LAW OF EVIDENCE MANUAL

FOR LEGAL PRACTITIONERS

A REVISION GUIDE

LAW SOCIETY OF ZIMBABWE

2014

This manual serves as a general guide to aid in the revision of the law of evidence for legal
practitioners. It is aimed at providing precise definitions and clear examples for ease of
understanding and revision.
CONTENTS

CHAPTER 1: INTRODUCTION 1

Definitions 1
Sources of Zimbabwean Law of Evidence 1

CHAPTER 2: RELEVANCE AND ADMISSIBILITY 1

Best Evidence Rule 2

Direct and Circumstantial Evidence 2
Direct Evidence 2

Exclusionary Rules 3

CHAPTER 3: EXAMINATION OF WITNESSES 4

Previous Consistent Statements (PCS) 4

PCS Made to Rebut an Allegation 4
PCS in Prior Identification 5
PCS in Complaints of a Sexual Nature 5

Refreshment of Memory 6
Evidential Value of a Document 8

CHAPTER 4: CHARACTER EVIDENCE 8

Similar Facts Evidence 8

Categories of Relevance 9
For the Purpose of Rebutting the Defence of Accident or Coincidence 9
To Rebut the Evidence of Innocent Association or Innocent Explanation 10
Similar Facts Evidence Has Also Been Used As Part of the Story (Res Gestae) 11

CHAPTER 5: THE RIGHT TO SILENCE 12

CHAPTER 6: OPINION EVIDENCE 13

Formulation of the Opinion Rule 14

Traditional Formulation 14
The Wigmore–Vilbro Approach 14

Expert Opinion 15
The Application of the Rule in Relation to Civil Proceedings 17

CHAPTER 7: HEARSAY 18

Why Exclude Hearsay? 18

Exceptions 19
 Reasons for Exceptions 19

Common Law Exceptions 19

Declaration As to Public or General Rights 19
Declarations Against Interest 20
Declaration in the Course of Duty 20
Dying Declarations 21
Pedigree Declaration 22
Declarations by Testator Concerning Their Will 22
Statements Which Accompany and Explain a Relevant Fact 22

Statutory Exceptions 23
Public Documents 24

CHAPTER 8: ADMISSIONS AND CONFESSIONS 24

Admissions 24
Confessions 25
The Miranda Principles 26

CHAPTER 9: THE COMPETENCE AND COMPELLABILTY OF WITNESSES 27

Incompetent and Non-compellable Witnesses 27

Incapable Witnesses 27
Persons Concerned in Judicial Proceedings 28
The Accused 29

CHAPTER 10: PRIVILEGE 30

Classifications of Privilege 30
Marital Privilege 30
Legal Profession Privilege 30
Without Prejudice Negotiations 31
State Privilege 32
Matters That Are Not Privileged 32

CHAPTER 11: CORROBORATION 32

Evidence of Young Children 33

Single Witness 33
Evidence of Prostitutes 33
Police Traps 34
Spies and Informers 34
Claims against a Deceased’s Estate 34
Evidence of Identification 34
Accomplice Evidence 35
Sexual Offences 36
Victim-friendly Courts 37
319B Measures to protect vulnerable witnesses 37
319C Factors to be considered in deciding whether or not to protect vulnerable witness 37
 319F Persons who may be appointed as intermediaries or support persons 38
319G Functions of intermediary or support person 38
319H Weight to be given to evidence of witness for whom intermediary or support person appointed 38

Single Witnesses in Cases of Treason and Perjury 39

CHAPTER 12: THE PAROLE EVIDENCE RULE 39

Exceptions 40
Does the Rule Bind Third Parties? 42
The Burden and Quantum of Proof 43
The Quantum of Proof Required in Criminal Cases 44
The Quantum of Proof Required in Civil Cases 44
Bibliography 44
Statutes 45

CHAPTER 13: COUNCIL FOR LEGAL EDUCATION LAW OF EVIDENCE SYLLABUS 45

1. Introduction 45
2. Relevance and Admissibility 45
The Best Evidence: Direct and Circumstantial Evidence 45

3. The Examination of Witnesses 45

Oral Evidence 45
Character Evidence 45
Opinion Evidence 45
Hearsay 45

4. The Competence and Compellability of Witnesses 46

5. Privilege 46
6. Corroboration 46
7. The Burden and Quantum Proof 46
Recommended Texts 46
CHAPTER 1: INTRODUCTION
Definitions
This manual explores the rules (the laws of evidence) that govern and regulate the facts that are
receivable in litigation be it criminal or civil. The rules that manage the admissibility of evidence are
called exclusionary rules. Prima facie evidence is evidence at face value which could still be
contradicted.
A fact in issue is a fact in dispute that the court has to resolve, for example, in a paternity case the
identity of the father is a fact in issue.
Sources of Zimbabwean Law of Evidence
Section 89 of the current Constitution provides:
Subject to the provisions of any law for the time being in force in Zimbabwe relating to the
application of African customary law, the law to be administered by the Supreme Court, the
High Court and by any courts in Zimbabwe subordinate to the High Court shall be the law in
force in the Colony of the Cape of Good Hope on 10th June 1891, as modified by subsequent
legislation having in Zimbabwe the force of law.
In 1652, Jan van Riebeeck and his group of Dutch settlers took charge of the Cape of Good Hope.
They brought with them, and introduced, the law as it applied at that time in Holland, which was
Roman-Dutch law, and all legislation in force at the time.
Roman-Dutch law was contained in judicial decisions and published treatises on law written by
Dutch jurists. From 1652 onwards, and indeed up to this day, the nucleus of the law of Zimbabwe
and South Africa, as well as that of Botswana, Lesotho, Namibia and Swaziland, has remained
Roman-Dutch. The law introduced at the Cape in 1652 underwent some significant changes after
1795. In that year, the British took over the Cape from the Dutch. They did not replace Roman-Dutch
law, but English law began to influence some legal aspects. By 10 June 1891 the law applicable at the
Cape was Roman-Dutch law with substantial English law draftings. This is why s89 of the Constitution
of Zimbabwe refers to ‘the law in force in the Colony of the Cape of Good Hope’ and not the Roman-
Dutch law in force.
The sources of our law of evidence are therefore:
1. Legislation for example, the Civil Evidence Act [Chapter 8:01], Criminal Procedure and Evidence
Act [Chapter 9:07].
2. Common law, where we also have judicial precedents.
3. Authoritative texts.

CHAPTER 2: RELEVANCE AND ADMISSIBILITY

The admissibility of evidence depends firstly on the concept of relevancy of a sufficiently high degree
and secondly, on the fact that the evidence tendered does not infringe any of the exclusionary rules
that may be applicable to it. Cross On Evidence, page 58, says, ‘Admissibility signifies that the

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1 MY NOTES
particular fact is relevant and something more – that it has also satisfied all the auxiliary tests and
extrinsic policies’.
If judges had to examine all facts that 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 that the law requires is not uniform. The court should
consider all material that may assist it to reach a proper conclusion. But the value of some evidence
is overweighed by the problems it creates (such as it 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.
Relevant evidence is material that will assist the court to reach a proper conclusion, its value
outweighing the problems it creates that is, prejudice, confusion, questions of credibility, etc.
The American Law Institute’s Model Code of Evidence Rule 1(12) defines relevant evidence as
‘evidence having any tendency in reason to prove any material matter’. In R v Mpanza 1915 AD 348
at 352 the court said that ‘any facts are … relevant if from their existence inferences may properly be
drawn as to the existence of the fact in issue’.
R v Trupedo 1920 AD 58. After smelling the footprints made by a house breaker a dog followed the
scent to a room where eight people were sleeping; one of whom, Mr T, happened to be the accused.
The dog sniffed at the accused and started barking. In the court a quo the evidence was admitted.
On appeal Innes CJ said that an inference from the dog’s tracking activities lay in the region of
conjecture and uncertainty. The court considered that its reception would be dangerous because the
jury might be inclined to give it exaggerated importance on account of its dramatic and almost
supernatural qualities.
The general rule is that all facts relevant to an issue in legal proceedings may be admitted. Much of
the law of evidence is concerned with the exceptions to the operation of this general principle.
Best Evidence Rule
Prior to relevance becoming a yardstick for admission of evidence, the best evidence rule was in
operation and the argument was that the best evidence must be given which the nature of the case
permits. This was a more liberal yardstick than the contemporary rules of evidence. Under the best
evidence rule many categories of evidence which, by today’s standards, would not be admitted were
then admitted. For example, if hearsay evidence happened to be the best evidence then it would be
admitted.
Direct and Circumstantial Evidence
Direct Evidence
Direct evidence is evidence that requires no mental process on the part of the tribunal of fact in
order to draw the conclusion sought by the proponent of the evidence, other than acceptance of the
evidence itself. Circumstantial evidence is evidence from which the desired conclusion may be
drawn, but which requires the tribunal of fact not only to accept the evidence presented, but also to
draw an inference from it. For example, if X is charged with robbery of a bank, and is seen by W
running from the bank clutching a wad of banknotes, W’s evidence is direct evidence that X was
running away from the bank, and circumstantial evidence that X committed the robbery. To arrive at
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MY NOTES 2
the latter conclusion, the jury must draw certain inferences from the facts perceived by W. This
example also shows that circumstantial evidence is not necessarily inferior to direct evidence, if the
inference required is obvious and compelling. Similarly, the production of an incriminating document
may be direct evidence of a fact, while evidence that the party potentially embarrassed by it
destroyed the document may be equally cogent circumstantial evidence of the same fact.
In R v Exall (1866) 4 F & F 922 at 929, the court, employing the analogy of a rope, said:
One strand of the cord might be insufficient to sustain the weight, but three stranded
together may be quite of sufficient strength. Thus it may be in circumstantial evidence there
may be a combination of circumstances, no one of which would raise a reasonable conviction,
or more than a mere suspicion; but the whole, taken together, may create a strong conclusion
of guilt, that is, with as much certainty as human affairs can require or admit of.
Hoffman and Zeffert in The South African Law of Evidence. 4th edn, page 558, note that direct
evidence of a fact is the assertion of a person who claims to have perceived it with his own senses.
Circumstantial evidence, on the other hand is any fact from which a fact in dispute may be referred.
Thus, a witness who says he saw the accused plunge a knife into the victim is giving direct evidence.
But a witness who says that he saw the accused coming out of the victim’s house with a
bloodstained sword is giving circumstantial evidence from which a killing may be inferred.
Prior to relevance becoming a yardstick for admission of evidence, the best evidence rule was in
operation and the argument was that the best evidence must be given that the nature of the case
permits. This was a more liberal yardstick than the contemporary rules of evidence. Under the best
evidence rule many categories of evidence which, by today‘s standards would not be admitted, were
then admitted for example, hearsay evidence, if it happened to be the best evidence then it would
be admitted.
Exclusionary Rules
These are rules that state what ought to be admitted and what may not be admitted as evidence.
Admissibility is a question of law. The court assesses depth, relevance and persuasiveness of
evidence.
1. Direct evidence is evidence that a witness testifies before the court as having been perceived
with his or her own senses.
2. Circumstantial evidence is indirect evidence which must lead to one inescapable conclusion.
3. Real evidence consists of exhibits, for example, weapons used, or any other item that can be
brought forward in support of the action done.
The basic criterion upon which admissibility is based is relevance. The idea of regulating the
admittance of evidence is to minimize the proliferation of issues. Evidence that does not facilitate
the resolution of an issue is irrelevant. All relevant evidence is admissible unless there is another rule
of law that excludes it, for example, evidence may be relevant but privileged.
4. Privileged evidence is evidence that is relevant to the determination of a fact in issue but is
rendered inadmissible in court as a result of legally accepted grounds of privilege; for example, the
communication between lawyer and client.

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CHAPTER 3: EXAMINATION OF WITNESSES
Previous Consistent Statements (PCS)
The PCS rule is also known as the rule against self-corroboration or the rule against the narrative.
Historically and at common law a witness was not allowed to testify that on an earlier occasion she
made a statement that was consistent with the testimony. In other words, it is a statement that was
made outside court and not under oath but it indicates the line of defence the defendant or 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:
1. It is generally held that PCS are insufficiently relevant and therefore where they are relevant they
become admissible.
2. PCS can be easily fabricated.
3. In most cases the evidence is superfluous and at any rate witness evidence ought to be consistent
with what she said earlier.
4. PCS have the capacity to raise numerous side issues that the courts may not have any business
investigating.
In 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 the charge of murder to be reduced to
one of 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 it was a PCS. This position was upheld in
the court of appeal (see also Corke v Corke & Cook 1958 ALL ER 224).
However there are exceptions to the rule, as listed below.
PCS Made to Rebut an Allegation
If, In cross-examination, a witness account is challenged as a recent fabrication, witness may support
himself by evidence of earlier statements made by the witness. In these circumstances PCS are used
as a defence shield.
In 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 himself and the
accused (the beneficiary of the will). The witness was allowed to call corroborative evidence to show
that long before the enmity had arisen he had told a third party the story he was now telling. The
court was satisfied that the previous statement, if correct, would be relevant.
In Pincus v Solomon (No. 2) 1942 WLD 237 at 243, the plaintiff had been knocked down by a motor
car. He said in his evidence that just before the accident he had seen a lorry coming towards him,
but in his report to the police on the day of the accident he had made no mention of this fact. It was
put to him in cross-examination that the lorry was an afterthought that he had invented, and to
refute this suggestion he was allowed to prove a statement he made to another witness immediately
after the accident in which he had mentioned the presence of the lorry.

