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A SYSTEMATIC APPROACH TO QUESTIONING

WITNESSES IN SOUTH AFRICAN CIVIL TRIALS: THE
IMPORTANCE OF CREDIBILITY, RELIABILITY AND
PROBABILITY

By Adv Verlaine de Wit1

January 2022

1Advocate of the High Court of South Africa, Member of the Johannesburg Society of Advocates, Member of the
Maisels Group of Advocates, LLB (Stellenbosch), LLM in International Trade Law (Stellenbosch & Utrecht,
Netherlands), International Commercial Arbitration Course (Pretoria & AFSA), Program in Film Production (New
York Film Academy, Los Angeles). Cell: 076 778 5805 E-mail: vdw@maisels.co.za
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CONTENTS

INTRODUCTION ........................................................................................................ 4
THE PURPOSE OF AN ACTION ............................................................................... 4
THE STAGES OF AN ACTION .................................................................................. 6
THE EXCHANGE OF PLEADINGS............................................................................ 6
DISCOVERY ............................................................................................................ 12
PRE-TRIAL PROCEEDINGS ................................................................................... 14
MISCELLANEOUS PROCEDURES RELATING TO PLEADINGS .......................... 15
THE TRIAL ............................................................................................................... 17
THE IMPORTANCE OF TESTIMONY IN AN ACTION ............................................ 26
WHAT A WITNESS MAY TESTIFY ABOUT ............................................................ 29
A WITNESS MAY ONLY TESTIFY ABOUT RELEVANT FACTS ............................ 30
OTHER TYPES OF INADMISSIBLE TESTIMONY .................................................. 31
OBJECTING TO INADMISSIBLE EVIDENCE ......................................................... 35
ADMISSIBILITY DOES NOT EQUAL COGENCY .................................................... 36
HOW THE COGENCY OF TESTIMONY IS EVALUATED ....................................... 37
WHAT IS CREDIBILITY? ......................................................................................... 39
WHAT IS RELIABILITY? .......................................................................................... 40
WHAT IS PROBABILITY? ........................................................................................ 41
COUNSEL QUESTIONING A WITNESS SHOULD USE THE CRITERIA OF
CREDIBILITY, RELIABILITY AND PROBABILITY TO HIS ADVANTAGE ............... 42
LEADING A WITNESS THROUGH EXAMINATION-IN-CHIEF TO ELICIT
CREDIBLE, RELIABLE AND PROBABLE TESTIMONY.......................................... 43
HOW TO CROSS-EXAMINE TO EXPOSE A LACK OF CREDIBILITY, RELIABILITY
AND PROBABILITY ................................................................................................. 46
SOME THOUGHTS ON CROSS-EXAMINATION .................................................... 48
THE RULE IN BROWNE V DUNN ........................................................................... 53
HOW TO CONDUCT REEXAMINATION TO ELICIT CREDIBLE, RELIABLE AND
PROBABLE TESTIMONY ........................................................................................ 54
QUESTIONING EXPERT WITNESSES ................................................................... 55
THERE IS ALWAYS THE OPTION TO SETTLE ..................................................... 56
USING THE CRITERIA OF CREDIBILITY, RELIABILITY AND PROBABILITY
DURING CLOSING ARGUMENT ............................................................................ 57
CONCLUSION ......................................................................................................... 58
ANNEXURE A: RULE 39 OF THE UNIFORM RULES OF COURT ......................... 59
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ANNEXURE B: SECTION 3 OF THE LAW OF EVIDENCE AMENDMENT ACT, 1988

................................................................................................................................. 64
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INTRODUCTION

1. In a trial,2 the Court must apply the criteria of credibility, reliability and probability

to all testimony to evaluate whether it is the truth.

2. The purpose of this monograph is to be a Rosetta Stone for explaining how

counsel, whether he is an attorney or an advocate, should use these criteria to

plan for and question witnesses during a trial.

3. While the focus of this monograph is on questioning witnesses, I will also

discuss the steps to be taken by a litigant at each stage of a trial and expound

on the most important rules regarding the admissibility of evidence since it all

relates directly to questioning.

THE PURPOSE OF AN ACTION

4. Oftentimes when one person wants to claim against another person, they will

be at odds over what happened between them. Each will have a different

account of what the truth is. The person who wants to claim may then sue the

other person by bringing an action against him in the High Court if the subject

matter of the claim is serious enough to place it within the jurisdiction of the

High Court.

2 In this monograph, I deal with these principles as applicable in a High Court trial. However, they also apply to
trials and similar processes held in the Magistrates’ Courts, specialized Courts, tribunals and at arbitrations.
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5. A person who brings an action is called a plaintiff and a person sued by a

plaintiff is called a defendant. They are collectively called the parties to the

action. An action in which a defendant puts up a defence of some sort is called

a defended (rather than opposed) action.

6. The defining feature of an action is that the parties will fundamentally disagree

about what happened between them. Each will allege something different

happened. Such a disagreement is called a factual dispute.

7. The purpose of an action is for a trial to be held in Court during which each

party may call witnesses to testify on his behalf. The Court will then consider

the witnesses’ testimony, together with any documents and physical objects

presented as evidence by the parties, to decide which party is telling the truth.

The Court will then give a judgment in favour of the party which it found was

telling the truth, thereby resolving their dispute.

8. The Uniform Rules of Court, a set of rules governing the conducting of different

types of High Court lawsuits and related processes, in Rule 39 regulates how

a trial should proceed. The rule provides for when the parties may call

witnesses and what sort of questioning each party’s counsel may subject them

to. A copy of Rule 39 is annexed to this monograph as Annexure B.

9. On a point of nomenclature, the words trial and action are not synonymous. The

word action is used to describe an entire type of High Court lawsuit, from

beginning to end, during which the parties may call witnesses to testify for them.
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It begins with the service of a summons by the plaintiff on the defendant and

ends when the Court hands down its judgment. The word trial is used to

describe the portion of an action that takes place in Court before a Judge during

which arguments are made and witnesses testify. The trial begins when the

plaintiff’s counsel makes an opening statement and concludes after the parties’

respective counsel have finished giving their closing arguments to the Court.

THE STAGES OF AN ACTION

10. A typical action winds through a number of stages: the exchange of pleadings,

discovery, pre-trial proceedings and the trial.

THE EXCHANGE OF PLEADINGS

11. The first stage in an action is called the exchange of pleadings. It is a paper-

based process during which each party reduces his version of what happened

as well as his response to the other party’s version to writing and then provides

it to the other.

12. The purpose of exchanging pleadings is threefold. Firstly, it enables the parties

to prepare for trial. The plaintiff’s pleadings will describe his claim and the

defendant’s pleadings will describe his defence. By exchanging pleadings, the

receiving party will know what the other will try to prove at trial. The receiving

party can then prepare for trying to prove the opposite or at least disprove it at

trial. Secondly, it establishes which specific factual allegations made by which

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party are in dispute. This must be established before trial (by exchanging

pleadings) since it will serve as the criterion for determining whether evidence

presented at trial is relevant or not. Thirdly, the pleadings will enable the Court

to understand what allegations the claim and defence, respectively, is based

on. The Court will be able to control the trial proceedings by knowing when a

party or witness is veering into irrelevant territory and stop him. The Court must

be able to do so to conduct the trial effectively.

13. Three pleadings are normally exchanged, one in response to the other,

between the parties.

14. The first is the plaintiff’s particulars of claim. In it, the plaintiff must describe his

claim by listing clear factual allegations that, if all proven at trial, will satisfy all

the elements of whatever his claim is and entitle him to the order that he wants

the Court to grant. The plaintiff must serve it together with a summons on the

defendant to begin the action.

15. After the defendant has received the particulars of claim, he may respond by

delivering a plea to the plaintiff. In his plea, he must set out his defence. To do

so, he must indicate – clearly and without evasion – which factual allegations

in the particulars of claim he admits are true; which he denies are true; and

which he is not aware of and thus cannot say whether they are true or not. He

may also in his plea make factual allegations of his own that do not appear in

the particulars of claim and that will, if proven at trial, have a bearing on whether

the claim or defence will be upheld. His plea must conclude with what order he
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wants the Court to grant. By setting all of this out in the plea, it should be clear

what the nature of his defence is. If the defence is based on a statutory provision

of law, then it should be recorded in the plea.

16. A plea may additionally contain one or more technical defences. A technical

defence is called a point in limine. It is not a defence to the plaintiff’s claim itself.

Rather, it is meant to establish that there is a procedural defect in the plaintiff’s

claim that, if upheld, will result in the Court not allowing the claim to proceed.

17. A plea may also include a counterclaim.

18. The plaintiff may, after he receives a plea, answer to it with a replication. In it,

he may address any factual allegation in the plea that is not covered by his

factual allegations in the particulars of claim. He must indicate – clearly and

without evasion – which factual allegations in the plea he admits are true; which

he denies are true; and which he is not aware of and thus cannot say whether

they are true or not. He may also in his replication make factual allegations of

his own that have a bearing on his claim or the defence.

