LEARNING UNIT 2
Explain why similar fact evidence may be inadmissible.
1. Relevance: Similar fact evidence is generally inadmissible because it is often considered
irrelevant. The key principle of admissibility of evidence is that it should be logically and
legally relevant to the case. Evidence that doesn't have a clear connection to the issues
being considered by the court is usually excluded.
2. Prejudicial Effect: Similar fact evidence can be highly prejudicial, meaning it can
unfairly influence the judgment of the jury or judge. The prejudicial effect of such
evidence may outweigh its probative value. For instance, if the jury learns about a
defendant's past bad conduct, they might be inclined to convict the defendant based on
their character, rather than the specific charges at hand. This can lead to unjust
outcomes.
3. Procedural Inconvenience: Introducing similar fact evidence can complicate legal
proceedings by extending the length of the trial. Investigating and presenting evidence
related to collateral issues can be time-consuming and costly. This places additional
demands on judicial resources and may result in trial delays.
4. Risk of Injustice: Allowing similar fact evidence too readily can undermine the proper
administration of justice. For example, if law enforcement knows that a person's past
record will be considered by the court, they might focus on past offenders, potentially
leading to sloppy investigative techniques. It may also discourage rehabilitation efforts,
make it easier for the police to pressure past offenders, and induce involuntary
confessions.
5. Protection of the Accused: The primary concern is to protect the accused's right to a
fair trial. Admitting irrelevant similar fact evidence can jeopardize this right, as it can lead
to the accused being unfairly prejudiced or convicted based on factors unrelated to the
specific charges.
Describe the “Makin Formulation”.
The "Makin Formulation" refers to a legal framework and set of principles regarding the
admissibility of similar fact evidence in legal proceedings, particularly in criminal trials. This
formulation is derived from a case called Makin v AG for New South Wales 1894 AC 57
and has been influential in shaping the rules and criteria for admitting or excluding similar
fact evidence in court cases.
Similar fact evidence refers to evidence that highlights the peculiar, immoral, or illegal
conduct of a party (typically the accused) on occasions other than the one in question in
court. This evidence must have characteristics relevant to the conduct under consideration in
the current case.
Admissibility of Similar Fact Evidence: Similar fact evidence is generally inadmissible
because it is considered irrelevant. However, it may be admissible when it is both logically
and legally relevant. In other words, for similar fact evidence to be admitted, it must have a
genuine bearing on the issue being considered in the current trial.
Rationale for Exclusion: The primary reason for excluding similar fact evidence is that its
prejudicial effect on the accused often outweighs its probative value. This can lead to unfair
bias against the accused, with jurors potentially forming opinions based on prior bad conduct
rather than the facts of the current case. The prejudice can also arise from the accused
having to defend against past charges of misconduct in addition to the current charge.
Procedural Inconvenience: The introduction of similar fact evidence can lead to procedural
inconvenience, as it may require extensive investigation into collateral issues, prolonging the
trial and increasing its cost. This places additional demands on judicial resources.
Undermining Proper Administration of Justice: Admitting similar fact evidence too readily
can undermine the proper administration of justice. It may lead to a focus on past offenders
by law enforcement, potentially resulting in sloppy investigative techniques and undue
pressure on individuals with prior records.
Trial by Jury Influence: The formulation of the similar fact rule has been influenced by the
jury system. In South Africa, where the jury system has been abolished, questions have
arisen about the applicability of the existing formulation.
Constitutional Right to a Fair Trial: Ultimately, the admissibility of similar fact evidence is
determined by the constitutional right to a fair trial. Admitting irrelevant similar fact evidence
jeopardizes a fair trial.
Formulating the Rule for Admissibility: Formulating a general rule for determining the
admissibility of similar fact evidence has proven challenging due to the many prejudicial
factors associated with it. Different formulations have been proposed, including the Makin
formulation, which focuses on the probative value of the evidence.
The Makin Formulation: The Makin formulation, articulated in Lord Herschell's dictum in
Makin v Attorney-General for New South Wales, distinguishes between admissible and
inadmissible similar fact evidence. It allows similar fact evidence if it is relevant to an issue
before the court and not merely used to establish propensity.
Inadequacies of the Makin Formulation: The Makin formulation has limitations because it
fails to explain some cases where propensity itself is relevant to the issue. This led to the
addition of a proviso that allows similar fact evidence if it is highly relevant to an issue in a
specific case.
The Dangers of Categorization: Categorizing instances of admissibility can lead to rigid
interpretations and overlook unique circumstances. Courts should consider each case
individually rather than relying solely on predefined categories. Regrettably, the Makin
formulation has led numerous legal practitioners to interpret it as setting up inflexible
classifications in which Similar Fact Evidence (SFV) will be deemed pertinent. An illustration
of this approach is evident in the case of S v Green, where it is noted that SFV is typically
admitted to establish matters such as identity, intent, guilty knowledge, and frequently in
sexual cases, to counter a defense of innocent association, among other things.
