Rules of Evidence Lecture Notes

FACULTY OF LAW
_______________________________
MODULE TITLE: RULES OF EVIDENCE (LB208)

PROGRAMME: Bachelor of Procedural Law (BPL)
LECTURER: ARTHUR MARARA
Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 1 of 93
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com attorneyarthurmarara@gmail.com
1. INTRODUCTION: DEFINITION AND THE SOURCES OF ZIMBABWEAN LAW
- Law of evidence is part of adjectival/ procedural law because it is closely linked

to criminal and civil procedure.
- It (law of evidence) overlaps with other branches of procedural and substantive

law. It is not vital to decide in which branch a particular rule of evidence falls (for
the time being) but later when one considers the impact of English law on the
Zimbabwean system.
- It lays down, e.g. the nature of information or things or documents that may be
admitted as evidence, how the facts/ information may be proved, when certain
types of evidence may be introduced, when confessions or admissions may be
admissible etc.
- Not all statutes govern law of evidence but a few including certain sections in the
Criminal Procedure and Evidence Act; Civil Evidence Act, the Constitution etc.
feature prominently.
- There is also influence of common law.
- All types of legal procedure derive guidance from the law of evidence to
determine which facts they may receive, and how: so are civil and criminal trials,
inquests, extraditions, commissions of inquiry, etc.
- Sound knowledge of the rules of evidence, how they apply/ applied is one of the
many important competencies required of a practising practitioner etc.

Definition(s)
various definitions are available, and a few are provided;1
any material formally placed before a Court for the purpose of assisting a
Judge to reach a decision in the matter;
any material items or assertions of fact that may be submitted to a

competent court /tribunal as a means of ascertaining the truth of any
alleged matter of fact under investigation before it;
the rules (the laws of evidence) that govern and regulate the facts that are
receivable in litigation whether criminal or civil proceedings;
Any material which is formally admitted in criminal or civil proceedings

and which tends to persuade the court of the truth or probabilities of
some facts before it. etc
• Therefore - no uniform definition / formulation. (Task: formulate a better

definition)
The evidence of a fact is that which tends to prove it – something which may satisfy an
enquirer of the fact’s existence. Courts of law usually have to find that certain facts
exist before giving judgment. The law of evidence is also known as the rules of
evidence.2
These are rules and legal principles that govern or regulate the proof of facts in legal
proceedings. They determine what evidence must or must not be considered by the
1 (citations/references deliberately deleted)

2 Sir R Cross: Evidence – 5th Edition, Butterworths

trier of fact in reaching is decision. A trier of fact could be a judge in bench trials, or the
jury in any cases involving a jury.3
It is data presented to a court or jury in proof of facts, in issue and which may include
the testimony of witnesses, records, documents or objects. 4
Evidence has to be distinguished from substantive laws on the one hand and practice
and procedure on the other.5
The rules of evidence are concerned with what may be introduced in evidence.
Sources of Zimbabwean Law of Evidence

- Roman-Dutch law as contained in judicial decisions and published treaties on law
written by Dutch jurists.
- Roman-Dutch Law blended with English law, thereby influencing some legal
aspects.
- Law applicable in Zimbabwe is a hybrid law i.e. Roman-Dutch-English Law.
- The Constitution of Zimbabwe is relevant. Why?
- The sources of Zimbabwean Law of Evidence are:

ü Legislation/statute (e.g. the Civil Evidence [Chapter 8:01], Criminal Procedure
and Evidence Act [Chapter 9:07]).
ü Common law, (judicial precedents/case law).
ü Authoritative texts.
3 Wikipedia text under CC-BY-SA License

4 See synonyms for evidence on the SAURUS.COM
5 L.H.Hoffman and D Zeffert’s South African Law of Evidence, 4th Edition, Butterworths at p.6

2. RELEVANCE AND ADMISSIBILITY
a) Relevance and the Best Evidence
b) Exclusionary rule
Mandatory reading
Cross on Evidence
R v Trupedo
Director of Public Prosecution (DPP) v Kilbourne {1973] AC 729
S252 CP&E Act
Exclusionary Rules of Evidence: - This refers to those rules of evidence that cannot be
admitted for a variety of reasons with exceptions though.
Inclusionary Rules of Evidence: - this refers to evidence that may be unreliable, of

debatable nature, doubtful – not safe to accept certain evidence.
The basic yardstick by which the courts are guided relates to relevance. Evidence is
relevant if it facilitates directly and without introducing unnecessary collateral issues in
the resolution of the facts in issue. A fact in issue concerns the dispute which the court
has to adjudicate upon e.g. in a paternity case the identity of the father is a fact in issue.
On the other hand, his access to the mother is a fact relevant to the fact in issue. If there
is no fact in issue then there is no reason to convene the court in the first place. A fact in
issue is the fact that the plaintiff in a civil action or the prosecutor in criminal
proceedings, must prove in order to succeed, together with any further fact that the
defendant or accused must prove in order to establish a defence. These can only be
ascertained by reference to the substantive law and pleadings.6 The primary approach
is that all relevant information/evidence is admissible unless there is another rule of
law that excludes it. The main function of the rules of evidence is to regulate the
6 Sir R Cross Evidence – 5th Edition, Butterworths p. 4

question of receivability or admissibility of evidence through the exclusionary rules, See
section 252 of the Criminal Procedure and Evidence Act [Chapter 9:07]
Admissibility – if it can properly be introduced before the courts e.g. your client has
been beaten up, denied food, denied access to his lawyers, any confession emanating
from the confession is not admissible. The evidence will be tainted. S v Nkomo7 The
question of admissibility is purely a question of law, what the law says. However,
when you overcame the first question of admissibility you go to the next/second
hurdle. How much weight must be given to the evidence. The question of weight is a
factual inquiry-fact. The weight of evidence, depends on depth, persuasiveness and
cogent. Evidence might be admissible because the law allows it but nonetheless it
might not be persuasive e.g. witness might be a liar, evasiveness to him, lies comes out
naturally like breathing. Judicial evidence includes the testimony, hearsay statements,
documents, things and facts which the court will accept as evidence of the facts in issue
in a given case.
Evidence relating to a robber, eye sight, the court cannot rely on because the weather
conditions were bad, witness has bad eyesight, distance etc etc. We are not questioning
the bona fide of the witness – but weight determines.
Relevance is today regarded as the basic criterion of admissibility. Relevant evidence is

evidence having a tendency in reason to prove any material matter.8 It is determined by
common sense,9 according to everyday standards of reason prevailing at the time of a
particular case10 and that much depends on the experience of the judicial officer.11 (See
7 (1989) (3) ZLR 1117(SC) p. 124-125

8 Hoffman and D Zeffertt’s The South African Law of Evidence – 4th Edition p. 21
9 R v Mathews 1960 (1) SA 752 (A) at 758
10 DPP v Boardman [1975] AC 421 (HL) or [1974] 3 All ER 504
11 DPP v Boardman, 444, 898 respectively.

section 26 of the Civil Evidence Act [Chapter 8:01] and section 252 of the Criminal Procedure
and Evidence Act [Chapter 9:07].
The word “relevance” means that any two facts to which it is applied are so related to
each other that according to the common course of events one, either taken by itself, or
in connection with other facts, proves or renders probable the past, present and future
existence or non-existence of the other”.12
All relevant evidence is admissible – the primary consideration – unless there is another
principal of law which excludes it e.g. evidence could be relevant but privileged e.g.
matrimonial – evidence between lawyer and client. Relevance is defined in R v
Trupedo13 the identification of a housebreaker. A trained dog was used and having
smelt two footprints made by the housebreaker followed the human scent into a room
in which eight people were sleeping. One was the accused. The dog sniffed at Mr.
Trupedo first and then at all the others, came back to Mr. Trupedo and barked
uncontrollably. In the court a quo the evidence of the dog’s impressive antics was
admitted. On appeal the appellant court Innes CJ quashed the conviction and on the
basis that it should have been excluded as irrelevant. Due to its extreme
untrustworthiness, the conduct of dogs in what is purported to be the identification of a
person, is irrelevant and inadmissible.
He said
“That the general rule is that all facts relevant to an issue in legal proceedings
may be admitted. Much of the law of evidence concerns exceptions to the
operation of this rule e.g exclusion of testimony on the basis of hearsay and a
fact is relevant when inferences can be properly drawn from it as to the
existence of a fact in issue. It must be sufficiently relevant for it to be admitted
- remoteness”
12 Digest of the Law of Evidence 11 ed (1930) Article 1. CWH Schmidt Bewystreg 2nd (1982) 352 n
1 draws attention to a logician’s adverse view of Stephen’s definition.
13 1920 AD 58

BEST EVIDENCE RULE
Historically speaking the yardstick that used to be used/or obtain in the terms of the
admissibility of evidence was the Best Evidence Rule. Under this regime it was easier
than it is now to admit all kinds or any manner of evidence some of which under
today’s most strenuous procedures will not have been admitted e.g. hearsay evidence.
Today what is important from common and statutory law is that relevant evidence is
admissible unless excluded by law.

3. THE BURDEN AND QUANTUM PROOF
a) Evidentiary burden
b) Legal burden
c) Proof beyond reasonable doubt and on a balance of probabilities
d) Presumption
Mandatory reading
S v Makanyanga 1996 (2) ZLR 231
Munyanga v The State HH79/13
State v Mike Moyo HB 139-15
Isolano 1985 (1) ZLR 62 (S) ZLR 62
Abraham Mbovora v The State SC75/14
Mupatsi 2010 (1) ZLR 529 (H)
Astra Industries v Chamburuka
City of Gweru v Mbaluka HH-93-14
DPP v Morgan [17975] 2 ALL ER 347
R v Lobell [1957] QB 547 CCA
Hoffman & Zeffertt: South African Law of Evidence
Cross on Evidence

4. TYPES OF EVIDENCE
a) Direct evidence
b) Indirect evidence
Mandatory reading
R v Bloom 1936 AD 188
S v Chimanga S-125-98
AG v Benett 2011 (1) ZLR 396 (S)
Direct Evidence - this is evidence which shows directly the guilty or otherwise of the
defendant e.g. murder case- out of altercation – “I saw him using the knife to stab the
deceased” eye witness account if it is visual account.
Circumstantial Evidence: - indirect evidence but there must only be one reasonable
inference, see Marange and Others14. It can involve a number of things – motive, bad
blood between the two parties, the accused was seen within the vicinity of the site15.
Exhibits or Real Evidence – tangible items which are used to prove the accused’s guilty
or the defendant’s liability e.g knife used to murder, soiled underwear in a rape case or
the appearance or features of a person e.g extraordinarily large lips16
Inadmissible – (permissible) it may not be introduced, its exclusionary for a number of

reasons e.g relevant.
14 1996 (1) ZLR 244 (s)

15 See also Edwards 1949 SR 30.
16 – see Cain Nkala case – Mungura’s judgement - comments – tape recordings, documents.

5. PREVIOUS CONSISTENT STATEMENTS
a) Previous Consistent Statements
b) Exceptions to the Rule
c) Refreshment of Memory
Exclusionary Rule No. 1
Previous Consistent Statements

There is one primary yardstick in determining admissibility and that is “relevance”.
Anything relevant is admissible unless the law excludes it. Section 252 of the Criminal
Procedure and Evidence Act [Chapter 9:07] Relevance facilitates in the resolution of
disputes e.g X Murdering Y. History of enmity – love triangle. The question of
relevance at the end of the day is factual determination whereas admissibility is a legal
issue. The question of weight relates to persuasiveness. This is done after admitting
evidence. The witnesses must be credible – believable item of evidence or plausible
evidence – you can give it due weight. No weight if witness deliberately lied, has
motive to lie, history of antipathy towards the accused.
Exclusionary rules – primary rules in natural practice which encounter, e.g opinion
evidence, hearsay evidence, previous consistent statements.
The rule against the narrative or commonly known as previous consistent statements.
In our law a witness by and large is not allowed to testify that on a previous occasion he
made a statement which corresponds or substantially correspond to the evidence that
he is giving in court. He made a statement prior to coming to court which statement is
in the main consistent with the evidence that he is giving. That rule is known as the
rule against the narrative. It is also known as the rule against what is called self-
corroboration. Self-corroboration is confirmatory evidence given by the same witness.
Evidence that tends to confirm another item of evidence. In terms of the rule against

the narrative, the testimony of a witness given under oath in the witness box cannot
ordinarily be supported by evidence that earlier on or elsewhere before the coming to
court he had said the same thing. This is because: -
(i) the evidence in the main is irrelevant. What you said before is irrelevant, the
court is concerned with what you said under oath. The extracurial (outside)
statement is irrelevant – neither here nor there.
(ii) There is also a real danger of fabrication, embellishment, concocted and at any
rate the admission of previous consistent statement in an unregulated (free for
all) manner would be time consuming and would open a can of worms or a
Pandoras box in terms of collateral issues – issues that have nothing to do with
the fact in issue.
In the celebrated case of Corke v Corke and Cook17, a wife who had left her husband
because of his misconduct and philandering habits and in order to support herself and
the children let rooms in the house to lodgers one of whom was Mr. Cook. The
husband then accused her of committing a series of acts of adultery with Mr. Cook. On
one occasion immediately after the allegation was repealed though it was after
midnight she telephoned her doctor requesting him to come at once and examine both
herself and Mr. Cook with a view to establish that nothing untoward had happened.
The doctor did not come being of the opinion that such an examination would be
inconclusive and therefore that such examination could not establish sexual intercourse
or not. At the hearing of the husband’s divorce petition the question that arose for
determination was whether or not the evidence of the wife’s conversation with the
doctor could be properly admitted. On appeal, it was decided that no evidence of the
telephonic conversation between the housewife and her doctor should not have been
admitted because to do so amounted to no more than a prior statement consistent with
17 [1958] (1) All ER 224

innocence. The court observed that the rule is justified in order to avoid fabrication by a
resourceful of scheming witness who may be faced with a difficulty.
Another case is that of R v Roberts18 in which case the accused was charged with the
murder of a former girlfriend as she was letting him into her room. The prosecution
case was that the gun had activated accidentally. At worst he was admitting to culpable
homicide. He was not allowed by the court to testify to the effect that two days after the
shooting he had told his father what his defence would be. The court reaffirmed the
long standing legal position excluding evidence of the narrative or previous consistent
statement and that this rule applies to both criminal and civil cases. The narration to
the accused’s father was inadmissible on the basis of irrelevance.
Exceptions to the general rule

The next question is, when is evidence of a previous consistent statement admissible?
The rule against narrative statement is not case in concrete or stone. The law makes
exception or an allowance for admissibility where justice so requires, where there are
compelling legal imperatives or legal grounds e.g. it is now a time honoured practice,
deeply embedded in our law to allow for the introduction of evidence of previous
consistent statements in the following situations (Exceptions) – (6).
(i) cases of identification

(ii) cases in which an allegation is made against a witness under cross examination
that his story is a recent invention or fabrication
(iii) and more importantly traditional evidence related to sexual flavor has always
been admitted to show consistency19
(iv) statements forming part of the res gestae – (part of the story)
18[1942] )1) All ER 187

19Prof. G Feltoe: Judge’s Handbook for Criminal Cases: Legal Resources Foundation, 1st Edition,
2009.