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MY NOTES 4
PCS in 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.
In R v Christie 1914 AC 545 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.
PCS in Complaints of a Sexual Nature
Evidence of complaints made by witnesses in cases of rape, indecent assault, and so on has
traditionally been accepted in court as having relevance. Victims of a sexual assault were
traditionally expected to tell somebody about it because if they kept quiet about it adverse
inferences would be drawn. This is called the hue and cry doctrine. To guard against malicious
reports or an honest error that could be made safeguards have been introduced; namely:
1. The complaint must have been made at the first reasonable opportunity that presented itself
with no undue delay. There is, however, no hard and fast rule on the time frame.
Each case must be decided on its merits. In R v S 1955 (4) SA 40 the charge involved rape. The court
admitted as evidence a complaint made to the mother of the victim 5 days after the commission of
the crime. The court took the opportunity to clarify the legal position pertaining to complaints in
sexual cases. The complaint must have been voluntary, not made as a result of leading or suggestive
questions or after intimidation. The complaint must have been made at the earliest opportunity to
the first person to whom the complainant may reasonably be expected to report to. In this case, the
court observed that the complainant was too young to understand the nature of the offence
perpetrated upon her.
2. The report must not be elicited by leading questions. The mere fact that a statement is an answer
to a question is not itself sufficient to make it inadmissible as a complaint. Much would depend on
the manner of questioning; a non-suggestive question. For example, ‘What is the matter?’ would not
render complaint inadmissible. On the other hand, it would be inadmissible if the manner of
questioning is leading in nature.
In R v Osbourne 1905 1 KB 551 the owner of a fish and chips shop was alleged to have indecently
assaulted a 13-year old and the complainant looked very distressed. The victim’s statement was
made in response to the question ‘Why are you going home?’ The court said that if circumstances
indicate that, but for the question there probably would not have been voluntary complaint, then
the answer would be inadmissible. If the person merely anticipates the statement the complainant
wanted to make it is not rendered inadmissible by the fact that the questioner happened to speak
first.
Where threats by the questioner are of a leading nature and procure the making of the complaint,
its voluntary nature is destroyed and the evidence of the complaint becomes inadmissible.
In S v T 1963 (1) SA 484 (A) a mother noticed that her child had been sexually assaulted and
threatened to beat her with a stick unless she revealed who had done it. The child made a complaint
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MY NOTES 5
against her stepfather, but the Appellate Division excluded it on the grounds that it had been elicited
by intimidation. Complaints of a sexual nature are not restricted to females only. They are also
applicable to male complainants as long as they are victims.
In R v Camalleri (1922) 2 KB 122 the accused was charged and tried in a case involving gross
indecency with a 12-year-old boy. The judge admitted evidence by the prosecutor that shortly after
the complaint was made, the lad had complained to his parent. The accused objected to the
admissibility of the evidence, saying that the circumstances applied to prosecution involving women
and girls. The court held that there was no authority in precedence that states that the mere fact
that the complainant is male renders the particulars of the complaint inadmissible. If the
complainant gives no evidence at all, neither the terms of the complaint nor the fact that it was
made can ordinarily be admitted. Sometimes, however, the complaint may have some additional
relevance.
In S v R 1965 (2) SA 463 (W) a complaint of rape was made almost immediately after the incident
while the complainant was still distressed and weeping. By the time of the trial the complainant was
suffering from amnesia and remembered nothing. Trollip J held that the complainant’s statement
and condition were relevant to show her state of mind at the time of the incident and to rebut a
defence of consent.
There is considerable debate in law on whether the victim must testify to show consistency between
the particulars of the complaints made in extra-curial circumstances and the statements that are
being made in the court of law. One school of thought says that if the complainant for good and
understandable reasons is unable to attend court, the evidence of PCS is still admissible. The second
school of thought seemingly represents the current legal status that as long as the complainant has
not testified there is no story to be consistent with. If the accused is to be convicted under those
circumstances it has to be on other admissible and credible evidence.
Victims in sexual cases also include voluntary participators to a sexual act in cases where the law
does not recognize the ability of that person to consent in terms of the Sexual Offenses Act.
Refreshment of Memory
Section 19 of the Civil Evidence Act [Chapter 8: 01] provides that:
Subject to this section, any witness, whilst giving evidence, may refresh his memory from any
document, where it is proved that the document was made by him or was made on his
instructions or was first read by him, at a time when his recollection of the facts set out in the
document could reasonably be supposed to be fresh in his mind.
Any witness, while giving evidence, may refresh his memory from any document, where it is proved
that the document was made by him or was made on his instructions or was first read by him, at a
time when his recollection of the facts set out in the document could reasonably be supposed to be
fresh in his mind.
Heydon and Ockelton in Cases and Materials 3 edn, at page 468, states that ‘The document need not
itself be admissible’.
A witness is given access to a written document, contemporaneous with the event because
1. The time lapse between the occurrence of the event and the trial itself makes it necessary.
2. The complexity of the case may justify refreshment.

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MY NOTES 6
3. Some people or professions, because of the nature of their jobs, find themselves in court often
and some of the cases may be similar.
In 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 facts mentioned in the document put to him in
order to refresh his memory.
The document used has to satisfy two conditions:
1. Authenticity
This means:
(i) Witness must have made the document or recording himself.
(ii) 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.
In R v Ohlin 1960 (1) SA 545 a traffic 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.
2. Contemporaneity
This 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, so that it was still fresh in the witness’s memory.
Reasonableness is situational, depends on the circumstances of the case. Apart from the actual 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.
In Anderson v Whaley (1975) ER 460 a ship captain was allowed to use the ship’s log book to refresh
his memory concerning a navigation accident. It was allowed despite the fact that the log book had
been kept by the ship’s mate. The crucial point was that the captain had approved the record within
a week of the event taking place, when the event was still fresh in his mind.
In Jones v Metcalfe (1967) ER 460, bad driving by a lorry driver caused a collision involving two cars.
An independent witness who saw the event unfold memorized the lorry’s number and later reported
it to the police. At the trial the independent witness was unable to remember the number, but the
policeman could. However, he was not a direct witness. On appeal the person to whom the number
had been given could not testify because doing so would be admitting hearsay evidence. The court
said that if the independent witness had been able to say he gave the number to a police officer and
saw him writing down the number then the evidence would have been admissible.
In R v Isaacs 1916 (1) TPD 390 a recording took place 8 days after the occurrence of the event. The
court held that in the ordinary scheme of things one would still be expected to remember.
In Jones v Stroud (1825) 2 C & P 196 a witness could not refresh his memory from a record made 6
months after the event because the court considered that the event had lapsed so the memory
might be unreliable.
(iii) Original documents. The witness must be able to produce an original copy of the
document being referred to.
(iv) Production. A witness who uses a document to refresh his 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.
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MY NOTES 7
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, perhaps
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 came to make it and to produce any earlier drafts or the original if he has
referred to a copy.
Evidential Value of a Document
At common law a document used to refresh memory is not evidence except in so far as it 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 evidence. The conditions to be satisfied for a document used to refresh
memory were also highlighted by the Supreme Court in Mabu Estates v Pembi Chase Farm SC 46–86.

CHAPTER 4: CHARACTER EVIDENCE

Similar Facts Evidence
Similar facts evidence is generally inadmissible. Similar facts evidence has been characterized as
evidence of propensity or disposition or evidence of the past. It is inadmissible because of its
potential for prejudice. It is evidence which pertains to the particular immoral or illegal conduct of a
party on occasions other than those in the dispute but also which is of such a nature that it is
logically connected with or substantially similar to the conduct which forms the substance of the
dispute. It is, however, admissible when it is highly relevant to the issue before the court, that is, if
its probative value outweighs its prejudicial effect. The locus classicus of this principle is Making v
ATG of South Wales (1894) AC 57
The accused pair was husband and wife. They were charged with the murder of a baby. The baby’s
body was found buried in their garden. It was proved that they agreed to adopt the baby in return
for the payment of a small sum of money by his parents. In their defence, it was contended that the
child had died of natural causes and that their sole misdemeanour was to have the child buried
irregularly. The prosecution’s case was that the child had been killed by the Makings pursuant to a
scheme in which they took charge of infants in return for payments to be used for the infants’
upkeep. They would then kill the child in question and keep the payment. There was no evidence
directly linking the Makings to the murder but it was common cause that there was a dead body. In
support of its case, the prosecution was allowed to link evidence that 12 bodies of other infants had
been discovered in other places previously occupied by the Makings. Several of these infants had
been placed under their care in return for payment.
Upon being convicted the Makings appealed and the question that the court had to determine was
the admissibility of the evidence relating to the discovery of other bodies and the fact that other
children had been similarly entrusted to the appellants. In pronouncing a statement of proposition
of the law, Lord Hershell put it this way:
It is undoubtedly not competent for the prosecution to adduce evidence tending to show that
the accused had been guilty of a criminal act other than that covered by the indictment or
charges for the purpose of leading to the conclusion that the accused is a person likely from
his criminal conduct to have committed the act in question Similar facts evidence seeks to
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MY NOTES 8
 prove the current charge by introducing past dishonourable conduct. Here the risk of
prejudice is too great.
In R v Meyer 1953 (4) SA 26 a question was put to a witness;
‘Do you know the accused?’
‘Yes!’
‘From where and how?’
‘From prison’.
The court immediately sought to disallow such evidence because of its prejudice.
There is a strong tendency to believe that the accused is guilty of a charge merely because he is the
kind of person likely to do such acts and also to condemn the accused, not because he has done
what he is alleged to have done, but because he had escaped unpunished on an earlier occasion.
There are too many collateral issues in similar facts evidence leading to a loss of focus in court.
In Hollingham v Head 140 ALL ER 1135 The plaintiff had bought manure from the defendant and was
claiming that the defendant had given him a warranty as to the quality of the manure. The plaintiff
then sought evidence from other buyers that they had been given similar warranties by the
defendant. The court held that such evidence was insufficiently relevant. However, similar facts
evidence is admissible when it is relevant. Relevance is originally meant that there must be striking
similarities and that it will be an affront to common sense to ignore them.
The requirement later evolved that the probative value must outweigh its prejudicial effect, such
that it would be a gross miscarriage of justice not to admit it. Similarities include:
1. The substance of the offence.
2. The modus operandi.
3. The time.
4. The place.
5. The motive or objective.
6. The class of victims.
Categories of Relevance
For the Purpose of Rebutting the Defence of Accident or Coincidence
In R v Bond (1906) 2 KB 389 the accused person was convicted of using instruments with the intent
to commit abortion on a woman who used to be his domestic worker. The court allowed evidence to
be admitted to the effect that the accused had performed a similar operation on another woman 9
months earlier. Both were servants of the accused and had become pregnant by him. The accused
was a medical doctor. His argument was that he was using the instruments to examine both girls for
venereal diseases. The court nonetheless allowed the evidence and proceeded to convict him on the
basis of the evidence. The court held that the similar facts evidence was highly relevant in that there
were striking similarities in that that the same evidence should repeatedly occur to the same person
is unusual, especially if it confers a benefit on him.
In R v Smith 1915 CAR 229 the accused was charged with the murder of one B, his wife. Prior
evidence of the death of two other women to whom the accused was married was held to have
been rightly admitted. In each of the cases, the deceased was found drowned in a bath-tub and in
each case the door of the bathroom would not lock and also in each case the accused had told
medical practitioners that the women suffered from epileptic seizures; a defence he also raised in
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MY NOTES 9
court. Finally, in each of the cases the women were insured. S was convicted but appealed. On
appeal the court said ‘to lose one wife under such circumstances is unfortunate, to lose a second
one is carelessness, but to lose a third is definitely murder’.
To Rebut the Evidence of Innocent Association or Innocent Explanation
In R v Ball (1911) AC 47 The co-accused were brother and sister. They were indicted under the
Punishment of Incest Act of 1908. They were accused of having a sexual liaison within the period of
1910. Prior to 1908 incest was not a crime. Evidence was then given on behalf of the prosecution to
the effect that the times specified in the indictment the two lived together in the same house. The
house apparently had one furnished bedroom which had a double bed which bore unmistakable
signs of having been occupied by two persons. The prosecution then tendered evidence of prior
sexual relations between the two accused persons. Evidence was introduced that in November 1907,
the male accused had rented a house to which he brought the female accused and in that house
they had lived as husband and wife for more than a year. Further, that at the end of March 1908, the
female Ball gave birth to a child and upon registration she described herself as the mother and the
male Ball as the father. The Balls were convicted and they appealed on the basis that similar facts
evidence had been improperly admitted. The House of Lords held that evidence of prior sexual
liaison between the two was clearly admissible in showing a sexual passion for each other and that
the occasion could not have been innocent. Thompson v R 1918 AC 221 shows that similar facts
evidence can also be used to identify people.
In S v Banana 1998 (2) ZLR 533 the accused was charged with a number of sexual offences,
committed mostly during the time he held office as President of Zimbabwe. The allegations were all
of sodomy or indecent assault, committed in respect of men who were, in most instances, low-
ranking officers in the uniformed services who were at State House in the course of their duties, or
other persons of relatively humble status. The question arose whether the evidence on one count
should be admissible as evidence of another. The defence also argued that sodomy as an offence has
been abrogated by disuse; alternatively, that the constitutional protection against discrimination on
the grounds of sex has altered the common law and decriminalized consensual sodomy.
The court held that similar fact evidence is not generally admissible if it merely shows that the
accused is the sort of person likely to commit the offence charged. However, it is admissible as
evidence in relation to another count in the same indictment if the evidence shows that those
alleged offences share with the offence that is the subject of the charge common features of such an
unusual nature and striking similarity that it would be an affront to common sense to assert that the
similarity is explicable on the basis of coincidence. There were such features in the present case and
the evidence on one count could be used as evidence in relation to another.
The court held, further, that for a law to be regarded as having been abrogated by disuse it must be
shown that there has been no observance of the law for a considerable time, particularly where a
usage contrary to the law is observed or must have existed. There have in recent years in Zimbabwe
been a number of prosecutions and convictions involving consensual homosexual acts and it could
not be said that the crime of sodomy had been abrogated by disuse.
It held, further, that the real constitutional question was not whether sexual intimacy between men
should be allowed, on the grounds that such intimacy between women was not criminal. It was
whether the Constitution created and conferred on anyone the fundamental right to penetrate
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another male per anum. No such right was created. If the framers of the Constitution had intended
to alter the common law position relating to consensual sodomy, one would have expected a
provision such as exists in the South African Constitution relating to discrimination on the grounds of
sexual orientation.
Similar Facts Evidence Has Also Been Used As Part of the Story (Res Gestae)
Res gestae is an all-embracing description of several types of reported statements, most of which
are received as exceptions to the hearsay rule. In the USA they are referred to as the excited
utterances rule. This principle postulates that certain facts are inextricably linked or bound up in
terms of time, place or circumstances, so much so that it is impossible to understand that event that
forms part of the subject matter or investigations on its own. Put differently, the res gestae is
concerned with the admissibility of statements that are made contemporaneously with the
occurrence of the acts or events into which the court is inquiring.
In R v Taylor 1961 (3) SA 616 the accused had been charged with culpable homicide, it having been
alleged that he had assaulted his wife, given her wounds, bruises, injuries and hurts, from the effects
of which she had died. Evidence was given by certain persons occupying rooms nearby that occupied
by the accused and deceased that they had heard scuffles and thuds during which the deceased had
cried out, ‘John, please don’t hit me any more. You will kill me’ or words to that effect. The defence
had objected to evidence of these remarks being given on the ground that it was hearsay. The
defence had called the superintendent of a mental institution who had examined the accused as to
his sanity. In cross-examination the doctor had stated that he had formed the opinion that the
accused had told him things unfavourable to himself. The defence objected to the doctor detailing
these facts, as the answer might be a confession.
It was held that the evidence by the occupants of the room was receivable, as part of the res gestae,
in proof not only of the fact that those words were spoken and of the state of mind of the deceased
but also of the facts ascertained in the statement. It was held further, that the statement made to
the superintendent was not a confession within the meaning of s244(1) of Act 56 of 1955 and was
accordingly admissible.
In O’Leary v The King 73 CLR 566 the accused and deceased were both employees at an isolated
timber camp in Australia. Together with fellow employees they took part in a drunken orgy that
commenced from Saturday morning till Sunday morning. At about Saturday midnight the deceased
retreated to his cubicle a short distance from the accused’s own cubicle. On Sunday morning the
deceased was found in his cubicle in a dying state, badly injured. He had been struck on the head
about eight or nine times, after which paraffin had been poured over him and he was set alight.
Nobody witnessed the events taking place so the question of the identity of the accused became
critical. The prosecution was allowed to lead evidence that at various times during the orgy the
accused had punched one H on the head and knocked him down and continued to punch him while
he was still prostate on the ground. He had also grabbed one T by the throat and threatened ‘to do
him’. He had knocked out one K and kicked him all over the body. He had also threatened to assault
and shoot three other people. All the events occurred prior to the incident relating to the deceased’s
injuries and subsequent death. Using this evidence, the accused was convicted of murder on the
basis of the res gestae doctrine. The court reasoned that right at the beginning of the orgy until the

