proceedings, made by or on behalf of a party to those proceedings
shall be admissible in evidence as proof of that fact, whether the admissions was
made orally or in writing. What is important to note is that the admission is only
admissible against the person who admits it and not against anyone else as it would
amount to hearsay evidence if allowed into evidence against someone else.

3.4 Testimony/Oral Evidence

Testimony is the evidence you give in court. It can only be given under oath or
affirmation where one promises that you will tell the truth without having to swear on
a holy book if you are not religious. Generally, evidence for either party must, both in
criminal and civil cases, be given orally by the witnesses in the presence of the
parties. The rationale of this practice of orality is that parties should have an
opportunity to confront the witnesses who testify against them, and should be able to
challenge the evidence by questioning in a situation where they and the court can also
observe the demeanour of the witnesses for the purposes of assessing credibility. In
criminal trials, s 194 of the CPEA provides that:

Every criminal trial shall take place and the witnesses shall, except as is otherwise
specifically provided by this Act or any other enactment, give their evidence viva voce
in open court in the presence of the accused, unless he so conducts himself as to
render the continuance of the proceedings in his presence impracticable, in which
event the court may order him to be removed and direct that the trial proceed in his
absence.

3.5 Previous Consistent Statements (PCS)

The PCS rule is also known as the Rule against Self-Corroboration or the Rule against
the Narrative. It is a statement written or oral statement made by a witness on some
occasion prior to testifying and which corresponds with or is substantially similar to
his or her testimony in court.

Historically and at common law a witness was not allowed to testify that on an earlier
occasion s/he made a statement that was consistent with the testimony. In other
words, it is a statement that was made outside court, not under oath, but it indicated

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the line of defence the defendant/accused would have adopted. Such a statement is
inadmissible. PCS consist of either written statements or verbal agreements made
prior to the court hearing, which correspond with the witness account in court. The
rationale is that:

 It is generally held that PCS are insufficiently relevant and therefore, where they
are relevant they become admissible.
 PCS can be easily fabricated.
 In most cases the evidence is superfluous and at any rate witness evidence ought
to be consistent with what s/he said earlier. PCS have the capacity to raise
numerous side issues courts may not have any business investigating.20

However, there are exceptions to the rule:

1. To rebut an allegation

If it is suggested that a witness has fabricated his/her evidence within some

ascertainable period of time, he/she may rebut this specific suggestion of fabrication
by showing that prior to the time as alleged he/she had made a written or oral
statement consistent with his evidence in court21 Note that there must be a specific
allegation of inconsistency, not a cross-examination showing unreliability. The
allegation can also be by implication, or where it is alleged that the witness recently
imagined or constructed the event innocently. In these cases, previous consistent
statements are admitted because of their relevance. The content of the statements may
not, however, be used as evidence of the truth of what the witness had said. Nor can
it serve as corroboration of the witness’s evidence.

In other words, if in cross examination a witness’s account is challenged as recent

fabrication, witness may support himself/herself by evidence of earlier statements
made by the witness. In these circumstances PCS are used as a defence shield.22

20 In the case of R v. Roberts 1 ALL ER 187, the accused was charged with murdering a girl. He shot the
girl when she was entering his room. There had been a quarrel between them earlier on. The accused
argued that the gun had gone off accidentally as a defence and he wanted murder to be reduced to
culpable homicide. Two days after the incident, the accused had told his father his defence. The court a
quo refused to admit such evidence by ruling is was a PCS. This position was upheld in the court of
appeal. (See also Corke v. Corke & Cook 1958 ALL ER 224).
21 Manday v Protea Assurance Co Ltd 1976 (1) SA 565 (E).
22 In the case of Flanagan v. Faly 1980 ER 41, a witness who had testified about the forgery of a will
was asked in cross examination that he had invented his story because of bad blood between him and
the accused (beneficiary of the will). The witness was allowed to call corroborative evidence to show

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Chapter 4 CHARACTER AND OPINION EVIDENCE

2. Prior identification

PCS have been used in cases relating to prior identification, for example, an accused
being identified by the witness in court after earlier identification outside the court at
an identification parade. This was seen in the case of R v. Christier 1914 AC 545
where a little boy gave evidence that he had been indecently assaulted and identified
the accused in the court as the man, but did not say anything about prior
identification. Evidence was given by his mother and a constable that shortly after the
assault the boy had pointed out the accused to them. The House of Lords agreed that
this evidence was admissible because the pointing out and the statements
accompanying it had taken place in the presence of the accused (the presence of the
accused is irrelevant to the rule under discussion), but they also considered its
admissibility on the separate ground that it was evidence of a prior act of
identification

3. Refreshment of Memory (See Section 19 of Civil Evidence Act [8:01])

Any witness, whilst giving evidence, may refresh his or her memory from any
document, where it is proved that the document was made by him/her or was made on
his/her instructions or was first read by him/her, at a time when his/her recollection of
the facts set out in the document could reasonably be supposed to be fresh in his/her
mind.

A witness is given access to a written document, contemporaneous with the event

because:

 Time lapse between occurrence of event and the trial itself makes it necessary.
 Complexity of the case may justify refreshment.
 Some people or professions because of the nature of their jobs find themselves
in court often and some of the cases may be similar.

Note that in the case of Cape Coast Exploration v. Scholtz & Anor 1933 AD 56 the
Court held that it is not necessary for a witness to have independent recollection of the

that long before the enmity had arisen he had told a third party about the story he was now telling. The court was
satisfied that the previous statement if correct would be relevant.

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 LAW OF EVIDENCE

facts mentioned in the document put to him in order to refresh his memory. The
document used has to satisfy two conditions:

a) Authenticity

This means:
 A witness must have made the document or recording himself.
 alternatively it was made on the specific instructions of the witness or
 The witness had the document read to him by a third party and accepted its
accuracy.

(b) Contemporaneous
It must be taken together with authenticity. It looks at the time lapse and the
recording. The general rule is that the entry must have been made by the witness
either at the time of the occurrence of the event or shortly afterwards that it was still
fresh in the witness’ memory. Reasonableness is situational, depends on the
circumstances of the case. Apart from physical time lapse a lot will depend on the
nature of the event under discussion and the impact it has made on the mind of the
witness.23
Note should be taken that original documents should be produced. A witness who
uses a document to refresh his/her memory must be prepared to produce it for
inspection to the opposing party and to the court. The witness may claim privilege for
the other parts and if necessary cover them up .The opposing party must be given an
opportunity to cross-examine. The idea behind cross-examination is to highlight to the
court the unreliability of evidence that has been rendered maybe because there is
inherent bias on the part of the witness or because they might not have perceived the
events accurately or because the witness is lying. The witness may be asked about the
circumstances in which he/she came to make it and to produce any earlier drafts or the
original if he has referred to a copy.

23 In the case of R v. O'lin 1960 (1) SA 545 aTraffic Officer testifying in a case involving a road accident
case was allowed to refer to and refresh his memory from a note which another officer had made from
his specific say so. See also Jones v. Shroud, R v. Isaacs 1916 (1) TPD 390, Anderson v. Whaley [1975]
ER 460.

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Chapter 4 CHARACTER AND OPINION EVIDENCE

Furthermore, the document should have evidential value. At common law, a

document used to refresh memory was not evidence except in so far as is has been
adopted in the witness’s oral testimony. If there is no objection, the document may be
handed in as a convenient record of his or her evidence. The conditions to be satisfied
for a document used to refresh memory were also highlighted by the Supreme Court
in Mabu Estates v. Pimbs Chase farm SC 46-86.

