Question 1.

The hearsay rule originates from the English common law and was incorporated as part of the
South African law of evidence through legislation. In terms of the English common law
evidence so labelled should be excluded uncompromisingly unless it can be accommodated
within a recognised exception. This remained the position until 1988, when the Law of
Evidence Amendment Act brought about some changes, replacing the system with a more
flexible approach. Although there is still a general rule against hearsay, the new approach
gives courts the power to admit hearsay evidence in cases where the traditional hearsay
dangers are either satisfactorily accounted for, or are insufficiently significant.

There are two factors which prompted our legislature to replace the common law with
statutory provisions.

Firstly, the common law definition of hearsay proved to be inadequate. This means that the
common law provisions were not fit enough for the purpose of hearsay evidence and its
admissibility. The legislature saw the need to develop the new legislation that will be
adequate. There was a common law definition of hearsay evidence applied by the court, but
that definition was inadequate that is why the legislature decided to replace it with the
statutory provisions. The legislation defines the hearsay evidence as an evidence, whether
oral or in writing, the probative value of which depends upon the credibility of any person
other than the person giving such evidence.

Secondly, no further exceptions to the rule that hearsay is inadmissible could be made, which
was unacceptably inflexible. The legislature realized the need to develop the statute that will
provide the exception to hearsay evidence. This means that the court cannot apply other
exceptions other than those already provided by the Law of Evidence Amendment Act. The
exceptions were there to hearsay evidence and its admissibility but not yet limited.

In S v Ndhlovu, the court held that the 1988 Act does not change that starting point.
Subject to the framework it creates, its provisions are exclusionary. Hearsay not admitted in
accordance with its provisions is not evidence at all. What the statute does is to create supple
standards within which courts may consider whether the interests of justice warrant the
admission of hearsay notwithstanding the procedural and substantive disadvantages its
reception might entail. The Act thus introduces the very feature this Court held the common
law lacked, namely ‘a principle that the rule against hearsay may be relaxed or is subject to a
general qualification if the Court thinks that the case is one of necessity’. In this case at para
15 , the court held that the 1988 Act was thus designed to create a general framework to
regulate the admission of hearsay evidence that would supersede the excessive rigidity and
inflexibility and occasional absurdity of the common law position.

As a result, the Law of Evidence Amendment Act 45 of 1988 was passed which contains
both a new definition of hearsay and new exceptions to the basic rule that hearsay is
inadmissible. It seldom makes a difference whether you refer to “hearsay” or to “hearsay
evidence”, both terms are generally acceptable.

The legislation which was passed provides clear and precise guidelines on how to determine
the hearsay evidence and when it should be applicable. The Act determines whether or not
the evidence is admissible.

Question 2
Law of Evidence Amendment Act 45 of 1988 contains the definition of hearsay
evidence. Section 3(4) of Act 45 of 1988 defines hearsay as evidence, whether oral or in
writing, the probative value of which depends upon the credibility of any person other than
the person giving such evidence. It is necessary to consider the different elements of this
definition separately, since this is crucial for a proper understanding of the definition of
hearsay. Hearsay evidence is evidence given in court. It can either be oral or written
evidence. Written evidence will invariably be contained in a document, which means that the
principles relating to documentary evidence also come into play.
In S v Ndhlovu, the court explained that probative value means value for purposes of proof.
This means not only, “what will the hearsay evidence prove if admitted?”, but “will it do so
reliably?”. It is basically the same as the weight of the evidence. Evidence is always given for
a reason, if it has no purpose in a particular case, it will be irrelevant. Therefore, evidence
must always provide proof of some fact in issue.

When one has to determine the probative value of a certain piece of evidence in a given case,
one first has to establish what the reason for that evidence is. The second question is the
extent to which the evidence actually provides proof of the particular fact in issue. If the
piece of evidence only provides a little proof, it will have little probative value if it provides a
good deal of proof, it will have a good deal of probative value. One can therefore say that, if
hearsay is presented as the truth and in order to prove a fact in dispute, it will generally be
inadmissible. If evidence in the form of hearsay is, however, not presented for the truth
thereof, but merely to prove that, for example, a certain statement was previously made in
order to show the consistency or credibility of a specific witness, it will not be hearsay.