(v) statements by an accused on being taxed with incriminating facts – to show his
reaction – they simply prove consistence
(vi) signed statements when refreshing memory.
Identification – Using previous identification of a person to show consistence in the

identification.20
Exception No. 1 – previous consistent statements – previous identification at a properly

constituted identification parade is always admissible subject to the usual safeguards.
Basic requirements for a fair parade to eliminate errors must be satisfied.21
Exception No. 1 – to rebut the allegation of recent invention or fabrication – where the
witness’ credibility is attacked and it is put to him that the story which he is narrating
or reciting in court is a recent invention or recent fabrication that is meant to prejudice
or tarnish the image of the accused or defendant in the matter under investigation, to
rebut the allegation the witness can have recourse to previous consistent statements of
consistent nature which nullify or negate the allegation of recent fabrication or which
refutes e.g. in the ancient case of Flanagang v Fahy22, a witness who had testified to the
alleged forging of a will by the accused was cross-examined to the effect that he had
concocted or invented his story because of bad blood between him and the accused or
beneficiary under the will. The witness was allowed to introduce corroboratory or
confirmatory evidence showing that before the cause of antipathy/enmity had arisen he
had told a third party the story he was not telling the court. This approach is only used
where the credibility is under attack and as a defensive shield to unwarranted attack
upon his credibility. By far the most celebrated exception is to the rule against cases of
sexual nature without doubt the most important exception.
20 Ibid
21 See Masawi & Anor HH-111-94 and Gomo HH-21-93. See
22 [1918] 2 IR 361

Historical approach contrasted with Contemporary Approach.
Historically a person who was a victim of a sexual assault and usually it was a woman,
were expected to raise the “Hue and cry” where they were ravished, she was expected
to tell somebody. It would be very curious if she did not tell somebody if someone had
helped themselves to her. If she did not report timeously an adverse inference was
always drawn. The idea was to discourage false reports. Seeing that it is very easy to
allege sexual molestation – rape and extremely difficult to refute it. The rules are meant
to exclude or minimize false allegations as much as possible. The woman might want to
hide the shame that she consented or that he no longer loves the lady. Another
possibility could be that the woman wants to hide paternity in order to accuse a better
person to support. Traditionally the courts have tended to place a premium or high
value when admitting complaints of sexual nature. These have been motivated by
historical experiences, that we cannot look at face value a complaint relating to sexual
assault. You can never completely exclude false allegation due to a variety of reasons.
The contemporary practice is that the court must be convinced beyond reasonable
doubt that the accused committed the offence. This is the underpinning idea of modern
day legal consideration. The guides and tools and approaches to complaints in sexual
cases can never be a substitute for the time honoured principle, viz or namely, that the
guilty of the accused must be proved beyond a reasonable doubt.
Requirements and Safeguards
In terms of historical context
Rule 1 – that the complainant must be made at the first reasonable opportunity that
avails itself – is it a timeous complaint or is it out of time. If it is not done timeously
then a suspicion of fabrication is raised. What constitutes a reasonable opportunity that

avails itself or an unreasonable time or otherwise is a factual inquiry to be determined
by reference to the specific circumstance of a given case. Pertinent or relevant factors
would include: -
(i) age of the victim
(ii) her relationship to the accused
(iii) where any threats made or where any inducements given for the victim not to
report
(iv) the availability of people in whom the complainant would be expected to report
some confidence.
In R v C23 the charge was one of rape and the court admitted in evidence a complaint
made to the mother. Five (5) days after the commission of the offence and the court
restated the common law position that to qualify admissibility the complaint must have
been made voluntarily not as a result of suggestive or leading questions nor
intimidation. It must have been made without undue delay but at the earliest
opportunity which under all the circumstances in question could reasonably be
expected to the first person to whom the complainant could reasonably be expected to
make. The court also noted that this requirement was meant to minimize the possibility
of fabrication.
In another case R V Gannon24 the accused allegedly raped an 8-year-old girl, gave her
some money and asked her not to tell anybody. She was ignorant of the nature of the
offence and after some weeks she was found to have veneral disease and told her
mother what had happened. The previous consistent statement was admitted. The
court noted that the rule in which cases of assault upon the chastity or honour of
women and children admits particulars of statements made by complainants not in the
presence of the accused, subject to certain limitations viz or namely that the complaint
23 1955 (4) SA, 40 (N)

24 1906 TS 114 and R v Cummings [1948] 1 All ER 551

must be made without undue delay and at the earliest possible opportunity which
avails itself under the circumstances. The relevant considerations which the court took
into account in handling this issue where the following: -
(i) age of the complainant – 8 years of age

(ii) she was ignorant of the nature of the offence
(iii) bribed not to tell her mother. All these factors worked in favour of the
complainant.
Each case will depend on its facts at the end of the day.
In R v Cummings25 the complainant alleged that she had been raped by the accused. It
appears that after the incident the accused gave her a lift to her place of temporary
residence which happened to be a worker’s camp where she had been residing for a
week. She did not mention the incident to the camp authorities neither did she tell any
of the three girls with whom she was sharing the living quarters. However, the
following day she decided to visit an older women with whom she was on very friendly
terms who lived within 2 miles from the camp. She made a complaint to this woman
which resulted in the arrest of a man who had ravaged her or sexually molested her. At
trial the evidence of complainant was introduced, admitted and on appeal one of the
grounds was that the complaint was stale (not timeously made. There was an
inordinate delay. The court said that the evidence had been rightly admitted. The
admissibility depends on a number of facts e.g. relationship, identity of accused and
complainant, presence of earlier opportunities: -
“Most of the cases were complaints have been admitted despite the failure to take
advantage of the earlier opportunities turn on the identity of the recipient of the
complaint. A complaint to B has been admitted despite an earlier opportunity to
25 [1948] All ER551

complain to A because it has been thought that it was natural for the complainant to
wait so that she could see B. But where there were earlier opportunities not availed or
taken advantage of to complain to the very person to whom after a significant person
the complaint was ultimately made. I think it can only be in rare cases that the
complaint should be admitted.
R v Peters26 the complainant was a twelve-year-old girl who lived with her mother and
the accused was a spouse of the mother. The family lived in Manicaland and on 3rd
October 1966 the accused went away on holiday to Mutare and on the 6th of November
the mother of the complainant discovered some money in the pocket of complainant’s
jacket. The mother demanded an explanation from her daughter whereupon she
appeared afraid and upset and she only decided to speak upon assurance and promise
by her mother that she would not be beaten. The complaint was admitted in evidence
and according to the mother’s story the complainant told her that the accused had told
her to lie own and tickled her and had been told by the accused that all girls were
taught this thing by their fathers and that she should not tell the mother otherwise he
would beat her up and chase her away from the family home, cut her throat and throw
her in a deep well. The accused was convicted.
Age of complainant is a relative concept – you cannot use rule of thumb – can be
ignored.
Relationship – consequences of reporting will trouble her.
Utterances or threats – made the girl to hold back
26 1967 RLR 35

Bribery
For such complaints to be admitted they must not be elicited by leading questions –
they must be spontaneous complaints arising from the offence – not from intimidatory
tactics. The mere fact that the statement is made in response to a question does not ipso
facto make it inadmissible. A lot will depend on the nature and character of questioning
e.g The questioning must not anticipate a particular answer. It must be neutral.
In R v Osborne27 the court said that:
“if the circumstances indicate that but for the questioning there probably
would be no voluntary complaints. The answer to the question becomes
inadmissible. If the questioner on the other had merely anticipates the
statement which the complainant was about to make the evidence is not
rendered inadmissible by the fact that the questioner spoke first”.
In Gittleson v R28 the court said that both the promptide and the spontaneous or
voluntary nature of the complaints are important elements in rendering such a
complain admissible. On the other where any threats or inducement by the questioner
of a leading or suggestive nature precedes and procures the making of the complaint.
Its voluntary nature is destroyed and the evidence of the complaint becomes
inadmissible.
In S v T29 the complainant’s mother threatened to beat up the child if she did not
disclose what the accused had done to her – the court said that a complaint procured in
his way/manner was inadmissible. The court observed that if the complaint is induced
by intimidation or leading question it would naturally throw doubt on the validity of
27 1905 (1) KB 51 [1905] All ER Rep 54

28 1938 SRL 161
29 1963 (1) SA 484

the complaint especially if it is made by mother asking leading questions and
threatening a beating.
Genuine fears of fabrication will arise if this is allowed. Discrimination based on

gender in relation to complaints in sexual cases does not apply any more such that a
male victim will be equally protected. The Sexual Offences Act for example envisages
the prospect of male complainants being sexually molested either by other males as is
usually the case or even by female accused persons. The distinction between male and
female victims “has been abolished not only under the common law but in terms of the
Sexual Offences Act. It is a piece of legislation which among other objectives introduces
in a dramatic and progressive ways changes to current thinking on sexual matters. The
common law position on marital rape is fundamentally changing. In Roman-Dutch
jurisprudence marital rape was an unknown and unacknowledged phenomenon but
nowadays it is reality and one would expect that the traditional approach of the court to
treat sexual cases with caution and circumspection would still hold. There can still be a
variety of reasons inducing false report e.g when the parties have fallen out. The
bottom line is to arrive at the truth on the basis of time honoured approach of our courts
in the context of adversarial system of justice – proof beyond reasonable doubt.
In R v Camelleri30 on the trial of an accused for committing acts of burgery or gross

indecent or sodomy with a boy aged 15 years the judge admitted evidence by the
prosecution to the effect that shortly after the assault the victim made a complaint to his
parents. Counsel for the accused objected to its admissibility on the basis that it can
only be admitted only if the victim is a woman. The court short down that argument
stating that so far as this country is concerned there is no authority which decides that
he mere fact that the complainant is a male person renders the complaint inadmissible.
In fact, added the court such cases are admissible irrespective of the sex of the
complainant.
30 1922 (2) QB 122

In R v Burgess31 in which the particulars of the complaint made by a boy of 14 years to
a policeman soon after his ordeal/ravished the particulars were held to be admissible.
The court emphasized the fact that no distinction no longer exist between male and
female victims in as much as the new Sexual Offences Act of 2000 places less emphasis
upon whether or not the sexual predator is male or female.
Traditionally the term victim of a sexual offence was meant to include not only rape
victims but voluntary participants to the sexual act who in law are deemed incapable of
giving valid consent e.g under the old Criminal Amendment Act, girls under 16 who
because of their youthfulness or tenderness in terms of age were deemed incapable of
consenting – statutory rape. In as much as the definition of sexual offences, extended to
include indecent assault, bigamy, incest, imbecile, certified idiot. The idea is to protect
vulnerable women.
The State v S Banana32 the court took into consideration the traditional approach
towards complaints made in sexual cases. At page 8 of the judgement: -
“Evidence that a complainant in an alleged sexual offence made a complaint

soon after its occurrence and the terms of that complaint are admissible to
show the consistence of the complainant’s evidence and the absence of
consent. The complaints serve to rebut any suspicion that the complainant has
fabricated the allegation and the requirements for admissibility of a complaint
are
(i) It must be made voluntarily and not as a result of question of leading,

inducing or intimidation nature, see R v Petros.
31 1927 TPD 14
32 2000(1) ZLR 607(s)

(ii) It must have been made without undue delay and at the earliest
opportunity in all the circumstances to the first person to whom the
complainant could reasonably be expected to make it, see R v C”33.
Edmore Musasa v The State SC 45/2002 sexual cases – previous consistent

statements). Per Ziyambi JA – the applicant was convicted by the regional
magistrate for raping a four year old girl. Sentenced 10 years with labour and
noted an appeal. The Supreme restated/reaffirmed the proposition that the
traditional approach to cases of sexual nature putting on particular emphasis on
corroboration and the cautionary has largely been discarded. The bottom line at
the end is that the state “must prove its case beyond reasonable doubt”.
Needless to mention that each case depend on its facts. The cautionary rule and
the rule that emphasizes timeous complaints, undue delay can only be used as
useful guides in establishing the guilty or otherwise of the accused. When one
bears in mind the new approach to sexual cases namely that the cautionary rule
in such sexual cases has no basis for its existence and while a trial court must
consider the nature and circumstances of the particular offence in the end only
one test applies namely “was the accused’s guilty proved beyond reasonable
doubt and the test must be the same wither the crime is theft or rape. In the
court a quo based its decision on that there was evidene that the hymen was
ruptured and there was damage to the urethra suggesting legal penetration.
There was evidence from the doctor that the injuries were suggestive of penal
penetration and the possibility of the complainant injuring herself with other
instruments was discounted and as far as the identity of the accused was
concerned there was evidence which was common cause that the complainant
was in the appellant’s room and was seen leaving the room by her mother who
had chasticed/beaten her for going to other people’s houses. Finally there was
evidene even then that the mother had not suspected that anything was wrong
33 1955 (4) SA

initially. It was only to day after being asked by her mother why she had
difficulties in walking that she told her mother that the appellant had abused her.
Refreshment of Memory (Section 19 of the Civil Evidence Act [Chapter 8:01]
The rules that have been put in place in order to safeguard the interests of the accused
particularly when it comes to the prospect of a witness having recourse to the aid of
notes, memoranda or records that were made outside the court at the time of the
occurrence of events as a way of arising or facilitating easy memory. The idea of
refreshing is to revive or resuscitate or resurrect one’s memory in relation to an incident
that would have occurred at an earlier point in time which incident is subject to
investigation by the court. Although refreshment of memory is generally allowed
subject to the usual safeguards being put in place. In terms of giving evidence in court
one cannot run away from the centrality of orality. One is expected to talk of their
observation and experience at the time the incident happened. Refreshment is meant to
assist both the witness and the court to arrive at proper judgment justified by the
circumstances of the case. Notwithstanding the premium or high value placed on
orality in giving evidence refreshment of memory is justified by necessity and practical
judiciary considerations which are
(i) considerable time might have lapsed between trial and occurrence, may be
unrealistic to expect witnesses to remember with an unaided memory.
(ii) The complexity or intricate matter of the case itself. Consider the case of an
auditor who looks at accounts, figures as a matter of routine, consider the case of
a forensic scientist who look at documents to evaluate authenticity, police officer
who attended to accident scenes as a matter of routine – to expect him to
remember each case without recourse to his memoranda would be unrealistic.
Our law suggests that a witness’s memory remains unrevived, blank after having
looked at the notes or memoranda which he made at the occasion of the occurrence of

event, the process is still known as refreshment of memory. In the case of Cape Coast
Exploration Co v Scholtz and Another34 the court said it is not necessary for a witness
to have an independent recollection of the events put to him order to refresh his
memory.* If an official communication is put to the officer and he recognizes having
made the communication, then the presumption is that what he meant to communicate
was what was in his mind. The conditions for this are:0
(a) authenticity
(b) contemporanity
The two requirements work pari pasu, simultaneously.
Authenticity
(i) the witness must have made the document or recording himself or
(ii) alternatively the recording must have been made by another person at the
behest, instruction order, of the witness
(iii) it must not involve the first two but nonetheless the witness must have
read the recording and accepted its accuracy. The requirements of
authenticity is subject to the requirement of contemporaneity. The
recording must have been made while the events were still fresh in the
minds of the recorder.
(c) Original
(d) Production – privilege not exempted do not refer it if privileged
R v O’Linn35, a traffic officer testifying in a road traffic case was allowed to refer and
refresh his memory from a note which another officer had made at his specific dictation
34 1933 AD 56
35 1960 (1) SA 545 (N)

although he had not read and ratified it earlier. Another instance of authenticity is
exemplified by the case of Andersen v Walley in which the captain of a ship was
allowed to use the ship’s logbook in order to refresh his memory concerning a
navigational accident. This was allowed by the court despite the fact that the logbook
had been kept by the colleague or counterpart. The crucial point however is that he had
ratified the logbook within a week of the incident when events were still fresh in his
mind.
A case that summarises the law on refreshment from the point of view of Zimbabwean
jurisprudence is Mabu Estates v Pembi Chase Farm36 in which Gubbay JA as he then
was had occasion to make a judiciary pronouncement on issues or matters pertaining to
refreshment of memory. The dispute concerned two farmers, one of whom had leased
or hired out a combined harvester to the other farms for reaping wheat crop. While
being delivered the lorry carrying the harvester stopped at Mvurwi. The dispute relates
to number of days. One constable had made a recording at the roadblock and he was
asked to give evidence. Gubbay JA observed that the use of logbook by the section
officer Zulu while in the witness box was not designed to allow him to introduce
inadmissible evidence but rather to refresh his memory. The requirement for
refreshment are authenticity and substantial contemporeinty.
There is no exact time limit as far as contemporeinty is concerned. At the end of the day
what is important is for the court to be convinced that the recording was done whilst
the events were still relatively fresh in the minds of the recorder. Some events are more
quickly forgotten than others. In R v Isaacs37 the court held that a witness should be
allowed to refresh his memory from notes made by him expect facto after the event if the
circumstances in the opinion of the court are such as to render it probable that the
witness still had a distinct recollection of facts at the time he made the notes. That cases
36 SC 46/86
37 1916 (1) TPD 390

alluded to or refer to another case of Jones v Stroud38 in which a witness was
disallowed to refresh his memory from a record compiled six months after the event
because it was out of time and completely stale. The recording party after satisfying
authenticity and contemporaneity must be given the record so that he can be cross-
examined. The idea is to allow the cross-examining party to be able to challenge the
credibility of the evidence so as to weaken it thus proving its admissibility. It is to
discredit the party. Re-examination allows the other partyresuscitate the credibility.
Previous Consistent Statements
Character Evidence
It is a broad species of evidence that incorporates two fundamental attributes of the

accused or defendant. The first relates to evidence of previous convictions. The other
attribute or element is similar fact evidence and the general approach of the courts is
that character evidence is inadmissible if the purpose is to establish the guilty of the
accused because it is fundamentally prejudicial to the accused or to the defendant. The
risk of prejudice is rather high. There is the tendency to give a dog a bad name and
hang it.
It is acceptable in the following:-
(i) At the stage of sentencing – as an aggravating feature – guilty already

established.
(ii) During trial it is admissible in exceptional cases only – e.g where the accused
introduces evidence of his good character . You can rebute that evidence in
cross-examination. If in his evidence in chief he introduces evidence of good
38 (1825) 2, C & P 196: Digest (Repl) 299, 2795.