3.6 Definition of Terms

Relevance - a process whereby evidence is considered relevant if it is logically
probative or disapprobative of some matter which requires proof.

Admissible evidence - is evidence that may be presented before the judge for them to
consider in deciding the case.

3.7 Revision Questions

1. In order for evidence to be admissible, it must be relevant. Discuss with reference to
examples. (6)
2. Comment on the notion that not all irrelevant evidence is inadmissible. (6)
3. Assess the rationale for exclusionary rules in the law of evidence. (8)
4. In a civil trial you appear for the defendant. At the hearing of the matter the attorney
for the plaintiff points out to you that your client's plea contains a formal admission.
After taking further instructions from your client you realise that the formal admission
was made in error and your client instructs that you withdraw it. Your client further
instructs that she would like to present evidence of her good character and evidence of
the bad character of the plaintiff so that the court views her in a favourable light in
determining the merits of the matter.
5. Will your client be allowed to withdraw the formal admission? (15)
6. Is the evidence which your client intends to present admissible?(l0)
7. Explain the relationship between relevance and admissibility of evidence. (8)
6. In order for evidence to be admissible, it must be relevant. Discuss with reference
to examples.
7. Comment on the notion that not all irrelevant evidence is inadmissible.

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 LAW OF EVIDENCE

8. Assess the rationale for exclusionary rules in the law of evidence.

9. Explain the relationship between relevance and admissibility of evidence.

Chapter 4
CHARACTER AND
OPINION EVIDENCE

Chapter Learning Objectives

Upon completion of this chapter you will be able to:

1. Define character evidence.

2. Describe similar fact evidence.
3. Explain the concept “opinion evidence.”
4. Analyse the circumstances under which character, similar fact and
opinion evidence can be admitted in the court of law.

4.1 Introduction
In this chapter, we shall focus on character, similar fact evidence and opinion
evidence. Character evidence is evidence on an individual's personality traits,
propensities, or moral standing. Generally, under the common law character evidence
is inadmissible in criminal cases unless the defendant raises the issue first. Further,
Similar fact evidence is evidence of similar acts done previously by the accused.
Similar fact evidence is not admissible if its only relevance is to show that the accused

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Chapter 4 CHARACTER AND OPINION EVIDENCE

is of bad character and is therefore likely to have committed the offence. Lastly,
opinion evidence refers to direct evidence outlining what the expert witness, believes,
or infers in regard to facts, as distinguished from personal knowledge of the facts
themselves.

4.2 Character Evidence in Civil Cases

In terms of s33 of the CEA 08:01No evidence as to the character or reputation of any
party to civil proceedings shall be admissible except;

(a) in any claim for damages where the character or reputation of the party is
relevant to any fact in issue or the amount of damages; or

(b) in the determination of the paternity of a person, where the character or

reputation of the father or mother is relevant to any fact in issue; or

(c) where the credibility of the party as a witness is impugned or put in issue; or

(d) in any case where the award or order is dependent on the good behaviour of any
person; or

(e) in any case where it is relevant to show a course of conduct.

Therefore, the general rule is that character evidence is not admissible to prove
conduct in civil cases. For example, a defendant cannot offer the testimony of friends
(or her own testimony) that she is usually a very careful driver as circumstantial
evidence she was probably driving carefully and not negligently on the day of an
accident.

4.2.1 Character in Issue

Character evidence is occasionally admissible if a trait of character has been placed in

issue by the pleadings. Lawsuits in which character is a material issue are extremely
uncommon. One must be careful not to confuse an allegation of particular unsavoury
behaviour (for example, acted maliciously on a certain day) with true character
(tendency to be malicious on all days and toward all people). Character is a material
issue in the following types of cases:

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 LAW OF EVIDENCE

a. Defamation. Character is an issue in a defamation case when the defamatory

statement falsely accuses the plaintiff of having a general flaw, for example,
accusing Hillary Clinton of being a liar. Character is not in issue if the
defamatory statement falsely accuses the plaintiff of a specific act, for example,
Hillary lied about Nyasha.

b) Negligent entrustment. In an action for negligent entrustment, the plaintiff may

prove that the defendant entrusted an automobile to an employee who was
known to drive carelessly.

c) Parenting ability. Parents’ characters and patterns of behaviour toward their

children is an issue in cases involving custody, visitation and termination of
parental rights.

4.3 Similar Fact Evidence

Similar fact evidence can be described as:

“ … facts that are directed at showing that a party to the proceedings … has behaved
on other occasions in the same way as he is alleged to have behaved in the
circumstances presently being considered by the court”. (See Schwikkard and van der
Merwe Principles of Evidence 2ed at 66 and the decisions referred to there.)

If the State is trying to prove that a person committed the criminal offence of fraud
involving a specific modus operandi, the State may try to lead evidence to show that
the accused used this modus operandi in the past and that this is evidence of the fact
that he is guilty of the later offence. This evidence would be similar fact evidence. At
least in criminal prosecutions, the courts have been wary of admitting this type of
evidence because the prejudice to the accused may outweigh the probative value of
the evidence. The test is whether there is a link between the conduct which is being
complained of and the previous conduct. Whether there is such a link will depend on
the facts but the courts have held that similar fact evidence should not be admitted as
evidence if the purpose of the evidence is to show that the accused has a “propensity”
to commit the criminal acts alleged to have been committed.

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Chapter 4 CHARACTER AND OPINION EVIDENCE

4.3.1 Similar Fact Evidence in Arbitration Proceedings

The utilization of similar fact evidence in the context of arbitration proceedings was
considered in the South African case of Western Cape Government: Department of
Education v Adv Hanekom N.O & Others. The employee in this matter was employed
by the Department of Education as a general assistant at a secondary school in
George. Following allegations that the employee had removed gas burners from the
school premises without permission, he was charged with theft, or alternatively,
improper conduct on the basis that he removed gas burners from the school premises
without the necessary permission of his supervisor with the intention of permanently
depriving the school of the gas burners. Following a disciplinary hearing, the
employee was found guilty and dismissed.

When this matter came before the bargaining council, evidence was led by the Acting
Principal to the effect that, in terms of the school’s policy, no-one could remove
property belonging to the school without permission. In addition, the Acting Principal
testified that dismissal was an appropriate sanction as the employee had previously
been issued with a final written warning a few months prior to the incident involving
the gas burners and suspended for two months without remuneration for the theft of
food from the school. The commissioner found that this similar fact evidence placed
before him was not admissible as evidence. This was because it merely showed a
tendency or propensity to commit theft.

On review to the Labour Court, Conradie AJ considered the commissioner’s approach

to the similar fact evidence led at the arbitration proceedings. He recognised that
similar fact evidence is usually regarded as inadmissible, primarily because its
potential prejudice to the employee exceeds its probative value; similar fact evidence
would only be admissible if its probative value exceeded its prejudicial effect. This
would be the case if the similar fact evidence was logically and legally relevant. He
found that, in this case, the previous disciplinary transgression should have been a
material consideration in the arbitrator’s assessment of the appropriate sanction.