The Formulation in DPP v Boardman: DPP v Boardman emphasized that the probative
value of similar fact evidence should outweigh its prejudicial effect. This formulation
acknowledges that the relevance of similar fact evidence varies based on the circumstances
of each case. The doctrine outlined in DPP v Boardman:
1. In DPP v Boardman, the court emphasized that the pivotal focus was on the
application of a fundamental principle (namely, that similar fact evidence is
admissible only when its probative value outweighs its prejudicial effect).
2. The Appellate Division, in the case of S v D, embraced this formulation.
3. It's important to note that the Makin rule wasn't repudiated in Boardman; instead, it
was commended.
4. Boardman can be simply understood as elucidating the fundamental principle in
Makin. Any uncertainty regarding the endorsement of this principle in Boardman was
dispelled by DPP v P.
The Requirement of Similarity: The degree of similarity between a person's conduct in
previous incidents and the conduct in question in the current case is a crucial factor in
determining the probative value of similar fact evidence. The probative value of similar fact
evidence is significantly influenced by the extent of resemblance between a person's actions
on other occasions and the specific incident under examination by the court. According to
Zeffertt, Paizes & Skeen, the pertinence of similar fact evidence hinges on the argument that
identical circumstances are likely to yield comparable outcomes. In Laubscher v National
Foods Ltd, Reynolds J asserted that "before admitting similar fact evidence, the satisfactory
establishment of the similarity of conditions applicable in each case is essential."
Nevertheless, it's important not to excessively stress the requirement of similarity.
The Facts in Issue: The relevance of similar fact evidence depends on the issues being
decided in the case. The evidence must address issues that are in dispute or relevant to the
case's outcome.
Other Evidence: The admissibility of similar fact evidence is influenced by the strength of
other available evidence. If other evidence is substantial and supportive, similar fact
evidence may be more or less relevant.
Examples of Exclusion: Examples were provided of cases where similar fact evidence was
excluded due to a lack of relevance or insufficient similarity.
Alternative Approach: An alternative approach, as proposed by Paizes, suggests that the
similar fact rule should be reconsidered and replaced with a more principled and relevancebased framework, especially considering the abolition of juries in South Africa.
A necessary proviso:
 Because of the difficulties, scholars (Zeffertt, Paizes and Skenn) have outlined that the
Makin formulation can only be used as a basis for explaining the case law if the following
proviso is added to it: In some cases, evidence which proves disposition will be
admissible if, on the facts of the case, it is a disposition which is highly relevant to an
issue in it.
 They contend that as a consequence of the inadequacies of the Makin formulation, the
courts have tended to prefer to cite the proposition of Lawrence J in R v Bond: In
proximity of time, in method or in circumstances there must be a nexus between the two
sets of facts, otherwise, no inference can be safely induced therefrom.
The nexus requirement:
 In terms of the nexus requirement there must be a link between the fact in issue (the
probandum) and the similar fact (the probans).
 This is explained by Stephens as follows: You are not to draw inferences from one
transaction to another which is not specifically connected with it merely because the two
resemble each other. They must be linked together by the chain of cause and effect in
some assignable way before you can draw your inference.
 It has been proposed that the nexus requirement essentially equates to emphasizing the
necessity of relevance in the evidence.
 In this particular situation, the necessity for relevance underscores that the evidence
should possess probative value, meaning it can lead to logical inferences when
determining the pertinent facts.
Apply the requirements for similarity to a given scenario.
The requirements for the admissibility of similar fact evidence are outlined in the provided
text. Similar fact evidence refers to evidence that demonstrates that a party to the
proceedings (usually the accused) or a witness in the proceedings has behaved on other
occasions in a similar way to the conduct being considered by the court in the current case.
Here are the key points regarding the requirements for similarity and admissibility of such
evidence:
1. Relevance: Similar fact evidence is generally inadmissible because it is considered
irrelevant. It becomes admissible only when it is both logically and legally relevant to the
issues at hand.
2. Probative Value vs. Prejudicial Effect: For similar fact evidence to be admissible, its
probative value (the degree to which it supports the case) must outweigh its prejudicial
effect (the potential harm it might cause by unfairly swaying the jury or court). If the
evidence's value in supporting the case is greater than the harm it might cause, it may be
admitted.
3. Nature of Issues: The admissibility of similar fact evidence depends on the issues being
decided by the court. In civil cases, the issues are established in the pleadings, while in
criminal cases, the relevant issues may need to be determined based on the nature of
the case and available evidence.
4. Degree of Similarity: The degree of similarity between the conduct on other occasions
and the conduct under consideration determines the probative value of the evidence.