character you can negate it by introducing previous convictions. Or where he
attacks the character of opposing witnesses while painting himself lily white.
Similar Fact Evidence
Similar facts evidence is regarded as evidence of disposition. It shows propensity on the

part of the accused to commit crimes of a certain character – e.g serial murderer whose
victims may be elderly people living on their own and he commits. As a general rule,
similar facts evidence is inadmissible. It is evidence which refers to perculiar, immoral
or illegal conduct of a party on occasions other than that which is in dispute but which
is also of such a nature that it is logically connected with or substantially similar to the
conduct on the occasion which forms the substance of the dispute and for such evidence
to be admissible because generally it is not admissible. The test which is now
universally accepted is that its probative value must outweigh its potential for
prejudice. In other words or put differently the evidence must be so relevant as to
negate its potential for prejudice. In the case of Makin which has been cited on
numerous occasions in this jurisdiction, Makin v A.G of New South Wales39 in which
the accused pair happened to be husband and wife and they were charged with the
murder of a baby. Its body was found buried in their garden and they were proved to
have agreed to adopt the baby in return for payment of a small sum by its parents.
The defence of the pair was that the child had died of natural causes and that their sole
misdemeanor or offence was o have buried the child irregularly. The prosecution’s case
was that the child had been killed by the Makins pursuant to a scheme by which they
took charge of infants in return for payments to be used for the infant’s care then kill the
infant and retain and kept the sums paid. In support of this case the prosecution laid
evidence that the bodies of 12 other infants had been discovered in the grounds of
premises occupied at various times by the Makins and several of these infants had been
39 [1894] AC 57 (PC)

placed in the care of the Makins in return for payment of a small sum of money. The
accused were duly convicted and they then appealed.
Murder charges (first) - history of the Makins (second) – similarities which cannot be
explained away.
(i) 12 other bodies found

(ii) at premises presently and formerly occupied by Makins
(iii) payment of small amounts of money paid by natural parents reward aspect
(iii) Deaths were not reported
N.B A pattern emerges – system – trademark emerges – this is similar fact evidence.
The rule was then formulated as follows:-
“It is undoubtedly not competent for the prosecution to adduce evidence tending
to show that the accused has been guilty of criminal acts other than those
covered by the indictment, for purposes of leading to the conclusion that the
accused is a person likely from his criminal conduct or character to have
committed the offence for which he is being tried.”
You do not prove one crime by showing that the accused was previously involved in
similar crimes generally.
Why similar facts evidence is inadmissible?
1. The risk of prejudice is high particularly if the evidence is merely tended to show
propensity nothing more. It portrays the accused as a bad person, he is always

dancing with the demons. R V Meyer40 in which he questioning by the court
proceeded along the following lines:-
“Q. Do you know Mr Meyer, the accused?

A. Yes
Q. When did you first meet him?
A. In the Central Prison.”
The evidence was disallowed because the intimation was that he was a jail bird.
The evidence was excluded or precluded on the basis that it was unduely
prejudicial.
It was also irrelevant since the purpose was merely to establish propensity and
nothing more.
Undue prejudice – the over strong tendency to believe that the accused is guilty
of the charge merely because he is the most likely person to do such acts.
2. The other side (spinoff) is that similar fact evidence has a tendency to raise
unnecessarily collateral issues which the court has no business investigating at
that point in time e.g in the old case of Hollingam v Head41 in which the plaintiff
bought quano from the defendant and was claiming that the defendant had
given him a warranty as to the quality of the guano. The plaintiff sought to call
other buyers to give evidence that they had been given the same warrant. The
court said that the evidence was insufficiently relevant. In Banana v The State42
Chief Justice Gubbay at page 9 of the judgment had this to say:-
40 1953 (1) SA 26
41 (1858) 4CB (NS) 388
42 2001 (1) ZLR 607 (S)

“It is clear in this jurisdiction that the test has always been applied as in
this case is that formulated in Boardman v D.P.P43– namely that similar
facts evidence must be of such an unusual nature or striking similarity
that it would an affront or insult to common sense to assume that the
similarity to the offence charged was explicable on the basis of
coincidence.”
The Chief Justice referred to other cases like S v Ngara44, S v Mupa,45 S v

Mutsinziri46 and S v Meager.47
The test nowadays has been to establish a nexus between the two set of facts namely
character traits of the accused on one hand and the charge facing the accused on the
other hand. Traditionally, the approach was to look at striking similarities. In terms of
contemporary practices there is more flexibility allowed nowadays than using rule of
thump methods or straight jacket of similarities. Similarities could include substance of
offence, manner of operation modus operandi motive and objectives of the accused
person, class of victims e.g Banana cases – aide de camp – people he could easily
manipulate, where the reception of similar facts evidence safeguards have been put in
place to minimize the risk of prejudice (to the defendant). At the same time
admissibility is predicated upon. The compelling reason that of severe miscarriage of
justice would occur if the evidence were to be excluded. Justice demands the admission
of the evidence inspite of its prejudicial nature but the net effect of this is that the court
would have to be convinced that the relevance of evidence outweighs its potential for
prejudice. As a tool of analysis in determining the level of relevance required the courts
have found it convenient to insist or to establish striking similarities – so that the
43 [1974] 3 All ER 887

44 1987 (1) ZLR 91
45 1989 (1) ZLR 279
46 1997 (1) ZLR 6
47 1977 (2) RLR 327

evidence cannot be merely dismissed on the basis of coincidence or accident.
Nowadays there is movement to extricate and disengage the courts from the straight
jacket of striking similarities although that is applicable.
At the end of the day as we saw complainant in sexual cases the absence or emphasis is
on proving the case beyond reasonable doubt. It is a time honored approach – he heart
and soul upon which the criminal law justice system is anchored. See S v Banana. The
system must be flexible not to insist on a straight jacket approach. The system has
helped however as each case depends on each case. Other considerations are useful
guides. Historically speaking similar facts evidence has been used to rebut the issue of
accident or coincidence. Justice cannot be properly effected or attained without
disclosure of prior acts of misconduct. R v Bond48 in which the accused was convicted
of using instruments with an intention to procure an apportion on a female ex domestic
servant. The prosecution was allowed to adduce evidence of another girl to the effect
that the accused had done the same to her nine months previously. She also told her
that he had put dozens of girls right. Both girls were servants of his who had become
pregnant by him. Bond was a doctor and his defence was that he was using the
instruments in order to examine the complainant for a VD infection. His defence was
one of accident and innocent intention and the court admitted evidence which showed
the improbability of accident. The court observed that the same accident should
repeatedly occur to the same person is unusual especially if it confers a benefit to him.
In R v Smith49 the accused Mr Smith was charged with murdering his bigamously
married bride and the evidence of the unusual death of two other women to whom the
accused was married was held to have rightly admitted. In each of the three cases, the
deceased had been married to the accused and they were found drowned in the family
bathroom, the door to the bathroom would not lock and they all had insurance policies
taken in favour of the accused and by way of defence he had always availed that the
48 1906 (2) QB 389

49 1915 CAR 229

women suffered from epilepsy and had suffered from seizure. The criminal court
certified the evidence to have been rightly admitted. Accidents or mistakes happen but
it was remarkable that they happened several times in precisely the same way.
To lose one wife under such circumstances may be held as misfortune. To the
second is carelessness and to lose a third wife boils down to murder. He had
established a trademark – adverse to interest of justice not to recognize the trademark.
(i) marriage
(ii) insurance policies
(iii) bathroom victims – the system according to which he operated
(iv) locks would not lock
Another category of evidence in which similar fact evidence has been used to rebut the
defence of innocent association – innocent explanation – see R v Ball50 in which the two
accused persons were brother and sister of full blood ant they were indicted under the
punishment of Incest act for having had canal knowledge of each other during stated
periods in 1910. Evidence was given on behalf of prosecution to the extent that at times
specified in the indictment the accused had lived together as husband and wife prior to
incest becoming criminalized. They lived together in the same house which contained
only unfurnished bedroom. A double bed which bore unmistakably signs of two
persons having occupied it. The prosecution then tendered evidence of prior sexual
relations between the two accused and the evidence was that the male accused in
November 1907 took a house in which he brought the female accused as his wife and
lived there as such for about sixteen months and that at the end of March 1908 the
female accused gave birth to a child describing herself in the papers as the mother and
the male accused as the father. This had taken place prior to the enactment of the
legislation. The accused were then convicted whereupon they appealed to the Court of
50 1911 AC 47

Criminal Appeals. The basis of the Appeal was that the similar fact evidence ought to
have been excluded – “that the time honoured tradition and approach which says that
you cannot convict a man of one crime by proving that he had committed some other
crimes should be carefully observed but in this case the evidence went directly to prove
the actual crime for which the parties were indicted. The court was satisfied that
similar facts evidence had been rightly admitted in order to admit the existence of
sexual intercourse passion between the parties and disprove the fact of innocent
association.
In R v E51 in which the accused a white farmer was found guilty of a charge of rape.
The complainant was a young married African woman who worked for him. He
pleaded lack of capacity as his defence. To rebut this defence the prosecution then led
evidence which showed he was suffering from a veneral disease which he got from
other women and this rebutted his defence of incapacity – his innocent explanation or
innocent association of being merely her cook. The defence of innocent association
overlaps with that of innocent explanation. The idea of introducing similar fact
evidence is to nullify or negate the accused’s innocent explanation e.g. in R v
Armstrong52 in which the accused was charged with the murder of his spouse through
cyanide poison. It was proved that he had bought a lethal quantity of cyanide shortly
before the death and he had kept the poison in small packets each containing a fatal
dose and his defence was that he bought the poison to exterminate weeds and he
offered the explanation that the wife might have committed suicide. The court allowed
the prosecution to adduce evidence that 8 months after the death he also attempted to
administer poison to a rival lawyer. This was allowed in order to show that the cyanide
had been bought with criminal intentions.
51 1960 (1) SA 691 (SR)

52 1922 (2) QB 555

Yet in another category of relevance is one which similar fact evidence has been used in
order to establish identity e.g. in Thompson v R53 the accused was charged with
committing gross indecency with two boys and the acts in respect of which the charges
were brought were alleged to have occurred on March 16 of a given year and the person
who committed them was alleged to have made a further appointment with the boys
for March 19. The police were informed in the meantime and kept watching with the
boys in the rendezvous (vicinity). At the appointed time the accused arrived and was
immediately identified at the man who had committed the offence on the 16th of March.
His defence was of mistaken identity. At the trial the prosecution then tendered
evidence that when arrested on 19th March the accused was carrying powder puffs and
he had indecent photographs of boys in his room clearly indicating that he was a sexual
pervert and the courts ruled that the who question is as to the identity of the person
who came to the spot on the 19th with the person who committed the acts on the 16th.
The court was satisfied and the offender of the 16th and the accused has the same
abnormal propensities and this evidence tended to show the probability of the truth of
the boys’ story as to identity. The accused then was regarded as being extraordinary –
bizarre, curious tendencies because of their homosexual tendencies. It was more than
coincidence for the boys to pinpoint the accused. The identification was therefore
proper – “ had tools of trade on him” – see also S V Mutsinziri54
“Similar fact evidence is generally admissible if it is relevant to the question in issue but
it will be excluded if it proves only disposition or a mere general similarity”. Also
similar fact evidence has been used as “res gestae” Part of the story.
The reception of similar fact evidence reached its peak or zeneath with the landmark
case of DPP v Boardman55. In English law Boardman’s case was the high-water mark
or milestone in so far as admissibility of similar fact evidence is concerned. This
53 1880 AC 221
54 1997 (1) ZLR 6
55 1974 3 All ER

judgment has been quoted with approval on numerous occasions by the Zimbabwean
courts – Banana and Mutsinziri – both by High Court and Supreme Court.
Boardman’s case is a landmark case. It is a case in which the whole logic underpinning
the reception of similar facts evidence was extensively considered by the court and in
many cases drawn from this jurisdiction and South Africa it has been an unequivocal
endorsement e.g Myer’s case, Mutsinziri’s case in Banana’s case both at High Court and
Supreme Court level. In Boardman’s case the House of Lords concluded that there was
a certainly/definite requirement for high degree of relevance for such evidence to be
admitted. In order for the court to admit the evidence the prior or antecedent
dishonourable pacts of the accused must share with the discreditable conduct or charge
in question. Certain commonalities so much that it will be an affront to common sense
and common decency to attempt to explain it away otherwise by coincidence,
Mr B was a headmaster at an exclusive grammar school in England. The school catered

predominantly for the needs of foreign students particularly those from the oil gulf
states. He was facing two counts one involving a 16 year old boy C and another 17 year
old boy H. Both were pupils at the school and both counts involved burger and each
boy gave evidence to the following effect:-
“The accused would come to their dormitory very late at night and would ask
the boys separately to accompany him to the school garden for purposes of
consummating a homosexual relationship. In either case the victim stated that
the accused invited the boys to take the active and aggressive part whilst
Boardman would play the role of the woman.”
At the trial the court held that each boy’s evidence was admissible and also
corroborative of the other victim’s evidence. Corroborative evidence is evidence aliunde

– another evidence confirming an issue or support other prior evidence. Probative force
should outweigh the prejudicial effects.
Scenario
(i) visit at night