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death of the deceased a series of connected events of a violent nature took place and on the basis of
the admissibility of the evidence.
The reception of similar facts evidence reached its high watermark in DPP v Boardman (1974) 3 ALL
ER 887. The applicant was a headmaster at a drama school in England that catered mostly for foreign
pupils, predominantly from the Middle East. He was charged with two counts involving sodomy (the
substance of the offence) with 16-year-old and 17-year-old boys (the class of victims), both pupils at
his school. Each of the boys gave evidence to the effect that their headmaster would come to their
dormitory late at night (time). He would ask the boy in question to accompany him to the school
sitting-room (place) were he would there invite the boy in question to join him in acts of a
homosexual nature (modus operandi). The boy would play the active role while the headmaster took
the role of a woman. The judges ruled that each of the boys’ evidence was admissible as
corroborative evidence of the other boy’s story. The court noted that there was a definite
requirement for striking similarities, further noted that the discreditable acts of the accused on
previous occasions must be of a striking resemblance to the discreditable facts being charged.
Similar facts evidence is also admissible in civil proceedings more or less as in criminal proceedings.
In Mood Music Publishing Co v De Wolf Pvt Ltd (1976) 1 ALL ER 763 the case involved the
infringement of copyright for a piece of music called ‘Girl in the Dark’ that was normally used as
background music by TV programme producers. The defendant had provided the work for use in a
play and the plaintiff complained that the work infringed their copyright. The defendant agreed that
the two works were very similar and that their own was composed afterwards but argued that the
similarity was coincidental. The plaintiff was allowed to introduce evidence of three other recordings
that bore a striking resemblance to the words in the copyright music, which had been reproduced by
the defendant without the consent of the copyright owners. In this case, therefore, similar facts
evidence was used to rebut the defence of coincidence. The court noted that it would admit similar
facts evidence in civil cases if it was logically probative in determining a matter that is in dispute. See
also Hales v Kerr (1908) 2 KB 601.

CHAPTER 5: THE RIGHT TO SILENCE

Section 18 of the Constitution provides that ‘No person who is tried for a criminal offence shall be
compelled to give evidence at the trial’. In Poli v Minister of Finance, Economic Planning and
Development & Anor SC-167–187 the court ruled that this section means that an accused person
cannot be compelled to give evidence at his trial and not outside court, say, during investigations.
An accused person cannot be forced to testify at his trial: he has a right to silence, a privilege against
self-incrimination. This right is conferred by the Constitution and is enshrined in various
international human rights conventions, for example Article 14.3 (g) of the International Covenant
on Civil and Political Rights. Although the Constitution protects this right only at trial stage, the right
applies to all pretrial stages; for instance, R v Camane & Ors 1925 AD 570, at 575, per Innes CJ:
Now, it is an established principle of our law that no one can be compelled to give evidence
incriminating himself. He cannot be forced to do that either before the trial, or during the
trial. The principle comes to us through the English law, and its roots go far back in history.
This was quoted in S v Zuma & Ors 1995 (2) SA 642 (CC) at 659. Thus, generally speaking, a suspect
cannot be compelled to make a statement to the police, and any statement he may make must be
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proved to have been made freely and voluntarily. As a corollary of this right, an accused person
should not be penalized for exercising it: adverse inferences should not be drawn from his silence. In
strict logic, they cannot be so drawn. If the State has failed to fill a gap in its case by failing to cover
an element of the crime by prima facie evidence, the nothingness of the accused’s silence cannot
logically fill that gap. In our law, however, adverse inferences are allowed be drawn from an accused
person’s silence: see s18(13)(e) of the Constitution and s189 and s199 of the Criminal Procedure and
Evidence Act.
The right has been denuded by statutory inroads. Section 18 of the Constitution provides that:
(13) Nothing contained or done under the authority of any law shall be held to be
contravention of (e) subsection (8) to the extent that the law in question authorises a court,
where the person who is being tried refuses without just cause to answer any question put to
him, to draw such inferences from that refusal as are proper and to treat that refusal, on the
basis of such inferences, as evidence corroborating any other evidence given against that
person.
Section 199(1) of Criminal Procedure and Evidence Act provides that where an accused person
refuses to answer a question or to give evidence without a just cause, the court may draw adverse
inferences from his refusal. In S v Mukungatu 1998 (2) ZLR 244 (S) the court held that s199(1) of the
Criminal Procedure and Evidence Act is not ultra vires s18(8) of the Constitution, as this provision is
saved by s18(8) of the Constitution. It held further, that in any event s18(8) of the Constitution does
not prevent the court from drawing an adverse inference against the accused who declines to testify
on his own behalf or who, having elected to testify, refuses to answer questions put to him without
just cause. The courts have always had this power. Where there is a prima facie case against the
accused, the refusal by the accused to testify in his own defence may be sufficient to convert the
prima facie case into a proven case.
In MacFarlane v Sengweni NO & Anor 1995 (1) ZLR 384 (S), at page 389, the then Gubbay CJ said:
The right to silence carries less weight in this country than it does in South Africa and England.
This is because it has been eroded to a significant extent … an accused must outline his
defence to the charge and if he fails to mention any fact relating to such defence, the court
may draw an adverse inference against him. Should he decline to give evidence, the
prosecution and the court may nevertheless question him and a refusal to answer any
question without just cause may lead the court to draw an adverse inference against him.
Note, however, that even giving full allowance to the accused’s right to silence, if the State has
established a prima facie case against him at his trial and he nevertheless elects to remain silent, the
prima facie case hardens into sufficient evidence for a conviction. This is not because of his silence
but because he has failed to disturb or rebut the case the State has made against him. That case,
being uncontroverted, is regarded as proved beyond reasonable doubt.

CHAPTER 6: OPINION EVIDENCE

Opinion evidence involves conclusions, interpretations, evaluations and inferences derived from
observed facts. May in South African Cases and Statutes on Evidence, page 260, notes:

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 The general rule is that the evidence of opinion or belief of a witness is irrelevant because it is
the function of a court to draw inferences and form its opinion from facts; the witnesses give
evidence as to the facts, the court forms its opinion from those facts.
Witnesses are expected only to narrate events as they witnessed them. They are not expected to
give their opinion. Section 22 of the Civil Evidence Act [8:01] says 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 that is
relevant to an issue in the proceedings. The opinion of a person who is not an expert shall be
admissible to prove any fact relevant to an issue in civil proceedings if:
1. His opinion is based on what he saw, heard or otherwise perceived.
2. His opinion is helpful to a clear understanding of his evidence or to the determination of that
issue.
A court shall not be bound by the opinion of a person, expert or not, but may have regard to the
person‘s opinion in reaching its decision.
Formulation of the Opinion Rule
There are two approaches, the traditional formulation and the Wigmore–Vilbro formulation. These
approaches are irreconcilable even though at times they co-exist in our practice; perhaps because of
a lack of awareness of the significance or even the existence of their divergence. Both approaches
have vices and virtues.
Traditional Formulation
The rule excluding evidence of opinion is traditionally stated in broad and general terms, subject to a
more or less closed list of exceptions. According to Phipson a witness may dispose the facts that he
has observed but he may not ordinarily state any inferences which he has drawn from those facts or
opinions founded upon facts of which he has no personal knowledge. Whether an inference should
be drawn is a matter for the court to decide. The witness only narrates the perceived details and the
court draws the inference. The drawing of inferences is the courts’ business not that of the witness.
Courts jealously guard against the usurpation of their functions.
In S v Adams 1983 (2) SA 577 the court noted that in an accident damage case, for example, a
witness may say that the driver was intoxicated because his body smelt of liquor, that his speech
was slurred and that he staggered as he walked, but it is not for the witness to say that it was the
intoxicated driver who was at fault. Exceptional cases in which witnesses may state the inferences
that they have drawn usually include expert evidence and various categories of non-expert opinion
such as identification, estimates of age, value, speed or degree of intoxication.
This apparently simple formulation gives rise to a number of difficulties, the chief of which is that no
satisfactory distinction can be drawn between facts and inferences. It follows that the law cannot
impose a total prohibition on all evidence involving inferences; it can only draw a line between
inferences that are considered objectionable and others that are not. To decide where this line is to
be drawn, one must examine the reasons for the exclusion and reception of opinion.
The Wigmore–Vilbro Approach
This approach was derived from the case of R v Vilbro. A witness’s opinion may assist the court if the
witness is better qualified to form an opinion than the court. A witness is also prohibited from
stating his opinion when it appears that he can without difficulty communicate to the court the data
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MY NOTES 14
upon which his inferences are based and so place the court in an equally good position to decide
whether such inferences should be drawn.
In Hollington v Hewthorne (1943) 2 ALL ER 5 Goddard LJ said:
It frequently happens that a bystander has a complete and full view of an accident. It is
beyond question that, while he may inform the court of everything that he saw, he may not
express an opinion on whether either one or both of the parties were negligent. The reason
commonly assigned is that this is the precise question the court has to decide, but, in truth, it
is because his opinion is not relevant. Any fact that he can prove is relevant but his opinion is
not.
The general practice is to avoid having a witness state his opinion upon an issue that the court must
ultimately decide, unless it is impossible for him to give the court substantially the same assistance
without doing so. The potential value of the witness’s opinion must be balanced against potential
prejudice to a party through the tribunals being misled into giving the opinion exaggerated
importance. It is submitted that the Wigmore–Vilbro approach is consistent with the following
propositions:
1. There is no general rule that a witness can never state his opinion upon a matter the court will
have to decide.
2. If the court is unable to decide on an ultimate issue without the assistance of someone qualified
to give an opinion on it, then it must necessarily be instructed, as it were, by expert opinion.
3. There are some ultimate issues upon which a witness’s opinion will always be supererogatory
and inadmissible. A witness is not permitted to give his opinion on the legal or general limits of the
case. He cannot give his opinion on a question of international law that is part of domestic law or on
the interpretation of a statute.
4. Subject to (3) above, where the court is able to reach some sort of independent conclusion but
the opinion of an expert would be of great assistance to the court‖ in reaching it, the opinion is
relevant and the court is entitled to receive it.
Expert Opinion
Who is an expert? In A Practical Approach to Evidence Murphy says:
It is an ancient rule of the common law that on a subject requiring special knowledge and
competence, evidence is admissible from witnesses who have acquired, by study or practice,
the necessary expertise on the subject. Such witnesses are known as ‘experts’.
In Buckley v Rice-Thomas (1554) Plowd 118 at 124, Saunders J said:
[I]f matters arise in our law which concern other sciences or faculties, we commonly apply for
the aid of that science or faculty which it concerns, which is an honourable and commendable
thing in our law. For thereby it appears that we do not despise all other sciences but our own,
but we approve of them and encourage them as things worthy of commendation.
In Folkes v Chadd (1872) 3 Doug 157 Lord Mansfield confirmed that the opinion of scientific men
upon proven facts may be given by ‘men of science within their own science’. Expert opinion is
admissible provided that it is relevant. By reason of their expertise and specialized knowledge more
often than not there are people who are better placed to assist the court arriving at a sensible
decision than the court would have been able to do on its own without such assistance.