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 LAW OF EVIDENCE

Conradie AJ also referred to the Labour Appeal Court’s decision in Gaga v Anglo
Platinum Ltd & Others where the following was stated insofar as similar fact
evidence is concerned:
“As regards the commissioner’s ruling in respect of the similar fact evidence, that too
was a reviewable irregularity. The exclusion of evidence that ought to be admitted
will be either misconduct in relation to the duties of a commissioner or a gross
irregularity in the conduct of the arbitration proceedings, as contemplated in section
145(2)(a) of the LRA. In the context of an unfair dismissal arbitration, similar fact
evidence of a pattern of behaviour or serial misconduct will often be relevant to both
the probabilities of the conduct having been committed and the appropriateness of
dismissal as a sanction. It may be more so where the alleged misconduct is
characterised by an element of impulsivity…. There ordinarily would be a sufficient
link or nexus between the earlier similar misconduct (if proved) and the disputed facts
pertaining to a method of commission, or a pattern possibly revealed, to make that
evidence exceptionally admissible. Given the nature of the evidence which the first
respondent proposed to lead, and the fact that the allegations would have been known
to the appellant, it would not have been unfair or oppressive to have allowed the
evidence because the appellant had adequate notice and was in a position to deal with
it”.

Conradie AJ accordingly found that, had the Commissioner properly dealt with the
undisputed evidence that before the removal of the burners, the employee had been
issued with a final written warning; he would not have come to the conclusion that
dismissal was inappropriate. The award was reviewed and set aside and substituted
with an order that the employee’s dismissal had been fair.

The Department of Education decision demonstrates that the Labour Court is inclined
to accept that similar fact evidence may, in certain instances, be admissible in
determining the guilt of an employee and the appropriateness of the sanction of
dismissal in future misconduct proceedings.

It is, however, important to bear in mind that, where an employer seeks to lead similar
fact evidence, it is important to illustrate to a court that the probative value of the
similar fact evidence outweighs any prejudice to the accused employee. The mere fact
that an employee has misconducted himself in a similar manner in the past, even
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Chapter 4 CHARACTER AND OPINION EVIDENCE

where that prior misconduct is proven and sanctioned, does not necessarily mean that
the employee is guilty of similar misconduct in any future proceedings. Each case
must be judged on its own merits to ensure that employees’ dismissals are not
rendered substantively unfair.

4.4 Opinion Evidence

Opinion evidence entails conclusions, interpretations, evaluations and inferences
derived from observed facts. Generally, a witness is expected to only narrate or recite
events as he/she witnessed them. Thus, they are not expected to give their opinion in
court. The general rule on opinion evidence is that it is inadmissible because a witness
is not meant to form an opinion on issues in court. The reason is because all ultimate
issues are decided on by the court. The role of the witness is to give evidence and the
role of drawing inferences belongs to the court. In the case of Hollington v Hewthorn,
it was held that: “it frequently happens that a bystander has complete and full view of
an accident. It is beyond question that while he may inform the court as to what he
saw, he may not express an opinion on whether either or both parties were negligent.
The reason being that this is the question the court has to decide on.”

Section 22(3) states that a court is not bound by the opinion of an expert or lay
witness but may have regard to the person’s opinion in reaching its decision.
However, there are two main exceptions to this general rule:
a. Expert opinion evidence where it is relevant;
b. Lay opinion where it is relevant.

4.4.1 Expert Opinion Evidence

Section 22 of the Civil Evidence Act provides that:

“The opinion of a person who is an expert on any subject, that is to say, of a person
who possesses special knowledge or skill in the subject, shall be admissible in civil
proceedings to prove any fact relating to that subject which is relevant to an issue in
the proceedings.”

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 LAW OF EVIDENCE

Thus, expert opinion evidence in terms of the Act is admissible if it is relevant in the
matter before the court. The main reason why relevant expert evidence would be
admissible in court is due to the fact that experts would generally be people who
would be better placed to assist the court to arrive at a sensible decision than it would
have been able to do without such assistance by reason of their expertise and
specialised knowledge. Experts are thus, expected to facilitate resolution of the facts
in issue. The expert should be a credible witness. Expert opinion evidence in the past
has been admitted in cases involving ballistics, economics, finance, and so forth. An
expert witness must have the necessary qualifications to give the evidence that he or
she wishes to give in court. The court has to thus, satisfy itself that the witness has the
necessary qualifications which can be obtained through formal education and/ or
experience. For instance in the case of R v Silverlock, a lawyer had extensively
studied people’s handwritings but did not have formal qualifications in that field.
However, due to his experience, he was allowed to give evidence in court as an expert
witness.

Further, bear in mind that an expert witness can be cross-examined on his/her expert
opinion like any other witness. This can be done to discredit the witness or to show
that he or she is not actually an expert.

In other words, the law accepts the opinion of experts to be an exception to the
hearsay rule, even though the facts or some facts to which he/she testifies are known
to him/her only upon the authority of others. This is generally because the
professional competency of an expert gives him/her the knowledge of trustworthy
authorities and the proper sources of information. The extent of personal observation
in the general subject enables him/her to estimate the general plausibility, or
probability, of the views expressed, without which information it would be impossible
for him/her to express an expert opinion one way or the other. However, before
receiving such expert opinion in evidence, the facts upon which he/she relies to form
that opinion must themselves be proved in the trial by admissible evidence: “First,
where an expert witness relies on the existence or non-existence of some fact which is
basic to the question on which he or she is asked to express his or her opinion, that
fact must be proved by admissible evidence ... Secondly, where the existence or non-

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Chapter 4 CHARACTER AND OPINION EVIDENCE

existence of some fact is in issue, a report made by an expert who is not called as a
witness is not admissible as evidence of that fact merely by the production of the
report, even though it was made by an expert.”24

4.5 Relevant Lay Opinion Evidence

Section 22(2) of the CEA states that:
“The opinion of a person who is not an expert…..) shall be admissible to prove any
fact relevant in to an issue in civil proceedings if-
− His opinion is based on what he saw, heard or otherwise perceived; and
− His opinion is helpful to a clear understanding of his evidence or to the
determination of that issue.
Thus, a lay person should not express an opinion in a matter that the court is in a
position to decide on its own. In addition, the opinion evidence of lay persons has a
more stringent test for admissibility than for expert opinion evidence. Accordingly, in
order for it to be admissible, it has to:
 Be relevant;
 Be based on what the witnessed perceived one way or the other;
 Be helpful to the court in its understanding of the facts in issue.

If it does not meet those criteria then it is not admissible. In the case of S v Adams
which involved the claim of damages arising out of a motor vehicle accident. The
court held that a witness can infer that a person was drunk because they were
staggering and their breath smelled of alcohol and so forth. However, such person
cannot say that the person he or she is inferring to had been drunk and was at fault for
the accident.

Note that lay person opinion evidence has been used in a variety of cases such as in
the identification of handwriting, ID of persons, judging drunkenness, or excitement
or in the estimation of speed.

24 Levy v Tune-O-Mizer Centre (Pvt) Ltd 1993 (2) ZLR 378 (S).

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 LAW OF EVIDENCE

4.6 The Rule in Hollington V Hewthorn

This rule no longer applies in our law due to the introduction of s 31 of the CEA. The
rule in the case is to the effect that on the trial of an issue in a civil case, a prior
determination of a criminal court is irrelevant and thus, inadmissible. Thus, if the
criminal court finds an accused guilty for whatever offence, the civil court cannot use
the record of the conviction in order to establish liability on the part of the defendant
who would have been the accused at the criminal trial. The reasoning was that the
record merely amounted to the opinion of the trial court. Section 31 of the CEA states
that:
“where it is relevant in civil proceedings to prove that a person committed a criminal
offence or did or omitted to do anything referred to in subsection (3), the fact that he
has been convicted of that offence by any court in Zimbabwe or by a military court in
Zimbabwe or elsewhere shall be admissible in evidence for the purpose of such
proof.”

