Hearsay Evidence &

Circumstantial Evidence.
Chapter 13 & 15 Principles of Evidence.
Chapter 18 of Law of Evidence.
Chapter 13 of Essential Evidence.
Introduction.
• Hearsay evidence is evidence of what someone other than the witness has stated.
• The point is that a witness says what he has heard (or read), hence the term hearsay.
• Imagine that Y is charged with murdering Z and that a witness, W, is called to testify
that a friend of his, X, told him that he saw Y shoot Z on the day in question. Should
this evidence be received?
• The reception of evidence of this kind raises many serious problems.
• The results for Y of receiving such evidence may be grossly prejudicial: Y will have no
opportunity to observe X’s demeanour as a witness, to cross-examine X with a view
to challenging his perception of events or his credibility as a witness, or to probe for
weaknesses in his account.
• The court's ability to observe the witness's demeanour contributes to a more reliable
assessment of credibility.
• Various reasons are advanced for the exclusion of hearsay evidence.
• Historically the exclusionary rule was viewed as necessary to guard against the
danger that the trier of fact, and more particularly the jury, might place undue
weight on hearsay evidence despite its inherent weakness.
• The dominant and partisan role of the parties in adversarial proceedings
increases the possibility of misleading evidence being introduced.
• The hearsay rule can also be viewed “as a way of protecting individual rights from
the intrusion of government, or as a way of influencing the conduct of police and
prosecutors in the process of preparing and preserving evidence”.
• Section 35(3)(i) of the Constitution includes the right to challenge evidence as a
component of the right to a fair trial.
• Hearsay evidence, as has been shown, is excluded in principle because it is
normally unreliable and may therefore mislead the court. It is unreliable because
the person who witnessed the facts does not, himself, tell the court what he
observed. He is not under oath, his demeanour cannot be observed by the court
and the truth or accuracy of his allegations cannot be tested by means of cross-
examination.
Pre 1988 position.
• In jury trials, the dangers of relying on such evidence are even greater: it is
unrealistic to expect jurors to be able to identify all the sources of potential
error and prejudice, and to know how best to guard against them in the
interests of a fair trial and the broad interests of justice.
• It is not surprising then, that the English common law – in a system that
prided itself on the achievements of trial by jury – developed a rule for
dealing with the admissibility of evidence of this kind.
• Such evidence was labelled “hearsay”, and the rule was that evidence so
labelled should be excluded uncompromisingly if it could not be
accommodated within an existing, recognised exception – whether
statutory or at common law.
• It was this rule, in this form, that was received in South Africa by means of
legislative enactments that, in effect, incorporated the English common law.
Features of the pre 1988 position.
• First, it was very much a regime of rule and exception - The
exclusionary rule was applied very strictly: there was no
discretionary power in the courts to receive hearsay lying
outside the borders of a recognised exception – no matter how
reliable, important or cogent that evidence happened to be –
and no new exceptions could be created by the courts.
• Second, there was much uncertainty surrounding the meaning
of “hearsay” itself.
• In short, there was a need for a new framework that would
accommodate the dictates of both principle and practice; one in
which the labelling of an item of evidence as hearsay would
merely state the problem of admissibility and invite inquiry, and
not resolve it in a mechanical way.
Section 3 of the Law of Evidence
Amendment Act 45 of 1988.
•Section 3 provides:
• (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;
• (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 considered, 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—
• “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.
• Section 3 of the Act has revolutionised our approach to hearsay.
• The section rids our law, too, of the rigid rule-and-
exceptionapproach that was so problematic at common law and
replaces it with a far more flexible approach that gives the
courts the power to receive hearsay in cases where the
traditional hearsay dangers are either satisfactorily accounted
for or are insufficiently significant.
Admissibility.
• The general rule that hearsay is inadmissible unless saved by an
exception remains.
• Section 3(1), by the use of the words “[s]ubject to the provisions of any
other law”, keeps alive all the existing statutory exceptions to the rule.
(a)admissibility by agreement.
• Evidence will be admissible if each party against whom the evidence
is to be adduced agrees to the admission thereof as evidence at such
proceedings.
• Consent must be given with a full and proper appreciation of the nature
and extent of the potentially prejudicial consequences of having the
evidence admitted.
(b): where the declarant or actor testifies.
• Section 3(1)(b) provides for the admissibility of hearsay evidence
where “the person upon whose credibility the probative value of
such evidence depends himself testifies at such proceedings”.
• This is so because the declarant or actor is no longer absent,
with the result that credibility may be tested by subjecting the
person to cross-examination and all the other adversarial
requirements and devices mentioned above, so that the potential
for prejudice is greatly reduced.
• S v Ndhlovu & others [2002] 3 All SA 760 (SCA).
• Where the original declarant testifies but disavows the original
statement, or fails to recall making it, or is unable to affirm some
material aspect of the hearsay - such situations should be treated in the
same way as those where the declarant does not testify at all.