19. A replication may deal only with factual allegations raised in the plea. Is not an

opportunity for a plaintiff to introduce unrelated factual allegations that have no

bearing on his claim to try to introduce a new claim different from the one in his

particulars of claim.
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20. In most actions, the parties will only exchange a particulars of claim, a plea and

a replication. However, where a replication raises a new issue not dealt with in

a plea, a defendant may deliver a further pleading. A fourth pleading is called a

rejoinder. The is no limit to the number of pleadings that may be exchanged.

However, at some stage, all the relevant factual allegations will have been pled

in the various pleadings. Any further pleadings that are delivered beyond that

point would be pointless and probably constitute an abuse of process.

21. Once the last pleading has been delivered, the pleadings will close. The action

has then reached litis contestatio. Reaching this point has several effects on

the action.

22. Firstly, no party may deliver a further pleading after litis contestatio. However,

a party may still amend the content of an existing pleading.

23. Secondly, it will be apparent what each party’s factual allegations are and what

the other party’s answer to each factual allegation is.

24. A factual allegation made by one party and admitted to by the other party

becomes a common cause fact. The Court will accept that all the common

cause facts are true. A common cause fact does thus not need to be proven at

trial by the party who originally alleged it. Accordingly, admitting a factual

allegation could thus easily result in an advantage being given away in a

situation where the party who made it would otherwise have struggled to prove

it at trial.
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25. A factual allegation made by one party and denied by the other party is called

a disputed fact. It must be proven at trial by the party who alleged it. All the

disputed facts between the parties are collectively called the issues. A party’s

factual allegations are together called his version. A party’s version together

with what order he believes it in law entitles him to is called his case. The

respective cases put forward by the parties make up the dispute between them.

26. What the issues are in an action is of crucial importance to questioning

witnesses at trial. Witnesses may only give testimony that is relevant to the

issues and relevance is determined by the issues.

27. Thirdly, it can then be determined which party bears the onus. The onus is a

legal precept that determines how the Court must go about deciding in which

party’s favour to give judgment. In any given action, the substantive law will pre-

determine, depending on the nature of the claim and defence, which party bears

the onus. Usually, if a plaintiff has a claim and the defendant only denies it, the

plaintiff will bear the onus. The defendant will usually bear the onus if he admits

the claim and raises a defence premised on further factual allegations he

intends to prove.

28. Judgment will only be given in favour of a party who bears the onus if he has

proven his case is more likely the truth than the other party’s case and moreover

that he has proven his case on a balance of probabilities. To prove a case on

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a balance of probabilities means to prove that it is more likely to be true than

not.

29. The onus looms in all actions. How it is applied depends on the scenario.

Several scenarios are encountered in practice.

30. The first is where both parties tried to prove their respective cases and only one

party proved his case on a balance of probabilities. The Court will give judgment

in favour of that party whether he bore the onus or not.

31. The second, and this is where the onus is so important, is where each party

tried to prove his cases and both proved their cases on a balance of

probabilities but the Court nevertheless can’t decide which party’s case is more

likely to be the truth. It is then said that the probabilities are equal. When the

probabilities are equal, the Court must dismiss the case of the party who bears

the onus and give judgment in favour of the other party.

32. The third is where one party, who bears the onus, tried to prove his case and

the other party didn’t. The Court will only give judgment in favour of the party

who tried to prove his case if he proved it on a balance of probabilities.

Otherwise, the Court will give judgment in favour of the other party.

33. The fourth is where both parties tried to prove their respective cases and neither

could do so on a balance of probabilities. It then doesn’t matter which party

bore the onus since the Court will dismiss the claim.
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34. Therefore, where the onus lies can be a deciding factor in an action, especially

in circumstances where both parties have compelling cases. A party to an

action should always be aware of who bears the onus. If he bears it, he will

have to call witnesses and present all of the evidence that he can muster to

prove his case. The other party will not be under similar pressure. The other

party’s counsel may, after having heard his case at the trial, even decide to not

call any witnesses nor present any other evidence if he thinks that the case was

not proven on a balance of probabilities.

35. The onus should be borne in mind when pleading. The case that a party pleads

will influence whether he will bear the onus or not. If he is unsure whether he

will be able to prove his case on a balance of probabilities, he should try to

plead something that will not draw the onus. This is especially so with putting

forward defences. If a defendant is not sure whether he will be able to prove a

defence that will draw the onus, then he should consider rather denying the

plaintiff’s claim than pleading the defence.

36. After litis contestatio, the parties move on to the discovery stage.

DISCOVERY

37. After litis contestatio, a party to an action is entitled to request the other party

to discover. Discovery is done by one party informing the other party of all

documents that are or were in his possession and which may be relevant to the
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issues. To comply with a request to discover, a party must deliver a discovery

affidavit to the other. In it, he must list all the documents that are in his

possession; all those that were once in his possession but no longer are; and

those that are still in his possession but are subject to legal privilege. The party

receiving the discovery affidavit may inspect and make copies of the documents

(except those subject to legal privilege) listed in the discovery affidavit.

38. The purpose of discovery is to allow the party requesting discovery to gain

knowledge of all the documents that the party making discovery might try to

present as evidence at trial. It will enable him to plan for that by investigating

the veracity of the documents, preparing questioning about them and gathering

evidence of his own to counter their content, as the case may be.

39. A party may not present a document that was in his possession as evidence at

trial if he did not discover it.

40. If a party suspects that the other party has a document in his possession that

might be relevant to the issues and has not discovered it, he may call on that

party to specifically discover it. If the document is not discovered and he

remains of the conviction that the other party has it, he can approach the Court

for an order that the document be discovered, provided he can prove his

suspicions to be true.

41. A party’s discovery will provide the other party with a very important opportunity

to look for things to question potential witnesses about. There may be

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documents containing information that could support something that the other

party has to prove at trial. There may also be documents that contain

information that will go against the testimony of a witness whom the other party

may end up calling as a witness that can then serve as material for cross-

examination.

42. Advantage should thus be taken of the discovery process to look for material

that can be used for questioning witnesses. A party should request the other

party to discover as soon as possible.

43. Making optimal use of discovery can make a big, and sometimes decisive,

difference to the outcome of an action.

PRE-TRIAL PROCEEDINGS

44. After discovery has taken place, the parties must hold a pre-trial conference. It

is a meeting that the Uniform Rules of Court mandate should be held by the

parties before trial.

45. The purpose of a pre-trial meeting is for the parties to try to agree about as

many procedural aspects of the action as possible. In each action, there are

certain procedural steps, both before and during trial, that each party will have

to take and that he will require the other to take. By agreeing on who will do

what, by when and how, the parties can make the action proceed faster and

smoother.
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46. Before the pre-trial conference, a party may send to the other party a list of

things that he will require the other party to agree to. Of relevance to questioning

witnesses is that a party may request the other party to admit to a disputed

factual allegation. As I have said, an admitted fact becomes a common cause

fact and does not need to be proven. Admissions should therefore be seriously

sought at a pre-trial conference.

47. After the pre-trial conference, the dispute will go to trial.

48. Note that other pre-trial processes, such as mandatory mediation or case

management, may also be applicable in certain types of trials.

MISCELLANEOUS PROCEDURES RELATING TO PLEADINGS

49. There are two important procedures that relate to pleadings that a party to an

action may make use of that can have a bearing on what the issues are.

50. The first is a request for further particulars.

51. Where a party has pleaded a factual allegation, the other party may in writing

ask for specific details about the factual allegation. Answers given to such a

request are called further particulars.

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52. Further particulars should be sought where they will be useful to proving a

party’s case because, once given, they become common cause.

53. The second is making an amendment to a pleading.

54. A party may at any time up to when judgment is given amend any of his

pleadings. To amend a pleading means to change something in it. The purpose

of making an amendment should be to correct some sort of mistake in the

pleading.

55. A party may amend a pleading by delivering a notice to the other party in which

he informs the other party of his intention to make the change and what the

intended change is. The other party may object to it. If not objected to, the

pleading may be amended. If it is objected to, the party who wants to amend

must apply to the Court for leave to do so. To obtain leave, he must demonstrate

to the Court that his pleading is somehow defective, that the defect was the

result of a bona fide mistake and that granting him leave to amend it will enable

him to cure the defect so that the pleading will accurately reflect what his case

really is.

56. It should be noted that once a fact has been alleged or admitted, the party who

did so will find it hard to amend his pleading if the amendment will remove the

allegation or admission from the pleading and it is objected to. That is because

if a party alleges or admits a factual allegation, he will be taken by the Court to

have done so because it is the truth. After all, he did so freely. For him to later
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turn around and try to remove it from his pleading will thus be highly suspect to

the Court. The Court will only grant him leave to amend if he has a convincing

explanation for his change of heart.