The long and short of this section is that the fact that a person was convicted for a
criminal offence is admissible in civil proceedings where it is relevant. This is a
departure from the rule in Hollington v Hewthorn. Where however, the criminal
matter is on appeal, the conviction shall not be adduced as evidence in court until the
appeal has been heard and finalised.

The main reason why the rule was abandoned was because it was considered to be
incomprehensible for the following reasons:
 In the criminal court the people who preside over the matter are trained judicial
officers. They are trained to sift the relevant from the irrelevant and they also
apply the evidentiary principles of exclusion.
 The threshold for proof in criminal cases is higher than in civil cases ... proof
beyond a reasonable doubt versus proof on a balance of probability.

Thus, the tide of change was triggered by the case of Goody v Oldhams Press Ltd
[1966] 3 All ER 369 (CA). In this case Goody was a plaintiff who was a convict in the
Great Train Robbery and was serving time for his participation in the robbery. He
brought an action against a newspaper for stating that he had taken part in the robbery

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Chapter 4 CHARACTER AND OPINION EVIDENCE

in which 25million pounds had been stolen. At the time of this action, he was serving
30 years imprisonment after having convicted for the robbery. It was held that the
conviction was not evidence that could be admissible.

Further, in the case of Tomes v Sithole 1981 ZLR 494 (S) it was held that there is need
for the state to intervene and remove the absurdity. In this case, “the plaintiff sought
summary judgment in the sum of $19000 from the three defendants, who had been
convicted in the High Court of the theft from him of that sum. They had denied their
guilt at their trial and they sought leave to appeal from the Supreme Court and a judge
of that court had granted leave to appeal. The question was whether the fact of their
conviction should entitle the plaintiff to judgment, on the basis that the defendant had
no prima facie or bona fide defence to the claim. Prima facie it would seem that logic
and common sense dictate that the fact of a conviction or acquittal is highly relevant
in a summary judgment application. That being so, it is startling to be told by counsel
that in order to follow this apparently sensible approach I must first overrule, or
decline to follow, a series of cases in England and Southern Africa which have
accepted, albeit reluctantly, the statement in Hollington v Hewthorn (supra) at page
40D that “on the trial the issue in the civil court, the opinion of the criminal court is
irrelevant”. In the view I take of the matter it is not necessary for me to come to a
conclusion on the rule in Hollington v Hewthorn”.

4.7 Definition of Terms

Character evidence - is evidence on an individual's personality traits, propensities, or
moral standing.

Opinion evidence - entails conclusions, interpretations, evaluations and inferences

derived from observed facts.

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 LAW OF EVIDENCE

4.8 Revision Questions

1. In a civil trial before the High Court a doctor testifies in relation to injuries
sustained by the plaintiff. The doctor testifies that in his opinion the defendant
intended to inflict grievous bodily harm on the plaintiff when considering the
nature of the injuries and the fact that they were inflicted on the neck. The
defendant's attorney objects to the doctor testifying because she alleges that
they had not known that he would testify, she also objects to the doctor being
referred to as an expert and also objects to the content of his testimony.

a) Is the doctor properly before court if the defendant and her attorney did not
know that • he would testify? (3 marks)

b) How would the defendant know the true extent of injuries alleged to have been
sustained by the plaintiff? (10 marks)

c) Should the doctor be regarded as an expert? (5 marks)

d) Is the objection in relation to the doctor's testimony sound? (7 marks)

32
 Chapter 5

HEARSAY

Chapter Learning Objectives

Upon completion of this chapter, you will be able to:

1. Define hearsay evidence

2. Explain the rule against hearsay evidence
3. Describe the res gestae rule
4. Analyse the statutory exceptions to hearsay evidence

5.1 Introduction
When a witness is giving evidence in court, they cannot use what someone else has
said as evidence. This is called hearsay. Therefore, in this chapter, we shall focus
on the definition of hearsay, the rule against hearsay, implied assertions, exceptions
to hearsay rule and statutory exceptions to hearsay evidence.

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Chapter 8 CORROBORATION

5.2 Hearsay Evidence

Hearsay evidence is where the court is asked to rely on the assertion of someone else
and not the personal knowledge of the witness giving the testimony. Statements that
are given by people not giving evidence are generally excluded where leading such
evidence is to show that their contents are true. For example, if Nyasha tells
Tinotenda that he had seen a third person, Susan, stab someone the previous day,
Tinotenda would not, as a general rule, be able to give evidence of Nyasha’s
statement at Susan’s trial. Nyasha himself would have to be called to give the
evidence of what he saw.

According to Hoffmann and Zeffertt (2017), in The South African Law of Evidence,
hearsay evidence is unreliable because the person who would have made the
statement was not under oath. The person who made the statement did not promise to
tell the truth. However, in spite of its potential problems, hearsay evidence is
permissible under certain circumstances. Hearsay is necessary due to the fact that it is
sometimes difficult to obtain direct evidence about a certain fact. If hearsay did not
exist, it would therefore, be difficult to prove facts and there would be serious
miscarriage of justice. Hearsay evidence can therefore, not be discarded completely
because there is always some “grain of truth” present in it.

Furthermore, note should be taken that hearsay rule applies not only to verbal
statements, but also the contents of documents and non-verbal communication. There
are also several exceptions to the general rule. A statement, for example, which is
made at the same time as the central event, will not be subject to the rule. For example
if Tinotenda had heard the victim yell ‘no Susan’ while they were being stabbed,
Tinotenda would be able to give evidence of this fact.

The rule against hearsay will also not apply to statements which amount to a
confession or admission. Accordingly, if Susan confessed her guilt to Nyasha, he
would be able to give evidence of this confession, even though he did not see her do
the stabbing.

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5.3 The Applicability of Hearsay Evidence in

Employment Cases
From a labour perspective, in SA Catering and Allied Workers’ Union v OK Bazaars
Ltd (1992), Arbitrator Cameron decided that hearsay evidence could be a means by
which proper exploration of potential sources of industrial conflict could be achieved.

While the rules concerning hearsay are very strict in the ordinary courts of law, the
same strictness does not apply to the Labour Court, arbitration proceedings or
company disciplinary hearings. Section 90A (1) of the Labour Act [Chapter 28:01]
provides that “The Labour Court shall not be bound by the strict rules of evidence,
and the court may ascertain any relevant fact by any means which the presiding
officer thinks fit and which is not unfair or unjust to either party”.

Part III of Statutory Instrument 59 of 2006 (the Labour Court Rules), Rule 12 (2) on
informality of proceedings, says “The court shall, so far as appear to be appropriate,
avoid formality in its proceedings and may, where circumstances warrant it, depart
from any enactment or rule of law relating to the admissibility of evidence in
proceedings before courts of law generally”.

Rule 26 of the same instrument empowers a Labour Court President to depart from
the rules in the interests of justice, fairness, expediency and equity.

What these provisions of our law are simply saying is that a less technical and
formalistic approach should be adopted in adjudicating labour disputes. The rigid
legal formalities characteristic of conventional courts must not apply.