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Expert evidence ordinarily falls outside the competence of the average reasonable court because the
average judicial officer cannot be expected to be a heart surgeon or professor of robotics. Experts
are expected to facilitate the resolution of the fact in issue. Expert must be a credible witness and
expert opinion evidence has been received in a number of cases including matters relating to
chemistry, engineering, ballistics and so on.
A party wishing to call an expert has to prove to the court the qualifications of the expert. The
expertise could have been acquired through formal training or experience. Experience on occasion
can be decisive. It is the function and discretion of the court to satisfy itself that the expert does
indeed have the necessary qualifications. His qualifications have to be measured against the
evidence he has to give in order to determine whether they are sufficient to enable him to give
relevant evidence. It is not always necessary that the witness’ skill or knowledge be acquired in the
course of his profession – it depends on the topic. Thus, in R v Silverlock (1894) 2 KB 766 a lawyer
who had extensively studied handwriting, but had no formal qualifications on the matter was
allowed to testify as an expert.
An expert witness can be cross-examined like any other witness. A party in civil proceedings who
wishes to call an expert is required by the rules of the court to give his opponent notice of his
intention to do so. The purpose of this rule is to prevent surprise and to give a litigant the
opportunity to come to trial prepared to counter the expert evidence adduced by his opponent;
furthermore, proper compliance with it may enable experts to exchange views before giving
evidence and to reach agreement on some of the issues so that costs and the time of the court are
saved.
In S v Lupien L had been observed leaving a disco with another person who looked like a woman but
was in fact a man. L was subsequently arrested by the police in a hotel bedroom with this person.
The evidence of the police was to the effect that the two were placed in an intimate position which
justified the inference that an act of indecency had been committed or was about to be committed.
L’s defence was that at all material times he had mistaken this person for a woman. He sought to
lead evidence from a psychiatrist that would show that he had a physical defence mechanism that
would make him react violently to homosexual activities and that he would not knowingly engage in
homosexual exploits. The court a quo found the evidence inadmissible but the court of appeal
admitted the evidence. One should look at relevance and what decides relevance is the fact in issue.
In this case the fact in issue is, are you a homosexual or not? Thus, his evidence is admissible.
Whenever you are looking at exceptions note that relevance is required in determining a fact in
issue. When a witness is deposing to facts that are not directly in dispute, he will frequently be
allowed to state inferences in order to save the time of the court and not to hold up the normal flow
of his narrative. In such a case the opinion is not irrelevant or superfluous because it is not given in
addition to the facts upon which it is based; instead it forms a convenient summary of those facts
In Wright v Tatham 7 ER 559 it was submitted that the witness may state inferences to the extent
that his summary is relevant, that is to say, of assistance to the court.
A failure to give reasons for an opinion may have the effect of rendering it supererogatory and
inadmissible. Subject to this observation, it is submitted that a statement of opinion is not
admissible merely because no reasons are given, and if the point is not converted it may well be
sufficient. Although there are decisions that require an expert‘s opinion to be supported by evidence
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MY NOTES 16
of the facts‖ on which an inference is made, others allow evidence of inferences and rely on them
without supporting facts.
Expert opinion evidence may be contradicted and cross- examined, like any other evidence.
The Application of the Rule in Relation to Civil Proceedings
The rule states that on the trial of an issue in the civil court the prior determinations of a criminal
court are irrelevant. If the criminal court finds the accused guilty, the plaintiff in subsequent civil
proceedings cannot use the record of conviction in order to establish liability on the part of the
defendant who would have been accused in the criminal court.
In Hollington v Hewthorne (1943) 2 ALL ER 5 a company’s employee was involved in an accident that
resulted in the death of the plaintiff’s son. The plaintiff was the administrator of his son’s estate. He
then sued the employer vicariously for accident damages arising from the negligence of the
employee. The plaintiff’s only witness was the deceased and in order to prove liability he sought to
lead evidence of the conviction of the company’s employee. Mr Denning contended that, as he has
to prove negligence as part of his case, he was entitled to put in the conviction, not as conclusive,
but as prima facie evidence that the defendant was driving negligently. The court held the evidence
to be inadmissible because it amounted to no more than the opinion of the criminal court and the
liability of the defendant would have to be proven all over again. In the case Goddard LJ gave a
number of reasons for its inadmissibility; the most important of which was that the conviction was
merely the opinion of another court that the driver had driven carelessly. The decision in Hollington
v Hewthorne was followed in a series of English decisions.
In Goody v Oldham’s Press Ltd (1967) 1 KB 339 the plaintiff was a convict in the great train robbery.
He brought action for defamation on a newspaper that had published an article which said that he
had taken part in the great train robbery in which £2.5 million had been stolen. At the time of the
action the plaintiff was serving 30 years imprisonment after conviction for taking part in the robbery.
It was held, nonetheless, that the conviction was not evidence of liability. Lord Denning, who had
argued the case in 1943 as a barrister, ironically found himself later in life bound to apply a rule that
he had argued against. He thought that it was wrong but binding on the court of appeal and other
members of the court agreed with him.
Criticism of the rule by the English Law Reform Committee was that it is in a sense true that a finding
by any court that a person was culpable of a particular offence or civil wrong is an expression of
opinion by the court. But this is of a different character from an expression of opinion by a private
individual. In the first place, it is made by persons, whether judges, magistrates or juries, acting
under a legal duty to form and express an opinion on that issue. In the second place, in forming their
opinion they are aided by procedure, of which the law of evidence forms part, which has been
established with the view of ensuring that the material needed to enable them to form an opinion is
available to them. In the third place, a verdict of guilty or not guilty in criminal proceedings or a
judgment in civil proceedings has consequences that are enforced by the executive power of the
state.‖
In consequence of the recommendations of the Law Reform Committee, together with the prospect
of a number of libel actions by unemployed train robbers along the lines of the Goody case which
had some influence upon the speed which Parliament acted, the rule was abolished in England by
the Civil Evidence Act 1968. Section 11(1) provided that in any civil proceedings the fact that a
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person has been convicted of an offence by or before any court in the UK shall be admissible in
evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings,
that he committed that offence, whether he was convicted upon a plea of guilty or otherwise and
whether or not he is a party to the civil proceedings. In Zimbabwe the rule continued to be applied
until 1995 when the Civil Evidence Act (Section 31) came into force.
In Tomes v Sithole 1981 ZLR 444 (H) McNally J, as he then was, had occasion to comment obiter on
the Hollington v Hewthorne case and asked the legislature to intervene as in the case in England.
Section 31 of our Civil Evidence Act provides that:
(2) Subject to this section, 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.
In South Africa, where there has been no such statutory reform and in civil proceedings, lower courts
held themselves bound by the rule. In Yusuf v Bailey 1964 (4) SA 117 in a defamation action, the
court held that the plaintiff’s conviction was no evidence that he had been guilty of fraud.
Hefer JA remarked in passing in S v Mavuso 1987 (3) SA 499 that it is an open question whether
relevant evidence of a previous conviction would not be inadmissible in a subsequent trial because
of the rule in Hollington v Hewthorne. It is submitted that the rule has no application to this
situation. Firstly, it is generally seen as wrongly decided. Secondly, the judicial tendency has been to
confine it to civil proceedings within the meaning of the Civil Proceedings Act 1965.

CHAPTER 7: HEARSAY
Hearsay is testimony‖ or even written evidence that is being offered as an assertion to show the
veracity (truthfulness) of matters stated therein. Statements made by individuals who are not giving
evidence are generally excluded if the purpose of such statements is to prove their contents as the
truth. Thus, A may testify that B told him that C killed D.
Why Exclude Hearsay?
1. There is a huge potential for fabrication on account of repeating statements so many times.
2. There is an absence of cross-examination of the person who made the statement.
3. The oath has not been taken. The out-of-court maker of the statement is not under oath and so
can lie.
4. There is a possibility that the out-of-court maker of the statement was speaking in jest or wanted
to mislead. In Subramium v Public Prosecutor 1956 1 WLR 965 the accused was charged with the
unlawful possession of weapons of war under the laws of Malaysia. His defence was that he was
acting under duress from terrorists who had captured him in one of the Malaysian jungles. The court
ruled that evidence of his conversation with terrorists was inadmissible unless the terrorists
themselves came to give evidence and the basis of that inadmissibility was that this was hearsay.
The court held that:
[T]he evidence of a statement made to a witness by a person who is not himself called as a
witness may or may not be hearsay. It is hearsay and inadmissible if the purpose of evidence is
to establish the truth of what is contained in the statements. It is not hearsay and therefore
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 admissible when it is sought to establish by the evidence in question, not the truth of a
statement but the fact that it was said.
In International Tobacco Co. V. United Tobacco Co 1953 (3) SA 343 the plaintiff company sued the
defendant for damages arising out of malicious false statements that its cigarettes caused illness.
The plaintiff attempted to lead evidence from a commercial traveller who heard prospective
customers saying the cigarettes caused illness. The defendant then objected on the basis that the
statements were of a hearsay nature. Overruling the objection the court held that the evidence was
admissible to show that rumours to that effect were circulating and not to prove the truth of what
was said.
Exceptions
There are statutory and common law exceptions to the rule on hearsay. In dealing with material of a
hearsay nature a three-legged inquiry is needed:
1. Establish whether the material being laid falls within hearsay.
2. If it is hearsay is it rendered admissible by some common law exception, and if so, what are
the requirements?
3. If it is not rendered admissible by common law exceptions is it rendered admissible by statutory
law exceptions, and if so, what are the requirements?
Reasons for Exceptions
1. Necessity (relevant hearsay would be a loss to the court if rejected altogether).
2. With certain classes of hearsay there is a high degree of reliability and the possibility of
fabrication is minimal; for example, spontaneous exclamations uttered in the heat of the moment in
response to an exciting event where there is no premeditation.
Common Law Exceptions
These take the generic form of declarations by deceased persons. There are a number of possibilities
when they may be made:
1. Declarations as to public or general rights.
2. Declarations against interest.
3. Declarations in the course of duty.
4. Dying declarations.
5. Declarations pertaining to pedigree.
6. Declarations concerning one‘s will.
Declaration As to Public or General Rights
This is an oral or written declaration made by a dead person concerning matters of a public
nature. A general right is a right that affects a class of persons for example, grazing rights, whereas
public rights affect the public as a whole for example, the use of a public road:
1. It is admissible if made before the dispute arose.
2. The declarant must have been competent to make a declaration.
3. The declarant must be dead.
4. The declaration itself must relate to a dispute over the existence or non-existence of a public
right.

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In Du Toit v Lindernburg 1909 TS 527 the boundary of the town lands was proved by evidence that a
deceased resident who had known the beacons that signified the boundaries for at least half a
century had pointed them out to his son and this evidence was held to be admissible.
Declarations Against Interest
This must be contrary to or disadvantageous to the declarant. The oral or written statement of a
person who has since died of a fact he knew to be of his propriety interest at the time the
declaration was made is admissible as evidence of that fact provided that the declarant had personal
knowledge of that fact. The rationale is that nobody in their right senses would make a statement
contrary to their interest unless it is true, for example, admitting paternity, acknowledging a debt nd
receiving money:
1. The declarant must be dead.
2. The declarant must have known at the time he made his statement that it was against his interest.
3. The declarant must be a competent witness.
In Williams v Eaglestine 1961 (2) SA 631 the court admitted the statement of a passenger who had
fallen off a bus and died in which he blamed the fault on himself and completely exonerated the
driver.
In Ward v Pitt (1913) 2 KB 130 the court of appeal held that an acknowledgement by the deceased
that he was responsible for a woman’s pregnancy coupled with a promise to marry her was not
necessarily against interest, particularly in a working situation where the wife is expected to prop up
the husband in their joined efforts. The other reason is that a declaration by a man that he is the
father of a woman’s pregnancy is not something within his definite knowledge.
Tucker v Old Berry (1912) 2 KB 317 involved a claim for workman’s compensation brought by the
dependent of a workman who was dying of blood poisoning because of injury to his thumb. It was
held that the statement by the deceased that the injury was due to other causes was inadmissible as
he was unaware at the time that it was contrary to his interest because he did not know about the
possibility of making a claim under legislation of workman’s compensation.
Declaration in the Course of Duty
This involves statements made by somebody who has since died that were recorded
contemporaneously with the occurrence of an event at the time when the motive of
misrepresentation has been excluded, for example, a nurse who completes a patient‘s chart:
1. The declarant must be dead.
2. The declaration must be a duty by the declarant to record or report.
3. The duty must have related to acts by the declarant in his official capacity, for example, as an
employee.
4. The recording must have been done contemporaneously with the act itself for accuracy to be
ensured.
5. There must be a threat of sanctions that if the recording was done inaccurately the declarant
would have been subject to some disciplinary action, for example, dismissal or demotion.
In Price v Earl of Torrington (1703) Holt KB 300, 2 Ld Raym 873, 1 Salk 285 entries made by a
deceased delivery man in certain records were held inadmissible to prove a beer delivery which was
the subject of action.

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MY NOTES 20
In Norlan v Bernad 1908 TS 114 entries made by a deceased farm manager in his diary in the course
of duty were admissible that strange cattle had made an appearance at the farm.
Dying Declarations
This relates to cases involving murder or culpable homicide. Oral or written declarations of a
deceased person are admissible in order to show what caused the death of a declarant provided that
the following requirements are satisfied:
1. The declarant is dead.
2. The declaration refers to the deceased’s death.
3. At the time the declaration was made, the deceased was under a settled, hopeless and definite
expectation of death.
4. The declaration must be a complete representation of the deceased’s thoughts on the matter. If
death intervenes before a complete declaration, then it becomes inadmissible.
In Waugh v R 1950 AC 203 the deceased, referring to the appellant said, ‘The man has an old grudge
for me simply because’ then fell into a coma and died afterwards. It was held that the statement was
incomplete and therefore inadmissible.
5. The declarant was a competent witness.
The imminence of death is quite critical. The rationale is necessary: relevant evidence would
otherwise be lost to the court. The law accepts the spiritual point of view that no person would not
tell the truth on their deathbed. In R v Woodcock (1789) 1 Leach 500, 186 ER 352 the court held that
the general principle on which this type of evidence is based is that these declarations are made in
extremity when the party making them is at the point of death and every hope of living is gone,
every motive to falsehood is silenced and the mind is induced by the most powerful considerations
to speak the truth; a situation so solemn that in the eyes of the law creates an obligation almost
equal to that which is imposed by oath.
In S v Hine 1910 CPD 371 the accused was charged with the murder of one Dorra by performing an
illegal abortion on her. Two days before Dorra’s death, a magistrate recorded Dorra’s declarations, ‘I
Dorra, with the fear of death before me and without hope of recovery make the following
statement, I am going to die, Mrs. Hine is the cause of it, I want her to go to the black waters’.
The statement was received in evidence because the declarant knew she was going to die. The court
said:
It seems from the authorities that declarations made by persons under a conviction of
impending death, and who at the time are in actual danger of death are admissible in
evidence.
R v Abdul 1905 TS 119 summarizes the requirements of dying declarations:
1. It is not necessary that the person died immediately
2. One must have lost all hope of living
In R v Nzobi 1932 WLD 98 the deceased said, ‘I feel so weak that I don’t think I’ll succeed in getting
well’. The court held that although all the words were pessimistic, they did not exclude all hope of
living.
Dying declarations are admissible whether favourable or unfavourable.
In R v Pike (1829) 3 C&P 598, 172 ER 562 The court held that the dying declarations of a child aged 4
years was inadmissible because the child could not properly appreciate the nature of an oath.
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MY NOTES 21
Pedigree Declaration
Relates to a person’s ancestry. These declarations are admissible both in civil and criminal cases if
the issue relates to somebody‘s family tree. The statement may be written or oral.
1. Must relate to the pedigree of the person under discussion.
2. The declarant must be a blood relation or the spouse of a blood relation to the person whose
ancestral pedigree is under question, for example, found in family literature, inscriptions on
tombstones or even condolence messages.
In Ex parte Lottering 1936 TPD 29 an application was made to the registrar of births and deaths to
issue a birth certificate and register the birth of the applicant. The applicant’s case depended on an
entry relating to his birth in his mother’s Bible. The courts refused to accept the birth’s entry since it
had nothing to do with the pedigree. The court said:
According to the law of evidence unless the matter of pedigree be in debate the entry in the
family Bible is not admissible. In this case no question of decency or legitimacy had been
raised.
Declarations by Testator Concerning Their Will
This is part of res gestae, that is, part of the story. While most rules of evidence are exclusionary this
one is inclusionary. Under this concept evidence may be admitted although it may infringe the rules
against hearsay, opinion and similar facts evidence. It has been criticized for lack of specificity. 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 that the event to which it relates is an excited one in that the utterance is a
natural reaction evoked by intense participation and nervous reaction which it is unlikely to be false.
In R v Tuge 1966 (4) SA 565 The court said that there must be an occurrence that could produce
nervous excitement or stress and the statement must be made while the stress was still operative
upon the speaker such that his reflective powers must be assumed to have been in suspension. The
statement must not amount to a reconstruction of past events. The event must be unusual or so
starkly extraordinary or dramatic as to dominate the mind of the victim.
In R v Rutten (1971) 3 ALL ER 801 the accused’s wife telephoned the operator and said in a hysterical
voice, ‘Get me the police please’. Moments later she was shot dead. The court held that although
the statement was hearsay, since it implied when taken with the rest of the evidence that the
accused was attacking the deceased, the statement made was part of res gestae because of the
nervous stress under which the wife was speaking. In R v Bedingfield (1879) 14 Cox CC 341 the
accused was charged with the murder of a woman by cutting her throat. His defence was that she
had committed suicide. Apparently the deceased had emerged from the room with her throat cut
and had immediately cried, ‘Look at what Bedingfield has done to me’. The question was whether or
not this was part of res gestae. (It was res gestae).
Statements Which Accompany and Explain a Relevant Fact
This is related to but not necessarily res gestae. Statements made by someone during an act relevant
to the issue are admissible to explain the act even though the speaker does not give evidence and
therefore technically hearsay.