Evidence must depend upon the credibility of someone other than the witness in order to be
hearsay. Firstly, it should be determined what is the probative value of the evidence. Then,
upon whose credibility does the probative value depend? “Depends” requires that the
probative value depends sufficiently upon the credibility of someone other than the witness to
lead a court to believe that its potential for prejudice is sufficiently great to warrant a full
examination of all the relevant facts.

In Mdani v Allianz Insurance Ltd, the court applied the statutory definition of hearsay as
follows: “If A testified that B made such an admission, A’s evidence in itself is clearly not
hearsay. Whether B in fact made the admission, depends upon A’s credibility and can be
tested by cross-examination. What is hearsay, is the content of the admission if it is to be
used to establish the truth of what was said. And whether the content is true or not, depends
entirely upon B’s credibility.”
Question 3
The law of Evidence Amendment Act contains three exceptions in which the hearsay evidence
can be admissible. These exceptions are provided in terms of section 3(1) of Act 45 of
1988.

Firstly, each party against whom the evidence is to be adduced agrees to its admission. This
exception is contained on section 3(1)(a) of Act 45 of 1988. Section 3(1)(a) of Act 45
of 1988 provides that subject to the provisions of any other law, hearsay evidence shall not
be admitted as evidence at criminal or civil proceedings, unless each party against whom the
evidence is to be adduced agrees to the admission thereof as evidence at such proceedings.
The hearsay evidence may be admitted by consent of the other party. The consent can be
expressly given or implied consent by the party or his or her legal representative. The
consent may be inferred where a party fails to object to admission of hearsay evidence or
where a party deliberately elicits hearsay evidence from her opponent in cross examination.
Situation is not the same where the accused is not represented. The courts slow to infer
informed consent where party is unrepresented. In S v Ngwani , the court stipulated that a
judicial officer must explain relevant law to unrepresented accused and has a duty to explain
to witness who may be tendering hearsay evidence to avoid doing so until court has made a
ruling in this regard.

Secondly, the person upon whose credibility the probative value of the hearsay evidence
depends testifies during the proceedings. Section 3(1)(b) of Act 45 of 1988 provides that
subject to the provisions of any other law, hearsay evidence shall not be admitted as
evidence at criminal or civil proceedings, unless the person upon whose credibility the
probative value of such evidence depends, himself testifies at such proceedings.

If the person on whose credibility the probative value of the evidence depends, testifies at a
later stage, the hearsay evidence becomes admissible. In S v Ndhlovu and others , the
court that the mere fact that the person testifies at a later stage cannot always result in the
hearsay evidence being admissible, since this person might not confirm the hearsay evidence.
If this person affirms the hearsay evidence during subsequent testimony, the hearsay
evidence will be admissible, otherwise, the court found, the hearsay evidence should be
permitted if it is in the interests of justice.

The court may allow hearsay evidence on the understanding that the person who made the
statement will testify at a later stage. This approach allows a party to adduce evidence in a
particular order with or without having to call the maker of a statement as an earlier witness,
if maker of statement does not testify, then the court will have to ignore the hearsay
evidence, unless it can be admitted under one of the other exceptions.

Lastly, the court, having regard to various factors, is of the opinion that such evidence should
be admitted in the interests of justice. section 3(1)(c) of Act 45 of 1988 contains the
third exception to admission of hearsay evidence. section 3(1)(c)(i) to (vii) of Act 45 of
1988 states that Subject to the provisions of any other law, hearsay evidence shall not be
admitted as evidence at criminal or civil proceedings, unless the court, having regard to the
nature of the proceedings, the nature of the evidence, the purpose for which the evidence is
tendered, the probative value of the evidence, the reason why the evidence is not given by
the person upon whose credibility the probative value of such evidence depends, any
prejudice to a party which the admission of such evidence might entail and any other factor
which should in the opinion of the court be taken into account, is of the opinion that such
evidence should be admitted in the interests of justice.

Under this exception, when the court exercises discretion must consider the following specific
factors as well as any other factor which should in the opinion of the court be taken into
account.

The nature of the proceedings

In Metedad v National Employers’ General Insurance Co Ltd, the court stipulated that
because of the presumption of innocence, our courts will be more inclined to admit hearsay in
civil cases than in criminal cases.

In Vigario v Afrox Ltd, the hearsay evidence was admitted by taking into account the quasi
judicial nature of inquest proceedings and an inquiry in terms of the Housing Amendment
Act 47 of 1967.

The nature of the evidence

Our case law provides no clear guidance, but it can be inferred from Hewan v Kourie NO
that the reliability of the hearsay evidence is an important when considering the nature of the
evidence. The fact that the non-witness, for example, has or had no interest in the matter
before the court may impact on the reliability aspect.