(ii) invite victims to the garden
(iii) passive and active role.
These factors establish a pattern, trademark modus operandi. The court was satisfied that
there was no corroboration.
Similar fact evidence in civil proceedings – basically the principles of admissibility of

similar fact evidence is based or predicated upon the same principles as the case with
criminal cases provided, as case law puts it, the admission of such evidence would not
be oppressive or unfair to the other side or party and also that the opponent or
adversary is given fair notice of the intention to introduce evidence of similar facts so
that if they want they can rebut it, see Mood Music Publishing Co. v De Wolfe56
which dealt with the infringement of a musical copyright by the defendant which
copyright was owned by the plaintiff and was used as background music in TV
programmes. The plaintiff complained that the work infringed their copyright and it
was common cause that their work was very similar to the plaintiff’s work and also that
the defendant’s product was composed after the plaintiff’s had produced their own
work.
To show a system and rebut coincidence the plaintiffs were allowed to introduce
evidence of three other recordings which bore striking resemblance to works subject to
copyright which had been reproduced by the defendants without the consent of the
56 1976 (1) All ER 763

copyright owners. The idea was to rebut coincidence. Upon being found liable the
defendants appealed to the House of Lords and Lord Denning M L made the following
observation:-
“That in civil cases the courts have followed a similar line in admitting
similar fact evidence and such evidence will be admitted if it is logically
probative or relevant in determining the issue provided the defendant
has fair warning of the intention to use similar fact evidence and that he
is able to deal with it”.
He cited with approval an earlier English case of Haels v Kerr57 in which it was based
on negligence. The plaintiff alleged that he had contracted an infectious disease
through the negligence of eh defendant, a barber who used razors and other appliances
in a dirty and unsanitary condition. In support of his case he tendered evidence of two
other witnesses that they contracted the same disease in the defendant’s shop under
similar conditions. The evidence was admitted to show that the disease affecting the
plaintiff was not a mere accident – coincidence.
Opinion Evidence
It is generally exclusionary because it is irrelevant by and large. Opinion evidence –

evaluation, inferences and interpretations observed from a certain set of facts. Our
judicial approach is that the witness must narrate to the court, for its benefit, his
experience, what he observed, perceived, what he saw and it then becomes the duty of
the court to draw conclusions based on his narration of events. The underlying
principle here is that it is possible clinically to draw a distinction between inferences,
opinions, conclusions on the one hand and on the other hand the facts upon which they
57 [1908] KB 601

are based. It becomes the function of the court to draw appropriate inferences
regarding liability or guilty or otherwise based on the witness’ narration.
In the celebrated case of Hollington v Hewthorn58 the court said:
“It frequently happens that a bystander has a complete and full view of the
accident. It is beyond question that, while he may inform the court of
everything that he saw, he may not express any opinion on whether either or
both of the parties were negligent. The reason commonly assigned is that this
is the precise question the court has to decide, but in truth, it is because his
opinion is not relevant. Any fact that he can prove is relevant but his opinion
is not”
It is often said that the courts desire to guard against the usurpation of their function. It
is the court that must ultimately make a determination and not a witness. Where and
when opinion evidence is admitted – as an exception to the general exclusionary rule –
in as much that admissibility is borne out of recognition that the evidence in question
would be relevant. Relevant opinion evidence is therefore admissible. It falls under 2
categories:-
1. Expert opinion evidence

2. Evidence of lay persons.
Expert Opinion – generally admissible on the basis of its relevance – assisting the court
in resolving the issue in one way or another. By reason of technical expertise and
knowledge experts are sometimes better placed than the court to help the court on
matters that generally fall outside the ordinary experiences of the court e.g highly
58 [1943] (2) All ER 35 at p.40

specialized fields of human endeavour e.g medicine, engineering, fingerprints,
psychiatry, ballistics.
Requirements for Admissibility
Relevance is the principle upon admissibility
(i) Expert Opinion Evidence – It falls outside the ordinary competence or competent
court. A party who desires to call expert evidence should satisfy the court about
the witnesses’ qualification – expertise which can be obtained through training or
experience – animal breeder.
N.B. Opinion evidence – only acceptable where the court cannot solve the problem on its
own.
Formal qualifications are not always decisive – each case depends on its facts.
See R v Silverlock59 in which the lawyer who had made a study of handwriting
over a long time but without formal qualifications was allowed to testify as an
expert. The expert must furnish the court with his reasons for holding a
particular view. The court should not be satisfied with sweeping generalized
and bald declarations unsupported by reason.* In Zimbabwe jurisprudence, our
courts had had occasions to admit expert opinion in a variety of situations e.g
pathology, death, general medicine, handwriting disputes – Blackmore,
inaudible tape in the treason trial of the century, accident – road – reconstruction
of the scene. If the evidence can easily be arrived by the court mero motu there
will be no need to enlist the services of an expert. It still has the constitutional
mandate to give the final say. Expert evidence or opinion must not surplant or
displace the judgment of the court. Read the following cases:-
59 1899 (2) QB 766

R v Sibanda 1963 (4) SA 182 (SR)
R v Nyamayaro 1967 RLR 288(A)
Nkosiyabo Ndzombane v The State SC 77/14
S v Motsi 2015 (1) ZLR 304 (H)
Glenister v President of the Republic of South Africa and Ors [2013] ZACC
20:2013 (II) BLCR 1246 (CC)
The basic criterion of lay opinion evidence is still relevant. The court realized
that some cases are extremely difficult for some witnesses to testify without
giving evidence of an opinion. The opinion must be based on observation – s
22(2). If the court is in a good position as that of the witness to come to its own
determination over the issue then the lay opinion evidence becomes redundant
and superfluous.
In S v Adams60 the court said that it is permissible for a witness, for example, to
say that he thought that the accused was intoxicated because his breath smelt of
strong liquor, his speech was slurred, walking in a zig zag manner, saying
unintelligible things. It is however still the court’s duty to conclude whether the
driver’s ability was indeed impaired because of his drunken state. Lay opinion
evidence has been received in a number of situations e.g identification of
somebody’s handwriting or identification of persons, apparent age or identifying
a dead body, or talking about bodily sensations e.g excited, down, happy etc e.g
speed estimation. As long as evidence assists it becomes relevant.
Exam: Rule in Hollington v Hewthorne61 section 31 of the Civil Evidence Act.

One of the most controversial rules of evidence which until 1995 was part of our
law. The rule was that in a Criminal Trial if the court comes with a particular
60 1983 (2) SA 577

61 1943 (2) All ER 35

judgment the decision of the court – say conviction, is irrelevant if future civil
litigation between the same parties because it is the opinion of another court and
that the conviction is not admissible in order to establish liability in civil
litigation. In that case he defendant company’s employee had been convicted of
careless driving and the plaintiff was the administrator of his son’s estate. He
then sued the company for negligence – the damages arose from the accident
which was caused by the careless driving, that claimed the life of the plaintiff’s
son. Unfortunately for the plaintiff, the only other witness was his deceased son.
In order to prove his case against the defendant company, he sought to lead
evidence of the conviction of the defendant company’s employee. The Court of
Appeal very curiously held that such evidence was inadmissible since it
amounted to an opinion of another court as to the negligence of the employee. It
was further argued that the civil court was in the same position to arrive at its
own opinion or its own decision as regards the issue of negligence – balance of
probabilities concept grossly misrepresented, Higher burden of proof in criminal
cases – besides – court knows what evidence to consider. In Goody v Oldhams
Press Ltd62 in which the plaintiff brought an action for defamation against a
newspaper which had published an article saying that he had taken part in the
Great Train Robbery where over 2.5 million pounds was stolen. At the time of
the action the plaintiff was serving 30 years imprisonment and curiously
following decisions set by the Hollington case. The civil court would have to
start all over again and until 1995 the case remained law in Zimbabwe. I
England it was administered through the Civil Evidence Act of 1968. See Tombs
v Sithole63 in which McNally invited the legislature to put matters right –
section31(2) of the Civil Evidence At which for all intents and purposes shoots
down the Hollington rule.
62 1967 (1) QB 333

63 1981 ZLR 444

Hearsay Evidence – secondary evidence – the original assertor is not there. We
are looking at express or implied assertions of persons other than the witness
who is testifying or assertions in documents produced to the court where no
witnesses testify and if the purpose is to show that such assertions are true then
the evidence is inadmissible. Statements made by persons who would not give
evidence are generally exclusionary if the purpose of giving such statements is to
prove their contents as the truth. Generally speaking A may not testify that B
told him that C killed D – such evidence is inherently untrustworthy – it is
potentially associated with possibilities of deception, inexactitude and
incorrectness.
Its exclusionary because of the possibility that the original assertor who is not
before the court might have spoken with a forked tongue, jocular, factious –
guide against deception and fraud. It is also an extra-curial statement not made
under oath. In our legal system a high premium is placed on the oath and it has
a quasi-religious significance. Also the other party will be unable to cross-
examine the original assertor. The question of cross-examination is equally
important. The idea is to show inconsistence in the evidence so that little weight
may be attached. That devalues the cogency of the evidence.
Subramaniam v PP64 in which the accused was charged with the unlawful
possession of weapons of war under the laws of Malaysia during British
occupation. His defence was that he acted under duress from terrorists who had
captured him in the Malaysian jungle. The trial court ruled that evidence of his
conversations with the terrorist was inadmissible unless the terrorists themselves
can testify. The Privy Council which was the Highest Court of Appeal made the
observation that dismissing evidence out of hand by the judge might have been
an error. Evidence of a statement made to a witness by person who is not
64 1956 (1) WLR 965

himself called as a witness may or may not be hearsay. It is hearsay and
inadmissible when the object of the evidence is to establish the truth of what is
contained in the statement. It is not hearsay and is admissible when it is
proposed to establish the fact that the statement was made and not that its
contents is the truth – not the truth of the evidence but the fact that it was
inadmissible. Hearsay evidence can be made either expressly or through implied
assertions e.g in the case of S v Van Niekerk65- a magistrate of all people was
charged with the theft of a shotgun that he had confiscated from a drunkard
person who had dies before being brought to court.
The magistrate’s defence was that the drunkard had donated the shotgun to him.
Two letters ostensibly written by the deceased were produced by the prosecution
in which the deceased implored his brother to collect the gun from the
magistrate. The purpose of the letters was to show that the gun had not been
donated after all. The court said this was inadmissible as an applied hearsay
assertion.
When is hearsay admissible?
A sensible enquiry by any serious-minded student of evidence would proceed as

follows: -
(i) Does the evidence fall within the hearsay exclusionary rule? If it does, is it
rendered admissible by any of the common law exceptions and what are
the requirements of admissibility. If the common law exceptions are
inadmissible is it then rendered admissible by statutory exception and if
so what are the requirements.
65 1964 (1) SA 729

Public documents fall under hearsay but they are admissible e.g birth certificate.
Both common law and statutory exceptions to the hearsay rule have basically been
motivated by two factors:
(i) Necessity – the necessity argument runs as follows:-
(a) “The administration of justice will be severely hampered or emasculated

without the admission thereof of such evidence and
(b) The probability that the evidence is true.
There are safeguards which the law has placed before admissibility can be
effected (to minimize the possibility of admitting evidence properly).
(ii) The untested evidence is probably reliable because there is no motive to

misrepresent or because one is dealing with a spontaneous exclamation which is
made by the witness or by a witness in the heat of the moment and without any
premeditation or alternatively a statement made by a deceased person who is on
the verge of death and who entertains a settled and hopeless expectation of life –
waving goodbye with the world and wants to make peace with his creator before
he fulfils his promise of his destiny.
Common Law Exceptions
They fall under two broad categories:-
(i) Declarations by deceased persons

(ii) The Res-gestae doctrine

Declarations by Deceased Persons
(a) Declarations as to public or general rights – oral or written declarations made by

deceased person concerning matters which qualify as public or general rights.
Such a declaration is admissible if it was made before a dispute arose and if the
declarant was competent to make the declaration.
A general right is a right that affects a particular class of persons e.g a

community that has a right to graze its cattle in the paddocks – law students with
rights to use a particular lecture room whereas a public right is a right that can be
exercised by any member of the public e.g Harare-Masvingo road or in the
villages people bathing upstream. If the rights are in dispute evidence can be
brought under the following circumstances:-
(i) That the declarant must be dead

(ii) That the declaration must have been made before the dispute arose
(iii) The declaration should deal with the disputed existence of a public or
general right.
(iv) The declarant should have been competent to make the declaration.
In the case of Du Troit v Lindenburg Municipality66 in which the boundaries of

a township were proved by the evidence that a deceased old resident who had
known the beacons for about 40 years pointed them out to his son before his
death. In the ancient Australian case of Millipurn v Nebalco, the court
permitted testimony made by aborigines concerning the rights of various tribes
to particular areas of land.
66 1909 TS 527

(b) Declarations against Interests
The oral or written statement of a person since deceased of a fact which he knew
to be against/adverse his pecuniary or proprietary interests when the declaration
made is admissible as evidence of the fact provided that the declarant had
personal knowledge of such facts. The rational underpinning this exception is
that no one would make a statement against his own interest unless it was true
e.g the issuance of a receipt since it acknowledges satisfaction of debt or a
statement possessing property to the effect that they not own the property or if
somebody acknowledges paternity (brings burdens) – maintenance.
The requirements of admissibility: -
(i) The declarant must appreciate that the statements he is making is contrary
to his interest e.g Williams v Eagle Star Insurance67 in which the court
admitted a statement by a passenger who had fallen off a bus and had
since dies of his injuries in which the deceased intimated that the driver
should not be blames for his fault. The deceased literary exculpated
and/or exonerated the driver.
This was against his interest in the sense that it produced the estate from
seeking for damages. In Tucker v Oldbury68 in which a claim for
compensation which was being brought by the dependants of a workman
dying blood poisoning as a result of injury to his thump. The deceased
intimated that the injury was due to another cause. The court excluded
the evidence because it failed to qualify as a declaration against interest
since at that time it was argued that the declarant was unaware of the
67 1961 (2) SA 631

68 [1912] (2) QB 317

possibility of making claims under legislation relating to workman’s
compensation.
On the other hand if there is evidence available to the court which suggest
or indicate an appreciation of the fact that the declarant was aware of the
adverse nature of his declaration in terms of his family’s interest then it is
treated as declaration against interest. Probably the most outstanding
example of exceptions to hearsay rule will be predicated upon the
pronouncement of a person knocking at doors of death is the dying
declaration. In our law there are requirements that must be established.
The rational underpinning statutory requirements are captured under
section 254 of the Criminal Procedure and Evidence Act. In terms of
common law dying declarations pertain to cases involving murder and
culpable homicide. The oral or written declarations of a deceased person
are admissible to show what occasioned death provided that the following
requirements are in place.
(i) The declaration relates to the deceased’s death

(ii) The deceased at the time of the declaration was under a settled and
hopeless expectation of death
(iii) That had he lived he would have been a competent witness.
The underpinning rational has its basis in religious and spiritual

considerations namely that no person would wish to be untruthful before
or prior to fulfilling his appointment with destiny. At that moment he has
abandoned all hope to life and considerations which motivate people into
lying have become redundant and irrelevant and he wants to become at
peace with his creator who is becoming to him. As was observed by the

court in the ancient English case of R v Woodcock69 that the general
principle upon which this type of evidence is based is that these are
declarations made in extremity when the party making them is on the
verge of death and every of death and every hope of this world is gone,
when every motive to falsehood is silences and the mind is induced by the
most powerful consideration to speak the truth. A situation so powerful,
so solemn, so awe inducing that it is considered by the law as creating an
obligation equal to that imposed by a court of law through an oath. It is a
solemn occasion. It is an occasion where the deceased would not be
expected to start playing games (quasi to religious philosophy).
(iv) This can only be made or admitted if the declarant had since died
and the declaration must relate to the cause of his death and he must
entertain no hope of recovery – hopeless expectation of hope although he
need not have died immediately afterwards. The statement must be
complete. If death intervenes prematurely whilst declaration was
incomplete it becomes inadmissible and the declaration need not be
adverse to the interests of the accused person e.g. in one case the deceased
said he would not have been fatally struck by the accused had he not
thoroughly provoked the accused. Although it was exonerative towards
the accused was held to be admissible. In the remarkable case of S v
Hein70 in which the accused was charged with the offence of murdering
one Dolla by performing an illicit abortion on her. Two days prior to the
deceased’s demise/death a magistrate was called to the hospital where he
recorded declarations from the deceased which said “I Dolla with the fear
of death upon me and without any hope of recovering make the following
statement ‘I am going to die, Mrs Hein is the cause of it all – it was
69 1788
70 1910 CPD 371

admissible” no hope for recovery. The court observed that it is clear from
the authorities that declarations might be made by persons under
conviction of an impending death and who at the time are in actual
danger of death are admissible in evidence. The case of R v Abdul71
reiterates the requirements. The court noted that for a dying declaration
to be admitted three thins must happen:-
(i) The declarant must be in danger of imminent death