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MY NOTES 22
In Lensen v R 1906 TS 154 the accused was charged with keeping a gaming house. Police witnesses
who kept watch upon the house were allowed to give evidence of what they heard people say as
they entered or left the premises. These statements were taken as part of the res gestae in that they
related to the goings on in the house so they were statements which accompanied and explained a
relevant act. The statement must be made by the actor and must be more or less contemporaneous
with the act.
In Teper v R 1952 AC 480 the accused was charged with arson of a shop belonging to his wife. To
identify the accused as the arsonist evidence was given by a police constable that he heard an
unidentified woman shouting, ‘Your place is burning and you are leaving?’ and that he then saw a
few metres away a car in which there was a man resembling the accused. This was half an hour after
the event. Declining to treat the evidence as res gestae the court said that to be admissible it is
essential that the words sought to be proved by hearsay evidence should, if not absolutely
contemporaneous with the action or event, at least so clearly associated with it in time, place and
circumstance that they are part of the thing being done.
Statutory Exceptions
Section 27 of the Civil Evidence Act [8:01] states:
1. Subject to this section evidence of a statement made by any person, whether orally or in writing
or otherwise, shall be admissible in civil proceedings as evidence of any fact mentioned or disclosed
in the statement, if direct oral evidence by that person of that fact would be admissible in those
proceedings.
2. Evidence of a statement referred to in subsection (1) shall be admissible even where the person
who made the statement is called as a witness in the proceedings concerned.
3. If a statement referred to in subsection (1):
(i) Is not contained in a document, no evidence of the statement shall be admissible unless it
is given by a person, who saw, heard or otherwise perceived the statement being made.
(ii) Is contained in a document, no evidence of the statement shall be admissible except the
document itself, or a copy of the document if such copy is admissible in terms of this Act or
any other law.
4. In estimating the weight, if any, to be given to evidence of a statement that has been admitted in
terms of subsection (1) the court shall have regard to all the circumstances affecting its accuracy or
otherwise and, in particular, to:
(i) Whether or not the statement was made at a time when the facts contained in it were or
may reasonably be supposed to have been fresh in the mind of the person who made the statement.
(ii) Whether or not the person who made the statement had any incentive, or might have been
affected by the circumstances, to conceal or misrepresent any fact.
5. This section shall not be construed as limiting any provision of this Act or any other law providing
for the admissibility of statements made by persons who are not called as witnesses to testify to
such statements. In s253 of the Criminal Procedure and Evidence Act [9:07]:
1. No evidence which is of the nature of hearsay evidence shall be admissible in any case in which
such evidence would be inadmissible in any similar case depending in the Supreme Court of
Judicature in England.

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MY NOTES 23
2. When evidence of a statement, oral or written, made in the ordinary course of duty,
contemporaneously with the facts stated and without motive to misrepresent, would be admissible
in the Supreme Court of Judicature in England if the person who made the statement were dead,
such evidence shall be admissible in any criminal proceedings if the person who made the statement
is dead or unfit by reason of his bodily or mental condition to attend as a witness or cannot with
reasonable diligence be identified or found or brought before the court.
(Subsection amended by s28 of Act 9 of 2006.)
3. The court may, in deciding whether or not the person in question:
(i) Is unfit to attend as a witness, act on a certificate purporting to be a certificate of a
medical practitioner.
(ii) Is dead or cannot with reasonable diligence be identified or found or brought before the
court, act on evidence submitted by way of affidavit.
Public Documents
These are normally admitted as an exception to the hearsay rule because of their reliability and
other safeguards, like sanctions and disciplinary measures, for example, maps and birth certificates.
(See s12, s13 and s14 of the Civil Evidence Act):
1. The document must have been made by a public official or officer, so a register or document
made or kept by a private individual does not qualify. In R v Corns 1931 TPD 47 the court noted that
a baptism certificate is not admissible to prove the date of birth that it records because it is a
document issued by a private organization.
2. The document must be preserved for public use in a public way.
3. The document must be open to public inspection.
4. To ensure reliability in courts, the entry must be made promptly after the event it purports to
record.
5. The entry must be made by a person with the duty to record and to satisfy himself as to the truth
of recorded facts.
6. There must be sanctions or disciplinary measures in the event of erroneous recordings.

CHAPTER 8: ADMISSIONS AND CONFESSIONS

This a stand-alone topic that is related to hearsay
1. Admissions. These are prejudicial statement made by a party to a civil suit.
2. Confessions. These are the equivalent of an admission in a criminal action. In a criminal court a
confession would amount to an unequivocal plea that one is guilty.
Admissions
There are formal and informal admissions:
1. Formal admissions are statements made expressly for purposes of a trial in pleadings in
order to save on time. These are non-contentious issues.
2. Informal admissions 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. In Rumping v DPP
1964 AC 144 a seaman wrote a letter to his wife confessing to the murder of a colleague. This letter
was intercepted and brought to the attention of the police and it was held to be a confession.
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MY NOTES 24
An admission can also be made by conduct. In Van der Berg v Elizabeth 1884 (3) SC 336 an attempt
by a defendant in a seduction case to bribe a police officer to persuade the woman’s father to
withdraw the action was received as an admission of liability on the part of the defendant because it
tended to show consciousness on his part of the unsoundness of his case.
In R v C 1949 (2) SA 438 an accused on a sodomy charge had attempted to commit suicide before
trial and also ran away at the approach of the police. This was deemed to be an admission.
Usually silence does not amount to an admission except in an exceptional and extraordinary
situation. In Jacobs v Henning 1927 TPD 324, an action for seduction damages, the plaintiff’s father
confronted the defendant and accused him of having ravished his daughter, resulting in a pregnancy
at a certain party. The defendant made no reply and merely lowered his head, presumably in shame.
The court said, ‘In my view, an innocent man, however unassertive or meek or mild mannered he
may be, will deny the charge as soon as the plaintiff’s father made it’. It was therefore held to be an
admission.
3. Vicarious admissions. The admissions of one person may be binding on another because there is
privity of interest between the two, for example, the employer–employee relationship, the
husband–wife relationship and partnerships.
In S v Goncalves 1972 (1) SA 243 the appellant had been charged with and convicted of negligent
driving. From the complainant’s evidence it appeared that as he approached a robot-controlled
intersection from north to south the light was green. When he was halfway across the intersection
he saw the appellant’s car coming from east to west straight at him. A collision occurred and after
the collision the complainant spoke to the appellant. As the appellant was a foreigner his daughter
acted as an interpreter. According to the complainant the appellant had admitted to him that he had
gone through the robot red. He had also made the same admission to a constable who had arrived
at the scene and to one P, who had not been called by the state. On appeal it was held that as the
appellant had authorized his daughter to act as interpreter on his behalf that she was his agent and
any admissions made by her while interpreting were admissible against him. It was also held,
however, that the state had not proved that the admission alleged had been made. The appeal was
accordingly allowed and conviction and sentence were set aside.
Confessions
This is dealt with in s112 and s113 of the Criminal Procedure and Evidence Act. A confession is
admissible only if it has been made freely and voluntarily without undue pressure on the confessor.
The rationale is to reduce the risk of prejudice against the accused. It makes sure that the police do
not use improper tactics to secure a confession. This policy consideration creates a fundamental
principle in our law.
In S v Slatter & Ors 1983 (2) ZLR 144 the case was that in July 1882 saboteurs destroyed or damaged
a number of aircraft, buildings and other equipment. The saboteurs were never arrested and their
identities were never established. The six accused were at the time serving members of the Air
Force, Slatter being Air Vice-Marshal. They were all arrested after the sabotage and charged under
s50 of the Law and Order (Maintenance) Act; the allegations being that they aided, abetted, incited
or procured the sabotage that took place. There was no evidence at all that implicated any of the
accused and the evidence that was led could no more than supply corroboration to certain aspects

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MY NOTES 25
of warned and cautioned statements made by the accused. The state case stood or fell on the
statements.
The statements that had been confirmed by magistrates in various centres around Zimbabwe were
produced by the prosecutor. The defence attacked the statements on two bases: firstly, that the
confirmation proceedings were themselves invalid because the accused had all been denied access
to their lawyers, in contravention of both the Criminal Procedure and Evidence Act and the
Constitution; and secondly, that the statements were in any event inadmissible because of undue
influence that had induced the accused to make them. It was found that the accused sought access
to their lawyers and were denied such access while their lawyers’ efforts to access them were
frustrated by the police, who moved the accused from place to place. During the confirmation
proceedings two of the accused said they had been made to understand that they would be released
if they made the statements. In respect to all the accused there was maltreatment.
It was held that, as far as confirmation proceedings were concerned, the then s101 and s105C of the
Criminal Procedure and Evidence Act made clear the right to access to an accused person at a
confirmation proceeding by his legal practitioner. It was held, further, that denial of access prior to
and during confirmation proceedings is unconstitutional and affects the individual rights of the
accused. To hold that an accused person should himself ask the presiding magistrate for access
would be to hold that an accused person, unaware of his constitutional right, is deprived of that
right because he is unaware of it.
It was held, further, that in respect of the accused whose answers to the magistrate implied that
they had been offered an inducement to confess, the magistrate should have questioned the
accused to clarify what the accused had said and whether they had in fact been improperly induced.
Failure to do so made the confirmation improper and invalid. It was held, further, that once the
confirmation proceedings were ruled to be invalid, the onus with
regard to the admissibility of the statements shifted to the prosecution which had to establish their
admissibility beyond reasonable doubt.
It was held, further, that obtaining confessions from suspects is a necessary step in judicial process
and not all inquiries made of the suspect by the police are improper. Since effectively criminal justice
begins at the point when the police interrogate a person in their custody attempts by the police to
obtain confessions must be within the limits laid down by the law. It was held further, that in any
event maltreatment was such treatment which would make the statement inadmissible.
It was held, further, that even if the confirmation proceedings had been valid, and the onus had
been on the accused to show that the statements were not freely made and voluntary, they had
discharged that onus. All the accused were found not guilty and acquitted.
The Miranda Principles
English judges made the following rules:
1. That police should not question suspects without cautioning them that they were not obliged to
answer.
2. They should not question suspects in custody at all.
In R v Murambiwa 1951 SR 271 the accused was suspected of murdering his daughter. He was kept
in custody for 2 days, he was persistently questioned and, after the final round of interrogation

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MY NOTES 26
which lasted 3 hours, he made a statement to the police that amounted to a confession. The court
refused to confirm the statement.
In R v Michael & Martin 1962 R&N 374 the accused was convicted by a magistrate’s court of theft of
a large quantity of goods belonging to his employer. The conviction depended in large on a
confession by the accused made to his manager. According to evidence, the accused had been
promised reinstatement after serving in prison and that while he was in prison his family would be
taken care of. The court held that this was improper inducement.
NB: One anomalous evidential situation in Zimbabwe pertains to real evidence that has been
discovered as a result of an inadmissible confession. Such evidence is admissible in our law.
(Section 258 Criminal Procedure and Evidence Act)

CHAPTER 9: THE COMPETENCE AND COMPELLABILTY OF WITNESSES

A competent witness is one who may lawfully be called to give evidence. A witness is compellable if
he can be forced to give evidence. If a witness is not compellable he is entitled to refuse altogether
to enter the witness box or take the oath. A witness merely entitled to privilege must submit to be
sworn and listen to the questions that the parties may wish to ask. He may then claim the right to
refuse to answer questions if they fall within the scope of his privilege. It has been held, for example,
that an insolvent’s attorney is a compellable witness at the statutory inquiry into the insolvent
person’s affairs. Even if it is probable that the attorney will be entitled to refuse answers to all
relevant questions on the grounds of professional privilege, he must nevertheless enter the witness
box and make his objection to each question in turn.
In civil proceedings a compellable witness who refuses to take the oath or affirmation or who
without a valid claim of privilege refuses to answer particular questions, may be committed to prison
for contempt of court.
The general rule is that everyone is presumed to be a competent and compellable witness. Section
244 of the Criminal Procedure and Evidence Act provides that: ‘Every person not expressly excluded
by this Act from giving evidence shall be competent and compellable to give evidence in a criminal
case in any court in Zimbabwe’.
In AG Transvaal v Kader 1991 (4) SA 727 the Appellate Division considered the phrase ‘just excuse’
and held that it could not be limited to lawful excuses arising from the rules of privilege, the
compellability of witnesses or the admissibility of evidence. The court held that it would serve no
purpose to try and define the circumstances that would amount to a just excuse as each case had to
be decided on its merits, having regard to general principles.
In deciding whether or not to punish a witness for his refusal, the court should consider not only
whether he has a valid claim of privilege but also whether it should exercise its discretion in his
favour.
Incompetent and Non-compellable Witnesses
Incapable Witnesses
Certain categories of people are not competent to give evidence:
1. Mentally disabled people and intoxicated persons (s5 of the Civil Evidence Act and s246 of the
Criminal Procedure and Evidence Act).
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MY NOTES 27
In R v Geinhold 1926 OPD 151 a magistrate became convinced that a witness who had been
testifying for some time was dead drunk. He stopped proceedings and locked up the witness for the
night and proceeded de novo the following morning.
In S v Thurston 1968 (3) SA 284 (A) the trial judge admitted the evidence of a witness who had
apparently escaped from a mental institution. Although he told the court that he saw elephants at
night, the judge did not think it necessary to inquire into whether he was a competent witness. This,
said the Appellate Division, was an irregularity.
The fact that a witness is deaf or dumb does not render him incompetent if he can be communicated
with by signs in an intelligible manner. In Pachourie v Additional Magistrate, Ladysmith & Anor1978
(3) SA 986 (N) A conviction was set aside on review where it was virtually impossible to
communicate with the accused and where the interpreter had had difficulty in conveying
information to and from him. Evidence on review showed that at his trial the testimony had been
conveyed to him, at the very least, imperfectly. This case points to the need for great caution when a
deaf and dumb witness’s competence, and an interpreter’s ability to communicate with him, have to
be decided.
2. Children must understand the difference between telling the truth and lies and if they cannot be
sworn in then they should be given an admonition to tell the truth. They can give their evidence
sworn or unsworn depending on whether, in the court’s view, they can understand the nature and
religious sanction of an oath. In R v Manda 1951 (3) SA 158 (A) at 163 the court said:
A child may not understand the nature or recognise the obligation of an oath or affirmative
and yet appear to the court to be more than ordinarily intelligent, observant and honest.
There is no fixed age at which children become competent witnesses. If the child does not
have the intelligence to distinguish between what is true and false and to recognise the
danger and wickedness of lying, he cannot be admonished to tell the truth – he is an
incompetent witness.
Persons Concerned in Judicial Proceedings
1. A judge or magistrate is not compellable. The judges of the Supreme Court cannot be compelled,
by virtue of a rule of practice, to give evidence of matters which occurred before them and it is
probably undesirable that they should give sworn evidence in such cases even if they are willing to
do so. It would be irregular and contrary to the audi alterum partem rule to give evidence in a case
over which the presiding officer is presiding.
In ex parte Minister of Justice: re R v Demingo 1951 (1) SA 36 (A) at 43 the court said:
Today it is almost impossible to imagine a Judge or magistrate leaving the bench, going into
the witness box to give evidence for or against a prisoner, returning to the bench, and at the
conclusion of the evidence and argument, solemnly commenting upon the demeanour of
himself in the witness box or without any comment accepting the evidence given by himself.
2. The prosecutor is a competent witness but the courts have frequently said that it is highly
undesirable that they should give evidence. It is grossly irregular for them to communicate unsworn
evidence to the bench by making a statement from the bar. A prosecutor cannot be a witness in his
own case but in some situations when there is a trial within a trial it is possible.