The purpose for which the evidence is tendered

In Hlongwane v Rector, St Francis College and confirmed in Metedad v National
Employers’ General Insurance Co Ltd, the court held that evidence pertaining to a
fundamental issue in the case will be more readily accepted than an evidence tendered for a
doubtful purpose.

The probative value of the evidence

The criteria which is used to determine if evidence is sufficiently relevant, the probative value
is weighed against the prejudice that a person against whom such evidence is adduced may
suffer. Proof and reliability are fundamental factors when the probative value is considered.

In S v Ndhlovu, the court that probative value means value for purposes of proof.

The reason why the evidence is not given by the person upon whose credibility its
probative value depends.
In common law the necessity was a basis for the admission of hearsay and it is still relevant
in terms of Section 3 of the Act 45 of 1988. Necessity can result from such factors as the
death, illness (mental or physical) or absence from the country of the declarant. In S v
Nzama, the court held that if a witness had to testify in disguise for fear of his life, it would
defeat the purpose if the witness were required to testify at the application.

Prejudice to opponents
In S v Ndhlovu it was stated that our courts are generally reluctant to admit hearsay
evidence which leads to the conviction of an accused unless compelling reasons exist for such
admission. Where the interests of justice require the admission of hearsay evidence, the right
to challenge evidence doesn’t include the right to cross-examine the original declarant as it is
not an essential component of the right to challenge.

Any other factor which should, in the opinion of the court, be taken into account
The common law provisions in respect of hearsay evidence can be taken into account when
the court in in an opinion to consider. Hearsay evidence that would have been admissible
under common law will probably still be admissible. In Mnyama v Gxalaba, for example,
the deceased's dying declaration was accepted as an exception to the general rule and
hearsay evidence was admissible.

Question 4
In S v Ndhlovu, the accused were convicted in the High Court of Johannesburg. The
appellants were appealing after various convictions which include murder, armed robbery and
unlawful possession of fire arm. The accused was challenging the admissibility of the hearsay
evidence. The two eye-witnesses testified against the accused but their testimony was
regarded as virtually worthless. The words and actions of the accused 3 and written
statement by accused 4 were considered and incriminated themselves and co-accused in the
High Court. The court reasoned that the accused did so freely and voluntarily, so it
constitutes the admissible evidence.
The issue on the appeal was the admissibility of hearsay evidence against their co-accused
from oral and written statements. The court stated that where the statutory provisions cannot
read conformable with the constitution the question of unconstitutionality arise.

The court held that the hearsay evidence is inadmissible because it is not subject to the
reliability checks applied to first-hand testimony. The court further reasoned that the
reception of hearsay evidence exposes the party opposing its proof to the procedural
unfairness of not being able counter effectively inferences that may be drawn from it. The
court emphasis that the hearsay evidence is inadmissible unless it is brought within one of
the recognized exceptions.

In S v Ndhlovu, the court dealt with the admission of hearsay evidence in terms of the Law
of Evidence Amendment Act 1988. Cameron JA made the following general

observations regarding the appropriate manner in which to safeguard the fair trial rights of an
accused when dealing with the admissibility of hearsay evidence.

Firstly, a presiding judicial official is generally under a duty to prevent a witness heedlessly
giving vent to hearsay evidence. The court further stated that more specifically under the Act,
it is the duty of a trial Judge to keep inadmissible evidence out and not to listen passively as
the record is turned into a papery sump of evidence.

Secondly, the Act cannot be applied against an unrepresented accused to whom the
significance of its provisions have not been explained. In S v Ngwani, the court held that the
accused, who was unrepresented, had to have the effect of the subsection fully explained to
him, in contrast with the legal position were it not invoked. He then had to be heard on the
issue whether it should be invoked. In particular, he had to be heard on the important one
raised by para (vi), the issue whether he would be prejudiced were it to be invoked.
Thirdly, an accused cannot be ambushed by the late or unheralded admission of hearsay
evidence. The court further held that the trial court must be asked clearly and timorously to
consider and rule on its admissibility. This cannot be done for the first time at the end of the
trial, nor in argument, still less in the court’s judgment, nor on appeal. The prosecution must
before closing its case clearly signal its intention to invoke the provisions of the Act, and the
trial judge must before the State closes its case rule on admissibility, so that the accused can
appreciate the full evidentiary ambit he or she faces.
Question 5 (a)
The considerations which favoured the exclusion of hearsay evidence were named in the case
of Hlongwana v Rector, St Francis College. In this case the court was faced with the
case whereby two prefects were assaulted and because no one owned up the Principal
suspended the whole of the matriculation class just before their final exams. The matric
syllabus was nearly complete and pupils were told they would be allowed to write their
exams, applicants applied for order declaring their suspension invalid and for their
reinstatement. The Principal based his opposing affidavit on hearsay evidence and refused to
divulge the sources of his information for fear of revenge. The court was reluctant to include
the hearsay evidence as the matter was an application and not an action with the result that
no cross examination of the Principal was possible.