However, this must not be interpreted to mean that arbitrators and judges must not be
strict with the law or that they can apply a lower standard of law even where it is not
warranted. Far from it! Such an approach would open the floodgates for the admission
of hearsay and will make a mockery of our legal system. The Labour Court in
Zimbabwe has dealt with cases involving hearsay evidence. For example, in the 2008
case of Ephraim Mtake v Zimbabwe Revenue Authority presided over by President L

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Chapter 8 CORROBORATION

Hove, hearsay evidence was admitted in the proceedings. In her judgement, she
referred to the case of Chataira v Zesa (2000) which also dealt with hearsay evidence.

The Labour Court of South Africa has also dealt with the admissibility of hearsay
evidence in its various judgments. Two helpful cases we will look at in this article are
the Naraindath v CCMA and Others (2000) and Swiss South Africa (Pty) Ltd v Louw
NO and Others (2006) cases.

In the Naraindath case, a CCMA arbitrator admitted hearsay evidence. Aggrieved, the
employee appealed to the Labour Court. The Labour Court judge, Wallis AJ, ruled
that the arbitrator had not committed any irregularity and referred to sections 138 (1)
and (2) of the Labour Relations Act number 66 of 1995 which provide, among other
things, that arbitrations should be conducted with the “minimum of legal formalities”
and subject to the discretion of the arbitrator.

The judge was of the view that the purpose of the arbitration would be diminished if
arbitrators were to conduct arbitrations by merely replicating the procedures adopted
in courts of law and applying the same rules of evidence applicable in those courts.

In Swiss South Africa (Pvt) Ltd v Louw NO and Others, the employee worked as a
check-in agent. Her job involved checking in passengers boarding an aeroplane and
ensuring that their luggage did not exceed the fixed weight limit. She was dismissed
on allegations of having asked for a tip from a male passenger of Singapore Airline
for purportedly waiving his “official payment” for the excess luggage. The passenger
allegedly complied in order to avoid any problems, but later lodged a complaint with
a Mr Richard Lee of Singapore Airline. This e-mail was ultimately forwarded to
Swiss South Africa.

The e-mail was presented as being evidence of the employee’s guilt, resulting in her
dismissal. She referred her dismissal to the CCMA which found her dismissal to be
unfair and ordered Swiss South Africa to retrospectively reinstate her. On appeal, the
Labour Court ruled that the e-mail did not have good evidential value and was pure
hearsay and that the employee stood to lose her job on the basis of an untested e-mail.

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 LAW OF EVIDENCE

The passenger who had lodged the complaint had not been available for cross-
examination at the disciplinary hearing.

5.3.1 Res Gestae

The phrase as has been mentioned above means “the facts” or “the transaction”. A
statement is said to be part of the res gestae when it forms “a part of the story”. A
statement may be part of the story when it is so closely associated with a fact in issue
or a fact relevant to a fact in issue in time and circumstances. Whilst most rules of
evidence are exclusionary, this one is inclusionary. Res gestae statements have been
admitted under various categories namely:
1. Spontaneous exclamations;
2. Statements which accompany and explain relevant acts;
3. Statements which prove state of mind; and
4. Statements which prove physical sensations.

5.4 Spontaneous Exclamations

A statement constituting a spontaneous exclamation will usually take the form of an
oral utterance but it can exceptionally consist of a statement in writing. The
safeguards are spontaneity and contemporaneity. Most common examples of res
gestae involve spontaneous exclamations. These are excited exclamations made by
people when they are in the thick of things, when fabrication is highly unlikely. The
chief justification behind the res gestae doctrine is the guarantee by the fact that the
event to which it relates is an excited one that the utterance is a natural reaction
evoked by intense participation and nervous reaction that it is unlikely to be false.

5.5 Statutory Exceptions

The Civil Evidence Act create exceptions to the rule against hearsay which include
public documents. These shall be discussed below.

5.5.1 Public Documents

Statements in public documents are admissible to prove the truth of the facts stated.
This is dealt with in s 12 of the CEA. In this section a “Public document” means a
document;

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Chapter 8 CORROBORATION

(a) which was made by a public officer pursuant to duty to ascertain the truth of the
matters stated in the document and to make an accurate record thereof for
public use; and
(b) to which the public have a right of access;
“public officer” means a person holding or acting in a paid office in the service
of the State or a local authority.
(2) A copy of or extract from a public document which is proved to be a true copy
or extract or which purports to be signed and certified as a true copy or extract
by the official who has custody of the original, shall be admissible in evidence
on its production by any person and shall be prima facie proof of the facts
stated therein.
(3) A copy of or extract from a document, other than a public document, which is in
the custody of an official of the State by virtue of his office and which is proved
to be a true copy or extract or which purports to be signed and certified as a
true copy or extract by the official who has custody of the original, shall be
admissible in evidence on its production by any person.
(4) An official who has custody of a public or other document referred to in
subsection (2) or (3) may refuse to produce the original of that document in
evidence unless—
(a) a judge of the Supreme Court or the High Court orders its production; or
(b) the Minister or head of the Ministry responsible for its custody authorizes its
production.
(5) No person who is subpoenaed or otherwise required to produce in evidence an
original document referred to in subsection (2) or (3) need comply with the
subpoena or requirement unless there is shown to him an order of a judge of the
High Court or Supreme Court, or a copy of such an order, requiring him to
produce the document, or unless the Minister or head of the Ministry
responsible for the document’s custody authorizes the production.

This is another exception to the hearsay rule since the documents are accepted even if
the public official who wrote the document or made the copy will not be present in
court to verify that it is a true copy of the original or that its contents are true and
correct.

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 LAW OF EVIDENCE

5.6 Definition of Terms

Hearsay evidence - is where the court is asked to rely on the assertion of someone else
and not the personal knowledge of the witness giving the testimony

5.7 Revision Questions

1. Define hearsay evidence. (4)
2. Explain the rule against hearsay evidence. (5)
3. Describe the statutory exceptions to hearsay evidence. (5)

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Chapter 8 CORROBORATION

Chapter 6
COMPETENCE AND
COMPELLABITY

Chapter Learning Objectives

Upon completion of this chapter, you will be able to:
1. Define competence
2. Define compellability
3. Explain the positions of spouses when it comes to competence and
compellability

6.1 Introduction
In this chapter we focus on competence and compellability. We shall define
competence and compellability, competence and compellability in criminal
proceedings as well as in civil proceedings. Further, we shall also look at the positions
of different people when it comes to competence and compellability which include; an
accused person, the spouse of an accused person and so forth.

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 LAW OF EVIDENCE

6.2 Competence and Compellability

A witness is competent if he or she may lawfully give evidence.

6.3 Compellability
A witness is compellable if he or she may be obliged to give evidence. If a witness is
not compellable, he/she is entitled to refuse altogether testify, that is, to take the stand
and take the oath. Compellability must be distinguished from privilege under which a
witness may not refuse to take the stand and be sworn. A witness claiming privilege
may only refuse to answer specific questions if such questions fall within his/her
privilege.

6.4 Competence in Civil Proceedings

Section 4 of the Civil Evidence Act talks about the competence of witnesses generally
and it states that except as otherwise provided in this Act or any other enactment,
every person shall be competent to give evidence in any civil proceedings. No person
who is:
a) suffering from any mental disorder or defect; or
b) under the influence of intoxicating liquor or drugs;
c) to such an extent that he is deprived of the proper use of his reason shall be
competent to give evidence whilst he is so suffering or whilst he is so influenced.