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MY NOTES 28
3. The attorney or council acting for a party is a competent witness, but it is similarly undesirable
that they should give evidence on anything that is a matter of controversy since this might indicate a
degree of partisanship incompatible with their duty to the court.
The Accused
On statutory competence s18 of the Constitution provides that ‘(8) No person who is tried for a
criminal offence shall be compelled to give evidence at the trial’. The accused is a competent and
compellable witness. Once he has chosen to give evidence, however, he is liable to cross-
examination by the prosecution and may be called for further questioning by the judge after he has
finished giving evidence. An accused person who has gone into the witness box after electing to give
evidence may change his mind and if he indicates this before he gives testimony, he may not be
cross-examined. The accused can give evidence or might decide not to give evidence (Privilege
against self-incrimination). This is the law on paper because the court can draw adverse inferences
from the refusal to testify.
1. An accused may give evidence on behalf of the co-accused. If he does so, he will be liable for
cross-examination on his part in the alleged offence. But as one can only be called at request: there
is no way in which the co-accused can compel him to testify.
In S v Chamane 1962 (2) SA 428 (A) an accused person attempted to call his co-accused to give
evidence for him on the preliminary issue of whether his alleged confession had been voluntary but
the Appellate Division ruled that at no stage of the proceedings could an accused person be a
compellable witness. However, the non-compellability of the accused will disappear if for any reason
he ceases to be an accused person in the same proceedings. If his trial is concluded by a verdict of
guilty or not guilty, or if there is a separation of trials he will become a compellable witness for his
former co-accused.
2. An accused person is not a competent witness for the prosecution against his co-accused. The
only way in which a person jointly indicted can be made a competent witness against his co-accused
is by putting an end to his status as an accused person in the same proceedings. This can happen in
four ways:
(i) By entry of a nolle prosequi (the state is not prosecuting).
(ii) By a plea of guilty. If one accused at a joint trial pleads guilty, he will ordinarily cease to be
a co-accused and become a competent witness able to give evidence against the other
accused who have pleaded not guilty. In Rotestrick v R 1908 TS 617 the court said:
A trial of an accused person takes place when there is an issue raised between the accused
and the Crown by a plea of not guilty … But when a prisoner pleads guilty it is unnecessary to
try him. There is no necessity for a finding of guilty, he is sentenced upon his own plea, upon
his own admission of guilt.
(iii) By an acquittal.
(iv) By separation of trials. Once there is a separation of trials, each accused is no longer an
accused person at the trial of the other and is therefore a competent witness against him. In R
v Von Kleist 1923 TPD 52 at 55 Curlewis J said:
I think that once a separate trial has been ordered, and an accused tried separately from
other accused, there is no longer joint trial of two or more persons, but the trial becomes a

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MY NOTES 29
 distinct and separate trial in every respect and there is no reason for not calling any one of the
other accused as a witness against the particular accused who is being tried separately.

CHAPTER 10: PRIVILEGE

Privilege is a concept that denies certain evidence which might in some instances be admissible. The
evidence is protected from the prying eyes of the court by the court as a policy measure. This
evidence would on another occasion be admissible but out of practical need and necessity it is
privileged (to the particular witness in question). The witness must, however, come to court and
sworn in like any other witness: thereafter he may lawfully refuse to answer questions pertaining to
privileged information.
There are two competing interests:
1. The court must have information to rely on so as to come to a determination of the fact in issue.
2. On the other hand certain classes of witnesses or categories of evidence might be no-go areas in
order to protect some common good or certain values, for example, marital privilege (spouses must
not live in fear of each other),
Classifications of Privilege
Marital Privilege
(i) Parties must be married in recognized marriage. This privilege survives beyond divorce,
that is, an ex-spouse cannot testify about matters that happened during the subsistence of the
marriage. In R v John 1966 (2) SA 66 the court recognized privilege to extend to an
unregistered customary law union. The rationale is to encourage spouses to be free with each
other and enjoy their marital situation.
(ii) Privilege is only specific to the spouses in question. A communication between the
spouses may be proved by a witness who overheard or intercepted it. Thus, in Rumping v DPP
(1964) AC 814 the accused was a Dutch sailor charged with the murder of a woman in an
English port. The principal evidence against him was a letter that he had written to his wife,
containing what amounted to a confession. He had given a letter to a shipmate to post, but
the man had handed it over to the police instead. The House of Lords held that there was no
rule that prevented the letter from being received in evidence.
However, marital privilege in Zimbabwe does not extend to certain cases. Among these are where
either of the spouses is charged with bigamy, rape, incest or perjury in committed in connection
with or for the purpose of any judicial proceedings instituted or to be instituted or contemplated by
the one of them against the other, or in connection with or for the purpose of any criminal
proceedings in respect of any offence in s247(2) of the Criminal Procedure and Evidence Act. In such
cases, the wife or husband of an accused person shall be competent and compellable to give
evidence for the prosecution without the consent of the accused person where such a person is
prosecuted for any offence against the person of either of them or any of the children of the
marriage.
Legal Profession Privilege
This is contained in Part III of the Civil Evidence Act. Section 8(2) states:

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MY NOTES 30
 No person shall disclose in evidence any confidential communication between a client and his
legal practitioner or the legal practitioner’s employee or agent; or 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.
In Baker v Campbell (1983) 49 ALR 385 at 442 Dawson J siad:
The law came to recognise that for its better functioning it was necessary that there should be
freedom of communication between a lawyer and his client for the purpose of giving and
receiving legal advice and for the purpose of litigation and that this entailed immunity from
disclosure of such communications between them.
Section 294 of the Criminal Procedure and Evidence Act provides that:
No legal practitioner duly qualified to practise in any court, whether within Zimbabwe or
elsewhere, shall be competent to give evidence against any person by whom he has been
professionally employed or consulted without the consent of that person, as to any fact,
matter or thing as to which such legal practitioner, by reason of such employment or
consultation and without such consent, would not be competent to give evidence in any
similar proceedings depending in the Supreme Court of Judicature in England.
Communication of information made by a client may not be disclosed without the consent of the
client. The communication is given in confidence. It is given in terms of litigation actually taking place
or anticipated. This privilege cannot be waived by the lawyer but it can by the client as it is for his
protection. The idea is to encourage full disclosure as a lawyer can only help on the basis of full
knowledge.
Communications for the furtherance of illegal objectives are not subject to privilege. In R v Cox &
Railton (1884) 14 QB 153 the two accused were charged with conspiracy to defraud. The prosecutor
called a lawyer to give evidence to the effect that the accused persons had communicated their
plans to him. It was held that the information was not privileged because it was disclosed for the
furtherance of illegal objectives. At pages 165–166 the court said:
A man intending to commit treason or murder might safely take legal advice for the purpose
of enabling him to do so with impunity, and … the solicitor to whom application was made
would not be at liberty to give information against his client for the purpose of frustrating his
criminal purpose.
Privilege may be waived by the client either expressly or impliedly. The usual express waiver would
be when the client himself discloses a privileged communication, but waiver could also be inferred
from other conduct. In ex parte Minister of Justice in re S v Wagner 1965 (4) SA 507 (A) at 514D the
court said that generally an implied waiver involves ‘an element of publication of the document or
part of it which can serve as a ground for the inference that the litigant or prosecutor no longer
wishes to keep the contents of the document secret’.
Without Prejudice Negotiations
These are out-of-court negotiations between parties to a civil dispute in which one or both parties
have made admissions, offers or concessions of compromise. Such offers cannot be brought to the
attention of the court without the consent of the other party. This is to encourage settlement.

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MY NOTES 31
State Privilege
This relates to affairs of the state, for example, cabinet meetings and issues relating to defence and
state security (see S v Tsvangirai HH-244-02).
Matters That Are Not Privileged
What one discloses to their doctor is not privileged.
There is no privilege between priest and parishioner.
There is a difference between privilege and confidentiality.

CHAPTER 11: CORROBORATION

The essence of corroboration evidence is that one credible item or evidence confirms another
credible item or evidence. Corroboration is confirmation. It is a cautionary approach to guard against
fabricated evidence or non-credible evidence. The court, out of experience, has to be on its guard
against a suspect witness or a dishonourable citizen or any suspect evidence.
In R v Baskerville (1916) 2 KB 658 the court said that:
We hold that evidence in corroboration must be independent testimony which affects the
accused by connecting or tending to connect with the crime. It must be evidence that
implicates him, evidence which confirms in sum material not only that the crime has been
committed but that the accused committed it.
The broad categories of cases that require corroboration fall under suspect evidence adduced by a
suspect witness by virtue of circumstances and interests in the matter. In our law there are
occasions were corroboration is required by statute and this includes cases involving accomplice
evidence, perjury and treason. The Criminal Procedure and Evidence Act makes specific reference to
the need of corroboration (s270). On the other hand, besides statutory provisions, the courts out of
experience have come to insist on corroboration in certain other situations that fall outside statutory
provisions, for example, evidence of young children, evidence involving sexual matters and the
evidence of prostitutes in matters dealing with their sexual exploits.
The case of S v Mupfudza 1982 (1) ZLR 271, which used to be the locus classicus of corroboration in
sexual matters, established a two-pronged approach to corroboration.
1. Is the witness credible? If not, the question of corroboration falls away.
2. If the witness is credible the court is compelled to look for corroboration to eliminate the
possibility of being misled by an honest witness who made an honest mistake.
With sexual cases, corroboration is no longer a requirement as long as the witness is telling the
truth.
The Mupfudza case tells us why the courts are always on their guard in relation to sexual cases:
1. The complainant can easily fantasize and mislead the court.
2. In rape cases a complainant might cry rape in order to disguise that she consented, to hide the
shame that she was caught.
3. Children are suggestible and can drum up a story in their minds and believe it.
4. They can be manipulated.
5. A single witness who might have observed events incorrectly or is biased has a greater potential
of misleading the court so a cautious approach should be taken.

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MY NOTES 32
Evidence of Young Children
By way of tradition and common law principles the courts must be on their guard where the
evidence in question is that of a young child. The trend nowadays, however, is to assess the
credibility of the child witness and then ask itself the question whether or not it is safe to convict on
the uncorroborated evidence of the child.
In S v Ponder SC 35–99 the court made the following observation:
There is no rigid requirement in our law that a child’s evidence must be corroborated. Where
the court believes the child and applies its mind to the dangers inherent in finding a conviction
upon the child’s uncorroborated evidence, the court may nonetheless convict.
The main purpose of applying cautionary rules is to guard against fabrication or invention that might
come about as a result of the child witness‘ manipulability. In R v J 1958 (3) SA 700 SR the court
noted that corroboration of evidence of children of tender years is not required by any positive
provisions of the law but their evidence must nevertheless be treated with caution. In R v Dossi 1918
AC 158 the accused was charged with indecent assault on his admission that he had accidentally
fondled the child. The admission was held to be corroborative evidence.
In R v J 1966 (1) SA 88 a girl of 10 years who gave evidence that a man she knew very well had raped
her. She immediately made a complaint to her mother and the material evidence left no doubt that
she had been sexually molested. The material issue that remained outstanding related to identity.
The court held that in the circumstances of the case it was highly unlikely that the little girl, who was
genuinely distressed, would falsely accuse as a wrongdoer a man whom she knew so well. The court
found that there was no motive for false incrimination and that the information was not forced out
of the girl. The appeal court presided over by McDonald J was satisfied that the decision of the court
a quo was justified in the absence of corroborative evidence.
A child can falsely accuse someone he knows very well. The court must be satisfied that the child is
telling the truth. (See s269 of the Criminal Procedure and Evidence Act)
Single Witness
It is traditionally said that testis uris testis nullus (one witness is no witness at all) but this has been
abandoned. It is a precautionary rule. The witness might be credible but out of mistake might give
false evidence. Evidence can be admitted provided that it is satisfactory in all material respects (see
S v Shonhiwa).
Evidence of Prostitutes
Generally there is no requirement for corroboration and precautionary rules. However, where the
matter under investigation involves the prostitutes’ own exploits it will be useful and helpful for the
court to be on its guard because prostitution involves deception. A prostitute might easily cry rape
when, in actual fact, the act could be very well consensual and she might cry rape for one reason or
the other (such as the lack of payment). There are people who are unlikely to tell the truth in so far
as their sexual activities are concerned. In R v Weinberg 1916 TPD 653 the court stated that as a
general rule a person should not be convicted of the crime of living on the proceeds of prostitution
upon the uncorroborated testimony of a prostitute. See also R v Christo 1917 TPD 420.

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MY NOTES 33
Police Traps
The police have an interest in the matter and that leaves their evidence subject to fabrication. They
will have a bias against the accused. There are some politically motivated manipulations of evidence.
The police may be agent provocauters who induce others to commit crimes with a view to securing
their prosecution and conviction, while they are not prosecuted. In S v Malinga 1963 (1)SA 692 (A) at
693G, Holmes JA said:
A trap is a person who, with a view to securing the conviction of another, proposes certain
criminal conduct to him, and ostensibly takes part therein. In other words, he creates the
occasion for someone else to commit the offence.
See also S v Ganie 1967 (4) SA 203 (N) at 210. In R v Katz 1959 (3) SA 408(C), at 413 the court said:
In the present case some measure of danger prevails … A person experienced and adept at
invention and plausible presentation from trapping purposes, could apply his technique in the
giving of evidence. There could be a human tendency to pose as a successful crime detector,
and a reluctance to admit that what had been done still fell short of an indictable offence.
Spies and Informers
Their information may be biased or fabricated because they will have a personal interest.
Claims against a Deceased’s Estate
The representatives of a deceased’s estate are obviously at a disadvantage in enforcing or defending
a claim based upon a transaction to which the opposing party is the only surviving witness. The
possibility that this situation may have tempted a claimant against an estate to perjure himself
makes it necessary for the court to scrutinize his evidence with care.
There is no rule that requires corroboration. It is prudent that the court look for independent
confirmatory evidence that indeed the claim is genuine, for example, if it is a claim for the transfer of
property or evidence of a surviving spouse or beneficiary.
In Wood v Estate Thompson 1949 (1) SA 607 the court said that there was no rule of law or practice
which required that merely because it is a claim made against the deceased’s estate it must be
proved by corroboration evidence. However, the court must examine such cases with a cautious eye
for uncorroborated evidence given in such matters.
Evidence of Identification
As a matter of practice, where the conviction of accused depends on evidence of identity, the court
must find it prudent to exercise caution by closely scrutinizing the circumstances in which the
identification took place. Even in an identification parade certain safeguards are put in place in order
to minimize the risk of mistaken identity. In close scrutiny, some of the useful questions are:
1. How long did the witness have the accused under observation? Was it protracted, prolonged or
momentary?
2. In what light: was it, for instance, dark or daylight?
3. At what distance?
4. What was the accused wearing?
5. Are there any pronounced or distinguishing characteristics of the accused that remained
embedded in the witness’ mind?