(ii) Must have realized the extend of danger so as to give no hope of
life
(iii) Death must have occurred.
In terms of the common law, the reliability of declaration is assured by

imminence of death and the consequent like of motivation not to tell
anything other than the truth.
It is not necessary that the deceased should have died immediately as long
as it is clear that the deceased had in actual fact given up all hope of
recovery. Hearsay is admitted due to necessity but there must be
safeguards. In R v Nzobi72 in which the deceased said “I feel so weak that
I do not think I will succeed in recovering” – the court said the words
ascribed to the deceased did not indicate an irreversible expectation of
death (that the end was near). The deceased or declarant was only being
pessimistic without necessarily excluding all hope of life. Another
requirement is that (iv) the declaration must be complete. If it is
incomplete it becomes inadmissible e.g in the case of Waugh v R73 in
which the deceased uttered the following words “ The man has an old
71 1905 TS 119
72 1932 WLD 98
73 1950 AC 203

grudge for me simply because” and before he could conclude he sentence
he expired. The Privy Council held that the purported declaration which
was meant or which sought to be introduced as dying declaration when
the accused was being prosecuted for the murder of the deceased was
inadmissible because no-one would tell what the deceased would have
said had he survived longer and as a result the conviction by the court
aquo was squashed. Finally at the time of making the declaration the
declarant should have been a competent witness such that if he had
survived he would have been in a position to give evidence. There are
certain categories of witnesses who for reasons are precluded from giving
evidence e.g certified idiot, very drunk person, a child who is too young.
In Zimbabwe jurisprudence particularly in sexual matters the system has
become very innovative e.g system of victim friendly courts – the idea is
to make it easier for vulnerable witnesses including complainants to give
evidence whilst minimizing trauma of facing the accused. It involved use
of modern equipment e.g video or dolls where they can illustrate how
they were interfered with.
Declaration as to Pedigree
Pedigree – ancestry – lineage – biological origins – family tree
Declarations as to Pedigree may be admitted both in criminal and civil matters. In a

criminal matter this has relevance to incest. In civil cases in relates to maintenance,
succession and inheritance. The statement may be written or oral.
Requirements for admissibility
(i) Declarant must have died

(ii) Declarant must have been a blood relation or spouse of blood relation of the
person whose lineage is in dispute
(iii) The matter must relate to an issue of pedigree, ancenstry or lineage. One often
encounters pedigree declarations in a variety of situations – (a) family bibles
which sets out family tree (b) inscriptions on tombstones (c) immemorial messages
in the case of Ex parte Lottery74 in which an application was made to the Registrar
of Births and Deaths to issue a birth certificate and register the birth of child X.
The application’s case depended on an entry relating to his birth in is mother’s
bible and the mother has since died. The court refused to accept the entry as the
date of birth was not relevant to the pedigree question.
“According to the law of evidence, unless a matter of pedigree is in debate the entry in
the family bible is not admissible and it cannot be said in the present case that a matter
of pedigree is in issue. No question of succession, descent or legitimacy has been
raised”.
Declarations in the course of Duty
These are oral or written statements made by a deceased person and these are
admissible to prove the truth of the content if made as a result of duty to report or
record (contemporaneously made) soon after event with no motive to misrepresent.
This exception overlaps with the other common law exceptions to public documents e.g
a nurse filling information on a patient chart or card. In the ancient case of Price v
Torrington in entries made by a deceased delivery man relating to certain records were
held to be admissible in order to prove that a beer delivery which was the subject of a
civil action had been delivered. In the case of Nolan v Banard75 in which entries made
by a deceased farm manager in a diary in the course of duty were held to be admissible
74 1936 TPD 29
75 1908 TS 114

in order to prove that strange cattle had made an appearance at the farm on a given
day.
Conditions for Admissibility
(i) There must have been a duty owed to another person to record or report and if
that duty was not fulfilled the declarant could have faced sanctions e.g dismissal,
demotion, censor etc.
(ii) The duty must have related to acts done by the declarant and owed to a superior
board or person.
(iii) The recording or reporting must have been done contemporaneously with the
occurrence of the event.
(iv) There must have been no motive to misrepresent and under the common law the
death of the declarant is a must whereas as it is NOT under statutory position.
Res Gestae
Is arguably the second most important common law exception to the hearsay rule after
declaration by deceased persons. It basically means part of the story or transaction and
whereas most evidentiary rules are exclusionary res gestae statements are inclusionary.
The doctrine is a blanket expression which covers the admissibility of evidence as an
exception to a number of exclusionary rules particularly hearsay. It is a doctrine that
has often been criticised by lawyers, judges and academics alike because of it lack of
precision in exdititude. When we say that evidence or an incident is part of res gestae it
will be part of a chain of events and becomes relevant because of spontaneous and
contemporaneity so that the statement under the microscope would look meaningless

unless it is taken in the larger story that it is in response to a state of facts or events
usually of an exciting nature. There is no premeditation, fabrication and it’s not
contrived and not stage managed, not choreographed, exciting could be in the negative.
The assertion that an item of evidence forms part of the res gestae means that it is
relevant chiefly on account of its spontaneity and contemporaneity with matter under
investigation and linked to the transaction. When such evidence are admitted the
safeguard lies in the spontaneity of the statement and the probable absence of
fabrication.
Specific examples under which res gestae has been applied
Probably the most exemplification is through spontaneous exclamations. These take the
form of uncalculated outburst in the heat of the moment, unprogrammed – outstanding
– without preparations – not stage managed – but under excitement made by someone
who took part in the event and who witnessed. In American case of Thompson v
Trevanion76 - it was an action by the plaintiff for an unprovoked assault on his wife and
Holt C J held that what the wife said immediately upon the hurt received before she
had device or contrive anything for her own advantage might be given in evidence.
The national/justification is that the statement is probably true because it is

spontaneous and unchoreographed – made in the heat of moment with a speaker under
threat of nervous excitement and without an opportunity or presence of mind the
dream up a lie. It is a natural reaction to an event. A litigant who wishes to introduce
evidence under cover of res gestae assumes the onus or burden of proving the
admissibility of such evidence. The onus lies on such a party to show that the statement
was made in conditions of involvement and pressure such as to exclude the possibility
of concortion or fabricating to the advantaged of the declarant and detriment of other
party.
76 1693 Skin 402, 90 ER 179

In R v Taylor77 in which the accused was charged with the offence of culpable
homicide, it being alleged that he had savagely assaulted his wife with a leather scotch
thereby inflicting certain wounds and injuries from whose effect she has since died.
Events were given by certain persons occupying rooms nearby that they heard scuffles
accompanied by hysterical cries by the deceased in which she had said “John please
don't hit me any-more, you will kill me”. The defence objected to this evidence as
hearsay. The court said the evidence was receivable as part of the res gestae. The court
said “What the wife said immediately upon the hurt received, and before she had time
to devise or contrive anything for her own advantage, might be given in evidence”. In
S v Tuger78, the court in a very neat way summarised the requirement as follows:-
(i) There must be an occurrence which produce a stress nervous excitement
(ii) The statement must have been made whilst the stress was still so operative upon
the speaker that his reflective powers must be assumed to have been in abeyance.
The reflective powers or senses must have been on leave.
(iii) The statement must not constitute a reconstruction of past evidence. The idea is
to negate the danger of fabrication and concoction. In the case of Ratten v R79, in
which the accused wife telephoned the exchange operators in a voice of pregnant
with hysteria and emotions – “get me the police please” – moments later she was
shot dead. The court observed that although the statement was hearsay since
impliedly taken the evidence was that the husband was attacking the wife, it was
part of the res gestae. The court also held that it is essential that the words spoken
should be in reaction or some reaction to a relevant event and should be relevant
to that event. A spontaneous exclamation has a strong assurance or guarantee
77 1960 (3) SA 167

78 1966 (4) SA 573
79 1971 AUR 801

that a story which is sought to be introduced in evidence was not contrived
because the declarant had no time to reflect or reconstruct. The event must be so
unusual, so dramatic as to dominate the thoughts of the victim.
In the interesting case of R v Bedingfield80 in which the accused was charged with
murder by severing a woman’s throat. His defence was that she had committed
suicide. Apparently the victim had come out of the room of the murder and her throat
was gangling an cried “Look what Bedingfield had done to me”. The court noted that
although the terror produced by events was still upon the deceased the words were
spoken after the relevant events to which they related. The throat cutting process or
ceremony was over so the words “Look what Bedingfield had done to me” where not
enough – the events were spaced not to amount to res gestae – the reaction or utterances
were no longer part of the story – they were stale – no spontaneity and
contemporaneity.
Commenting on Bedingfield’s decision the court in Ratten v R observed that there

could hardly be a case where the words uttered carried clearly the mark of spontaneity
and involvement. Lord Wilberforce took a swipe at the decision in Bedingfield as
having been wrongly decided. In S v Qolo81 in which A saw a man covered in blood
and walked to him to render assistance. He was severely injured and when asked what
it was the man pointed a finger at a nearby willow tree and said “lo tsotsi”. The
accused was cowering behind the branches of the tree and was apprehended. The
injured man slapped the accused on the face and died of the wounds. There was no
evidence as to where the stabbing took place. The court said the utterance to A was not
contemporaneous to form the res gestae. The statement could not have been as dying
declaration because the deceased did not have a certain and solid expectation of dying.
The matter of spontaneity in the determination of res gestae was finally put to rest in R v
80 (1879) 14 Cox CC 341

81 1965 (1) SA 174 (A)

Andrews82 in which the seriously wounded victim of a robbery told the police he had
been robbed by two men and gave the name of one of the robbers. He became
unconscious, taken to hospital and died two months later. The trial judge permitted
evidence by prosecution in which the victim named the accused and the accused
appealed contending that the statement was inadmissible hearsay. R v Andrews clearly
shows that Bedingfield no longer represents the law. It shows that the test that is used
by the courts in determining spontaneity is not necessarily on one of exact spontaneity
that is defined with mathematical precision. It suffices to establish approximate or
substantial spontaneous. The doctrine is not limited to spontaneous exclamations e.g
(i) A statement which accompany and explain a relevant act can also be
regarded as part of the res gestae in appropriate situations. Statements made
by someone whilst doing an act relevant to a particular issue are admissible
to explain the act even though the speaker does not give evidence. The case
of Lensen v R83 is quite instructive – the accused was charged with operating
a gambling house. Police witnesses who anonymously kept watch upon the
house were allowed to give evidence of that they heard gamblers say as they
entered or left the gambling house. It was held that the statements were part
of the res gestae and the fact that they related to the house was relevant to the
question whether or not it was a gambling house and the statements which
accompanied the visit were therefore admissible. The idea was to show that
the patrons were visiting L’s house in order to place bats.
Requirements for admissibility
(i) The statements must be made by the actor
82 1987 AC 281
83 1906 TS 154

(ii) The statement should be more or less contemporaneous with the act.
In Turper v the Queen84 in which the accused was convicted of the arson of a
shop belonging to his wife and to identify the accused as the arsonist evidence
was given by a police constable that he heard an identified woman shouting
“your place is burning and you are going away from the fire” and that he then
saw a car in which there was a man resembling the accused. This incident took
place ½ an hour after the fire had started and about 220 yards from the shop. On
appeal it was held that the words by the witness did not form part of the res
gestae and where not exempted from the general rule against the admission of
hearsay evidence. The court reaffirmed the legal position, namely that to be
admissible it is essential that the words sought to be proved by hearsay evidence
should be contemporaneous with events or at least so clearly associated with the
events in time, place and circumstances that they are part of the thing being
done.
(iii) Statements concerning maker’s contemporaneous state of mind or emotions –

statements made by a person indicating the way he is feeling at the moment
are admissible whether or not he is called as a witness. This exception is born
out of practical necessity in that often, there is no other way of finding out the
way someone was thinking or feeling except by looking at their own
statements.
The statement must relate to the speaker’s contemporaneous state of mind. In Ex parte
May85 in which a statement by a testator made immediately after destroying his will
was admitted in order to prove that he had done so with intent to revoke his will.
84 1952 AC 480
85 1966 (2) SA 184

Statutory exceptions to the Hearsay Rule – the CP and E Act and the Civil Evidence
Act both make the provision for statutory exceptions to the hearsay rule in the interest
of the proper administration of justice. This is born out of necessity and public policy
considerations.
Single witness evidence Testis unis testis nulis (old concept) – See section 69 of the CP &
E Act – the court can convict in cases following outside perjury and treason on the basis
of the evidence of a single witness provided that the evidence is satisfactory in all
material respects but as a matter of practice the court must be very cautious about
convicting on the uncorroborated evidence of a single witness. It must be on
circumspect and on its guard in practice particularly where it is clear that the single
witness might be influenced or motivated by other interests other than the mere pursuit
of justice. In Banana v the State at page 7 of the judgement, Gubbay CJ had this to say
“it is of course permissible in terms of section 269 of the CP & E Act for a court to
convict a person on the single evidence of a competent and credible witness provided
that the single witness evidence is found to be clear and satisfactory in every material
respect. “ The court also noted that whilst the single witness evidence must be
approached with caution, in essence a common sense approach has to prevail. If the
court is convinced beyond reasonable doubt that the sole witness has spoken the truth it
must convict notwithstanding the fact that the evidence in some respects may be
unsatisfactory. Corroboration is not mandatory but it is useful – This overrules
Mupfudza which insisted on a two pronged approach. The courts have shifted towards
a much more flexible approach but proof beyond reasonable doubt is a must. In Ellis v
R (SR) which involved the conviction of accused upon two counts of theft. The case
predominantly relied upon the evidence of single witness who happened to be an
interested party. On appeal to the Federal Court reaffirmed that it is permissible to
convict an accused person to an offence against him on the evidence of one person that
evidence should be clear and satisfactory. The court went on to note that the old section
205 which has been replaced by 269 should not be invoked in the following situations:-

(a) Where the single witness has a clear interest or bias adverse or prejudicial to the
accused;
(b) Where he has made previous inconsistent statements;
(c) Where he contradicts himself in the witnesses’ box;
(d) Where he has been found guilty of an offence involving dishonest in the pact;
(e) Were he has not had proper opportunities for observation e.g matters relating to
identity – Musonza & Ors v State SC 187/88 – common assault arose as a result
of an altercation involving the complainant and the appellants and the state had
relied solely on the evidence of the complainant.
Corroboration – the essence of corroborative evidence is that one credible item of

evidence confirms another credible item of evidence and the term corroboration denotes
or mean confirmation. Suspect evidence is given by a suspect witness – need not be a
dishonourable citizen – only evidence is suspect. The court out of experience has to be
on its guard against such evidence. In R v Baskervile86 in which the court said that “we
hold that evidence in corroboration must be independent testimony which affect the
accused by connecting or tending to connect him with the crim. It must be evidence
that implicate him, evidence which confirms in some material not only that the crime
has been committed but also that the accused committed it – evidence aliunde –
independent confirmatory evidence – used in the context of corroboration.
The broad category of cases that require corroboration falls under suspect evidence
adduced by a suspect witness by virtue of circumstances and interests in the case. In
our law there are occasions where corroboration is required either statutorily – cases
involving accomplice evidence, treason and perjury. The CP & E Act makes specific
reference to the need for corroboration – Evidence Aliunde. On the other hand out of
experience the courts have come to insist/require corroboration in certain other
86 1916 (2) KB 658

situations which fall outside statutory injunctions or imperatives e.g evidence of young
children – viewed with a bit of caution, evidence involving sexual matters – the courts
are always on their guard, evidence of prostitutes in matters relating to their sexual
picadillos or exploits – dishonourable profession – evidence treated with caution – S V
Mupfudza 1982 (1) ZLR 271.
It was the locus classicus on corroboration for a long time in sexual matters. In the last
five years there is now a movement away from the rigorous of Mupfudza case.
Mupfudza established a two pronged approach to corroboration.
(1) First is the witness credible – if not, the question falls away
(2) Second – if the witness is credible the court is compelled to look for
corroboration so that you eliminate the possibility of being misled by an honest
witness who made an honest mistake. With sexual cases corroboration is no
longer a requirement as long as the witness is telling the truth. Mupfudza case
also tells us why the courts are often on their guard in relation to e.g. sexual cases
– complainants can easily fantasise and in the end misleading. In rape cases a
complainant might cry rape in order to disguise that she consented – to hide the
shame – married woman caught infragmento delicto.
Children – are easily suggestible – this is he traditional belief – drum a story into
his/her mind a story that is not true – they believe it. They are manipulable single
witnesses who might have observed events incorrectly or have bias in the matter.
Evidence of young children – by way of tradition and common law principle the court
must be on its guard where the evidence in question is that of a young child but
nowadays the trend is for the court to assess the credibility of the child witness and then
ask itself the question whether or not it is safe to convict on the uncorroborative

evidence of the child. In S v Ponder87SC 35/89 in which the curt made the following
observation that “there is no rigid requirement in our law that a child’s evidence must
be corroborated. Where the court believes the child and applies its mind to the dangers
inherent in founding a conviction upon the child’s uncorroborated evidence the court
may nonetheless convict.” The main purpose of applying the cautionary rules is to
guard against fabrication for invention that might come about as a result of the child
witness’ manipulability”
As was said in R v J88 in which the court noted that corroboration of evidence of
children of tender years is not required by any positive provisions of the law but their
evidence must nevertheless be treated with caution. In R v Dossi89 in which the
accused was charged with indecent assault – his admissibility that he had accidentally
fondled a child was held to be corroborative evidence. In another case R v J90,
McDonald JA presided over the appeal. A girl of ten years who gave evidence very
well that a man she knew very well had raped her. She immediately made a complaint
to her mother. The material evidence left no doubt that she had been sexually molested.
The material issue hat remained outstanding related to identity. The court said that in
the circumstances of the case it was highly unlikely that the little girl who was
genuinely distressed would falsely accuse a man whom she knew so well as the
wrongdoer. There was no motive for false incrimination and the information was not
forced out of the girl. The appeal court was satisfied that the conviction in the court a
quo was justified. See S v Zaranyika91. See also Musasa Edmore v S.
Single witnesses – section 269 of the CP & E Act
87 1989 (1) ZLR