57. When a party amends one of his pleadings, the other party is entitled to amend

his pleadings so that they will address the amended pleading. An amendment

made in response to an amendment is called a consequential amendment.

58. As such, when pleading, a party should be sure of himself when alleging or

admitting a factual allegation. Once it is in, it can’t easily be taken out.

59. In any event, when a party amends (or is granted leave to amend) a pleading,

it will have a bearing on what the issues are.

60. Both a request for further particulars and an amendment can have a dramatic

impact on the issues and thus what a party must prove at trial. Staying on top

of the effect of these procedures is thus very important for knowing what to

question witnesses about.

THE TRIAL

61. Once the pleadings have been exchanged, discovery has taken place and the

pre-trial conference held, the action will go to trial.

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62. A trial begins with an opening address by the plaintiff’s counsel. It is meant to

be a short statement with which he informs the Court of what he intends to

prove. It is not a soapbox on which to make a grandstanding speech.

63. After making his opening address, the plaintiff’s counsel may begin calling

witnesses to testify for his client in any particular order.

64. To testify, a witness must take the stand and be sworn in. He will be asked to

identify himself and swear by saying “so help me God” that he will tell the truth,

the whole truth and nothing but the truth.

65. Once the witness is sworn in, the plaintiff’s counsel may begin to question him.

This questioning round is called examination-in-chief. The purpose of

examination-in-chief is to allow the plaintiff’s counsel to assist the witness to

testify for the plaintiff. Counsel should ask him questions that the answers to

which will constitute testimony to prove one, some or all of the plaintiff’s factual

allegations.

66. During examination-in-chief, the witness must be the one telling the Court

whatever it is that he wants to testify about. The Court will want to hear what he

has to say, not what the plaintiff’s lawyers have to say. Accordingly, there is a

rule meant to prevent the plaintiff’s counsel from narrating the witness’s

testimony for him.

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67. The rule is that a party’s counsel may not ask a witness a leading question

about a material fact during examination-in-chief. A leading question is a

question that contains the desired answer in it. The danger of asking a witness

a leading question is that even one with no knowledge of the subject matter of

the question can, by answering it with a yes or no, appear to know the desired

answer. Allowing leading questions during examination-in-chief would thus

open the door for collusion between a party and his witness by enabling the

witness to testify about things that he does not know anything about to and

thereby to mislead the Court.

68. An example of a leading question is “Did Lucius Titius commit the murder?”

Anyone who answers “yes” to this question would appear to know, whether he

really does or not, that Lucius Titius committed the murder. Asking this question

in a non-leading way would be: “Who committed the murder?” The first version

of this question is leading and would not be allowed by the Court during

examination-in-chief, but the second version would.

69. If counsel asks a witness whom he is leading through examination-in-chief a

leading question, counsel for the other party may object to it.

70. It should be noted that the plaintiff’s counsel may ask a witness a leading

question about something that is purely peripheral and not in dispute, such as

someone’s name. The Court allows it to speed up examination-in-chief.

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71. A party’s counsel must also make use of examination-in-chief to prove the

validity of documents and physical objects that he wants to present as

evidence. A witness who has personal knowledge of the document or physical

object must be called to during examination-in-chief testify about it.

72. The plaintiff’s counsel may only subject the witness to examination-in-chief

once. He should use the opportunity to question the witness to elicit everything

that the witness can contribute that may serve as evidence for proving the

plaintiff’s case.

73. After examination-in-chief, the defendant’s counsel may question the witness.

This questioning round is called cross-examination. The purpose of cross-

examination is two-fold. Firstly, it is a chance for counsel to test whether the

witness has told the truth during examination-in-chief. Secondly, it is a chance

for him to try to elicit testimony from the witness that the witness did not testify

to during examination-in-chief but that may somehow assist the counsel to

disprove the plaintiff’s case or prove his own client’s case.

74. There is no prohibition on counsel asking leading questions during cross-

examination. That is so since there is little chance that a witness who is willing

to testify for one party would collude with the other party.

75. The defendant’s counsel may elect to not cross-examine the witness at all.
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76. After cross-examination, the plaintiff’s counsel may again question the witness.

This questioning round is called reexamination. The purpose of reexamination

is to allow the plaintiff’s counsel to question the witness about anything new

that arose during cross-examination and that his testimony during examination-

in-chief did not deal with. Again, the prohibition on asking leading questions

apply.

77. The plaintiff’s counsel may not during reexamination question the witness about

anything not dealt with or arising from cross-examination. It is not an opportunity

to build a new case different from that testified to during examination-in-chief.

78. If the defendant’s counsel did not cross-examine the witness, the plaintiff’s

counsel may obviously not reexamine the witness.

79. After the plaintiff’s counsel has finished with reexamination, he may call his next

witness to testify until he has called all his witnesses. Each witness may be put

through examination-in-chief, cross-examination and reexamination.

80. Once all the witnesses called by the plaintiff’s counsel have testified, the

plaintiff’s counsel must close his client’s case by indicating to the Court that he

has no witnesses left to call.

81. Counsel should only close his client’s case if he is sure he does not need to call

any further witnesses. Once he has closed it, he may not re-open it to call

another witness or one who previously testified without leave from the Court.
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Leave is only granted in highly exceptional circumstances. He should thus only

do it if he is certain that the witnesses whom he called testified sufficiently to

prove his case.

82. Counsel should bear in mind that the Court will almost always have a suspicious

attitude towards a plaintiff whose counsel does not call a witness who can testify

about one of the issues. The Court will, naturally, assume the plaintiff is trying

to hide something.

83. After the plaintiff’s counsel has closed his client’s case, the defendant’s counsel

may present the case for the defendant or apply for absolution from the

instance. The Court will grant absolution from the instance if the case presented

for the plaintiff was not sufficiently strong to persuade the Court that it might

end up giving judgment in his favour. If the application is successful, the action

will be dismissed.

84. Because of the possibility to apply for absolution from the instance, the

defendant’s counsel should make every effort during his cross-examination

opportunities to break down and disprove the plaintiff’s case.

85. If the defendant’s counsel applies for absolution from the instance and it is not

granted, or he decides to forgo such an application, then it will be his turn to

present his client’s case.

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86. The defendant’s counsel must present his client’s case in the same way that

the plaintiff’s counsel presented the plaintiff’s case.

87. The defendant’s counsel may begin by making an opening statement. Like with

the plaintiff’s opening statement, he should use it to briefly inform the Court

what he intends to prove.

88. Thereafter the defendant’s counsel may call his witnesses one by one. Each

witness may be subjected to examination-in-chief, cross-examination by the

plaintiff’s counsel and then reexamination.

89. All of the principles that apply to examination-in-chief, cross-examination and

reexamination applies while the plaintiff’s counsel presents his case applies

equally when the defendant’s counsel presents his client’s case. Of note is that

the defendant’s counsel may not ask a witness he called leading questions

during examination-in-chief or reexamination, while that the plaintiff’s counsel

may when he cross-examines a witness.

90. After the defendant’s counsel has called all his witnesses and they have

finished testifying, he must close his client’s case.

91. After counsel for both parties have presented the clients’ respective cases, they

may give address their closing arguments to the Court.

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92. The plaintiff’s counsel goes first. He may orally address the Court, whether with

or without the aid of written heads-of-argument, to persuade the Court to give

judgment and grant an order in the plaintiff’s favour. The closing argument will

obviously revolve around the testimony that had been presented to the Court

during the trial. It will include a summation of the claim and the defence to it,

what was testified to, why the testimony is the truth and how the testimony

proves the claim. Counsel should conclude with what order the Court should

grant.

93. After the plaintiff’s counsel has addressed his closing argument to the Court,

the defendant’s counsel may give his closing argument. It will be his opportunity

to try to convince the Court to give a judgment and grant an order in favour of

the defendant. Needless to say, the closing argument will address the testimony

given during trial and what it proved or disproved.

94. Because the closing argument by the defendant’s counsel will be given after

that by the plaintiff’s counsel, the defendant’s counsel should during his closing

argument attack the arguments made by the plaintiff’s counsel. It is an

opportunity to explain to the Court why those arguments are wrong.

95. After the defendant’s counsel has finished with his closing argument, the

plaintiff’s counsel may reply to it. During reply, the plaintiff’s counsel may only

deal with arguments raised by the defendant’s counsel during his closing

argument and not addressed sufficiently in his opening closing argument.

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96. After the plaintiff’s counsel has concluded his reply, the Court will reserve

judgment. That means that the Court will adjourn until it is ready to give

judgment. Once the Court has prepared its judgment, the parties will be called

back to Court for judgment to be given. The judgment will contain the order that

the Court has decided to grant and the reasoning for doing so. The judgment

will indicate inter alia how the Court evaluated all of the testimony and what

testimony was accepted as the truth and what was not.