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MY NOTES 34
6. Did the witness have special reasons to remember the accused for example, their voice or
complexion? (See S v Mutters SC 66–89)
Accomplice Evidence
An accomplice usually gets money or a reward after giving evidence. This is an area in which
corroboration is called for because traditionally accomplices are regarded as witnesses of uncertain
reliability: they generally have something to gain by falsely implicating the accused or exaggerating
the part played by the accused and minimizing their own. See s267 and s 270 of the Criminal
Procedure and Evidence Act.
In Davies v DPP (1952) 2 QB 8 the House of Lords said:
In a criminal trial where a person who is an accomplice gives evidence on behalf of the
prosecution, it is the duty of the judge to warn the jury that, although they may convict upon
his evidence, it is dangerous to do so unless it is corroborated. This rule, although a rule of
practice, now has the force of a rule of law. Where the judge fails to warn the jury in
accordance with this rule, the conviction will be quashed.
In that case it was recognized that the accomplice warning must be given with regard to the
evidence of the following classes of witnesses when called by the Crown or State:
1. Participes criminis, whether as principals and accessories before or after the fact in the case of
criminals, or as persons committing, procuring, aiding or abetting a misdemeanour. Thus, in R v
Nhleko 1960 (4) SA 712 (A) the court said that an accessory after the fact should be treated as an
accomplice, not for any technical reason, but because most of the considerations that impose a need
for caution in dealing with accomplice evidence would also apply to such an accessory.
2. Receivers giving evidence at the trial of those alleged to have stolen the goods received by them.
The crimes are intimately allied and the relationship is that of one-sided dependence: there could
not be a receiver unless the goods had first been stolen.
3. The parties to other crimes alleged to have been committed by the accused, when the evidence
of such crimes is received on the ground that it is of particular relevance or that it tends to prove
something more than mere criminal propensity.
In S v Hlapezula & Ors 1965 (4) SA 439 (A) at 440D-H the court said:
It is well settled that the testimony of an accomplice requires particular scrutiny because of
the cumulative effect of the following factors. First, he is a self-confessed criminal. Second,
various considerations may lead him falsely to implicate the accused, for example, a desire to
shield a culprit or, particularly where he has not been sentenced, the hope for clemency.
Third, by reason of his inside knowledge, he has a deceptive facility for convincing description-
his only fiction being the substitution of the accused for the culprit. Accordingly … there has
grown up a cautionary rule of practice requiring (a) recognition by the trial court of the
foregoing dangers, and (b) the safeguard of some factor reducing the risk of a wrong
conviction, such as corroboration implicating the accused in the commission of the offence, or
the absence of gainsaying evidence from him, or his mendacity as a witness, or the implication
by the accomplice of someone near and dear to him … Satisfaction of the cautionary rule does
not necessarily warrant a conviction, for the ultimate requirement is proof beyond reason
doubt, and this depends upon an appraisal of all the evidence and the degree of the safeguard
aforementioned.
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MY NOTES 35
In R v Ncanana 1948 (4) SA 399 the judge described accomplices as witnesses with a motive to tell
lies about the accused person. The witnesses are peculiarly equipped with inside knowledge of the
offence and can easily lie and an accomplice is a person liable to be prosecuted either of the same
offence or as accessory to such an offence. The question of whether the witness is an accomplice or
not is a factual enquiry to be determined by the court, for example, in a charge of sodomy the
consenting party makes him an accomplice.
In R v Levy 1943 AD 558, in clarifying the operational dynamics of s270 of the Criminal Procedure and
Evidence Act the court said that corroborative evidence need only show that an accomplice is a
reliable witness; not necessarily in every detail but at least in regard to those material statements on
which the court bases its conviction.
In R v Lakhatula 1919 AD 216 the court said that in order to satisfy demands of s270 there must be
other evidence apart from evidence of the accomplice that the crime was actually committed so that
if the court has shown itself to be fully appreciative of the dangers caused by accomplice evidence
and is still satisfied beyond reasonable doubt that the accused is guilty it may convict.
Before relying upon the evidence of an accomplice the court should find some circumstance that can
properly be regarded as reducing the danger that it might convict the wrong person. Hoffmann and
Zeffertt, at page 577, observe that ‘corroboration is the best known and perhaps the most
satisfactory of such safeguards’.
Sexual Offences
Corroboration is required as a matter of practice and not of any legal imperative. The court must be
on its guard if the evidence is coming from the complainant’s mouth only. Historically the approach
was that there are a variety of reasons as to why the complainant might want to falsely incriminate
the accused. They might, for example, be fantasizing, speaking out of malice, or ashamed to admit
consent; the wife will want to choose a better person to take care of the child. A further reason for
corroboration is that sexual allegations are easy to make and difficult to refute because the act
happens in private. With sexual cases in the recent past the approach of Zimbabwe was to follow the
two-pronged approach laid in the Mupfudza case. If the witness is credible and the court is
convinced that the accused is guilty and this is proved beyond reasonable doubt the court may safely
convict.
In S v Masango SC 08–90 the complainant was a 12-year-old girl who testified that one night after
retiring to her sleeping hut with two children, a man forced himself on her and prevented her from
screaming by placing his hand over her mouth and threatened her if she told anyone. Although she
could not see him in the darkness she recognized his voice and did not report the event until 2
weeks after she fell ill from an sexually transmitted disease. Earlier in the evening the accused had
visited her home and borrowed a tin guitar from the brother of the complainant. In his defence he
had an alibi and he said he had been at a beer drink elsewhere in the neighbourhood where
traditional rites were being performed. It was then established that this ceremony had taken place a
week after the alleged rape and that he had deliberately lied (an alibi is a very difficult defence as
the burden of proof will be on the person giving it). The court held that:
Where evidence of a young person is clear and credible but uncorroborated the court while in
cognizance of the dangers of false incrimination but satisfied such dangers have been
eliminated may convict.
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MY NOTES 36
In R v Lucas (1981) QB 720 the court of appeal accepted that in certain situations a lie told in court
may be corroborative if the following requirements are satisfied:
1. It must be a deliberate lie.
2. It must relate to a material issue.
3. The motive to lie must be a realization of guilt and fear of the truth.
4. The lie must be clearly shown as such.
Victim-friendly Courts
This aspect is covered by s319 of the Criminal Procedure and Evidence Act 319A. In the
interpretation in Part XIVA
‘intermediary’ means a person appointed as an intermediary in terms of paragraph (i) of s319 B;
‘support person’ means a person appointed as a support person in terms of paragraph (ii) of s319 B;
‘vulnerable witness’ means a person for whom any measure has been or is to be taken in terms of
s319 B.
319B Measures to protect vulnerable witnesses
If it appears to a court in any criminal proceedings that a person who is giving or will give evidence in
the proceedings is likely:
1. To suffer substantial emotional stress from giving evidence.
2. To be intimidated, whether by the accused or any other person or by the nature of the
proceedings or by the place where they are being conducted, so as not to be able to give evidence
fully and truthfully.
The court may, subject to this Part, do any one or more of the following, either mero motu or on the
application of a party to the proceedings:
1. Appoint an intermediary for the person.
2. Appoint a support person for the person.
3. Direct that the person shall give evidence in a position or place, whether in or out of the
accused’s presence, that the court considers will reduce the likelihood of the person suffering stress
or being intimidated, provided that, where the person is to give evidence out of the accused’s
presence, the court shall ensure that the accused and his legal representative are able to see and
hear the person giving evidence, whether through a screen or by means of closed-circuit television
or by some other appropriate means.
4. Adjourn the proceedings to some other place, where the court considers the person will be less
likely to be subjected to stress or intimidation.
5. Subject to s18 of the Constitution, make an order in terms of the Courts and Adjudicating
Authorities (Publicity Restriction Act [Chapter 7:04] excluding all persons or a class of person from
the proceedings while the person is giving evidence.
319C Factors to be considered in deciding whether or not to protect vulnerable witness
1. When deciding whether or not to take any measure under s319 B, the court shall pay due regard
to the following considerations:
(i) The vulnerable witness’s age, mental and physical condition and cultural background.
(ii) The relationship, if any, between the vulnerable witness and any other party to the
proceedings.
(iii) The nature of the proceedings.
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MY NOTES 37
 (iv) The feasibility of taking the measure concerned.
(v) Any views expressed by the parties to the proceedings.
(vi) The interests of justice.
2. To assist the court in deciding whether or not to take any measures under s319 B, the court may
interview the vulnerable witness concerned out of the sight and hearing of the parties to the
proceedings, provided that at such an interview the merits of the case shall not be canvassed or
discussed.
319D Court to give parties opportunity to make representations:
Before taking a measure under s319 B, the court shall afford the parties to the proceedings an
opportunity to make representations in the matter. In s319 E the court may rescind measures taken
to protect vulnerable witness Without derogation from any other law, a court may at any time
rescind a measure taken by it under s319 B, and shall do so if the court is satisfied that it is in the
interests of justice to do so.
319F Persons who may be appointed as intermediaries or support persons
1. Except in special circumstances, which the court shall record, a court shall not appoint a person
as an intermediary unless that person:
(i) Is or has been employed by the State as an interpreter in criminal cases.
(ii) Has undergone such training in the functions of an intermediary as the Minister may
approve.
2. In appointing a support person for a vulnerable witness, the court shall select a parent, guardian
or other relative of the witness, or any other person whom the court considers may provide the
witness with moral support while the witness gives evidence.
319G Functions of intermediary or support person
1. Where an intermediary has been appointed for a vulnerable witness, no party to the criminal
proceedings concerned shall put any question to the vulnerable witness except through the
intermediary, provided that the court may put any question to the witness directly or through the
intermediary.
2. Subject to any directions given by the court, an intermediary:
(i) Shall be obliged to convey to the vulnerable witness concerned only the substance and
effect of any question put to the witness.
(ii) May relay to the court the vulnerable witness’s answer to any question put to the witness,
provided that when doing so the intermediary shall, so far as possible, repeat to the court the
witness’s precise words.
3. Where a support person has been appointed for a vulnerable witness, the support person shall
be entitled to sit or stand near the witness while the witness is giving evidence in order to provide
moral support for the witness, and shall perform such other functions for that purpose as the court
may direct.
319H Weight to be given to evidence of witness for whom intermediary or support person
appointed
When determining what weight, if any, should be given to the evidence of a vulnerable witness for
whom an intermediary or a support person has been appointed, the court shall pay due regard to

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MY NOTES 38
the effect of the appointment on the witness’s evidence and on any cross-examination of the
witness.
Single Witnesses in Cases of Treason and Perjury
Courts can convict a person charged with a criminal offence on the evidence of a single witness but
there are exceptions. In cases of treason and perjury the court cannot convict on the evidence of a
single witness. Section 269 of the Criminal Procedure and Evidence Act provides that:
It shall be lawful for the court by which any person for any offence is tried to convict such
person of any offence alleged against him in the indictment, summons or charge under trial on
the single evidence of any competent and credible witness:
Provided that it shall not be competent for any court to convict any person of perjury on the
evidence of any one witness as to the falsity of any statement made by the accused unless, in
addition to and independently of the testimony of such witness, some other competent and
credible evidence as to the falsity of such statement is given to such court;
to convict any person of treason, except upon the evidence of two witnesses where one overt
act is charged in the indictment or, where two or more such overt acts are so charged, upon
the evidence of one witness to each such overt act;
to convict any person on the single evidence of any witness of an offence in respect of which
provision to the contrary is made by any enactment.