88 1958 (3) SA 699 (SR)
89 1918 CA 158
90 1966 (1) SA 88
91 1997 (1) ZLR 539

Testis unis, testis nullis – one witness mistake is no witness. (p114-116) – an old approach
that has been discarded.
While the other had since died before trial. McNally JA

“As a general rule it is undesirable for the state to rely on uncorroborated
evidence of a single witness especially on assault cases or even more where
there are counter allegations of provocation, self defence or justification in one
form or another. The complainant in such case clearly has a potential for bias
and a reason to place himself on a favourable light and the accused in an
unfavourable light.”
Look at S v Nyati92, (2) R v Mokoena93 and (3) S v Nathoo Supermarket (Pvt) Ltd94.
Corbett 1990(1) ZLR 205 (s), Mukondo HH-15/87.
Evidence of Prostitutes
Generally there is not requirement for corroboration and cautionary rule – however
where the mater under investigation involve the prostitute’s own picadilos it would be
useful and helpful for the court to be in its guard because prostitution involves
deception and chicanery and a prostitute might easily cry rape when in actual fact the
act could very well could be consensual for a variety of resons or some such other
malicious reasons. These are people who are unlikely to tell the truth in so far as their
sex life are concerned unlike in murder cases. R v George95 - Police traps, spies,
informers – A category regarded by the court with suspicion since they have an interest
92 1977 (2) ZLR 315

93 1956 (3) SA 81
94 1987 (2) ZLR 136 (SC)
95 1963 (1) SA 202

in making a strong case against the accused. They are paid to obtain evidence.
Although corroboration is not required by law it will be useful to have it.
Claims against deceased estates
Again there is no rule that requires corroboration but at the same time the other party is
not available it is prudent for the court to look for independent confirmatory evidence.
In Wood v Estate Thompson96 in which the court said that there is no rule of law or
practice which requires that merely because it is a claim is one made against a deceased
estate it must be proved with corroborative evidence. However the court must examine
with a caution eye the uncorroborative evidence given in such matters.
Evidence of identification - Visual identification, identification from photographs,

identification in court, identity parades and voice identification. Read Prof. G Feltoe –
Judges’ Handbook for Criminal Cases, 1st Edition – 2009 pages 92 – 98.
Again as a matter of practice where the conviction of accused depends on evident of

identity the court found it prudent to exercise caution by closely scrutinizing the
circumstances in which the identification took place. Even with an identification parade
certain safeguards are put in place in order to minimize the risk of mistaken identity.
Some of the useful questions are:-
(i) How long was the accused under observation – protected or lifting glipse –
momentary – in what like
(ii) In what light was it – dark night, day, dead of night, broad daylight.
(iii) At what distance – was the accused a respectable distance away.
(iv) What was the accused wearing
96 1949 (1) SA 607

(v) Any distinguishing characteristics of the accused that remained embedded in the
witness’s mind.
(vi) Did the witness have any special reason to remember the accused – voice.
See S v Masera and Others CRB 175 – 81/02 by Mungwira J where the court said:
“It was put to the witness that the 4th accused has registered with his lawyers a
complaint which mentioned specifically and identified an officer with prominent
thick lips as having been amongst the number of police officers who had
assaulted him. The witness’ attitude to that was that he was not the only person
with thick lips.
I consider it appropriate to comment at this stage that from the time the witness
took the witness stand one could not help but make the observation that the lips
of the offer testifying were indeed prominently thick as described by the 4th
accused. His lips were so strikingly and unusually prominent as would provoke
comment from one meeting him for the first time.”
In S v Mutters97 in order to avoid or oviate the possibility of an honest witness making

an honest mistake. Read the following cases:
Nkomo and Anor 1989 (3) ZLR 117 (s)
Madziva v S SC 191/90
Mutters & Anor v S SC 66/89
Accomplice evidence – sections 267 and 268 of the CP and E Act
Is one area where corroboration is normally called for because traditionally accomplices
are regarded as witnesses of uncertain reliability because they generally have
97 SC 66/89

something to gain by falsely incriminating the accused or exaggerating the part played
by the accused and minimizing their own roles98.
Section 270 of the CP & E Act – any court which is trying any person on a charge of any
offence may convict him of any offence alleged against him in the indictment, summons
or charge under trial on the single evidence of any accomplice provided that the offence
has by competent evidence other than the single and unconfirmed evidence of the
accomplice been proved to the satisfaction of such court to have been actually
committed (evidence aliunde).
The case of R v Ncanana99 in which the celebrated South African Judge Schreiner JA
described accomplices as witnesses with a motive to tell lies about the accused person.
Witnesses who are peculiarly equipped with inside knowledge of the offence that they
can easily lie and in S v Kellner100 in whch the court clarified the law in the context of
the equivalent of our section 270 – “an accomplice is a person who is liable to be
prosecuted either of the same offence for which the accused has been charged or as an
accessory to such an offence and the question of whether the witness is an accomplice
or not is a factual enquiry to be determined by the court e.g on a charge of sodomy
consenting of the part of the complainant makes him an accomplice.
In R v Levy101 clarifying the operational dynamics of section 270 the court said that
corroborative evidence need only show that the accomplice is a reliable witness but not
necessarily in every detail but at least in regard to those material statements on which
the court basis its conviction. The corroboration should establish a nexus and the crime.
98 Section 267 as read with section 270 refer:

99 1948 (4) SA 399
100 1963 (2) SA 435
101 1943 AD 558

In R v Lakhatula102 - in order to satisfy demands of section 270 there must be other
evidence apart from the evidence of the accomplice that the crime was actually
committed so that if the court has shown itself to be fully appreciative of the dangers
posed by accomplice evidence and is still satisfied beyond reasonable doubt that the
accused is guilty it may convict. One case which is illustrative of the concept of Evidence
Aliunde is R v Bikette in which the accused was indicted of receiving a sheep the
property of one B well knowing it to have been stolen. It was proved by an accomplice
named Warren that he had gone out with Jonathan a brother of the accused and that
they had stolen two of Mr B’s sheep one being a large and the other a small one and that
Jonathan gave one of the sheep into the hands of the accused who carried it into the
house in which he and his father lived. The accomplice also stated where the skins
were hidden. In order to confirm the accomplice it was further proved that on the
house of the accomplice being searched a quantity of mutton was found and had
formed parts of two sheep corresponding in size with those stolen from Mr B and that
the skins were found in the place named by the accomplice.
Sexual offences
Corroboration is required again as a matter of practice and not any legal imperative. In
Banana 2000 (1) ZLR 607 (s) the Supreme Court ruled that that cautionary rule in sexual
cases is based on an irrational and outdated perception, and has outlived its usefulness.
It unjustly stereotypes complainants in sexual assault cases. The court must be on its
guard if the evidence is coming from the complainant’s mouth only. Historically, the
approach was that there are a variety of reasons as to why the complainant might want
to falsely incriminate the accused, fantasizing, ashamed to admit consent, spite since
they have fallen out, paternity case – better – better placed to look after the child.
102 1919 AD 216

In R v W103 the court observed that a further reason for corroboration was that sexual
allegations are easy to make and difficult to refute because it happens in private. In that
case the court thought it had found corroboration in the evidence of two witnesses who
said they had seen the complainant go into a church where the accused was playing
organ and come out again. On appeal the evidence was found to be colourless and
found to confirm the accused’s innocence. With sexual offences in the recent past the
approach of the Zimbabwean courts was to follow the 2 pronged approach laid in the
Mupfudza case.
It the witness credible – yes – look for corroboration. If not - acquit. In the Banana case
the court made reference to Mupfudza’s case. In the end one test applies – was the
accused’s guilty proved beyond reasonable doubt? In Banana’s case the court cited a
long number of cases abandoning the traditional view which sought corroboration in
matters of a sexual nature. In S v Masango104 the complainant was a 12 year old who
testified that one night after retiring to her sleeping hut with two small children, out of
nowhere a man forced himself on her to top and proceeded to rape her preventing her
from screaming by placing his hand over her mouth and threatened her of both’s arrest
if she told anyone. Although she could not see him in the darkness she recognized his
voice and she did not report until 2 weeks after she fell ill. Earlier in the evening the
accused had visited her home and borrowed a tin guitar from the brother of the
complainant. In his defence he had an alibi and he said he had been at a beer drink
elsewhere in the neighbourhood where traditional rights were being performed. It was
then established that this ceremony had only taken place a week after the alleged rape
and he had consciously lied. The Supreme Court said “Where the evidence of a young
person is clear and credible but uncorroborated the court while cognizance of the dangers of false
103 1949 (3) SA 772

104 SC 8-90

incrimination but satisfied such dangers have been eliminated may convict”. S v Gardiner105.
In Masango’s case the accused’s alibi was false. Can lies corroborate? In R v Lucas106
the court of appeal accepted that in certain situations a lie told in court may be
corroborative but in order for the lie to be corroborative the following requirements
must be satisfied:-
(i) It must be deliberate lying

(ii) Relate to a material issue
(iii) Motive for the lie must be a realization of guilty and fear of the truth
(iv) The lie must be clearly shown to be such. With specific reference to sexual cases
in some cases the depressed condition might assist. Also material objects – like
spoiled underwear or impounded material object from the accused.
Corroborative evidence will depend on the accused’s defence.
Competence and Compellability (section 244 to 248 of the CP & E Act and sections 4 –
10 of the Civil Evidence Act)
A witness giving evidence in a court of law has to be competent. The person must have
locus standi. Every person is competent to give evidence unless there is another rule of
law which bars them – Section 244 and 4 of the CP & E Act. When you are competent to
give evidence it means you must lawfully given evidence. One is compellable if
lawfully they can be obliged to give evidence without being compellable in a few cases
e.g where privilege attaches – matrimonial, privilege, legal, professional privilege, state
security – Bonyongwe H. if in doubt as to the competence of a potential witness to give
evidence the court hold an initial trial within a trial to determine the matter of
competency or even asking summary questions to determine the soundness or mental
faculties of the potential witness. If the witness is mentally defective or afflicted by
105 1982 ZLR 290

106 1981 QB 720

idiocy then they are incompetent. Section 247 refers young children can give evidence
no cut off age or threshold s long as the court is satisfied that the child witness is able to
tell the truth. They can give sworn evidence provided that the child appreciates the
difference between the truth and falsehoods quasi-religious significances. If dealing
with an atheist they can be admonished. It is absolutely imperative for the court to
ascertain that the child witness is able to distinguish the difference between telling the
truth and falsehoods. S v Zaranyika107 is imperative reading.
Persons with psychophysical defects can give evidence as long as the defects do not
stand in the way of the person who wants to give evidence. Judiciary officers, although
the law does not specifically exclude them it will contrary to natural justice for a judicial
officer to give evidence in a mater in which he is professionally involved particularly
with our acquirtorial?? system of justice where a high level of independence and
detachment is required. Where he has personal knowledge under investigation – the
most important thing to do is to recurse themselves and give evidence in an unfettered
manner. Likewise with legal practitioners while they can give evidence for their clients,
if they are involved professionally in the case the most important thing is to recurse
themselves.
Privilege – Section 290 – 297 of the CP & E Act and Sections 6 – 10 of the Civil
Evidence Act
Relative and not absolute inadmissibility because what is privileged to X may not be
privileged to D. The main types are:
(i) Marital
(ii) Legal professional
(iii) Privilege against self incriminatory and right to silence
(iv) State security
107 1997 (1) ZLR 539

(v) Without prejudice is negotiation
Marital Privilege
The rational for privilege in public policy. Marital is to preserve the institution of
marriage – the law accommodates desire of spouses not to have to spy on each other.
The desire is to protect marital confidence and secrets – section 6-10 of the Civil
Evidence Act and section 247 of the CP & E Act which defines situations and
circumstances when marital privilege may not apply e.g bigamy, rape, incest etc –
undermine the marriage itself anywhere. Statements made during subsistence of
marriage are privileged and cannot be divulged in a court of law without the consent of
an affected party. The definition is given under section 6 of the Civil Marriages Act.
In R v Jones108 extended the definition to unregistered customary law unions. Contrast

is with section 6. If a third party intercept information covered by marital privilege, not
only is the third party competent to give it but also compellable. In Rumping v DPP109
in which the accused wrote a letter to his wife and confessed to having murdered a
certain woman with whom he had had a misunderstanding. The letter came into
possession of a third party and the court said that the third party could give evidence.
A witness who claims privilege may not refuse to attend court. They are still obliged to
attend court and claim privilege under oath. They can refuse lawfully to answer
questions.
Legal Privilege – Section 294 of the CP & E Act and section 8 of the Civil Evidence
Act.
Rational is for open conduct and honest communication between lawyers and their
clients as a way of promoting a sound judicial system. The communication must relate
108 1966 (2) SA

109 1964 AC 814

to either litigation taking place or contemplated litigation. Section 8 of the Civil
Evidence Act refers the privilege also binds agents of the lawyer e.g secretaries or junior
employees who might have come across certain information in relation to the client on
account of their professional involvement with the client. It is the client’s privilege and
not the lawyer’s privilege – Section 8(5) specifies instances when the privilege may be
lost or abandoned or surrendered – e.g if the client purposely waves his privilege or if
the communication was meant to further the perpetration of a crime or illegal object.
In R v Cox and Anor110 in which the accused persons were being charged with
conspiring to defraud the complainants. The prosecutor, a lawyer who testified that the
accused persons had sought legal advice from him on how to effect the scam. The court
said that such communication cannot be privileged (without prejudice). Evidence of
prior consultation, admission made by parties to civil litigation in a spirit of resolving
the matter out of court. If for example one party offers to pay in settlement of certain
sum in money on an entirely without prejudice basis and later the negotiations reach
deadlock or run into a roadblock. The prior offer made by the one party cannot be
introduced in evidence as an admission without their consent. With state privilege the
idea is to protect vital state secrets that have a bearing on national security, interest. In
terms of our law if the Minister of State, Security writes an affidavit in which he
deposes to that he verily believes that the disclosure of certain information is not in the
public interests the court might regard that evidence as privileged. The Ben Menash
refers – or section 10 of the Civil Evidence Act equally refers.
Without prejudice negotiation
“without prejudice” – recognized as a conventional formula signify that what is said is

intended to form part of confidential negotiations. Hoffend v Elgen111. The courts
110 1884 (14) QB 156

