Opinion Evidence

MS SINGH
Essential propositions easy to state

 Witnesses should testify to facts within their personal

knowledge

 “Opinion” is irrelevant and thus inadmissible when it cannot

assist the Court in deciding the issue. (This is what the
textbook means by referring to the exclusion of supererogatory
evidence).
 Opinion = both “personal beliefs” and conclusions, i.e.
“inferences drawn from other facts”.
 Certainly objectionable to give an opinion on a matter on
which he is not qualified to express an opinion (some matters
require an expert)
 Also objectionable to express opinions on matters of law ->
legal conclusions like “negligence” or the proper interpretation
of statute.
Two problem areas

 More difficult to decide when lay persons are permitted to blur

the boundary between strict “fact” and “opinion” by giving
evidence of what they “perceived”.

 Also difficult to decide when an expert’s opinion is going to be

irrelevant – sometimes expressed as “the witness is in no better
position than the Court to form an opinion”.
 Approximate age of person  IN THESE
 He looked approximately 20 years old
MATTERS THE
 Sobriety

OPINION OF LAY
He was drunk
 Identity
PERSONS IS
 It was the accused I saw.
ADMISSIBLE
 General condition of a thing  Note- never totally
 The letter was crumpled and torn. possible to separate
 Approximate speed at which a vehicle was pure fact from the
travelling.
 The taxi was going very fast. I estimate
witness’s assessment
120 km per hour. (opinion). This is
 Mental condition/state what the textbook
 She appeared confused and agitated. refers to as the
 Value (advisable to call an expert) “compendious
 Handwriting mode” of giving
 Character (other rules apply)
evidence”
CORRECT PRACTICAL APPROACH IN ALL CASES

•Lead evidence on what facts were observed,

•Lead evidence on the basis for observation,
•Lead evidence of experience and knowledge of the person or
substance
•Then lead the opinion (if relevant)
•If in doubt- call further evidence of an expert.

Why? Because opinion of a layperson may be admitted, but weight

will depend on how the Judge evaluates it, along with all the other
proved facts. An opinion with no basis in fact carries no weight.
Generally a layperson’s opinion is prima facie evidence, and in the
absence of challenge, may not must, be accepted by Court.
E.g. Policeman’s evidence identifying substance found as dagga
Objectionable opinion evidence often easy to spot
MRS GREEN

 I saw her put a large black bag in her car boot

 I thought she was up to no good as she was looking
around from side to side like she was worried she
was being watched.
 She would have killed him with the carving knife as
that would have been easily to hand when they were
in the kitchen.
 The last statement is inadmissible opinion evidence.

Intoxication
Layperson should be asked for what facts they noticed and
Court can draw an inference of intoxication. Court is not bound
by witness’s opinion that the person was drunk, although
opinion is admissible.
 E.g. Smell of alcohol, unsteady gait, slurred speech.
 He was drunk.
 S v Edley 1970 2 SA 223 (N) You should not ask questions such as
“was he fit to drive” (witness’s opinion is irrelevant)
R v Seaward 1950 2 SA 704 (N)
 Experts can give evidence on intoxication – blood alcohol
levels.
 Identity

Admissible but weight depends on the facts

Nomandela v S 2007 1 All SA 507 E * cross-examining on identity

 Honesty PLUS reliability of observation (lighting, visibility and eyesight;

the proximity of the witness; his opportunity for observation, both as to
time and situation; the extent of his prior knowledge of the accused; the
mobility of the scene; corroboration; suggestibility; the accused’s face,
voice, build, gait and dress; the result of identification parades, if any; and,
of course, the evidence by or on behalf of the accused. The list is not
exhaustive. These factors, or such of them as are applicable in the particular
case, are not individually decisive, but must be weighed one against the
other, in the light of the totality of the evidence, and the probabilities.

Handwriting
A lay witness is permitted to identify
handwriting if he knows the
handwriting.
 They may be asked to compare
 Expert evidence can be led
handwriting on a disputed item with
writing that is proved genuine.  “Questioned Document
 S4 Civil Proceedings Evidence Act, Examiner”
1965
 It is treated with caution
 S228 Criminal Procedure Act, 1977
 The Court will make its own
 Obviously there must be some factual
comparisons but only with
basis laid that he/she knows the
writing.
caution.
 E.g. A secretary could probably
identify her boss’s handwriting. TO BE DEALT WITH FURTHER
UNDER REAL EVIDENCE
Experts are commonly used

 FOR EXAMINATION OF REAL EVIDENCE

 Ballistics
 Fingerprints
 Handwriting
 Blood tests, tissue typing, DNA identification
 Medical examinations
 Examinations of things – engineering, chemistry
Affidavits sometimes permitted– s212 CPA, s22 CPEA
Otherwise oral evidence is required.