97. Note that usually the party who bears the onus presents his case first.

98. A party may apply to the Court to reopen his case up to when judgment is given.

He may also amend his pleadings up to then. As such, if it becomes apparent

after the trial that the party has further testimony to present or that other

evidence that is relevant exists, the party’s counsel may try to reopen his case

(and concomitantly amend his pleadings to facilitate it if necessary). However,

the Court will only allow a party to reopen his case in highly exceptional

circumstances where the interests of justice require it. It is a principle of our law

that finality should be reached in lawsuits. Once parties to an action have been

given a fair opportunity to present their respective cases at trial, that should be

the end of the trial. The reason for the finality principle is that if it is not part of

our law then an unscrupulous party may try to drag out a trial by reopening it

simply to delay the Court granting an order against him, harass the other party,

run up costs for the other party etc.

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THE IMPORTANCE OF TESTIMONY IN AN ACTION

99. The purpose of a trial is the parties to provide proof of their respective cases to

the Court so that the Court can decide who is telling the truth. It is a factual

inquiry.

100. The Court will accept common cause facts as the truth and no party will be

required to prove it. However, where a party has made a factual allegation and

it is not admitted by the other party, the party making the factual allegation must

prove it. It is a general principle of our law that a party who alleges something,

should prove it.

101. The way for a party to an action to prove a factual allegation is by adducing (ie

presenting) to the Court during the trial admissible evidence that proves the

factual allegation to be true. Evidence is factual information that the Court may

in terms of the rules of the law take cognizance of to determine whether a

factual allegation is true. The different types of evidence that may be adduced

are: testimony given by a lay witness; testimony given by an expert witness;

documents (ie documentary evidence); physical objects (ie real evidence); and

things pointed out to the Court when the parties and Court go to the scene of

an alleged event during an inspection in loco. Where a party wishes to adduce

documentary or real evidence or point something out at a scene, he must call

a witness to testify to its veracity.

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102. There may be instances where documentary and/or real evidence and/or

evidence from an inspection in loco is proof enough for the Court to decide the

issues. However, that will seldomly be the case. In almost all actions, a party

will not be able to prove his case without calling a witness to testify, who might

be a lay witness or an expert witness.

103. The Court will take into account all the evidence that was adduced by the parties

during the trial to decide what judgment to give. The Court will give a reckoning

in its judgment of how it evaluated and made use of all the various strands of

evidence to decide the dispute between the parties.

104. The Court will naturally attach great importance to testimony. Testimony comes

from a human being (under oath) who can be asked unlimited questions and

thoroughly interrogated about all aspects of what he has to say. Both the

witness’s answers and his demeanour can be gauged while he testifies. Thus,

unlike with documents and physical objects, the veracity of testimony can be

tested thoroughly at trial.

105. Having said that, the Court does not take testimony at face value. After all, a

witness may be lying, be mistaken about something thinks he saw, only have a

vague sense of what really happened, explain himself poorly, his description of

an event may compare poorly to that of another witness etc.

106. Accordingly, the Court will evaluate the cogency (ie persuasiveness) of each

witness’s testimony to decide whether it is the truth. Where only one witness
 28

testified about something, the Court will accept that the factual allegation is true

if the testimony was cogent enough to persuade the Court it is more likely than

not true. However, if witnesses for the respective parties testified about the

same thing and their testimony was contradictory (called a case of mutually

destructive versions), the Court will accept the more cogent testimony as true

107. How the Court evaluates the cogency of testimony is thereof of crucial

importance in an action. A party who calls a witness to testify will naturally want

to lead him to give testimony that the Court will regard as highly cogent. In

contrast, a party who cross-examines a witness will want to attack the witness’s

testimony to reduce its cogency as much as possible.

108. As such, when planning to question a witness, counsel should bear in mind how

the Court will evaluate the cogency of the testimony that the witness will likely

give. Doing so will help him to plan for how to question the witness to bolster, if

he called the witness, or to undermine, if the other party’s counsel called the

witness, the cogency of the witness’s testimony.

109. Before I deal with how the Court evaluates testimony, I will first set out a few

principles regarding the admissibility of evidence. These principles are

important to take note of since they determine what witnesses may and may

not testify, and thus be questioned, about. Understanding these principles will

help counsel to elicit admissible testimony from a witness he called and to

prevent the other party’s counsel from eliciting inadmissible evidence, which, if

it is not objected to, will usually become admissible.

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WHAT A WITNESS MAY TESTIFY ABOUT

110. There are two types of witnesses. The first lay witnesses and the second is

expert witnesses. Each type may testify about different things.

111. A lay witness is anyone with personal knowledge of what allegedly happened

between the parties or at least some of it.

112. A lay witness may only testify about facts. A fact is a thing that has happened

or is happening and is capable of empirical observation. As I discuss later, a

further restriction is that a witness may only testify about relevant facts.

113. An expert witness, on the other hand, will usually not have personal knowledge

of what happened between the parties. Rather, to testify he must be someone

with expert knowledge of some kind with which he will be able to appreciable

assist the Court with adjudicating one or more of the issues. Expert witnesses

usually have some sort of scientific skill that the Court does would not, such as

engineering or computer expertise.

114. Experts are not restricted to testifying about facts. They may testify about their

opinions regarding a disputed factual allegation and which party’s allegations

are true. Opinion is comment on fact. It usually consists of drawing inferences,

giving scientific explanations, applying logic etc. An expert may only rely on

facts proven by the party calling him, facts within his personal knowledge or
 30

common cause facts as the basis for his opinion. His opinion must thus be

relevant to the issues.

115. Before a person may be called to testify as an expert witness, the party who

wants to call him must give notice of it to the other party. The party must

thereafter provide the other party with a written summary of what the expert

witness will testify about at trial. The purpose of the summary is to provide the

other party with time to prepare for cross-examining the expert and to consider

presenting testimony (whether from an expert or not) to the contrary.

116. A party who wants to call an expert witness must prove to the Court that the

expert witness is indeed an expert. It is done by providing the Court with proof

of the expert witness’s expertise, such as details of his practical experience or

his academic credentials. While the parties may agree or disagree about his

status as an expert, either way, the Court will ultimately decide whether the

expert witness is an expert and may testify as one.

117. Note that the Court is not bound by an expert witness’s testimony. The Court

ultimately makes findings on all the issues. However, where the Court does not

have the expertise to decide an issue, it will almost always rely on an expert

witness’s opinion to decide it, provided the opinion is cogent.

A WITNESS MAY ONLY TESTIFY ABOUT RELEVANT FACTS

118. A witness may only testify about relevant facts.

 31

119. Relevant facts that were testified to are admissible as evidence. Conversely,

irrelevant facts that were testified to (or asked about) are inadmissible as

evidence.

120. Relevance is determined by having regard to what the issues between the

parties are. Only testimony that can assist the Court to decide the truth of one

or more of the issues will be relevant.

121. As such, it is vitally important that a party comprehensively plead all the facts

that make up his case (even if they will be disputed by the other party) in his

pleadings.

122. Planning for questioning witnesses should thus already start at the pleading

stage. Everything that must be testified about should first be pled.

123. What is more, the qualification of relevancy means that counsel should have a

firm grasp on what the issues are by the time the trial starts. He must know

what testimony will be relevant so that he can object to irrelevant testimony.

OTHER TYPES OF INADMISSIBLE TESTIMONY

124. Certain types of evidence are inadmissible, whether presented in the form of

testimony or some other. It is beyond the scope of this monograph to list all of

them. However, there are a few main types that often crop up in trials. The
 32

purpose of mentioning them here is to enable counsel to recognize it at trial.

Being able to do so is important since if inadmissible testimony is not objected

to when given, it will usually become admissible.

125. The first is hearsay.

126. Hearsay is testimony given by a person who did not originally experience what

it is that he has to say and therefore is not the person upon whose credibility

the cogency of the testimony depends since he cannot be questioned about

what was experienced.

127. An example of hearsay is when John testifies that “Mike told me that the parties

concluded a contract.” It is hearsay because John did not see the parties

conclude the contract (Mike did) and because the credibility (ie truthfulness) of

the testimony about the contract being concluded depends on whether Mike

(not John) is telling the truth about the conclusion of the contract. John cannot

be questioned to test whether Mike indeed saw the contract being concluded

or whether Mike is not telling the truth.

128. Hearsay is not admissible since allowing it would enable a person with no

personal knowledge of something to testify about it. However, the Court does

have the discretion to allow hearsay when it will be in the interests of justice to

do so. The circumstances when the Court will be allowed to do so is legislated

in section 3 of the Law of Evidence Amendment Act, 1988, a copy of which is

annexed to this monograph as Annexure B.

 33

129. Counsel should that careful note of hearsay. Witnesses tend very often to give

hearsay testimony. Spotting it is essential to properly conducting a trial.