111 (1949) (3) SA 91 (AD)

consider it desirable that the parties to litigation should be free to negotiate settlements
of their differences. The process to negotiate settlements would obviously be inhibited
if the parties had continually to consider how their negotiations would be if revealed to
the court at the trial. It is therefore necessary that parties should be allowed the
opportunity of negotiating confidentially, secure in the knowledge that if no agreement
is reached, the case will be brought without only reference to what was said in
negotiation.
Privilege
There are certain kinds of information which, though relevant, a witness is entitled to
refuse to place before the court. Such information is said to be privileged. The
following are the heads of privilege.
1. Legal professions privilege or confidential communications between attorney

and client – it is necessary for the proper administration of justice that persons
should be able to consult legal advisers to speak freely and frankly to them.
Frankness would be impossible if the client. The privilege extends to
communications made to an attorney with a view to employing him in his
professional capacity, even if he refuses to accept the employment. It does not
extend to the communication made to an attorney is some capacity, other than
that of legal adviser (e.g deputy sheriff or moneylender). It does not extend to
communications falling outside the scope of the professional relationship, even
though made while such a relationship existed – does not extend to legal advise
obtained in order to facilitate the commission of a crime or to avoid the detection
thereof. Once litigation is being contemplated, the privilege extends to
documents and statements which are brought into existence for the purpose of
forming part of the party’s brief. There must be really some contemplated
litigation, some fact to indicate that litigation is likely or probable. It must not be

a mere possibility which is there. See Boyce v Ocean Accident and Guarantee
Corporation Co. Ltd112. The documents must be prepared with a bona fide
genuine intention of placing it before a legal practitioner to obtain advice or to
enable him or her to conduct the litigation.
State Privilege
Public interest – section 10 – CP & E Act referred to as state privilege – and covers
every document the disclosure of which will be harmful to public interest due to nature
of the document e.t.c state security, police methods and their informers. Where it is
obvious from the nature of the evidence that its disclosure will be contrary to the public
interest, no formal objection is required. The judge will exclude the evidence of his own
accord. In other cases if the executive considers that the evidence ought to be excluded,
it must make its objection in the proper form e.g Minister, Judges of supreme courts
may not be examined as to anything done by them in their judicial capacities. The state
does not necessarily need to be party to claim privilege. It can intercede in a civil action
between two private citizens to object to the production of certain evidence.
Content and class claims
State privilege section 296 of the CP & E Act.
Consent – contents of say a particular document are such that it would prejudice the
public interest.
Class – documents falling into a particular class – e.g military, state intelligence
documents, delicate diplomatic negotiations, cabinet ministers.
112 1966 (1) SA 544 (SR) or 1965 RLR 668

Claim in proper form – Minister by the head of the department duly authorized by the
Minister – sworn affidavit – where claim is for the whole series of documents, the
Minister must have scrutinized all the documents to determine the validity of the claim
of privilege. If not made in proper form the court will order it be so made before it
proceeds to consider merits of the claim.
Common Law
A question arises as to whether the court is obliged simply to uphold such claim or
whether it has power to examine the claim to determine if the claim is justifiable.
In civil matter – may be vital to proof of claim by an litigant against each other on the
sate. In criminal – even more drastic consequences can ensue if evidence is withheld on
basis of state privilege. Need it from successful advancement of some defence.
Initial position – face value (English position 1942) Duncan v Cammel, Laird & Co
(1942) – charged wrongly/
1968 – House of Lords
Conway v Rimmer (1968) – court has discretion to examine merits – only for matters
which relates to high level interactions and not low level – routine documentation
passing between junior civil servants.
American Position US v Acholeck113

S v Tsvangirai – Garwe J said the court had power to look behind the certificate and
find out whether the claim for privilege is justified.
Ngaru v Chief Immigration Officer & Anor114- full bench.
113 142 F2 d 503

114 SC 26/04

Privilege against self incrimination and the right to silence – it is a general principle of
common law that nobody should be compelled to furnish evidence against himself on a
criminal charge. A witness may therefore refuse to answer a question on the ground
that the answer might tend to incriminate him. If the effect of the answer would be only
to establish some civil claim against the witness, there is no privilege. The witness
claiming privilege must state on oath that he believes that he might be incriminated by
answering the question which he has been asked.
The following general rules apply to all cases of privilege:-
1. A witness is not entitled to refuse to enter the witness box or to take the oath, on
the ground that he anticipated being asked questions which he is not obliged to
answer.
2. A claim for privilege may be raised only when an objectionable question has
been asked Weddell v Eyles115.
3. No adverse inference is to be drawn against a party who claims privilege because

the protection of privilege would become worthless – (the party claiming
privilege would be in no better position and often in a worse on, than if he had
not made the claim.
International Tobacco Co v United Tobacco Co.116
4. A claim of privilege may legitimately be regarded as evidence of a person’s

unfitness to hold a position of trust in which completer candour (openness,
frankness) is expected.
115 1939 TPD 198

116 1955 (2) SA at (10)

Statutory exceptions to the hearsay rule
They are necessitated by public interest and convenience.
Admissions – section 36 of the Civil Evidence Act– An adverse statement made by a

party to litigation which is contrary to their interests and is lead in evidence as an
exception to the hearsay rule. Our law says a statement can be an admission no matter
how and to who it was made – civil litigation – formal admissions in pleadings – or
admissions by contact e.g in R v C117 in which an accused on a sodomy charge had
attempted to commit suicide and tried to run away at the approach of he police – his
conduct was indicative of a guilty state of mind. Another case of Jacobs v Henings118
was regarded as an admission by conduct – seduction for damages in which plaintiff’s
father confronted the defendant and accused him of helping himself to his daughter at a
party to which he made no reply and merely lowered his head in shame.
Vicarious admission
In which on party in law is empowered or authorized to make admissions on behalf of

another party e.g Lawyer on behalf of this client, agent on behalf of his principal. In
McNaught v Tyerell119 in which the court said statements or facts made by a lawyer in
the pleadings where admissible in evidence. See S v Gonecalves120- a man involved in
an accident was speaking through the medium of daughter and made admissions
accepted by the court. Van Ryn v Hamfry121 a fire that erupted between two
117 1949 (2) SA 438 (SR)

118 1927 (PD) 324
119 1944 (SR) 139
120 1972 (1) SA 243
121 1953 (3) SA 392

neighbouring farms. It was enquired from the labourers who admitted. Confessions –
section 256 of the CP & E Act contrast with section 258 of the CP & E Act. It is
admissible in a court of law provided it is free and voluntary without undue influence.
In the case of Ebrahim v R122 the court said it has long been established that no
statement by the accused persons is admissible against him unless it is shown by the
prosecution to have been a voluntary statement in the sense that it has not been
obtained from him either by fear of prejudice or hope of an advantage held out to the
accused by a person in authority. S v Slater and Ors123 in which predominantly white
Airforce Officers were suspected of having sabotaged aircraft belonging to the
government. Accused were subjected to long, rigorous interrogation, blind folded,
moved from centre to another, denied access to lawyers, refreshments, proper food.
Dumbutshena JP – held that the statements were not freely and voluntarily and
inadmissible. R v Murambiwa124- accused suspected of murdering his employer.
Custody in two days – persistently question in an aggressive manner. After a final
period of interrogation (3hrs) he made an unculpatory statement. The court said that
confession was not done freely and voluntarily. In R v Edwards125 - the court said that
depending on the circumstances even one hour interrogation may be enough to vitiate a
confession. In S v Zaranyika the court said – must voluntary exercise (read sections
256)
Facts discovered by means of an inadmissible statement – section 258 of the CP & E Act
– R v Bvuvure126- condemned the use of illegally obtained evidence but still used it. See
also Motsi v State 2015 (1) ZLR 304 (H).
Judicial Notice (section 24 Civil Evidence Act)
122 1914 AC 599

123 1983 (2)ZLR 144
124 1951 SR 271
125 1966 (2) SA 359 (SR)
126 1974 (1) SA 206

This is a process where a judicial officer accepts the truth of certain facts which are
known to him even though no evidence was led to prove those facts e.g that
Johannesburg is in South Africa and that there are twelve months in a year. These facts
are well known or can easily be ascertained that evidence to prove them would be
completely unnecessary and even absurd.
The rationale for the doctrine is that:-
(i) Expedites the hearing of many cases.

Much time would be wasted if every fact which was not admitted had to be the
subject of evidence which would in many instances be costly and difficult to
obtain.
(ii) It produces uniformity of decisions on matters of fact where a diversity of

findings might sometimes be distinctly embarrassing. See Cross and Tapper on
Evidence, 91.
Some facts are noticed without any enquiry – without considering a specific source.
Whereas other facts may be judicially noticed only with reference to a source of
indisputable authority. Evidence in respect of disputability of the source in the second
category may be led.
The court relies on its own knowledge. This is different from receiving and taking
judicial notice becomes difficulty.
In McQuaker v Goddard127, the court, before taking judicial notice that camels are
domesticated animals, consulted books about camels and heard from witnesses
127 1940 1 KB 687 or 1940 All ER 471

regarding the nature of camels. The court of appeal noted that the trial judge when
hearing the witness’ testimony to the nature of the camels had not been taking evidence
in the ordinary sense. The witnesses were merely assisting him in forming his view.
The question whether a fact should be judicially noticed is one of law and should be
decided by the court which should where possible inform the parties in advance of its
intention to take judicial notice of a certain act which is of such a nature that it might
give rise to conflicting views.
Facts which are judicially noticed are well known to all reasonable persons or to a
reasonable court in a specific locality. It is not sufficient to act on one;s personal
knowledge of facts. In S v Mantim128 where the court said a magistrate had erred in
making use of his personal knowledge to take judicial notice of the fact that the climate
of a mountain range was suitable for cultivation of dagga. Precedents should be taken
note of.
Facts
(i) Notorious facts (general knowledge) – within the locality of the court e.g element
experience in human nature, commercial affairs and everyday life.
(ii) Facts of local notoriety – should be notorious among ill reasonably well-informed
people in the area where the court sits.
(iii) Facts easily ascertainable – these are not, generally known but they are readily
and easily ascertainable – from maps and surveys issues under governmental or
other reliable authority e.g accuracy of dates in calendars and diaries.
128 1990 (2) SACK 236 (E)

S v Bvuurew – pointing out condemned the use of illegally obtained evidence but it
was used.
Evidence of what was allegedly pointed out by an accused divorced from any evidence
of a possible inadmissible confer – regardless of the manner in which the pointing out
may have been obtained.
S V Zaranyika unless the court is satisfied that the child understands the distinction
between falsehood and the truth the child is not a competent witness. It is the duty of a
magistrate to ensure that the unrepresented accused has the necessary knowledge to
equip himself to conduct his own defence.
Rebuttable Presumptions of Law
Elliot defines a presumption “as a conclusion which may or must be drawn in the
absence of contrary evidence” e.g presumption of innocents requires the prosecution to
prove the accused’s guilty. There is another kind of presumption which may or must
be drawn if another fact is first approved. A conclusion (presumed fact) is a basic
fact/another fact is first approved.
Show that two people went through what appeared to be a marriage ceremony their
marriage will be presumed to be valid.
In R v Bakes129 Dickson CJ noted

“Presumptions can be classified in two general categories. Presumption without basic
facts and presumptions with basic facts. A presumption with without a basic fact is
129 1986 26 DLR (4th) 200

simply a conclusion which is to be drawn until the contrary is proven. A presumption
with a basic fact entails a conclusion to be drawn upon proof of the basic fact …”
These are aids to reasoning and argumentation which assume the truth of certain
matters for the purpose of some given inquiry. They assist the court in reaching a valid
and effective affirmative finding. They also allocate burdens of proof in accordance
with the probabilities and dictates of fairness. They also save time by not requiring a
party to prove that something that is most probably true. They also reflect policy
preferences to desired outcomes.
Classifications
(i) Irrebuttable presumptions of law – furnish conclusive proof of the fact presumed
and cannot be rebutted by evidence to the contrary. Most exist for reasons of
public policy and not because they necessarily reflect reality e.g a child under 7
years is presumed to be criminally or delictually liable. Policy is that “no child
under 7 years may be convicted of a criminal offence – better and realistic
wording.
(ii) Rebuttable presumptions – Rules of law compelling the provisional assumption

of a fact. The assumption will stand unless it is destroyed by contrary evidence
e.g in terms of certain statutory offences – refer o section 315 of the CP & E Act)
Examples of presumptions
• Validity of marriage if evidence show that a marriage ceremony was performed
Litzegerald v Green130- Decree of divorce.
Paternity
130 1911 EDL 432

Having sexual intercourse with the mother of the child born out of wedlock at the time
when the child could have been conceived – presumed to be biological father.
Admission and confession – sections 314, 273 of the CP & E Act.
An admission may be broadly defined as a statement which tends to disprove the case
of the party who made the statement. The rationale for acceptance is that a person is
unlikely to state something contrary to his own interests unless what he states is true.
There are three broad grounds upon which an admission may be found not to be free
and voluntary. These are:-
(i) physical coercision
(ii) undue influence
(iii) legal compulsion
Physical coercion – actual physical violence of the threat thereof.

Undue influence – induced by any promise or threat proceeding from a person in
authority – a position which may in itself strongly affect a weak or ignorant man.
Persistent questioning of an accused by the police may amount to undue influence even
if not accompanied by any express threat or promise. Certain rules for the guidance of
the police in interviewing accused persons and suspects have been approved by the
judges both in England and in South Africa. They are known as the Judges’ Rules.
Judges Rules
In terms of these rules, a suspect should be warned of the nature of the investigation
before he is invited to give any explanations. On being arrested and formally charged,
he should be warned that he is not obliged to make any statement. After arrest, a
prisoner should not be questioned at all. If he volunteers a statement, he should not be
cross-examined on it and should be asked only such questions as may be necessary to

elucidate points of ambiguity or obscurity. If one of a number of co-accused makes a
statement, the others may be informed of it but should not be told that they ought to
reply to it. It is irregular to confront one accused with another who has confessed for the
purpose of inducing the former to confess. The Judges’ Rules are administrative
direction and do not have the force of law. The fact that the Rules have been
contravened will therefore not automatically render a statement inadmissible. What is
important is whether or not the admission was voluntary and the matters mentioned in
the Judges’ Rules are merely some of the facts which will be considered.
Legal compulsion – the general rule of the common law is that no nobody may be
compelled to incriminate himself in replying to questions which he was legally obliged
to answer. There are statutory exceptions to this rule.
Confession – A confession is, of course, a species of admission. It is distinguished from

other admissions by the fact that it admits the whole of the case against the accused
whereas an admission may deal only with some minor fact in issue.
Read Tsorayi 1985 (1) ZLR 138(H).
Requirements
1. The person must be in his sound and sober senses e.g not affected by mental
stress or abnormality, liquour or drugs.
2. If made to a peace officer it must be reduced to writing in the presence of a
magistrate.
A statement which is intended by the accused to exculpate himself is not a confession,

no matter how damaging it may eventually be to his case.
Burden of Proof

The person who desires the court to take action must prove his case to its satisfaction.
See Dickinson v Minister of Pensions131. This means that, as a matter of common
sense, the legal burden of proving all facts essential to their claims normally rests upon
the plaintiff in a civil suit or the prosecutor in criminal proceedings.
Thus a plaintiff claiming damages for injuries in a motor accident must prove that the
defendant was negligent e.g a landlord whose premises have been damaged by fire will
succeed in an action against his tenant unless the tenant proves that he was not
negligent.
Evidentiary burden – a duty to adduce evidence to combat a prima facie case made by
one’s opponent or the duty cast upon a litigant who has to begin, of adducing evidence
in order to escape certain procedural consequences. In civil proceedings the burden of
proof is determined by pleadings – issues of trial. In criminal cases it is determined by
the pea to the charge. The party who bears the burden of establishing his claims or his
defence must satisfy the court for him to succeed on the claim of defence.
Charge of murder – overall onus rests on the state – accused – self defenc – if it
establishes a prima facie case – an evidentiary burden – duty to adduce evience to
combat the prima facie case made by the opponent will have to come into existence, that
is, it will have shifted or transferred to the accused. A risk of failure will be cast upon
himself or herself.
Who has to begin
In criminal trials the prosecution always has the right or duty to begin. The position in
civil trial is governed by rules of court. Normally plaintiff will first have to call his
131 [1953] 1 QB 228 at 232

evidence on any issues in respect of which the onus is on him. If the duty to adduce
evidence is on the defendant he has to begin.
Circumstances under which the defendant may begin
(i) Where an admission on the pleadings creates a prima facie case that places an
evidentiary burden on the defendant – in which event he will have the duty to
begin – shifting evidentiary burden on the defendant – See Smith’s Trustee v
Smith132.
(ii) Where the considerations of fairness and convenience may sometimes require the
defendant to begin although the plaintiff bears the onus. See Stocks and Stocks
(Pty) Ltd v T J Daly & Sons (Pvt) Ltd133 .
The Quantum of Proof