CHAPTER 12: THE PAROLE EVIDENCE RULE

This is a rule that states that where a contract has been reduced to writing no other evidence of its
content will be acceptable save for the written document itself or secondary evidence thereof.
Basically the point is that the moment you have a written document you may not adduce or lead
oral evidence as to the content of the contract whether to alter, contradict or vary such contents. It
is not a single rule but at least two rules, which are quite independent from each other.
1. The first rule deals with the extent to which a document recording a legal act or transaction is
conclusive as to its terms. The question here is that is it relevant to show that parties to transactions
had in fact agreed to different or additional terms, or whether they are bound by the terms as
recorded.
2. The second rule is concerned with the extent to which extrinsic facts may affect the meaning to be
given to those terms. This question is one entirely of construction and interpretation of the written
words.
Neither of the rules can be said to belong to the law of evidence. They both deal with the
substantive effect of transactions recorded in documents. If the document is conclusive as to the
terms of the transaction, evidence of different or additional terms will be excluded because the rule
of substantive law makes such evidence irrelevant. The rules are not solely concerned with the
exclusion of parole or oral evidence. The rules may also exclude other documents. Parole evidence
includes the direct testimony of the parties, their extra-curial statements and physical acts that are
tendered to supplement and contradict a complete transaction and it excludes documents and
correspondence other than those that actually constitute the transaction or act being considered. It
is not confined to written contracts. Thus, for instance, it has been applied to judicial documents and
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MY NOTES 39
even to unilateral, non-formal acts such as the declarations of deceased persons that had been
made in the course of duty.
Extrinsic evidence may be received to indicate whether the signatory signed as an agent or a
principal. Even if the document incorporates a jural act that makes subject to the rule against parole,
part of it, such as the receipt added to the substance of what has been written or a date, may be
proved by extrinsic evidence.
In Union Government v Vianini Ferro-Concrete Pipes (Pty) Ltd 1941 AD 43 Watermeyer JA said:
this court has accepted the rule that when a contract has been reduced to writing, the writing
is, in general, regarded as the exclusive memorial of the transaction and in a suit between the
parties no evidence to prove its terms may be given save the document or secondary evidence
of its contents, nor may the contents of such a document be contradicted, altered, added to
or varied by parole evidence.
The application of the integration rule may result in a party’s being bound by terms that it never
really intended to agree, but its justification is that it enables the terms of the contract to be proved
with certainty and precision. Like all other rules of evidence the parole evidence rule has exceptions.
The reason for the exceptions is stated by Christie, in Business Law in Zimbabwe page 65. It is
obvious that the parole evidence rule contains seeds of injustice because it excludes evidence that
might reveal the true agreement between the parties. To minimize this danger, the application of
this rule is subject to a number of limitations where there is misrepresentation, fraud, illegality,
duress and mistakes.
Exceptions
1. Establishing that the contract was subject to a suspensive condition does not exclude the leading
of evidence because one would not be varying the contract in leading such evidence.
2. The rule is not applicable where it is the intention of the parties that the contract should partly be
in writing or partly oral. The court will give effect to the intention of the parties.
There is what is regarded as the so-called partial integration rule which is but a corollary of the
integration rule. Cobett JA in Johnson v Leal defines it thus: where a written contract is not intended
by the parties to be the exclusive memorial of the whole of their agreement but merely to record
portion of the agreed transaction, leaving the remainder as an oral agreement, then the integration
rule merely prevents the admission of extrinsic evidence to contradict or vary the written portion; it
does not preclude proof of the additional or supplemental oral agreement.‖
In Avis v Versput 1943 AD 33 The court took the view that this was a situation where the parties had
intended that their contracts should be partly in writing and partly oral. The court held that the oral
agreement had to be given effect. To counter the problem of including evidence outside the written
contract one has to include an integration clause or a whole contract clause. This will be a term
stating that the document will be the entire contract between the parties and all terms, conditions,
warranties or representations not herein included will be expressly excluded. This means that the
parole evidence rule is entrenched into the contract (see Mhene v Teubes 1986 (2) ZLR 179).
The parole evidence rule is designed to promote certainty and as such the contract document serves
all purposes on evidential aspects. However, the exceptions to the parole evidence rule make the
written document uncertain and ultimately the court has to balance the competing interests of the
parties.
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MY NOTES 40
3. The parole evidence rule does not apply where the validity of the contract itself is being
challenged by one of the parties thereto. In Cock v Osbourne 1993 (4) SA 788 the court held that one
could not exclude oral evidence to establish the grounds of the invalidity of a contract, for example,
due to a mistake. Thus, the courts are sometimes prepared to disregard the integration clause, as it
did in the Mhene case supra. To seal the leaking valve, an integration clause is often coupled with a
non-variation clause. If the parties intend to vary the terms of the contract this has to be in writing
and signed. Any purported oral evidence to vary the terms of the contract would be of no force and
effect.
In 1964 the CPD decided that the non-variation clause is binding on both parties and any purported
oral variation inconsistent with such a clause would be invalid. However, a non-variation clause does
not in itself preclude a waiver and to completely seal the leaking valve a non-variation clause is often
coupled with a non-waiver clause. In that way one may get rid of all the exceptions. A non-waiver or
indulgence clause says that no indulgence made by the party can be taken to be a waiver of his
rights. See the Agricultural Finance Corporation v Pocock 1986 (2) ZLR 229 (SC).
A non-variation clause in a contract entrenches the requirement that any variation has to be in
writing but does not prevent a party for whose benefit it is inserted from waiving the requirement.
A non-waiver clause negates any raising of a waiver or any estoppel in that it amounts to notice
given in advance, acknowledged by the other party, that conduct that might otherwise be a waiver
or give rise to an estoppel may not be taken to be such conduct. The combined effect of the two
clauses is that two parties to a written agreement containing carefully and extensively worded non-
variation and non-waiver clauses cannot enter an enforceable oral agreement departing from the
written terms since to the extent it is a variation of the contract it is precluded by the non-variation
clause, whereas if it be said to be a waiver or conduct giving rise to an estoppel then the non-waiver
clause provides the complete answer to the point.
In Maparanyanga v Sheriff of the High Court & Ors SC 132–02 or 2003(1) ZLR 325 (S) the sheriff
entered into a standard form agreement with the purchaser after the latter had offered to purchase
the debtor’s property by private treaty. The conditions of payment in the purchaser’s offer were
different from those in the standard form. The standard form provided for the full purchase price to
be paid on signature thereof. However, both parties regarded themselves as being bound by the
terms of payment set out in the written offer made by the purchaser and accepted by the sheriff.
The High Court concluded that although the standard form contract could both reflect the terms of
the agreement between the parties, that form had been signed merely as a formality that was
required by the practice in the sheriff’s office. The parties were well aware of the conditions of the
sale that had been agreed upon between them and those conditions were observed. On appeal the
Supreme Court set aside the High Court order. One of the reasons given by the Supreme Court for
setting aside the order was that it did not regard the standard form of agreement of the sale to be
inferior to, or less binding than any other contract properly entered into by the contracting parties.
The Supreme Court went on to state that it was satisfied that the consequences of disregarding a
material term of such a contract were not more elastic than was suggested by the High Court. The
sheriff denied breaching the agreement. His evidence was that the standard form did not record
accurately the agreed terms of the contract. This is also supported by the offer made by the
purchaser, which culminated in the signing of the agreement. The offer by the purchaser did not
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state that full payment would be made upon the signing of the agreement. Other contemporaneous
documents may be looked to when the written contract is only one part of a larger transaction. The
purchaser and the sheriff were agreed as to the true nature of the terms of the agreement. The
standard agreement had no whole contract clause in it. The Supreme Court held that from a
contractual point of view, having signed such a contract, both parties were bound and obliged to
adhere to its contents.
It is submitted that this is not the correct statement of the law. The words of a contract are not
engraved in stone. If parties can show that a written contract does not reflect what was agreed
between them, a court cannot insist that they perform according to it. Rather, it will insist that they
comply with what each had agreed to do because they consider themselves bound by the terms not
expressed.
4. No conclusive effect is attached to a note or memorandum drawn up merely for the purpose of
providing evidence of an essentially oral agreement. Such a document may constitute an admission
by a party who made or assented to it, but like all informal admissions it can be contradicted or
explained away by other evidence.
In Allen v Pink (1838) 4 M&W 140 the plaintiff bought a horse from the defendant and received from
him a note reading, ‘Bought by G. Pink, a horse for the sum of £7. 2s. 6d’. The court held that this
document was not intended to record the terms of the sale and therefore did not prevent the
plaintiff from proving that the oral contract had included a warranty as to the horse’s condition. The
fact that only one party had signed the document is some indication that it was intended to be no
more than a memorandum, but this is by no means conclusive.
Where the parties intend a document signed by only one of them to represent the contract between
them, parole evidence to vary the document is inadmissible. Although the rest is said to be the
intention of the parties this has been taken to mean their intention objectively ascertained from the
nature of the document and the surrounding circumstances.
5. As the rule applies only when the document was intended to record the terms of the transaction,
it is open to a party to show that the document was drawn up for a special purpose and that the real
transaction was something different.
In Moodley v Moodley & Anor the respondents did not seek to upset the validity of a written
contract for the sale of land. They sought to prove an agreement which was in fact, not a simple
agreement of sale – if it was an agreement of sale at all – in terms of which the applicant was to
obtain a transfer of the property. Milne JP held that extrinsic evidence was admissible to show that
there had been this special purpose.
6. Evidence may be adduced of a trade usage whereby additional terms are implied in a written
contract if the usage does not contradict the terms of the document. In Brown v Byrne (1864) 3 E&B
703 a custom by which shipowners allowed a discount on freight charges was held not to be
inconsistent with a statement of the full amount in a bill of lading.
Does the Rule Bind Third Parties?
Where parties make a document the sole embodiment of their jural act, the effect of the act has to
be found only in the writing no matter who may wish to avail himself to it. The parole evidence rule
therefore applies against a third party if it sought to use those utterances for the very purpose for
which the writing has superseded them as the legal act. If the question is what the parties really
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agreed then it is not bound by the terms of the document. But if a third party is concerned to prove
the terms actually enforceable by the contracting parties, he should also be bound by the document
because as a matter of substantive law this determines what those terms are.
The Burden and Quantum of Proof
In any case, civil or criminal, there must always be rules as to who must prove what. Hoffmann and
Zeffert, page 495, argue that the burden or onus of proof in this ordinary sense is a metaphorical
expression for the duty which one or other of the parties has of finally satisfying the court that he is
entitled to succeed on his claim or defence whichever it may be.
In Pillay v Krishna 1946 AD 946 at 952 the court said:
[I]n my opinion, the only correct use of the word “onus” is that which I believe to its true and
original sense … namely the duty which is cast upon the particular litigant, in order to be
successful, of finally satisfying the court that he is entitled to succeed in his claim, or defence,
as the case may be, and not in the sense merely of his duty to adduce evidence to combat a
prima facie case made by his opponent.
In civil matters it is usually the plaintiff who has the onus of proving his case against the defendant.
Rule 437 of High Court of Zimbabwe Rules provides:
If on the pleadings the burden of proof is on the plaintiff, he shall first adduce his evidence,
and if absolution from the instance is not then decreed, the defendant shall then adduce his
evidence.
See also Nyahondo v Hokonya 1997 (2) ZLR 457 (S) at 460 where Korsah JA said:
The general principle is that he who makes an affirmative assertion, whether plaintiff or
respondent bears the onus of proving the facts so asserted.
In criminal proceedings it is the prosecution which bears the onus of proving the guilt of an accused
person beyond reasonable doubt. The accused person need not do anything to convince the court
that he is innocent.
This is because s18(3)(a) of the Constitution provides that every person who is charged with a
criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty. According
to Article 11(1) of the Universal Declaration of Human Rights:
Everyone charged with a penal offence has the right to be presumed innocent until proved
guilty according to law in a public trial at which he has had all the guarantees necessary for his
defence.
According to Article 14.2 of the International Covenant on Civil and Political Rights: ‘Everyone
charged with a criminal offence shall have the right to be presumed innocent until proved guilty
according to law’.
In R v Difford 1937 AD 370 at 373 the court said:
[N]o onus rests on the accused to convince the court of the truth of any explanation which he
gives. If he gives an explanation, even if that explanation is improbable, the court is not
entitled to convict unless it is satisfied, not only that the explanation is improbable, but that
beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation
being true, then he is entitled to his acquittal.
The prosecution has to prove the guilt of the accused person beyond a reasonable doubt. In Mancini
v DPP 1942) AC 1 Viscount Sankey LC said:
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 Throughout the web of the English criminal law one golden thread is always to be seen, that is
the duty of the prosecution to prove the prisoner’s guilt … If at the end of and on the whole of
the case, there is a reasonable doubt, created by the evidence given by either the prosecution
or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the
prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter
what the charge or where the trial, the principle that the prosecution must prove the guilt of
the prisoner is part of the common law of England and no attempt to whittle it down can be
entertained.
The Quantum of Proof Required in Criminal Cases
The quantum of proof required by the criminal standard is ‘proof beyond a reasonable doubt’. In
Miller v Minister of Pensions (1947) 2 All ER 372 at 373 Denning J said:
It need not reach certainty, but it must carry a high degree of probability. Proof beyond a
reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to
protect the community if it admitted fanciful possibilities to deflect the course of justice. If the
evidence is so strong against a man as to leave only a remote possibility in his favour, which
can be dismissed with the sentence ‘of course it’s possible but not in the least probable’, the
case is proved beyond reasonable doubt, but nothing short of that will suffice.
The Quantum of Proof Required in Civil Cases
The quantum of proof required by the civil standard is ‘proof on a balance of probabilities.’ In Miller
supra, his Lordship remarked as follows:
It must carry a reasonable degree of probability, but not so high as is required in criminal
cases. If the evidence is such that the tribunal can say ‘we think it more probable that not’, the
burden is discharged, but if the probabilities are equal it is not.
In West Rand Estates Ltd v New Zealand Insurances Co Ltd 1925 AD 245 at 263 the court said:
It is not a mere conjecture or slight probability that will suffice. The probability must be of
sufficient force to raise a reasonable presumption in favour of the party who relies on it. It
must be of sufficient weight to throw the onus on the other side to rebut it.
There are fundamental divergences in the law concerning both, as between civil and criminal cases.
This is because in a civil case the law maintains a neutrality as between the parties, and tries to keep
them on even terms as far as possible. While one party must have the burden of proof, its
significance is minimized by a minimal standard of proof, which maintains an even balance and
permits the better case to win the day.
On the other hand, argues, Murphy in A Practical Approach to Evidence, page 85, in a criminal case,
the law undertakes to ensure that the accused is not convicted without rigorous safeguards. Here,
the law does not hold a neutral balance, but imposes on the prosecution the burden of proof and a
high standard of proof.
Bibliography
Hoffmann, L. H. and Zeffert, D. (1995) The South African Law of Evidence. 4th edn. Durban:
Butterworths.
J. A. Heydon, J. A., Cross, Sir R., Byrne, D. M. and Heydon, J. D. (1991) Cross on Evidence (1985) 6th
edn. London: Butterworths.
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May, H.J. (1962) South African Cases and Statutes on Evidence Cape Town: Jutta.
Murphy, P. (1994) A Practical Approach to Evidence. 4th edn. London: Blackstone Press Limited.
Statutes
Constitution of Zimbabwe, 1980
Criminal Procedure and Evidence Act [Chapter 9: 07]
Civil Evidence Act [Chapter 8:01]

CHAPTER 13: COUNCIL FOR LEGAL EDUCATION LAW OF EVIDENCE

SYLLABUS
(Candidates may have the Civil Evidence Act, the Criminal Procedure and Evidence Act and any other
relevant enactments available when writing the examination)
Objectives: to put the prospective legal practitioner into a position whereby such practitioner is
aware of the main principles and the rules of admissibility of the law of evidence. To that end any
case authorities are only given as illustrative of the principles involved and most emphasis is placed
on the student's application of principles to problem situations.
1. Introduction
Definition and the Sources of Zimbabwean law
2. Relevance and Admissibility
The Best Evidence: Direct and Circumstantial Evidence
3. The Examination of Witnesses
Oral Evidence
Previous consistent statements, exceptions to the rule, refreshment of memory
Character Evidence
reputation on disposition
similar facts
striking similarity in sexual cases
the rebuttal of defences
the accused as a witness
right to silence
previous convictions and their admissibility
Opinion Evidence
the value of an opinion
who is an expert?
the rule in Hollington v Hewthorn and its application in Zimbabwe in the light of s31 of the
Civil Evidence Act [Chapter 8:01]
Hearsay
statutory and common law sources
civil and criminal application
implied hearsay
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 the exclusionary rules
declarations by deceased persons
res fiesta
public documents
admissions and confessions
judges’ rules
public interest
4. The Competence and Compellability of Witnesses
The meaning of competence and compellability, the position of an accused, the spouse of an
accused, the position of a co-accused as a witness for the prosecution or the defence?
5. Privilege
types of privilege and reasons therefore
matrimonial
self-incrimination
legal professions privilege
without prejudice negotiations
public interest
6. Corroboration
the need for confirmation
accomplices
the two hurdles for accomplishment
singles witness - cases of treason and perjury
confessions - Police Traps and biased witnesses.
The notion of vulnerable witnesses and new perspectives on corroboration; e.g. young children and
victims of sexual offences; victim friendly courts.
7. The Burden and Quantum Proof
The evaluation of evidence beyond reasonable doubt or the ‘balance of probabilities’?
Recommended Texts
Carter, P. B. Cases and Statutes on Evidence. 5th edn. Sweet & Maxwell, 1992.
Cross, R., Mathieson, D. L. Hammond, G. Burston, G. Robertson, R., Long, J. Cross on Evidence, 6th
edn. LexisNexis, 2005.
Heydon, J. D. and Ockelton, M. Evidence Cases and Materials 2nd edn. Butterworths, 1996.
Hoffman, L.H. and Zeffertt, D.T. The South African Law of Evidence 6th edn. Butterworths, 1988.
Jagwanth, S., Schwikkard, P.-J. and Grant, B. (eds), Women and the Law HSRC Publishers, Pretoria,
1994.
Murphy, P. A Practical Approach to Evidence 3rd edn. Blackstone Press, 1992.

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