130. The second is speculation.

131. Witnesses may only testify about facts that they have personal knowledge of or

is based on it. Speculation is testimony that is not factual by rather consists of

some sort of theory. It can take many forms, such as trying to establish patterns,

guessing, filling in blanks etc.

132. An example of speculation is when Thabo is asked “so how did the money come

to be in Suzy’s bank account?” and Thabo answers “I think she must have

stolen the password to the company’s bank account from someone in the

finance department and transferred it into her account.” It is speculation since

it is not based on an empirical observation by Thabo of something that

happened, but rather a guess.

133. The third is inadmissible parol evidence.

134. Parol evidence is evidence that proves, disproves or somehow modifies a term

in a contract. The parol evidence rule provides that where parties reduce a legal

act that they transacted to writing meant to embodiment the entire act, then no

one of them may, in the event of a dispute, lead parol evidence about it. An

example of such a document is a contract with a sole-memorial clause.

 34

135. What complicates the rule, or at least its application, is that despite it applying

to a document, a party may still lead evidence that would assist the Court to

interpret a unclear term contained in the document.

136. Witnesses who testify in contractual disputes often venture into giving parol

evidence despite the rule against it applying.

137. The fourth is similar fact evidence.

138. Similar fact evidence is evidence that evinces that a person did something

similar to what he is alleged to have done in the action at hand. It is inadmissible

since it will not prove or disprove any factual allegations made in the present

action.

139. However, the Court does have the discretion to allow it where the similar facts

and the factual allegations in the present action are so unique or bizarre that

the similar facts may indicate that a person in question is inclined to do certain

things. A famous example from criminal law is the Brides in the Bath Murders

in which a man trice married and all his wives drowned in a bath.

140. The fifth is opinion.

141. I have already pointed out that a lay witness may only testify about facts. He

may thus not give his opinions while testifying. Opinion is comment on fact. It
 35

takes many forms, including drawing inferences, arguing, guessing, trying to

explain something etc.

142. Opinion can, especially when it is detailed, seem factual. It is often also mixed

with facts which can make it seem all the more factual. A lay witness’s testimony

should always be scrutinized for switching from fact to opinion.

143. However, there are a few things that lay witnesses may give their opinions

about. Those are basic things that any person can form an opinion about, such

as whether a car was travelling too fast or whether a person was drunk.

144. These five types of evidence that I have listed all constitute inadmissible

testimony. When counsel’s opponent is questioning a witness, he should listen

out for when any of the types of testimony is sought to be elicited from or given

by a witness. In such a case, he should object to it.

OBJECTING TO INADMISSIBLE EVIDENCE

145. The way to deal with both questions that aim to elicit inadmissible testimony

and testimony that constitutes it is to object to it as soon as its inadmissible

nature becomes apparent.

146. Counsel should object by standing up and telling the Court that he objects to

the question or testimony, as the case may be. He shouldn’t wait for the other

counsel or witness to stop talking or someone to indicate that he may now say
 36

something. Rather, counsel should be forceful, cut in and say to the Court “My

Lord, I object.”

147. The Court will then allow the objecting counsel to explain the basis for his

objection. It should be given as succinctly as possible so that there is no

confusion over why he is objecting or what the basis for his objection is.

148. The Court will then give the other counsel a chance to argue whether the

objection is sound in law or not.

149. After having heard counsel, the Court will decide whether to uphold the

objection or dismiss it. If the objection is upheld, then the other counsel must

ask a new question or the witness must stop giving the inadmissible testimony.

Sometimes the Court will allow the question or testimony to proceed and give

a ruling on the objection at a later stage.

150. An objection should only be raised if it is well-founded and necessary.

Objections slow down trial proceedings. If counsel objects too frequently or too

lightly, the Court will become irritated with him and be less likely to indulge him

when he requires assistance from the Court.

ADMISSIBILITY DOES NOT EQUAL COGENCY

151. Any evidence, whether it takes the form of testimony or not, that is not

inadmissible is admissible. Once presented to the Court, it will be entered into

 37

evidence and become part of the record. It then becomes part of the conspectus

of evidence that the Court will sift through when deciding on what judgment to

give.

152. The Court does not by entering something into evidence thereby accept it as

the truth. Rather, the Court evaluates its cogency after the trial when deciding

what judgment to give to decide if it is the truth or not.

HOW THE COGENCY OF TESTIMONY IS EVALUATED

153. The Court will not simply take a witness’s testimony, even if it is admissible, to

be the truth. Rather, the Court will scrutinise it to determine if it is cogent enough

to be accepted as the truth. The more cogent the Court finds it to be, the more

the Court is obliged to find it to be the truth.

154. There is a general misconception that there are no real rules regarding how the

Court should evaluate testimony and that it is simply a matter of the Court using

experience, intellect and feel to decide what is or isn’t the truth.

155. Established law provides otherwise. The Court must evaluate the cogency of

testimony by measuring it against three established criteria: credibility, reliability

and probability.

156. The more testimony is marked by these three criteria, the more cogent the

Court must find it. In other words, the more credible, reliable and probable the
 38

testimony, the more the Court is bound to accept it as the truth. The less

testimony is marked by one, two or all three of these criteria, the less the Court

may find it to be the truth.

157. The principle has serious consequences.

158. If only one witness testified about a subject, the Court must accept the

testimony to be the truth if the testimony is credible, reliable and probable.

159. Where both parties called witnesses and their respective witnesses gave

contradictory testimony, the Court must evaluate the credibility, reliability and

probability of each witness’s testimony and compare it. The Court must uphold

the testimony most marked by those criteria as the truth and reject the other for

not being true. In the rare instance where the one witness’s testimony is more

credible and the other witness’s testimony is more reliable, the Court will use

probability as a tiebreaker.

160. The significance of understanding how the Court evaluates the cogency of

testimony is that counsel can use it to plan for how he will question each

witness. He will be able to better plan how he will lead a witness through

examination-in-chief to highlight the credibility, reliability and probability of the

witness’s testimony. Likewise, he will be able to plan how he will cross-examine

a witness to demonstrate that the witness’s testimony lacks credibility, reliability

or probability.
 39

WHAT IS CREDIBILITY?

161. Credibility means truthfulness. To say that testimony is credible means that it is

the truth.

162. The Court must consider the following factors to evaluate the credibility of a

witness’s testimony: how calm and relaxed his demeanour was while testifying;

how openly and easily he answered questions; his motives and biases, both

admitted to and indicated by other evidence; whether there were internal

contradictions in his testimony; whether there were contradictions between his

testimony and something pleaded or advanced on his behalf; whether there

were contradictions between his testimony and established facts; whether there

were contradictions between his testimony and extra-curial statements he

made; whether his version of events was inherently probable; and how clear

and complete his testimony was compared to that of other witnesses who

testified about the same subject-matter.

163. The more open and relaxed the witness’s demeanour; the easier and less

evasively he answered questions; the less he was shown to be biased or had

a motive to be deceitful; the fewer contradictions his testimony exhibited; the

more probable his testimony; and the more resounding his testimony was when

compared to that of other witnesses, the more the Court is obliged to find his

testimony was credible.

 40

164. An example of credibility is when a witness testifies that he was in

Johannesburg on 1 January 2021 and video evidence from CCTV footage of

Sandton City shows him at that shopping centre on that day.

165. An example of a lack of credibility is when a witness testifies that he was in

Johannesburg on 1 January 2021, but in a WhatsApp message that he sent on

1 January 2021 he wrote that he was camping in the Bush with his family.

WHAT IS RELIABILITY?

166. Reliability refers to how certain it is that a witness could have observed an

event. To say that testimony is reliable means that it can be taken that the

witness was in a position to observe clearly what he testified to. It has nothing

to do with whether the witness is lying, but whether it can be accepted that he

is sure of what he is testifying to.

167. The Court must consider the following factors to evaluate the reliability of a

witness’s testimony: the extent to and conditions under which the witness was

able to observe the events he testified to; his ability to recall events; in how

much detail he can recall events; how complete his recollection of events; the

biases, both admitted to and indicated by other evidence, that he may have

towards persons involved in the action; whether there were internal

contradictions in his testimony; whether there were contradictions between his

testimony and something pleaded or advanced on his behalf; whether there

were contradictions between his testimony and established facts; whether there
 41

were contradictions between his testimony and extra-curial statements he

made; and whether his version of events was probable.

168. The better a witness was in a good position to observe events; the better his

memory while testifying; the more detailed his recall of events; the more

complete his recall of events; the more open and relaxed his demeanour; the

easier he answered questions; the less he was biased; the fewer contradictions

his testimony exhibited; and the more probable his testimony, the more the

Court is obliged to will find his testimony was reliable.

169. An example of reliability is when a witness testifies that he knows John signed

the contract in question since he was present at the meeting during which John

and Tom discussed, drew up and signed the contract.