 BUT EXPERTS ARE ALSO CALLED ON A VERY WIDE RANGE OF OTHER ISSUES
 Accounting
 Pyschiatry
 Accident reconstruction experts
 Experts – the basic rules

 If a person needs to state an opinion on some issue where

expertise (that the Court does not possess) is required and can
assist the Court you must:
 Notify opponent;
 Satisfy the Court that they are qualified as an “expert” (special skill
& training )(qualifications and experience);
 Lead evidence of their conclusions, their reasons and the facts upon
which they have based their reasoning.
 The Court is not bound by the expert’s opinion.
 A court certainly cannot “blindly accept” an expert’s opinion
unless satisfied that it can safely do so.
 S v Blom 1992 1 SACR 649 E
 However it should not “lightly discard” an expert’s opinion
where the factual premises of his evidence are sound, and his
reasoning and conclusions have been furnished in a
satisfactory manner
 S v M 1991 1 SACR 91 T
 Usually when direct credible evidence of what happened is
available it carries great weight and it might be accepted that the
expert is wrong.
 S v Venter 1996 1 SACR 664 (A) 666f-j
 Motor Vehicle Assurance Fund v Kenny 1984 4 SA 432 E
 An expert must remain objective and professional (neutral) – his
credibility is impeached if he shows bias to one side.
Hearsay

 The facts on which he relies must be proved in evidence

(when they relate to this specific case, e.g. A valuation by
another valuer- that valuer should also be called as a witness.
 However when the expert relies on textbooks this is permitted:
 He can by reason of his own training, affirm (at least in principle)
the correctness of the statements in that book;
 The work is reliable (written by a person of established repute or
proved experience in the field).
 Any publication you want to use in evidence must be referred
to and adopted by an expert witness before the Court can rely
upon its contents.
Holtzhauzen v Roodt 1997 4 SA 766 (W)

(discusses opinion evidence (expert witnesses) & previous

consistent statements)
 Statements made to hypnotist which are consistent with
current testimony > admissible?
 No: irrelevant and therefore inadmissible. Can’t make her
statement more or less probable. Psychologists cannot give
opinion which usurps the function of the Court to decide if the
witness is telling the truth.
 You can also look at Rock v Arkansas (which deals with a slightly
different issue of ‘hypnotically refreshed’ testimony- i.e. Witness
did not recall the details except under hypnosis.
 Evidence of another witness, B, on the general reasons why
raped women do not immediately report the crime when they
know their attacker – admissible?
 Evidence was admissible-as the opinion of an expert which
could assist the Court.
 The Court stressed that it was only deciding the admissibility
of the evidence. At the end of the trial the weight of the
evidence will still be evaluated in the light of all the evidence
and its probative value (weight) will be assessed.
The Hollington Rule

 Proof of criminal convictions for the same act is not admissible

evidence in subsequent civil proceedings (not even prima facie
proof).

 See The Law Society Cape of Good Hope v Nel 2012 (4) SA
274 (SCA)
- whether a disciplinary hearing constitutes civil
proceedings
TASKS

 focus on those points emphasised in lectures (as noted on the

power-point slides), and make summary notes:
Below are some questions to guide you in your reading.
 What is opinion evidence?
 What is the general principle that governs when opinion evidence is
admissible?
 What types of opinion evidence are often given by laypersons and are
not objectionable (i.e. Can be admitted)
 What three steps must be taken if you want to rely on the opinion of an
expert as evidence?
 NB NB: how should the Court deal with the opinion of an expert
witness?
 Read the case of Holtzhausen v Roodt 1997 4 SA 766 (W)
 What two items of opinion evidence were discussed
 In relation to each- was it admitted? What were the reasons for the
Court’s decision on admissibility?
 Test that you understand how this section relates to the general
concepts we already discussed:
 What is the difference between the “admissibilty” of opinion
evidence and the “weight” of that evidence?
 21

HEARSAY
EVIDENCE
MS S SINGH
 22
What is hearsay?

 A witness testifying about what she heard someone else say.

 It is not a reflection of what the witness, e.g. saw, but what

someone else said they saw.
 23
Common Law and Statute

 Common Law: tended to be more exclusionary with no

discretion given to the court to admit hearsay
 S3(4) Law of Evidence Amendment Act 45/1988 (replaced
common law)

‘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.’
 24
Example

 John tells Peter that, shortly after the deceased was stabbed to
death, he saw the accused holding a knife the blade of which
was covered in a red liquid.

 If Peter is to testify, the probative value of his evidence will

depend on John’s credibility because it was John who saw the
knife in the accused’s hand. This evidence is hearsay.

 For this reason, John will also have to testify about what he
saw
 25
General Rule

 Hearsay is generally inadmissible because it is unreliable and

potentially prejudicial.