Further it also talks about spouses: when competent and compellable as it states that
(1) In this section—
“spouse” includes a party to a marriage contracted according to customary
law, which—
a. has been solemnized under the Customary Marriages Act [Chapter 5:07]; or
b. was registered on or after the 1st February, 1918, under the Native Marriages
Act [Chapter 79 of 1939]; or
c. being a marriage contracted outside Zimbabwe, is recognized as a valid
marriage in the country in which it was contracted.
(2) Except as otherwise provided in this section, the spouse of a party to civil
proceedings shall be competent and compellable as a witness in those
proceedings.

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Chapter 8 CORROBORATION

(3) No person shall be compelled to disclose any communication, whether oral or in

writing, made by him to his spouse or made to him by his spouse during their
marriage.
(4) Subsection (3) shall apply whether or not the marriage has been subsequently
terminated by death or dissolved or annulled by order of a court.
(5) No person shall be compelled to give any evidence which the spouse of that
person could not be compelled to give.

6.5 Definition of Terms

Competence - a witness is competent if he or she may lawfully give evidence.

Compellability - A witness is compellable if he or she may be obliged to give

evidence.

6.6 Revision Questions

1. Define the term “competence” in the context of the law of evidence. (4)
2. Describe “compellability” in the context of the law of evidence. (4)
3. Identify and explain the positions of spouses when it comes to competence and
compellability in civil proceedings (8)

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Chapter 7

PRIVILEGE

Chapter Learning Objectives

Upon completion of this chapter, you will be able to:
1. Define the term “privilege
2. Discuss different types of privileges

7.1 Introduction
A privilege exists when a witness is not obliged to answer a question or supply
information which is relevant to an issue before the court. A claim of privilege must
be distinguished from the non-competence or non-compellability of a witness, who do
not have to testify at all, while a witness who claims privilege, must still enter the
witness-box and then raise the privilege as the reason for not answering the questions
put as has been discussed in the previous chapter. In this chapter, we will discuss the
different types of privileges which include matrimonial privilege, self-incrimination,
legal profession privilege etc.

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Chapter 8 CORROBORATION

7.2 The Concept of Privilege

Privilege is a personal right of a witness to refuse to disclose admissible evidence. A
witness may refuse to answer questions on the privileged topic, but this right is
personal to him; he cannot stop other witnesses from giving evidence on the matter. In
terms of s7 of the CEA;”no person shall be compelled to give any evidence if the
evidence would tend to expose him to—

(a) Criminal proceedings in respect of an offence against the law of Zimbabwe; or

(b) Proceedings for the recovery of any penalty or forfeiture in favour of the State
in terms of any enactment in force in Zimbabwe

7.3 Types of Privilege and Reasons

7.3.1 Privilege Relating to Legal Profession

In terms of s8 of the CEA,

(1) No person shall disclose in evidence any confidential communication

between—

(a) a client and his legal practitioner or the legal practitioner’s employee or
agent; or

(b) a client’s employee or agent and the client’s legal practitioner or the legal
practitioner’s employee or agent;

where the confidential communication was made for the purpose of enabling
the client to obtain, or the legal practitioner to give the client, any legal
advice.

(3) No person shall disclose in evidence any confidential communication between

a client, or his employee or agent, and a third party, where the confidential
communication was made for the dominant purpose of obtaining information
or providing information to be submitted to the client’s legal practitioner in
connection with pending or contemplated legal proceedings in which the client
is or may be a party.

(4) No person shall disclose in evidence any confidential communication between

a client’s legal practitioner, or his employee or agent, and a third party,

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 LAW OF EVIDENCE

where the confidential communication was made for the dominant purpose of
obtaining information or providing information for the client’s legal
practitioner in connection with pending or contemplated legal proceedings in
which the client is or may be a party.

(5) The privilege from disclosure specified in this section shall not apply—

(a) if the client consents to disclosure or waives the privilege; or

(b) if the confidential communication was made to perpetrate a fraud, an offence

or an act or omission rendering a person liable to any civil penalty or
forfeiture in favour of the State in terms of any enactment in force in
Zimbabwe; or

(c) after the death of the client, if the disclosure is relevant to any question
concerning the intention of the client or his legal competence.

(6) Any evidence given in contravention of this section shall be inadmissible.

7.3.2 Privilege of Confidential Communications

S9 of the CEA provides that “Without derogation from section eight, no person shall
disclose in evidence any confidential communication if the court has directed that it
should not be disclosed, the court being satisfied that its disclosure would cause harm
to—

(a) an interested person; or

(b) the relationship between interested persons; or

(c) any relationship similar to that referred to in paragraph (b);

and that the harm would outweigh any prejudice to the parties or to the interests
of justice that might be caused by the non-disclosure of the confidential
communication.

(3) In determining whether or not a confidential communication should or should

not be privileged from disclosure in terms of subsection (2), a court shall have
regard to—

(a) the importance of the evidence in the proceedings; and

(b) the extent, if any, to which the contents of the confidential

communication have already been disclosed; and

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Chapter 8 CORROBORATION

(c) whether an interested person has consented to the disclosure of the

confidential communication; and

(d) the nature of the cause of action and the subject matter of the
proceedings; and

(e) any means available to limit the publication of the evidence, whether in
terms of the Courts and Adjudicating Authorities (Publicity
Restriction) Act [Chapter 7:04] or otherwise.

(4) Any evidence given in contravention of this section shall be inadmissible.”

7.3.3 Privilege in Public Interest

In terms of s10 of the CEA,

(1) A court may declare any evidence to be privileged in the public interest if the
court is satisfied—

(a) that it would be detrimental to the public interest for the evidence to be given;
and

(b) that such detriment would outweigh any prejudice to the parties or to the
interests of justice that might be caused by non-disclosure of the evidence.

(2) No person shall give any evidence in civil proceedings if the court has
declared the evidence to be privileged in the public interest in terms of
subsection (1).

(3) For the purpose of subsection (1), but without limiting it, public interest
includes matters that relate to—

(a) the security or defence of the State; or

(b) the proper functioning of the Government; or

(c) international relations; or

(d) confidential sources of information which are concerned with the enforcement
or administration of the law; or

(e) the prevention or detection of offences or contraventions of the law.

(4) For the purpose of determining whether or not any matter should be declared
privileged in terms of subsection (1), and in weighing up the balance of
interests referred to therein, the court shall have regard to—

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 LAW OF EVIDENCE

(a) the likely effect on the public interest if the matter concerned is disclosed; and

(b) the importance of the matter concerned in relation to the proceedings and the
need to do justice to the parties; and

(c) the nature of the cause of action and the subject matter of the proceedings;
and

(d) any means available to limit the publication of the matter concerned, whether
in terms of the Courts and Adjudicating Authorities (Publicity Restriction) Act
[Chapter 7:04] or otherwise.

(5) Any evidence given in contravention of this section shall be inadmissible.

This therefore relates to the affairs of the state such as issues of cabinet and issues
relating to state security or defence. However, the intention of the legislature in
stipulating this privilege was to ensure that state security is protected and not the
abuses that the right is now susceptible to.

7.4 Definition of Terms

Privilege - exists when a witness is not obliged to answer a question or supply
information which is relevant to an issue before the court.