170. An example of a lack of reliability is when a witness testifies that Mary signed

the contract in question since the signature on it looks like hers, but he is not

sure since he was in and out of the office during the day when Mary and Jane

allegedly concluded the contract,

WHAT IS PROBABILITY?

171. Probability means the extent to which it is possible that something could have

happened. It is measured on a sliding scale from entirely possible to completely

impossible. To say that testimony was probable means that the events

described by the witness could have happened. It has nothing to do with

 42

whether the witness is lying nor whether the Court can be certain that he

observed what he says he did, but rather with whether how likely it was that the

events that he testified to happened.

172. The Court must consider the following factors to evaluate the probability of a

witness’s testimony: whether the events testified to are physically possible;

whether the events testified to are logical; whether there were good reasons

why the events testified to would take place; and whether the events testified

to are in accordance with normal human experience and behaviour.

173. The more a witness’s testimony is physically possible; logical; reasoned; and

expected when measured against human experience and behaviour, the more

the Court is obliged to find it probable.

174. An example of probable testimony is that a bankrupt businessman forged his

business partner’s signature to apply for a bank loan.

175. An example of improbable testimony is that a 21-year-old whose father gave

him a Ferrari for his 21st birthday has never driven it at more than the legal

speed limit of 120 km/h.

COUNSEL QUESTIONING A WITNESS SHOULD USE THE CRITERIA OF

CREDIBILITY, RELIABILITY AND PROBABILITY TO HIS ADVANTAGE

176. The Court must evaluate all testimony by considering its credibility, reliability

and probability.
 43

177. This means that Counsel leading a witness during examination-in-chief should

question him in a way that will assist him to testify to both all the relevant

material facts that he has personal knowledge of as well as to any factors that

will demonstrate that his testimony is credible, reliable and probable.

178. The opposite holds fast for counsel cross-examining a witness. Counsel should

question him in a way that will expose his testimony for factors that evince a

lack of credibility, reliability and probability.

LEADING A WITNESS THROUGH EXAMINATION-IN-CHIEF TO ELICIT

CREDIBLE, RELIABLE AND PROBABLE TESTIMONY

179. The purpose of examination-in-chief is for counsel to question a witness he has

called to assist the witness to testify to material and relevant facts that will prove

his client’s case.

180. It is important that a witness who testifies during examination-in-chief gives

testimony that the Court will regard as credible, reliable and probable. After all,

counsel will have to argue that the testimony is true and proves his client's case.

These qualities should therefore shine through each material fact testified to.

181. The way for counsel to assist a witness to give such testimony is simple.

Counsel should question him help him to testify to a material fact. Once he has

done so, counsel should ask him follow-up questions about how his knowledge
 44

of the material fact to demonstrate the existence of factors evincing that what

he has just testified to is credible, reliable and probable.

182. By doing this, counsel will do more than just elicit a factual answer. A factual

answer on its own won’t necessarily be taken as the truth. However, a factual

answer that is reinforced with testimony that clearly shows it is credible, reliable

and credible will most probably be accepted by the Court as the truth.

183. So, counsel should assist a witness during examination-in-chief to not only

testify to facts, but also assist him to reinforce why the fact is credible, reliable

and probable.

184. I will give an example in respect of each criterion for the sake of illustration.

185. Credibility can be reinforced by, for instance, after a witness has testified to

something, pointing out to him an email in which he wrote the same thing and

asking him why he did so. The question will allow him to explain that he has

been telling the same, consistent story.

186. Reliability can be reinforced by, for instance, after a witness has testified that

he saw something happen, asking him how far he was from what happened.

The question will allow him to say that he was very close and thus observed

what he claims to have seen very well.

 45

187. Probability can be reinforced by, for instance, after a witness testified that he

did not check his emails for a while, why that was so. The question will allow

him to say he was on holiday and entitled to switch his phone, on which he

usually checks his emails, off to spend time with his family.

188. So, counsel should, when preparing for examination-in-chief, not just think

about what facts to question a witness about, but also how to question him to

establish the existence of factors to prove that those facts are credible, reliable

and probable. The more rounded, detailed and explained a witness’s testimony,

the more cogent the Court must find it.

189. It is useful in this regard for counsel to think about what the other party’s counsel

is going to cross-examine the witness about. The other party’s counsel will

attack the credibility, reliability or probability of some aspect of the witness’s

testimony. Counsel should think about what that aspect might be and question

the witness about it so that he can deal with it as best he can. Doing so will take

the wind out of the sails of the counsel for the other party and demonstrate to

the Court that the witness has nothing to hide. It is an opportunity to turn a

negative into a positive by establishing at least some factors indicating

credibility, reliability and probability.

190. Counsel must make sure when leading a witness through examination-in-chief

to get the witness to testify to everything that he can that will assist him to prove

his client’s case. Bearing in mind what the issues are is key.
 46

HOW TO CROSS-EXAMINE TO EXPOSE A LACK OF CREDIBILITY, RELIABILITY

AND PROBABILITY

191. The purpose of cross-examination is for counsel to ask a witness questions that

the answers to which will demonstrate to the Court that his testimony is not the

truth.

192. Counsel will have a fair idea of what a witness is going to testify to by the time

he may cross-examine him. By then, counsel will have heard him testify during

examination-in-chief. Furthermore, counsel will know what has been

discovered, what other witnesses have testified about and what the witnesses

whom he will call, will testify about.

193. With all of this information at his disposal, counsel should make a call in Court

about what, if anything, to cross-examine the witness about. He should decide

what aspect of the witness’s testimony he can attack for lacking credibility,

reliability or probability. He might have prepared for it, or it may only have

become apparent during the witness’s testimony. Either way, he should think

about whether he can establish the existence of a factor that evinces a lack of

credibility, reliability or probability. Did the witness testify to one thing while he

contradicted himself in a letter? Then counsel should attack his credibility.

Counsel should ask him to repeat what he testified to and then confront him

with the letter. Did the witness struggle to remember the specifics of a contested

agreement he is trying to testify about? Then counsel should attack his

reliability. Counsel should ask him to confirm he is sure the agreement was

concluded and ask him about each thing he can’t remember. Did the witness
 47

testify that someone agreed to not sue someone else after suffering a huge

financial loss? Then counsel should attack the probability of it happening in real

life. How big a loss will the alleged charitable attitude lead to? Why wasn’t it

agreed to in writing? Etc.

194. The way to successfully cross-examine a witness, provided counsel has

something to cross-examine him on, is to inescapably tie him down to whatever

he has testified to and then ask him something that he must answer or admit to

that will go against what he was tied down to. This way the witness destroys his

own testimony. Testimony is not damaged by questions from counsel. Rather,

it is damaged by a witness when he testifies to something that undermines his

own earlier testimony. When a witness does that, the Court, and indeed all the

World, will regard his testimony as suspect – or worse. When it happens, a

Court immediately begins to doubt the truthfulness of the testimony and it

quickly loses cogency.

195. As such, when cross-examining, counsel should first ask a witness a question

or two to lead him into confirming what it is that counsel wants to tie him down

to. Then counsel should ask him about something that, if the desired answer is

given, the answer will go against the grain of what he was tied down to and

damage its credibility, reliability or probability.

196. Counsel should remember that he may ask leading questions during cross-

examination. He should use this luxury when cross-examining by asking the

 48

witness precise leading questions to get him to give the specific answer counsel

wants.

SOME THOUGHTS ON CROSS-EXAMINATION

197. Since cross-examining is considered harder (or at least more intimidating) than

conducting examination-in-chief, I will briefly put down a few thoughts that may

help counsel to improve their cross-examination techniques.

198. Firstly, consideration should always be to whether it is necessary to cross-

examine a given witness. Sometimes the witness will have testified very poorly

or only about trivialities. Does counsel then really have to cross-examine him?

What is to be gained? He should then forego questioning him and rather argue

that his testimony was of no value. Not cross-examining a witness is not

considered an admission of a witness’s testimony.

199. Secondly, counsel should consider whether he has anything to cross-examine

a witness about. Sometimes a witness called by the other party has told the

truth, counsel knows it and there is no aspect of the testimony that he will be

able to break down. The inherent danger in trying to cross-examine a witness

who has given such rock-solid testimony is that it may fail to in any way reduce

the credibility, reliability or probability of the testimony. The effect will be to

strengthen the cogency of the testimony in the Court’s eyes since the witness

who gave it withstood cross-examination and nothing was demonstrated to

show that his testimony should not be accepted as the truth. It will help the other
 49

party’s case, not the case of the cross-examining counsel’s client. Counsel

should consider the advantages, if any, of questioning such a witness.

200. Thirdly, counsel should only put questions that have a purpose to a witness.

Counsel should focus on asking questions, that, if he is given the desired

answer, the answer will damage the witness’s earlier testimony or help counsel

to prove his client’s case. Counsel shouldn’t ask questions just for the sake of

asking questions. It will only end up wasting time, giving the witness the

opportunity to testify to more things that will help the case of the party he is

testifying for and frustrating the Court.