 It is not original evidence and therefore not the best evidence

 26
Why is it inadmissible?

 In our example, assume that John

doesn’t testify:

 Since Peter is giving the evidence, John’s statement is not

given under oath.
 John’s statement cannot be tested under cross examination
implying that the accused’s constitutional right is possibly
violated by the admission of hearsay evidence.
 The court cannot assess John’s demeanour and credibility
which go to weight.
 27
Statutory definition

 Exclusionary but flexible

 A Court’s decision to admit hearsay is a decision of law -

McDonald’s Corporation v Joburgers Drive-Inn Restaurant
(Pty) Ltd & Another 1997 (1) SA 1 (A) at 27 D-E
 28
Section 3(1)

Sets out 3 exceptions to the inadmissibility of hearsay:

 3(1)(a): The party who you are going to use it against, agrees
to it (requires informed consent)

 3(1)(b) the person on whose credibility it depends, testifies

(provisional admission of hearsay)

 3(1)(c) the Court is of the opinion that admission is in the

interests of justice
 29
S3(1)(c): Interests of justice

Nature of proceedings
 Distinction between Civil and Criminal is important

 Rarely used in criminal cases. Why?

 Presumption of innocence
 Unreliable and untested evidence is objectionable
 X has the right to confront his accuser
 30
Nature of the Evidence

 Is the evidence reliable?

 Factors include:
 Was the statement against the interest of the original
declarant?
 Was there a motive to misrepresent?
 What is the relationship between the parties?
 Was the statement spontaneous?
 Is the statement firsthand or secondhand hearsay?
 Was the person lucid and coherent when
making the statement?
 31
Purpose for which the evidence is
tendered

 One approach: Tendered to prove a fundamental issue

or a subsidiary one

 Another approach: If relevant, its degree of

importance is not decisive

 Whether for a legitimate or dodgy purpose will affect

likelihood of acceptance
 32
Probative value of the evidence

 Relevance depends on probative value

 Court has to assess the probative value of the evidence against

its prejudicial effect.

 S v Rathumbu 2012 (2) SACR 219 (SCA), at 222j and 223e

 33
Reason why declarant cannot give
evidence

 Death, illness, mental instability, absence from the country, or

untraceability of declarant
 Fear of reprisals
 34
Prejudice to opponents

 The Constitution confirms the right to challenge evidence . Hearsay places the
opposing party at a disadvantage.

 Does it place an unfair burden of rebuttal on the opposition?

 Can the opposition effectively counter inferences drawn from hearsay
 It removes the opportunity to cross examine the declarant
 The admission of the evidence must, based on its reliability, and whether it is necessary
and just -Ndhlovu 2002 (2) SACR 325 (SCA), para 35

 S3(1) is a justifiable limitation on the right to a fair trial- S 35(3)(i)

Ndhlovu, para 50

Any other factor which should be taken into
account 35

 Whether it would have been admissible under common law

 Not a closed list, but includes, e.g. spontaneous statements,
dying declarations, declarations of state of mind, etc… See
section on Res Gestae
 36
Common Law Exceptions

 Still relevant as courts can consider these exceptions as one of

the “other factors” when exercising their discretion i.t.o. S 3(1)
(c)
 37

 STATEMENTS BY DECEASED PERSONS



 Statements against interest



 Rationale A person is unlikely to make false statements against their interest

 Requirements


 Statements in the course of duty



 Examples Beer delivery man who had to keep records, farm manager
 Requirements


 Dying declarations in cases of murder or culpable homicide



 Not applicable in civil cases

 Admissible To show what occasioned declarant’s death
 Rationale Person unlikely to be untruthful just prior to death (ridiculous)
 Requirements
 38

 Statements concerning pedigree



 Can be used in civil and criminal cases and can be oral or written
 It must relate to matters actually in issue
 Examples Family bibles and tombstones
 Requirements


 Statements as to public and general rights



 General rights are rights that affect a class of persons eg: grazing rights
 Requirements


 Statements by testators as to contents of wills



 Oral or written statements by a deceased testator are admissible to prove the contents of their will (Sugden v
Lord St Leonards 1876 1 PD 154)
 Inadmissible to show execution, alteration or destruction animo revocandi
 39

 RES GESTAE STATEMENTS

 Res gestae looks at the ADMISSIBILITY OF
STATEMENTS MADE CONTEMPORANEOUSLY with
some or other act or event

 40

 SPONTANEOUS EXCLAMATIONS

 Sometimes an act is so interwoven with words that the significance of the act
cannot be understood without the words, e.g. X says to Y , ‘Please don’t hit me
anymore, John. You are going to kill me.’ Z overhears this. X ‘s dead body is
subsequently found in her bedroom. John pleads not guilty to murder. X’s
spontaneous exclamation becomes admissible as part of the res gestae, even
though it is hearsay, to show that John was assaulting X.