7.5 REVISION QUESTIONS

1. Define the term “privilege” in the context of the law of evidence. (5)

2. Discuss different types of privileges. (10)

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Chapter 8 CORROBORATION

Chapter 8

CORROBORATION

Chapter Learning Objectives

Upon completion of this chapter, you will be able to:
1. Define corroboration
2. Explain the need for corroboration
3. Describe the statutory requirements of corroboration

8.1 Introduction
In this chapter we introduce us to corroboration. We define corroboration and explain
the need for corroboration. Furthermore, statutory requirements of corroboration,
evidence of accomplices, evidence on charges of perjury and treason, complaint in
sexual cases, single witnesses, and evidence of children, evidence of traps, spies and
informers will be discussed.

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 LAW OF EVIDENCE

8.2 Corroboration and The Need for Corroboration

Corroboration is independent evidence which confirms the testimony of a witness.
The Roman Dutch system of law was such that nothing could be proved by a single
witness. Our law cannot be said to have been influenced by the principle. Presently,
corroboration in the law of evidence is required by law/through practice. To be of
evidential weight, the fact or facts corroborated must be material ones. The
corroboration can come from evidence adduced by another witness or from the
25
evidence of X. In terms of s 52 of the Civil Evidence Act, a court may make a
finding and base its decision on the evidence of a single credible and competent
witness.

In certain situations, there is a cautionary rule which applies. In these situations, the
court must be alive to the dangers which arise from accepting certain types of
evidence, especially if that evidence is uncorroborated. It is not enough that the court
warn itself on a token basis of the dangers of accepting these types of evidence. This
warning must be put into practice exercising great caution before accepting this
evidence. It should be noted that a witness cannot corroborate himself or herself.

8.2.1 Single Witness Evidence

8.2.1.1 Approach of courts

The credibility and reliability of this witness must be very carefully assessed to see
whether it is safe to convict on the basis of his/her testimony alone. In Nduna &
Anor HB-48-03, it was held that where a conviction relies on the evidence of a single
witness, discrepancies in the witness’s evidence are not necessarily fatal. The
discrepancies must be of such magnitude and value that it goes to the root of the
matter to such an extent that their presence would no doubt give a different
complexion of the matter altogether. Discrepancies whose presence do not usher in
that change should be regarded as immaterial and as such, of no value in the
determination of the truth or otherwise of the matter at hand.26

25 Katerere S-55-91.
26 Reid-Rowland 18-25; 21-4.

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Chapter 8 CORROBORATION

In Zimbowora S-7-92, the appellant had been convicted of three counts of

contravening the Labour Relations Act. The State case had rested entirely on the
evidence of the complainant. On appeal, the Supreme Court said that although the
trial court was entitled to convict the appellant on the single evidence of the
complainant, it was necessary for such evidence to be clear and satisfactory in every
material respect. As the complainant was a witness with an interest to serve, the trial
court was not only required to approach her evidence with caution but should also
have sought corroboration of her evidence. The conviction was set aside by the
Supreme Court as the complainant’s evidence was not satisfactory in all material
respects and no evidence was led to corroborate her assertions.

In Nduna & Anor HB-48-03 it was held that where a conviction relies on the evidence
of a single witness, discrepancies in the witness’s evidence are not necessarily fatal.
The discrepancies must be of such magnitude and value that it goes to the root of the
matter to such an extent that their presence would no doubt give a different
complexion of the matter altogether. Discrepancies that do not affect the change
should be regarded as immaterial and as such of no value in the determination of the
truth or otherwise of the matter at hand.

In the South African case of Mokoena 1956 (3) SA 81 (A) at 85-86, it was laid down
that the uncorroborated evidence of a single witness should only be relied upon if the
evidence was clear and satisfactory in every material respect. Slight imperfections
would not rule out reliance on that evidence but material imperfections would. The
court stated that single witness evidence should not be relied upon where, for
example, the witness had an interest adverse to X, has made a previous inconsistent
statement, has given contradictory evidence or had no proper opportunity for
observation. However, in the later case of Sauls & Ors 1981 (3) SA 172 (A) the South
African Appellate Division stated that there was no rule of thumb to be applied when
deciding upon the credibility of single witness testimony. The court must simply
weigh the evidence and consider its merits and demerits. It must then decide whether
it is satisfied that the testimony is truthful, despite any shortcomings, defects or
contradictions in it. The approach adopted in the Sauls case was followed in the case
of Nyabvure S-23-88.27

27 See also Worswick S-27-88; Mukonda HH-15-87; Nemachera S-89-86.

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 LAW OF EVIDENCE

8.3 Definition of Terms

Corroboration - is independent evidence which confirms the testimony of a witness

8.4 Revision Questions

1. Define corroboration. (4)
2. Explain the need for corroboration in civil proceedings. (6)
3. Describe the statutory requirements of corroboration. (8

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 Chapter 9
BURDEN AND
STANDARD
OF PROOF

Chapter Learning Objectives

Upon completion of this chapter, you will be able to:
1. Describe the burden and standard of proof in both criminal and civil trials
2. Explain the distinction between the onus and evidentiary burden
3. Describe the incidence of burden of proof
4. Explain the term “primae facie”
5. Discuss absolution from instance and the onus in defamation cases

9.1 Introduction
In this chapter will focus on the burden and standard of proof in both criminal and
civil trials. The distinction between onus and evidentiary burden will be discussed.
Further, the incidence of the burden of proof, the term ‘prima cacie’ case will be
explained. Finally, absolution from the instance and onus in defamation cases will be
discussed.

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 LAW OF EVIDENCE

9.2 The Standard and Burden of Proof and Evidential

Duties in Civil Trials
The general rule is he or she asserts must prove.28 If a defendant tries to avail himself
or herself of an exception, then he/she bears the onus. Similarly, if a defendant wishes
to rely on a special defence, he/she must prove that defence. The Court also holds
that the “onus” is the “duty which is cast on a particular litigant, in order to be
successful, of finally satisfying the court that he/she is entitled to succeed on his or
her claim or defence, as the case may be, and not in the sense merely of his/her duty
to adduce evidence to combat a prima facie case made out by his/her opponent. The
onus in the sense which I use the word can never shift from the party upon whom it
originally rested.” The overall legal onus is fixed by pleadings and never changes.29

9.3 Distinction Between Onus and Evidentiary

Burden
The overall onus is fixed by pleadings and never shifts. An evidentiary burden arises
as soon as the evidence or a presumption of law or an inference creates a risk that a
litigant may fail, such as where a prima facie case is made out against him/her. The
evidentiary burden may shift from one litigant to another in the course of a trial. In
Mabaso v Felix 1981 3 SA 865 (A) it was held that in actions for damages in respect
of delicts affecting the plaintiff’s personality and bodily integrity the defendant
ordinarily bears the onus of proving the excuse or justification which he raises.
Sometimes, however, the nature of the pleadings may be such that the onus is placed
on the plaintiff to negative the excuse or justification

9.4 The Incidence of the Burden of Proof

The general rule is that he/she who makes the positive assertion must prove the facts
he/she asserts. Where proof of a negative assertion is an essential element of a party’s
claim or defence, the onus of proving the negative rests on the party who asserts the
negative. In Topaz Kitchen (Pty) Ltd v Naboom Spa (Edms) Bpk 1976 (3) SA 470 (A)
it was confirmed that where the plaintiff wishes to enforce a contract, and the onus is

28 Pillay v Krishna 1946 AD 946.

29 Klaassen v Benjamin 1941 TPD 80.

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Chapter 9 BURDEN AND STANDARD OF PROOF

on him to prove terms of the contract, then the onus remains with him even if he has
to prove a negative.