The is the degree of conviction which eh court must feel before it can make findings for
the party for the party who bears the onus. There is the criminal standard and the civil
standard. Business lies on the prosecution – criminal.
It is traditionally expressed as proof beyond reasonable doubt. See S v Masawi &

Anor134. Civil standard – proof upon the preponderance of probabilities – n a balance of
propabilities.
132 1927 AD 482

133 SA 754 at 756-6
134 1996 (2) ZLR 472 (S) 526-D

Criminal Standard – in R v Difford135 “no onus rests on the accused to convince the
court of the truth of any explanation which he gives. If he gives an explanation, even if
that explanation is improbable, the court is not entitled to convict unless it is satisfied,
not only that the explanation is improbable, but the beyond any reasonable doubt it is
false. If there is any reasonable possibility of his explanation being true, then he is
entitled to his acquittal”. See also R v M136 where it was stated that “… the court does
not have to believe the defence story, still less does it have to believe it in all it details, it
is sufficient if it thinks that there is a reasonable possibility that it may be substantially
true” – It must carry a high degree of probability. The standard is applied uniformly in
all cases. It does not differ accordingly to the seriousness of the offence. The only
difference is that some cases require a higher quantum of evidence to attain a given
standard than others but this does not involve any variation in the standard itself. See
Isdano 1985 (1) ZLR 62 (S).
The civil standard
The degree of proof required is easier to express in words than the criminal standard. It
involves a comparative rather than a quantitative test. It is not difficult to say one thing
is more probable than another, although it may be impossible to say how much more
probable. It was formulated by Lord Denning as follows: Muller v Minister of
Pensions 137 - It must carry a reasonable of probability but not so high as is required in a
criminal case. If the evidence is such that the tribunal can say “we think it more
probable than not” the burden is discharged, but if the probabilities are equal it is not.”
What is weighed is the “balance” in the probabilities arising from that evidence and all
the circumstances of the case and not the quantities of evidence.
135 1937 AD 370 at 373

136 1946 AD 1023 at 1027
137 1947 2 All ER 372 at 374

Finally, there are two kinds of issues decided according to civil standard of proof which
require special mention.
(a) Allegations of crime or immorality – no exception to the rule. See Gates v

Gates138- adultery in divorce proceedings could be proved by the civil standard
but this does not mean that adultery or criminality or other dishonest conduct,
will be lightly inferred. The standard remain the same but more evidence may
be necessary to achieve that standard if the inherent improbability of the act has
to be overcome.
(b) Onus on the accused in criminal cases – it is now settled that in the absence of
express words to the contrary, the civil standard applies to all issues on which
the burden is placed upon the accused by statute – Ex parte Minister of Justice:
In re R v Bolon.139 The same is true in cases where the accused has the burden of
proof at common law – defence of insanity – See R v Kaukakani.140
138 1939 AD 150

139 1941 AD 345
140 1947 (2) SA 807 (A)

Parole Evidence Rule
Maparanyanga v the Sheriff ZLR 2003 (1) 325 (s)
This is a rule which says where a contract has been reduced to writing no other
evidence of its contents will be acceptable serve for the written document itself or
secondary evidence thereof. Basically the point is that the moment you have a written
document you may not adduce or lead oral evidence as to the content of the contract
whether to alter, contradict or vary such contents. In Union Government v Vianin
Ferrous Concrete Pipe (Pvt) Ltd141the parole evidence rule was applied so as to exclude
oral evidence. The parole evidence rule is a rule similar to other rules of evidence
which have exceptions to them.
Christie, Business Law in Zimbabwe at page 65 says:-
“it is equally obvious that it (parole evidence rule) contains seeds of injustice because it
excludes evidence which might reveal the true agreement between the parties. To
minimize this danger the application of the rule is subject to a number of limitations.”
These are misrepresentation, fraud, illegality, duress and mistake. See Maparanyanga v
the Sheriff142.
Exceptions to the Parole Evidence Rule

(a) The first exception is not strictly an exception as such. It says the parole evidence
rule does not exclude the leading of evidence to establish that the contract was
subject to a suspensive condition because one will not be varying the contract.
141 1941 AD 43
142 ZLR 2003 (1) 325 (S)

(b) The rule would not be applicable where it is the intention of the parties that the
contract should be partly in writing and partly oral (verbal). The court will give
effect to the intention of the parties. See Avis v Verseput143 where the court took
the view that this was a situation where the parties had intended that their
contracts should be partly verbal and partly written. The court held that the oral
agreement will be given effect. See also Harlin Angels Hotel Ltd144where a
contract was held by the court to be constituted by the Lease Agreement and a
letter.
To counter the problem of including evidence outside the written contract one
has to include an intergration clause or a whole contract clause. This will be a term
stating that the document will be the entire contract between the parties and all
terms, conditions, warranties or representations not herein included will be
expressly excluded. This means that one will be entrenching the Parole Evidence
Rule into the contract. See Mhene v Tembez145. The Parole Evidence Rule is
designed to promote certainty. The contract document serves all the purposes n
evidential aspects. However, the exceptions to the Parole Evidence rule make
the written document uncertain and ultimately the court has to balance the
competing interests of the parties.
(c) It does not apply where the validity of the contract itself is being challenged by
one of the parties thereto. See Cok v Osborne146 where the court ruled that one
could not exclude oral evidence to establish the ground of invalidity of a contract
e.g mistake – thus courts are sometimes prepared to disregard the integration
clause as it did in Mhene v Tembes (supra).
143 1943 AD 331

144 1962 (3) SA 143
145 1986 (2) ZLR 179
146 1993 (4) SA 788

(page 183 paragraph “F” his case is “look at the agreement of sale. Ignore everything else”. It is a
technical argument ignoring both reality and morality. The learned Judge properly rejected it.)
An integration clause is often coupled with a non-variation clause. If the parties

intend to vary the terms of the contract it has to be in writing and signed. Any
such purported oral evidence to vary the terms of the contract will be of no force
and effect. The non-variation clause is binding on both parties and any
purported oral variation inconsistent with such a clause would be invalid.
However, a non-variation clause does not in itself preclude a waiver.
Accordingly, a non-variation clause is often coupled with a non-waiver clause. A
non-waiver or indulgence clause says that no indulgence made by the party can
be taken to be waiver of his rights. The Supreme Court considered this issue in
the case of AFC v Pocock147. P borrowed some money from AFC. According to
the contract AFC could come any time and sell the farm in the event of falling
into arrears. The contract had a non-variation and non-waiver clause. P fell into
arrears and had discussions with one R, AFC’s General Manager where it was
agreed that instead of repossessing the farm AFC would enter into an agreement
of payment in terms of which P would register a stop order. After that
agreement P was surprised to receive a letter from AFC threatening that it would
move in and sell the property. P argued that they had entered into an oral
agreement with R – so AFC could not repossess and sell his property. It was
argued for AFC that there was a non-variation and non-waiver clause and they
were therefore entitled to proceed as they had done. P argued further that the
oral agreement constituted a waiver by AFC of its rights in terms of the contract.
P further tried to argue that AFC should be stopped from denying the existence
of the oral agreement with its General Manager. P’s arguments were rejected by
the court which ruled in favour of AFC.
147 1986 (2) ZLR 229 – SC 135/96

At page 236 the court said: - Gubbay
“I am satisfied therefore, that the respondent cannon rely successfully on

either waiver or estoppels, for the effect of the clause is to negate both
defences. Under it the respondent agreed that condonation of breach will not
constitute a waiver of the appellant’s rights arising from the breach and at the
same time accepted notice that any conduct of the appellant which might
otherwise give rise to estoppels may not be taken by him to be such conduct.”
The Application of Parole Evidence Rule in Maparanyanga v The Sheriff SC/32/02 –

ZLR 2003 (1) 325 (S)
The Sheriff entered into a written standard form agreement with the purchaser after
purchaser had offered to purchase the debtor’s property by private treaty. The
purchaser’s offer had conditions of payment different from those in the standard form.
The standard form provided for the full purchase price to be paid on signature thereof.
However, both parties regarded themselves as being bund by the terms of payment set
out in the written offer made by purchaser and accepted by the Sheriff. The High court
concluded that although the standard form of contract did not reflect the terms of the
agreement between the parties, that form had been signed merely as a formality that
was required by the practice in the Sheriff’s office. The parties were well aware of the
conditions of the sale that had been agreed upon between them and those conditions
were observed on appeal by Maparanyanga. The Supreme Court set aside the order
granted by the High Court. One of the reasons given by the Supreme Court for setting
aside the order was that it did not regard the standard form of agreement of the dale to
be inferior to, or less binding than any other contract properly entered into by the
contracting parties. The court went on to state that it was satisfied that the
consequences of disregarding a material term of such contract were lot more drastic
than as suggested by the High Court.

The Sheriff denied breaching the agreement. His evidence was that the standard form
did not record accurately the agreed terms of the contract. This is also supported by the
offer made by the purchaser which culminated in the signing of the agreement. The
offer did not state that full payment will be made upon the signing of the agreement.
Other contemporaneous documents may be looked to when the written contract is only
one part of a larger transaction. The offer made had to be seriously considered to
determine the correct terms of the contract. See Menashe v Georgiadis148. The
purchaser and the Sheriff were agreed as to the true nature of the terms. It was not
intended to contain the whole contract between the parties. See Avis v Verseput149.
In its decision at page 12 of cyclostyled judgments, the Supreme Court stated “… from a
contractual point of view, having signed such a contract, both parties were bound and
obliged to adhere to its terms”.
It is submitted that this is not the correct statement of the law. The words of a contract
are not engraved in stone. If parties can show that the written contract does not reflect
what was greed between them, a court will not insisted that they perform according to
it. Rather, it will insist that they comply with what each had agreed to do because they
consider themselves bound by the terms not expressed. See R.B Ranges v Estate
McLean & Anor,150 Barnabas Plein and Company v Sol Jacobs and Sons151. In a
judicial sale the parole evidence rule should be invoked by any interested party where it
is shown that the departure from a contract was done with mala fide intention. In this
case such was not provided as noted by both the High Court and the Supreme Court.
There was no basis to apply this rule. The purchaser argued that the written contract
did not reflect the terms of the agreement between him and the Sheriff. The Sheriff
agreed with the submission. Their evidence was not challenged and should have been
148 1936 SR 59
149 1943 AD 332
150 1986 (1) ZLR 79
151 1928 AD 25

accepted. The parole evidence rule does not apply where the parties are in agreement
as to the terms of their contract, though not reflected in the written contract.
It only allows a stranger to lead evidence to contradict its terms, but not to bind the
parties to a written contract where they are agreed that it does not reflect the true terms
entered into by them. The rule operates only on the parties to the contract. See Thorton
and Anor v Aetna Insurance.152 The court also stated that the fact that the contract
“was in the form of standard agreement of sale in no way detracts from its validity” as a
binding contract. It is submitted that what really detracts from its validity is that it does
not reflect what was agreed upon between the parties. The intentions of the drafters of
the standard contract are no relevance. It is the intention of the Sheriff and the
purchaser that is relevant. Even after the standard form was signed, both parties
accepted that the written offer by the purchaser set out terms of their agreement. There
was no dispute on that issue. It is difficult to understand how the Supreme Court could
insist that the standard form of the contract which had been signed was the real
agreement between the parties. If there were allegations of fraud or corruption, a court
might hold that the evidence given by the parties, where they are in agreement, cannot
be accepted. That was not the case here. We have a situation where the court is
insisting that a document signed by the parties sets out the terms of the conditions of
their agreement when both parties say that it does not.
There was no evidence to support that the standard agreement was the entire contract
between the parties. It is submitted that the Supreme Court’s decision on the
application of the parole evidence rule was wrong.
152 1965 RLR 373


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FACULTY OF LAW

MODULE TITLE: RULES OF EVIDENCE (LB208)

LECTURER: ARTHUR MARARA

Arthur Marara | Attorney. Author. Speaker

- Law of evidence is part of adjectival/ procedural law because it is closely linked

- It (law of evidence) overlaps with other branches of procedural and substantive

- There is also influence of common law.

Arthur Marara | Attorney. Author. Speaker

any material items or assertions of fact that may be submitted to a

Any material which is formally admitted in criminal or civil proceedings

• Therefore - no uniform definition / formulation. (Task: formulate a better

1 (citations/references deliberately deleted)

Arthur Marara | Attorney. Author. Speaker

Sources of Zimbabwean Law of Evidence

- Law applicable in Zimbabwe is a hybrid law i.e. Roman-Dutch-English Law.

- The Constitution of Zimbabwe is relevant. Why?

- The sources of Zimbabwean Law of Evidence are:

3 Wikipedia text under CC-BY-SA License

Arthur Marara | Attorney. Author. Speaker

Inclusionary Rules of Evidence: - this refers to evidence that may be unreliable, of

6 Sir R Cross Evidence – 5th Edition, Butterworths p. 4

Arthur Marara | Attorney. Author. Speaker

Relevance is today regarded as the basic criterion of admissibility. Relevant evidence is

7 (1989) (3) ZLR 1117(SC) p. 124-125

Arthur Marara | Attorney. Author. Speaker

Arthur Marara | Attorney. Author. Speaker

Arthur Marara | Attorney. Author. Speaker

Arthur Marara | Attorney. Author. Speaker

Inadmissible – (permissible) it may not be introduced, its exclusionary for a number of

14 1996 (1) ZLR 244 (s)

Arthur Marara | Attorney. Author. Speaker

Exclusionary Rule No. 1

Previous Consistent Statements

Arthur Marara | Attorney. Author. Speaker

17 [1958] (1) All ER 224

Arthur Marara | Attorney. Author. Speaker

Exceptions to the general rule

(i) cases of identification

18[1942] )1) All ER 187

Arthur Marara | Attorney. Author. Speaker

Identification – Using previous identification of a person to show consistence in the

Exception No. 1 – previous consistent statements – previous identification at a properly

Arthur Marara | Attorney. Author. Speaker

Requirements and Safeguards

In terms of historical context

Arthur Marara | Attorney. Author. Speaker

23 1955 (4) SA, 40 (N)

Arthur Marara | Attorney. Author. Speaker

(i) age of the complainant – 8 years of age

25 [1948] All ER551

Arthur Marara | Attorney. Author. Speaker

Relationship – consequences of reporting will trouble her.

Utterances or threats – made the girl to hold back

Arthur Marara | Attorney. Author. Speaker

In R v Osborne27 the court said that:

27 1905 (1) KB 51 [1905] All ER Rep 54

Arthur Marara | Attorney. Author. Speaker

Genuine fears of fabrication will arise if this is allowed. Discrimination based on

In R v Camelleri30 on the trial of an accused for committing acts of burgery or gross

30 1922 (2) QB 122

Arthur Marara | Attorney. Author. Speaker

“Evidence that a complainant in an alleged sexual offence made a complaint