 R v Ratten 1971 3 All ER 803 807

 If a sudden event assumes such intensity and pressure that the utterance can
safely be regarded as a true reflection of what was actually happening it
ought to be received

 41
Conditions for admissibility

 Startling occurrence


 Occurrence startling enough to produce stress of nervous

excitement


 Spontaneity


 Made while stress still upon person to extent that reflective powers not operational – in
abeyance


 No reconstruction of past events



 Statement must not amount to a reconstruction of a past event

 42

 Narrative parts excluded



 Rationale is that narration shows that reflective powers are not

in abeyance and that declarant had time to think – thus not
spontaneous



 43

 COMPOSITE ACTS

 DECLARATIONS OF STATE OF MIND

 - admissible where the person’s state of mind is relevant to an
issue before the court., e.g. whether the person bought goods
knowing them to have been stolen or whether he thought that
the goods were legitimate.
 44

 DECLARATIONS OF PHYSICAL SENSATIONS

 Admissible because os its reliability as it is often the best and
only evidentiary source of a person’s bodily sensations, e.g.
rubbing one’s abdomen while saying , ‘I have a stomach
ache’

 45

 STATUTORY EXCEPTIONS


 Civil proceedings


 CPEA
 Proof of trial and conviction or acquittal of any person
 Proof of certain facts by affidavit
 S 22 allows affidavits to prove any fact involving bacteriology, biology, chemistry, physics, astronomy, anatomy or pathology
 Deponent must be from certain category of persons (as for criminal cases)
 Copy must be provided to opponent seven days before production (trial)
 Court can order deponent to give evidence
 Evidence of times of sunrise and sunset
 Banker’s books


 General admissibility
 Weight


 Criminal proceedings


 Proof of certain facts by affidavit



 CPA S’s 212 and 212A

 Affidavits, on production thereof, prima facie evidence of what is said in it
 Subsections 212 (2) to 212 (13) regulate certain areas



 46

 ADMISSIBILITY OF WRITTEN STATEMENTS BY CONSENT (CPA S 213)



 Written statements by anyone other than accused can be admitted as if oral evidence by that person if:
 Signed by deponent
 Deponent knows of penalty if false (to be included in the statement)
 Copy served on opponent
 Objection at least 2 days before proceedings
 Can include by consent
 Either side can require evidence to be given


 EVIDENCE RECORDED AT PREPARATORY EXAMINATION OR FORMER TRIAL



 ADMISSIBILITY OF TRADE OR BUSINESS RECORDS IN CRIMINAL CASES



 CPA S 221


 In criminal cases where oral evidence would be allowed, any statement tending to establish that same fact will be
admissible as evidence if:
 document forms part of a record relating to any trade or business and was compiled in the course of that business from
information provided by persons who had personal knowledge of the matters dealt with, and;
 47

 person who supplies the info is dead, outside SA, unfit to be

a witness, cannot be found or cannot be expected to
remember due to time lapse
 Court must consider
 Accuracy or inaccuracy of statement
 Whether information supplied contemporaneously or not
 If anyone involved in making it had an incentive to
misrepresent the facts
 48

 PART VI OF THE CPEA AS APPLIED TO CRIMINAL AND CIVIL CASES



 S 33 defines a document as including any book, map, plan, drawing or photograph

 S 34(1) sets out requirements
 S 34(4) Document must be written, or signed, or initialed or recognized in writing
 S 34(2) Court can admit a statement even if the witness is available if undue delay
 S 34(3) Any statement, which might tend to establish a fact, made by an interested person, at
a time when proceedings, about a dispute of that fact, were pending or anticipated is not
admissible
 S 34(5) Provides that the court can draw reasonable inferences from the document
 S 35 When assessing weight the court must have regard to whether the person who made the
statement had an incentive to misrepresent or conceal facts
 S 36 Documents can be proved by evidence identifying the author’s writing
 S 37 20 year old documents from proper custody are presumed duly executed

 49

 ACCOUNTING ENTRIES AND DOCUMENTATION OF BANKS



 Criminal cases CPA 236 and S 236A



 Entries in bank books are, on production thereof, prima facie proof, of the matters recorded therein
if accompanied by an affidavit of a bank employee that:
 The documents are ordinary books of the bank
 The entries were made in the ordinary course of business
 The records were under the bank’s control


 Civil cases CPEA SS 28 to 32



 10 days notice to one’s opponent must be given

 The opponent can inspect and copy the books on 3 days notice to the bank
 These rules do not apply if the bank is a party to the proceedings

 50

 COMPANIES ACT 61 OF 1973



 A certificate signed by two directors (or one director and an authorised officer) specifying
shares or stock of the company shall be prima facie proof of the title of the member to that
stock or those shares


 MISCELLANEOUS


 Birth and death certificates



 These are prima facie evidence of the particulars that they contain


 Further exceptions i.t.o. the CPA



 Presumptions of lawful marriage in bigamy charges and in incest cases