(c): hearsay admitted in the interests of justice.
• Courts must have regard to the seven factors listed in the paragraph.
• All the factors listed in that paragraph must be considered before a
determination can be made.
• A court is required to have regard to the “collective and interrelated
effect of all the considerations” set out in paragraphs (i)–(vii) of the
section.
Procedural fairness and section 3(1)(c).
• Whereas hearsay evidence may be provisionally admitted under section
3(1)(b) (when the declarant himself testifies later at the proceedings),
there is no such allowance in the case of section 3(1)(c) (when the
evidence is admitted in the interests of justice).
• It was held in S v Ndhlovu & others that an accused cannot be
ambushed by the late or unheralded admission of hearsay evidence.
• The admission of hearsay must be dealt with clearly and timeously.
Procedural Issues.
• In S v Ndhlovu and Others Cameron JA noted that there were several duties resting on
presiding officers to ensure that the accused's rights were upheld, namely they are
required to
(a) actively guard against the inadvertent admission or “venting” of hearsay
evidence;
(b) ensure that the significance of the contents of s 3 are properly explained to an
unrepresented accused; and
(c) Protect an accused from “the late or unheralded admission of hearsay evidence”.
• The admission of hearsay must be dealt with clearly and timeously.
• The Supreme Court of Appeal has held that in civil trials the appropriate time for a court to
make a ruling on the admissibility of evidence is at the end of the plaintiff's case.
• Due notice of the intention to lead hearsay is not a prerequisite for admissibility; however,
it will mitigate any prejudice that might result from the admission of the hearsay in so far
as it enables the person against whom the hearsay is admitted to lead evidence in
rebuttal.
The statutory exceptions.
• Documentary evidence in civil and criminal proceedings: Part VI of the Civil
Proceedings Evidence Act 25 of 1965 and section 222 of the Criminal Procedure
Act 51 of 1977 create important exceptions which allow for the reception of
hearsay evidence in documentary form where certain conditions are met.
• Business records in criminal proceedings: Section 221 of the Criminal
Procedure Act 51 of 1977 provides that where direct oral evidence of a fact
would be admissible, any statement contained in a document and tending to
establish that fact is admissible as evidence of that fact if certain requirements
are satisfied.
• Computer evidence: The admissibility of a “data message”, being “data
generated, sent, received or stored by electronic means”, is governed by the
Electronic Communications and Transactions Act 25 of 2002.
• Affidavits and certificates: There are a number of statutory provisions that allow
the use of affidavits and certificates as prima facie proof of their contents. Section
212 of the Criminal Procedure Act 51 of 1977, in particular, allows for the results of
certain scientific and medical tests to be proved by affidavit and certificates.
• Bankers’ books: See section 236 of the Criminal Procedure Act 51 of 1977 and
section 28 of the Civil Proceedings Evidence Act 25 of 1965.
• Company records: See section 221(2) of the Companies Act 71 of 2008.
• Proof of age: See section 337 of the Criminal Procedure Act 51 of 1977.
• Absence from the Republic: See section 247 of the Criminal Procedure Act 51 of
1977.
• Public documents: At common law a document made by a public officer in the
execution of a public duty, which was intended for public use and to which the
public had a right of access, was admissible as an exception to the hearsay rule.
Today the admissibility of such evidence depends on section 3 and other statutory
exceptions, but it seems as if the courts continue to be influenced by the common-
law status of these “public documents”.
• Evidence in former proceedings: See sections 214 and 215 of the
Criminal Procedure Act 51 of 1977 (in respect of the admissibility of
evidence recorded at a preparatory examination) and section 60(11B)
(c) of that Act (the admissibility of evidence given by an accused in
bail application proceedings).
Circumstantial Evidence.
Chapter 4 Essential Evidence.
Criminal cases.
The cardinal rules of logic set out in R v
Blom.
1. The inference sought to be drawn must be consistent with all the proved facts. If it
is not, then the inference cannot be drawn.

2. The proved facts should be such that they exclude every reasonable inference from
them save the one sought to be drawn. If they do not exclude other reasonable
inferences, then there must be a doubt whether the inference sought to be drawn
is correct.
The position in civil cases.
• It was held in Macleod v Rens 1997 (3) SA 1039 (E) that in
civil cases the rule should be stated as follows:
• The proved facts should be such as to render the inference sought
to be drawn more probable than any other reasonable inference.
• If they allow for another more or equally probable inference, the
inference sought to be drawn cannot prevail.
• Cooper & Another NNO v Merchant Trade Finance Ltd 2000
(3) SA 1009 (SCA) at 1027–1028.
• “[T]he court, in drawing inferences from the proved facts, acts on
a preponderance of probability . . . If the facts permit of more
than one inference, the Court must select the most ‘plausible’ or
probable inference.”