9.5 The Term ‘Prima Facie’ Case

The term ‘prima facie’ case means that the party who had first adduced evidence has
led enough evidence upon which a reasonable man ought not find for him/her when
he/she closes his/her case.30 In other words, the party who has not yet led any
evidence runs the risk of judgment being given against /her if he/she leads no
evidence to combat the prima facie case. It does not mean that judgment will
automatically be granted against him/her.

9.6 Absolution from The Instance

If a plaintiff bears the onus of proof, he or she must lead sufficient evidence on which
a reasonable man might or could find in his/her favour, that is, a prima facie case. At
this stage, a defendant may apply for absolution from the instance on the grounds that
no reasonable court might find for the plaintiff on his/her evidence. The Court will
usually not consider the credibility of the plaintiff’s witnesses, except where the
evidence is too vague, contradictory or highly improbable.

Absolution from the instance is also possible at the conclusion of the whole case.
This means that the defendant is absolved from liability, but the plaintiff may institute
new proceedings if fresh evidence comes to light. The test applied after both parties
have led evidence is whether there is evidence upon which the court ought to give
judgment in favour of the plaintiff. It may happen that absolution from the instance is
not granted at the conclusion of the plaintiff’s case, but is granted later at the end of
the case even if the defendant leads no evidence.

9.7 Civil Standard of Proof

The standard of proof is proof on a balance of probabilities, that is, it must carry a
reasonable degree of probability. If the evidence is such that the Court can say ‘we
think it is more probable than not’ then the burden is discharged, but if the

30 See the following cases; Gascoyne v Paul and Hunter 1917 TPD 170; Supreme Service Station (1969)
(Pvt) Ltd v Fox and Goodridge (Pvt) Ltd 1971 (4) SA 90 (RA).

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 LAW OF EVIDENCE

probabilities are equal, then it is not.31 In allegations of crime and dishonesty in civil
cases, the standard remains the same. In certain applications, such as a temporary
interdict, the applicant only needs to establish a prima facie case.

For instance, in disciplinary proceedings, the standard of proof is a balance of

probabilities, even if the act of misconduct is of a criminal nature. In ZESA v Dera
1998 (1) ZLR 500 (S), the respondent was an employee of the appellant. He was
charged with dishonesty, in contravention of the appellant’s code of conduct. The
committee found him guilty as charged and imposed a penalty of dismissal. An
appeals committee dismissed the respondent’s appeal. The then Labour Relations
Tribunal overturned the appeals committee’s decision on appeal on the grounds that
the appellant had to prove the respondent’s guilt beyond reasonable doubt, not merely
on a balance of probabilities. In allowing the appeal against the Labour Relations
Tribunal’s decision, this Court rejected the position taken by the Labour Relations
Tribunal that in disciplinary proceedings, the accused’s guilt must be proven beyond
reasonable doubt.

At 503E-504D, the Supreme Court remarked that;

“It is a startling, and in my view, an entirely novel proposition, that in a civil case the
standard of proof should be anything other than proof on a balance of probabilities.
The reason, I have always understood, why in a criminal case proof beyond
reasonable doubt is required, is that the loss of a criminal case can result in death by
hanging, incarceration, or at the least, the branding of a person as a criminal or
convict. A criminal trial is an attack by the State, representing the whole of society,
upon the integrity of an individual. Thus, a person convicted of a crime is marked as
one whose conduct stands condemned by society.

A civil case, on the other hand, is merely a dispute between individuals. The loss of
such a case, however, ruinous in terms of money or property, loss of employment or
loss of face, is not a judgment by society as a whole, but simply a resolution of the
dispute between the parties.

31 Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A).

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Chapter 9 BURDEN AND STANDARD OF PROOF

Moreover, the parties in a civil dispute are equally interested parties, in the sense that
each one seeks relief. A claims money from B, B claims an order that he/she owes
nothing; A wishes to dismiss B, B wishes to remain employed. In a criminal matter
the State does not stand to gain or lose by the outcome of the trial. So, if B is
acquitted of theft, the State does not suffer. But if A is forced to continue to employ B
whom it has accused of theft, A does indeed suffer if B, who is in fact a thief, is found
not guilty of theft. So in a criminal case one is primarily concerned with doing justice
to the accused. In a civil case one is concerned to do justice to each party. Each party
has a right to justice, and so the test for that justice has to balance their competing
claims. Hence, the “balance of probability” test. ZESA, in the present case, has a right
not to be forced to employ a thief; Dera has a right not to be dismissed unjustly. The
law must balance those rights.”

This understanding is reinforced by authority Hoffmann & Zeffertt32 say

categorically:

“There are no exceptions to the rule that all issues in a civil action are decided upon
a preponderance of probabilities.”

9.8 Onus in Defamation Cases

In cases of defamation, the onus is on the plaintiff to prove that the article in question
was published and that it is defamatory (test for whether it is defamatory is whether it
would lower the reputation of the plaintiff in the eyes of the reasonable public, or
specific section of the public). Note that the truth or falsity of the statement has no
bearing on the question of whether or not it is defamatory; all that is relevant is
whether the statement would lower the reputation of the plaintiff. Once the plaintiff
has discharged his/her onus to prove publication and the statement’s defamatory
nature, the presumption that the publication is unlawful and that the defendant was at
fault becomes operative. The onus is then on the defendant to prove justification33 .
The following grounds of justification that negative unlawfulness include:

32 SA Law of Evidence 4 ed at p 528.

33 Neethling v Du Preez 1994 1 SA 708(A); National Media Ltd v Bogoshi 1998 4 SA
1196 (SCA).

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• Truth in the public interest

Fair comment (which deals with opinion as opposed to facts); qualified privilege (this
arises where the defendant was under a duty to publish the material and the person
who received the material has a duty or interest in receiving it. This duty may be
legal, moral or social. Note that where the defendant has satisfied the court that the
occasion was privileged, the onus is on the plaintiff to show that the defendant acted
maliciously. Now, since Bogoshi, there is an additional defence of reasonableness,
that is where the material is false but the defendant establishes that it was nevertheless
reasonable to publish such material in the particular circumstances at the particular
time; its publication will not be unlawful.

When reasonableness is being tested it must be borne in mind that:

(a) Protection was afforded only to material in which the public had an interest as
opposed to material that was interesting to the public,
(b) Greater latitude will be allowed in respect of political discussion and
(c) That the tone in which a particular article was written may sometimes provide an
additional, and perhaps unnecessary, sting.

What is important is the nature of the information, the reliability of the informers, the
steps taken by the defendant to verify the information and the need in some cases to
publish before establishing the truth in an objective manner.34

9.9 Definition of Terms

Prima Facie - means that the party who had first adduced evidence has led enough
evidence upon which a reasonable man ought not find for him/her when he/she closes
his/her case

34 See the case of Parkendorf v De Flamingh 1982 3 SA 146 (A).

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9.10 Revision Questions

1. What standard of proof must be met in a civil case to win? (5)

2. What is a special defense in a civil case? (5)

3. Explain the distinction between the onus and evidentiary burden.

4. Explain the term “primae facie”

5. Describe absolution from instance and the onus in defamation cases.

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