INFORMAL EVIDENCE

REFERENCE: Principles of Evidence PJ Schwikkard SE van Der Merwe, 4 th

edition Juta

An admission is a statement made by ap arty , in civil and criminal

proceedings, which is adverse to that party’s case.

REQUIREMENTS FOR ADMISSIBILITY

In civil matters there is only one general requirement for admissibility,
and that is relevance. An additional requirement must be met where
statements are made in the course of negotiations for the settlement of
dispute, in that such statements cannot be disclosed without the
consent of both parties. In criminal matters an admission must be
proved to have been made voluntarily.

Admissions by conduct - admissions may be contained in a verbal or

written statement and they may also be inferred from conduct.
In Shepard and Others(14)it was held that a party’s payment of an
invoice was an admission that the services specified in the invoice had
been performed. The constitutional right to remain silent and the
presumption of innocence will no doubt severely restrict the inferences
that can be drawn from an accused silence. (15

Failure to answer letters – An admission may be inferred from the

failure to answer a letter. In R v West (63) where the accused had failed
to respond to a letter from the complainant alleging that he was the
cause of her pregnancy, the court held that an acknowledgement of the
paternity could not be inferred from his silence.

Statements in the presence of a party – a statement made in presence

of a party may be put before the court in order that the court may
assess whether the party’s response to hearing the statement
amounted to acceptance of its truth.

Failure to cross-examine – In certain cirumstances the failure to cross-

examine may also constitute an informal admission. The appellant in
S v Mathlare (67) had been convicted of rape in the regional court. On
appeal it was alleged that the prosecution had failed to present formal
evidence to the effect that the blood samples identifying the appellant
as the father of the child conceived as a result of the rape were taken
from himself, child and complainant. During the trial the source of the
blood samples had not been raised in cross examination, and the cross
examination having focused on the reliability of the analysis of the
samples and the conclusion drawn from such analysis. The appeal
court held that the tenor of the defence cross examination , constituted
an informal admission of the source of blood samples. In effect the
failure to challenge the admissibility of the evidence at trial precluded
the appellant from challenging its admissibility at the appeal.
Vicarious Admissions- In Mdani (75)the evidence in issue, consisted of
extra-curial statements made by an insured driver, who was not party
to the suit, which was tendered against a third party insurer. The court
a quo found the evidence to be inadmissible in accordance with the its
interpretation of Union and South West Insurance Co Ltd v Quanta NO
(76) not only are such statements inadmissible because they are
hearsay in nature but also vicarious nature.

Examples of Vicarious Admissions Rule

1. Express or implied authority
1.1 Agents and employees
An agents statement against his principal may be admitted
as evidence. Admissions by employees are admissible.
1.2 Partners
An admission made by one partner regarding the partnership is
admissible.
1.3 Legal Representative
An admission made at a trial by a legal representative is
admissible against the client.
1.4 Spouses
An admission by one spouse is generally inadmissible against
the other unless it concerns, Domestic Violence, Child Care,
Sexual Offences.
1.5 Referees
Statements made by someone to whom a party has referred
others for information may be proved against him as an
admission concerning the subject matter of the reference.
STATEMENTS MADE WITHOUT PREJUDICE
A without prejudice statement