The court held the hearsay evidence should be admitted in the interest of justice. In
Hlongwana v Rector, St Francis College further held that paragraph (c) (i), (ii) and
(iii) of s3(1) of the Evidence Amendment Act provides that the following considerations
favour exclusion of hearsay evidence; nature of proceedings, nature of evidence and purpose
for which evidence is tendered

As the court held that the nature of the proceedings, the nature of the evidence, and the
purpose for which the evidence is tendered favoured the exclusion of the hearsay evidence,
further explained briefly. The court reasoned that an application procedure does not involve
any oral evidence in court, but is decided by the judge simply on the basis of affidavits. It is
an application and not an action so that cross examination of principal is possible. The court
further held that the hearsay evidence is fundamental to principal defense, the success of the
defense depends entirely upon it.
Question 5 (b)
In re Case of Hlongwana v Rector, St Francis College 1, the court stated that paragraph
(c)(iv), (vi) and (vii) of s 3(1) of Evidence Amendment Act provides that the following
considerations favour inclusion of the hearsay evidence; the probative value of the evidence
is tendered, the reason why the evidence is not given by the person upon whose credibility
the probative value of such evidence depends, any prejudice to a party which the admission
of such evidence might entail and any other factor which in the opinion of the court be taken
into account in the interests of justice.

Application of considerations favoring the acceptance of the hearsay evidence to the facts.
The question of the probative value of the hearsay evidence favours the case of the principal,
undisputed facts which are not hearsay tend to show that what is contained in the hearsay
evidence may well be true. The hearsay was corroborated by various other pieces of
evidence. There’s only the applicant’s bald denial that they were involved in the assault
without the addition of a single further fact to throw light on an incident about which they
must inevitably know something event if it is on a hearsay basis. The reason why the person
on whose credibility the evidence depended did not testify, namely intimidation and the fear
of reprisals.

The principal’s reason for not divulging the evidence is a convincing one. The ultimate
prejudice the applicant’s will suffer if the evidence is admitted and the application is therefore
refused, is not as great as it would otherwise see. Even though the opponents would be
prejudiced by the admission of the evidence, the court found the prejudice not to be so
great, in view of all the facts of the matter. Applicant’s syllabus is virtually completed and it’s
not alleged by applicants that the little that remains will, on its own, materially affect their
prospects in the final exam and school is prepared to permit applicants to return to school to
write their final exams. Among the other factors the court found further support for the

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admission of the hearsay evidence in the fact that it would bring the issue to a close. Any
other factor, grave difficulty Principals and school authorities are faced re lack of discipline
which prevailed and will continue to prevail if hearsay evidence is excluded and order sought
by applicants is granted.

Question 5 (c)
In Hlongwana v Rector, St Francis College 1989(3) SA 318 (D), the court named the
considerations which favoured the exclusion and other the acceptance of the hearsay
evidence. The court held that paragraph (c) (i), (ii) and (iii) of s3(1) of the Evidence
Amendment Act provides that the following considerations favour exclusion of hearsay
evidence; nature of proceedings, nature of evidence and purpose for which evidence is
tendered.

The court stated that paragraph (c)(iv), (vi) and (vii) of s 3(1) of Evidence
Amendment Act provides that the following considerations favour inclusion of the hearsay
evidence; the probative value of the evidence is tendered, the reason why the evidence is not
given by the person upon whose credibility the probative value of such evidence depends,
Any prejudice to a party which the admission of such evidence might entail and any other
factor which in the opinion of the court be taken into account in the interests of justice.

Then the court came to the decision. The court weighed up all the relevant features referred
to in section 3(1)(c) of the Act and concluded that it would be in the interests of justice to
admit the hearsay evidence.