Opinion Evidence

1. Definition

For purposes of the law of evidence, “opinion'' can be described as an inference of

fact which is based on other facts.

An opinion is seldom a relevant fact, but where it is, it can be proved like any other
fact. An example would be a mentally disturbed person's opinion that he is
Napoleon, or the opinion of the accused in the wellknown case of R v Mbombela
1933 AD 269 that an apparition in the hut was a "tokolos".

Community opinion may in certain limited circumstances serve as evidence of a fact

in issue. Evidence of
reputation is, for example, admissible, where appropriate, to prove a person's
character, or to prove the existence of a marriage where better evidence is lacking.
An individual then gives evidence of what is, in his opinion, the prevailing view in his
community about the relevant fact.

2. Admissibility

A court need not rely on opinion evidence in respect of matters which require only
ordinary knowledge and skill. If the opinion is related to a situation on which the court
can deliberate on its own (without requiring the opinion of an expert or
knowledgeable layperson), opinion evidence will be irrelevant and therefore
inadmissible. Therefore, the opinion evidence will have no probative value.

In other words, if the court is as competent as a witness to draw inferences from the
evidence, an inference made by a witness (eg regarding the guilt of the accused) will
be superfluous and hence irrelevant. On the other hand, it is obvious that, for
example, the opinion of a ballistic expert in a case involving a firearm would not be
superfluous nor irrelevant.

3. Opinion of a Lay Person

It is a basic requirement that a witness must be competent to give an opinion about

the subject in question. Where he is an expert the question of his qualifications is
usually raised pertinently, but it is still a requirement even where he is not an expert.

Thus, as already shown, anyone can testify that a person was drunk; a policeman
who has experience in such cases may testify that the person was too drunk to drive;
but in certain special circumstances, a medical practitioner must testify. Similarly, a
policeman may identify dagga provided there is evidence that he has sufficient
knowledge of it.

Where a witness is not qualified to draw an inference from the facts, his evidence is
necessarily irrelevant. It has too little or no evidential value.
In R v Van Tonder 1929 TPD 365 the trial magistrate had convicted the accused of
negligent driving after two witnesses had stated that in their opinion the accused was
responsible for the accident. It was held that this opinion evidence was inadmissible.
The witnesses had stated a conclusion to be drawn by the court when they should
have given the facts upon which the conclusion was based.

In R v Louw 1930 CPD 368 the charge was that the accused had parked his vehicle
in such a way as to cause an obstruction. He was found guilty on the evidence of a
policeman that the vehicle had in fact caused an obstruction. On appeal Watermeyer
J (369) held that this was a matter the court had to decide: the magistrate cannot
accept the bare statement of a witness that in his opinion an obstruction was caused.
The witness must state what he saw and the Court must say whether that amounts
to an obstruction.

4. Opinion of an EXPERT

Expert evidence is almost invariably led in order to assist the court with regard to
facts which can only be properly evaluated by an expert with particular qualifications.
Since the court then has to draw inferences from these facts, experts are usually
involved when considering circumstantial evidence. Because the expert's evidence
obviously assists the court, it would seem that expert evidence is an excellent
example of the application of the Vilbro rule.

For procedural purposes, it is necessary to draw a distinction between the opinion of

an expert and that of a layperson.

In civil cases, parties must give notice of their intention to rely on expert evidence
and in criminal cases, the prosecution is required, on constitutional grounds, to
disclose expert evidence before the trial starts.

Generally, the following three requirements have to be met when opinion evidence is
at issue:

(1) The court should be satisfied that the expert is capable of giving evidence about
the specific issue.

In other words, a foundation for the expert's expertise must be established. It is

therefore very important to test her expertise by asking searching questions on her
qualifications (even the date when they were obtained), practical experience in her
field, as well as her previous track record as an expert witness.

(2) Secondly, the court must be generally informed on the reasons and grounds
upon which the opinion is based. This will enable the court to compare the expert's
findings with other findings of fact in the particular case to see whether the expert's
findings are corroborated by them.
In the Appellate Division case of S v September 1996 (1) SACR 325 (A), for
instance, the court a quo's finding on the very point on which the expert witnesses
were testifying, was set aside. The reason for this was that the evidence by one of
the state witnesses, Dr George, that the accused had lacked criminal capacity with
regard to the crime with which he was charged, was preferred by the court a quo
over the evidence by Dr Jedaar, who testified that he did, in fact, have criminal
capacity. A third doctor, Dr Quail, could not choose between either of the two views.
Hefer JA used his common sense and deduced that from the accused's calculated
behaviour before and after the alleged crimes had been committed, that he had not
lacked criminal capacity.

(3) Thirdly, the court need not rely on the opinion of an expert witness. If, however,
the evidence is of such a technical nature that the court cannot make a reliable
inference, the court must rely fully on the evidence given by the expert.

When an expert uses textbooks, she must not merely convey the textbook's opinion
to the court, since that will constitute hearsay evidence. The expert should have
personal knowledge of the subject in question and should only use a textbook to
refresh her memory or to explain or support her opinion.