201. Fourthly, counsel should avoid asking questions that will open the door for a

witness to testify about something the witness should have testified to during

examination-in-chief but did not or did not sufficiently testify about. Counsel

shouldn’t help the other party’s counsel build the case of the party employing

that counsel.

202. Fifthly, counsel should not always ask leading questions. It is true that by asking

leading questions counsel can shepherd a witness in the direction he wants the

witness to testify and get him to give very specific answers. However,

sometimes asking a very open-ended question can be advantageous. It is often

the case with an indignant, argumentative or talkative witness who is

determined to defend something shaky he has to say. These types of witnesses

often end up, if allowed to give roaming testimony, saying things that will turn
 50

the Court against them and their testimony. They also often let slip something

that counsel can use to attack and undermine their earlier testimony.

203. Sixthly, counsel should know when to stop. Once counsel has obtained his

objective when cross-examining a witness, he should stop. When nothing

beneficial can still be elicited from a witness, it follows that only something

damaging might be elicited from him.

204. Seventhly, counsel should think about how he goes about cross-examining

witnesses. Cross-examination is not just about the witness. It is also about what

counsel does. It will be easier going for counsel, and the Court, if he is friendly,

respectful and professional to a witness. He shouldn’t be aggressive or bullying.

The Court wants him to do his job by focusing on asking questions so that the

Court can listen to the answers. The Court does not want arguments,

interruptions and emotions between counsel and a witness to get in the way.

The more worked up counsel and/or a witness gets, the less focused things will

get. Counsel should remember that a relaxed witness who is comfortable

talking to him and who has dropped his guard will tell him more, often to the

detriment of the party that he is testifying for. Edward Carson QC, probably the

greatest cross-examiner of all time, always advocated being gentlemanly

towards a witness during cross-examination in the hope that the witness would

say too much rather than too little. A good way for counsel to begin cross-

examination in this vein is to greet the witness, tell the witness his name, tell

the witness that he only wants to do his job by asking a few questions and that

it is not personal. Counsel should consider thanking a witness for giving detailed
 51

answers and complementing him where possible. Counsel should refrain from

making sarcastic comments and commenting on what a witness has to say or

answering questions a witness asks him in retaliation for something.

205. Eighthly, counsel should be flexible. No matter how much he prepared, a

witness he has to cross-examine will almost always first during examination-in-

chief testify to things that he didn’t expect. He will almost always be confronted

with similarly unexpected revelations during cross-examination. As such, he

can’t during cross-examination simply stick to his pre-planned questioning. He

must be willing to desist from asking prepared questions that no longer have a

purpose and to ask questions thought up on the spot that is called for by

something that came up on the day. If he is stuck, he should ask the Court for

a moment to take an instruction from his client or instructing attorney and use

it to think, discuss and plan. Remembering the criteria of credibility, reliability

and probability can be of tremendous use to quickly decide how to deal with a

problem thrown up by a witness.

206. Ninthly, counsel should ask clear questions. Counsel shouldn’t confuse the

witness, the Court or himself. Long or complicated questions elicit confusing

answers. Such answers will make it harder for counsel to argue about its

cogency since it will be open to interpretation and semantic attacks from his

opponent.

207. Tenthly, counsel must be fair to a witness. The Court wants to hear what a

witness truly wants, and has, to say. The Court does not want to hear him give
 52

an answer that he was bullied or tricked into giving or only gave because he

was confused and didn’t really mean it. The Court attaches little value to

testimony obtained by asking these types of questions and an answer that was

obtained by dishonest means is inadmissible. It is thus of little use for counsel

to try to cross-examine a witness in this fashion. The Court attaches value to

testimony freely given in response to fair, clearly worded and understandable

questions.

208. Eleventhly, counsel shouldn’t always stick to the adage of not asking a question

during cross-examination if he doesn’t know the answer to it. Yes, there is an

inherent danger to counsel asking a question without knowing its answer since

it could be damaging to his client’s case. However, sometimes a witness will

testify to something that is probably not true, but counsel does not know about

it. If counsel enquires about it, the witness may end up giving testimony that will

reduce the credibility, reliability and probability of his earlier testimony or open

a path for counsel to do so. Sometimes, taking such a risk is justified.

209. Twelfthly, if the witness is being uncooperative, counsel shouldn’t try to tell him

what to do. Rather, counsel should complain to the Court and let the Court order

him to do what is expected of him. If counsel tries to do it, he will get side-

tracked, lose focus, probably get into an unwinnable argument with the witness,

and waste time.

210. Thirteenthly, counsel shouldn’t try to be funny. It’s hard to make a genuinely

funny joke. Jokes that aren’t funny may instead be offensive or confusing.
 53

Anyway, even a big laugh is not going to influence what judgment the Court is

going to give. Only the evidence will. Counsel thus can’t gain much from being

amusing and should leave the witty observations to the Court.

211. Fourteenthly, counsel should inform the Court if he is inexperienced. The Court

knows it is hard for counsel to cross-examine a witness during a trial with an

opponent eager to object next to him and members of the public watching. If

counsel is still finding his feet with trial work, he should tell it to the Court when

he introduces himself before the trial begins. The Court will consequently be

more understanding and forgiving when he stumbles during questioning.

212. What can be gathered from all these thoughts is that cross-examination is

situational. Counsel cannot prepare for it and stick to his plans unchanged. He

also can’t always go about his questioning in the same way. Things change all

the time in a trial. He should be prepared to change his cross-examination with

it.

THE RULE IN BROWNE V DUNN

213. This rule is so important to cross-examination that I would be remiss to not

mention it.

214. The rule provides that if a party’s counsel is cross-examining a witness and

later intends to call a witness who will give testimony that will contradict the

testimony of the witness under cross-examination, then counsel must put the
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essence of the contradictory testimony to the witness under cross-examination

for the witness to comment on.

215. If it is not done, the witness whom the cross-exanimating party intends to later

call may not testify to that testimony.

216. As such, counsel must take note of the rule and bear it in mind when cross-

examining witnesses. I suggest he makes a note of the contradictory testimony

and put it to the witness he is cross-examining after he has finished his cross-

examination.

HOW TO CONDUCT REEXAMINATION TO ELICIT CREDIBLE, RELIABLE AND

PROBABLE TESTIMONY

217. The purpose of reexamination is for counsel who led a witness through

examination-in-chief to question him after cross-examination about facts that

he was questioned about during the cross-examination and that he did not

testify about during examination-in-chief.

218. After cross-examination, counsel will know in what respects a witness’s

testimony was demonstrated to lack credibility, reliability or probability. He

should home in on those aspects of the testimony. He should ask the witness

questions that the answers to which will repair the damage done, if possible.

He should ask the witness questions to explain, if it can be explained, the

seeming lack of credibility, reliability or probability that was exposed or

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questions to elicit something that will demonstrate the existence of some of the

factors establishing those criteria.

219. Often, an answer obtained through cross-examination seems damning

because it only tells part of the story or suggested one factor that might indicate

a lack of credibility, reliability or probability. In such a case, asking the witness

during reexamination to tell the full story or go into more detail will undo the

damage ostensibly done.

QUESTIONING EXPERT WITNESSES

220. The same rules, whether procedural or evidentiary, that apply to questioning

lay witnesses apply to questioning expert witnesses. The Court will evaluate

their testimony using the criteria of credibility, reliability and probability. As such,

counsel should apply the same principles when questioning an expert witness,

whether it be during examination-in-chief, cross-examination or reexamination,

that he would when questioning a lay witness.

221. However, two thoughts may be added.

222. The first is that an expert witness will testify about something that will be

complicated or unusual. Counsel must make sure that whatever he elicits from

the expert witness is understandable to himself and the Court. He should ask

the expert witness as many questions as are necessary until he understands

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what the expert is testifying about. If he doesn’t understand it properly, he won’t

be able to ask follow-up questions nor to argue about it at the end of the trial.

223. The second is that counsel should prepare with an expert to cross-examine the

other party’s expert witness. Counsel probably won’t know the ins and outs of

the expert witness’s field. He should sit down with an expert so that the expert

can explain to counsel why and how, if at all, the expert witness’s opinion is

vulnerable to attack. Counsel should learn as much about the field, including its

terminology, from an expert as possible. Counsel should also ask an expert for

suggested reading material to aid him.

THERE IS ALWAYS THE OPTION TO SETTLE

224. The parties to an action can at any time before judgment settle it.

225. It is especially important to remember it during the trial. The outcome in most

actions is not obvious until judgment. If counsel feels that the odds are against

his client and he managed to question one or more witnesses to the extent that

the other party might have begun to panic, he should advise his client to

consider entering into settlement negotiations. It might lead to a favourable

settlement for his client in circumstances where not settling could still lead to

the Court giving judgment in favour of the other party.

226. The guiding principles should be that a good settlement is preferable for a party

to seriously risking judgment being given against him.

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227. Counsel should remember that one good day in Court will not necessarily lead

to a judgment in his client’s favour. He should remain realistic about the

probable outcome of the action and advise his client to settle when it will be

advantageous for his client to do so.

USING THE CRITERIA OF CREDIBILITY, RELIABILITY AND PROBABILITY

DURING CLOSING ARGUMENT

228. Counsel’s closing argument will depend on whether his client bears the onus.

If his client bears the onus, then he must successfully argue that he has proven

his client’s case on a balance of probabilities. If his client does not bear the

onus, then he must argue that the other party’s case was not proven on a

balance of probabilities.

229. Counsel should thus determine what case he must argue was proven or not

proven.

230. If he has to argue that his client’s case was proven, then he should describe to

the Court what that case is. He should go through all testimony, as well as other

proven evidence, that was presented and that, if accepted by the Court to be

true, will prove his client’s case. He should point out that, due to the presence

of factors that establishes credibility, reliability and probability, that all that

testimony (even if the other party’s counsel led contradictory testimony) is true.

He should conclude by arguing that the testimony together with the other
 58

evidence proves his client’s case to be the truth and that the Court should

accordingly give a judgment in favour of his client.

231. If his opponent must prove the other party’s case, then he should determine

what testimony must be true for that case to be proven. He should attack as

much of it as possible by pointing out how it lacks factors that evince credibility,

reliability and probability. He should argue that as much of it as possible is thus

not the truth. He should conclude that the remaining testimony, even if true,

together with whatever other proven evidence is relevant is not sufficient to

prove the other party’s case and the Court should not give judgment in favour

of his opponent’s client.

232. Of course, where legal arguments about substantive and procedural law are

applicable those points should also be argued.

CONCLUSION

233. Understanding and using the criteria of credibility, reliability and probability to

question witnesses at trial is essential. Mastering doing so will improve any

counsel’s trial advocacy skills and performance.

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ANNEXURE A: RULE 39 OF THE UNIFORM RULES OF COURT

“39 Trial

(1) If, when a trial is called, the plaintiff appears and the defendant does not appear,

the plaintiff may prove his claim so far as the burden of proof lies upon him and

judgment shall be given accordingly, in so far as he has discharged such

burden. Provided that where the claim is for a debt or liquidated demand no

evidence shall be necessary unless the court otherwise orders.

(2) When a defendant has by his default been barred from pleading, and the case

has been set down for hearing, and the default duly proved, the defendant shall

not, save where the court in the interests of justice may otherwise order, be

permitted, either personally or by an advocate, to appear at the hearing.

(3) If, when a trial is called, the defendant appears and the plaintiff does not appear,

the defendant shall be entitled to an order granting absolution from the instance

with costs, but may lead evidence with a view to satisfying the court that final

judgment should be granted in his favour and the court, if so satisfied, may

grant such judgment.

(4) The provisions of subrules (1) and (2) shall apply to any person making any

claim (whether by way of claim in reconvention or third party notice or by any

other means) as if he were a plaintiff, and the provisions of subrule (3) shall
 60

apply to any person against whom such a claim is made as if he were a

defendant.

(5) Where the burden of proof is on the plaintiff, he or one advocate for the plaintiff

may briefly outline the facts intended to be proved and the plaintiff may then

proceed to the proof thereof.

(6) At the close of the case for the plaintiff, the defendant may apply for absolution

from the instance, in which event the defendant or one advocate on his behalf

may address the court and the plaintiff or one advocate on his behalf may reply.

The defendant or his advocate may thereupon reply on any matter arising out

of the address of the plaintiff or his advocate.

(7) If absolution from the instance is not applied for or has been refused and the

defendant has not closed his case, the defendant or one advocate on his behalf

may briefly outline the facts intended to be proved and the defendant may then

proceed to the proof thereof.

(8) Each witness shall, where a party is represented, be examined, crossexamined

or re-examined as the case may be by only one (though not necessarily the

same) advocate for such party.

(9) If the burden of proof is on the defendant, he or his advocate shall have the

same rights as those accorded to the plaintiff or his advocate by subrule (5).
 61

(10) Upon the cases on both sides being closed, the plaintiff or one or more of the

advocates on his behalf may address the court and the defendant or one or

more advocates on his behalf may do so, after which the plaintiff or one

advocate only on his behalf may reply on any matter arising out of the address

of the defendant or his advocate.

(11) Either party may apply at the opening of the trial for a ruling by the court upon

the onus of adducing evidence, and the court after hearing argument may give

a ruling as to the party upon whom such onus lies: Provided that such ruling

may thereafter be altered to prevent injustice.

(12) If there be one or more third parties or if there be defendants to a claim in

reconvention who are not plaintiffs in the action, any such party shall be entitled

to address the court in opening his case and shall lead his evidence after the

evidence of the plaintiff and of the defendant has been concluded and before

any address at the conclusion of such evidence. Save in so far as the court

shall otherwise direct, the defendants to any counterclaim who are not plaintiffs

shall first lead their evidence and thereafter any third parties shall lead their

evidence in the order in which they became third parties. If the onus of adducing

evidence is on the claimant against the third party or on the defendant to any

claim in reconvention, the court shall make such order as may seem convenient

with regard to the order in which the parties shall conduct their cases and

address the court, and in regard to their respective rights of reply. The

provisions of subrule (11) shall mutatis mutandis apply with regard to any

dispute as to the onus of adducing evidence.

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(13) Where the onus of adducing evidence on one or more of the issues is on the

plaintiff and that of adducing evidence on any other issue is on the defendant,

the plaintiff shall first call his evidence on any issues in respect of which the

onus is upon him, and may then close his case. The defendant, if absolution

from the instance is not granted, shall, if he does not close his case, thereupon

call his evidence on all issues in respect of which such onus is upon him.

(14) After the defendant has called his evidence, the plaintiff shall have the right to

call rebutting evidence on any issues in respect of which the onus was on the

defendant: Provided that if the plaintiff shall have called evidence on any such

issues before closing his case he shall not have the right to call any further

evidence thereon.

(15) Nothing in subrule (13) and (14) contained shall prevent the defendant from

cross-examining any witness called at any stage by the plaintiff on any issue in

dispute, and the plaintiff shall be entitled to re-examine such witness

consequent upon such cross-examination without affecting the right given to

him by subrule (14) to call evidence at a later stage on the issue on which such

witness has been crossexamined. The plaintiff may further call the witness so

re-examined to give evidence on any such issue at a later stage.

(16) A record shall be made of- (a) any judgment or ruling given by the court, (b) any

evidence given in court, (c) any objection made to any evidence received or

tendered, (d) the proceedings of the court generally (including any inspection
 63

in loco and any matter demonstrated by any witness in court); and (e) any other

portion of the proceedings which the court may specifically order to be

recorded.

(17) Such record shall be kept by such means as to the court seems appropriate

and may in particular be taken down in shorthand or be recorded by mechanical

means.”
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ANNEXURE B: SECTION 3 OF THE LAW OF EVIDENCE AMENDMENT ACT,

1988

“Hearsay evidence

(1) Subject to the provisions of any other law, hearsay evidence shall not be

admitted as evidence at criminal or civil proceedings, unless-

(a) each party against whom the evidence is to be adduced agrees to the

admission thereof as evidence at such proceedings;

(b) the person upon whose credibility the probative value of such evidence

depends, himself testifies at such proceedings; or

(c) the court, having regard to-

(i) the nature of the proceedings;

(ii) the nature of the evidence;

(iii) the purpose for which the evidence is tendered;

(iv) the probative value of the evidence;

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(v) the reason why the evidence is not given by the person upon

whose credibility the probative value of such evidence depends;

(vi) any prejudice to a party which the admission of such evidence

might entail; and

(vii) any other factor which should in the opinion of the court be

taken into account,

is of the opinion that such evidence should be admitted in the interests of

justice.

(2) The provisions of subsection (1) shall not render admissible any evidence

which is inadmissible on any ground other than that such evidence is hearsay

evidence.

(3) Hearsay evidence may be provisionally admitted in terms of subsection

(1) (b) if the court is informed that the person upon whose credibility the

probative value of such evidence depends, will himself testify in such

proceedings: Provided that if such person does not later testify in such

proceedings, the hearsay evidence shall be left out of account unless the

hearsay evidence is admitted in terms of paragraph (a) of subsection (1) or is

admitted by the court in terms of paragraph (c) of that subsection.

(4) For the purposes of this section-

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'hearsay evidence' means evidence, whether oral or in writing, the probative

value of which depends upon the credibility of any person other than the

person giving such evidence;

'party' means the accused or party against whom hearsay evidence is to be

adduced, including the prosecution.”