The more striking the similarity, the stronger the probative value. However, even less
striking similarities can be admitted if they are relevant to the case's issues.
5. Coincidence Test: Evidence is admissible when the similarity between incidents cannot
be explained away as mere coincidence. If the likelihood of the incidents being
coincidental is extremely low, the evidence becomes more relevant.
6. Other Available Evidence: The relevance of similar fact evidence is influenced by the
strength of other evidence available in the case. If other evidence strongly supports the
case, the similarity of the facts becomes more significant.
7. Issue of Fairness: The admission of similar fact evidence should not unfairly prejudice
the accused. If the evidence threatens the fairness of the trial, it might be excluded.
8. Potential Reform: Some legal experts argue that the current rules governing similar fact
evidence might need reform to better align with principles of fairness and relevance.
Recent legislative changes in other jurisdictions, such as the UK's Criminal Justice Act
2003, have taken a more principled approach to the admission of such evidence.
Explain the concept of “coincidence”
The concept of "coincidence" refers to the idea that similar fact evidence should not be
admitted if the similarities between different incidents or actions are so improbable that they
cannot reasonably be explained by chance or unrelated factors. In essence, the court
evaluates whether the similarities are so striking or unlikely to occur by coincidence that they
suggest a genuine connection between the incidents.
This concept of coincidence plays a crucial role in determining the admissibility of similar fact
evidence. If the court finds that the similarities between different events or actions are highly
improbable to have occurred independently, it may conclude that there is a strong probative
value in the similar fact evidence. In such cases, the evidence is more likely to be
considered relevant and admissible.
Conversely, if the court determines that the similarities between the incidents could
reasonably be attributed to chance or unrelated factors, it may view the evidence as lacking
probative value and thus irrelevant for the case. In this context, "coincidence" is a critical
factor in assessing the admissibility of similar fact evidence, as it helps the court decide
whether the evidence is likely to contribute to proving the case or if it's merely coincidental
and not pertinent to the matter at hand.
TEST FOR COINCIDENCE
McEwan argues that a common mistake made post the Boardman case is assuming that
evidence of prior wrongdoing by the accused must be "uniquely strikingly similar" to have the
necessary probative value.
She suggests that it's more appropriate to view the test as whether the evidence can be
dismissed as mere coincidence.
Refer to R v Bond– where there was no remarkable similarity between the other unlawful
abortions conducted by the accused. The defense of accident seemed implausible because
the doctor had expertise in abortion. Although there was no striking similarity between the
two incidents, the fact that both boys alleged that B intended to assume the passive role,
coupled with the unlikelihood of them fabricating the exact same lie, suggested that the
resemblance between the two incidents surpassed mere coincidence. Another way to
approach the coincidence test is to argue that the connection mentioned in Bond can be
discerned in the extreme unlikelihood of coincidence.
In the case of R v Smith, the appellant faced a murder charge concerning a woman with
whom he had recently gone through a bigamous marriage ceremony. She was found dead in
her bath. The accused, who stood to gain financially from her demise, tried to argue that it
resulted from an epileptic fit. During the trial, evidence was presented that two other women
had died on subsequent dates, that the appellant had married each of these women, and
that both had died in their baths in circumstances very similar to the victim in the current
case. In both of these cases, the accused also stood to gain financially from the women's
deaths.
Upon appeal, the court determined that the evidence had been correctly admitted because it
was sufficiently relevant to challenge the accused's defense. The court concluded that the
occurrence of multiple accidents benefiting the accused could not reasonably be attributed to
mere coincidence. The similar fact argument in Smith can be summarized as follows: "Either
all three deaths were accidental, or the accused was responsible for each of them. The
improbability of coincidence may therefore often establish the required link."
Relevant principles of similar fact evidence
1. Relevance Principle: Similar fact evidence is generally inadmissible because it is
considered irrelevant. It will only be admissible when it is both logically and legally
relevant to the case.
2. Probative Value vs. Prejudicial Effect: The admissibility of similar fact evidence
depends on a balance between its probative value (how much it contributes to proving
the case) and its prejudicial effect (how much it may unfairly prejudice the accused). If its
probative value outweighs its prejudicial effect, it may be admitted.
3. Issues at Stake: The relevance of similar fact evidence must be assessed in light of the
issues to be decided in the case. The evidence should be related to the central issues,
and it must help in establishing or refuting these issues.
4. Degree of Similarity: The probative value of similar fact evidence is influenced by the
degree of similarity between the events or actions in question. Striking similarities that
suggest a pattern or a common cause make the evidence more probative.
5. Coincidence Test: One way to assess the relevance of similar fact evidence is through
the "coincidence test." If the court finds that the similarities are so improbable that they
cannot reasonably be attributed to chance or unrelated factors, the evidence is more
likely to be considered relevant.
6. Nexus Requirement: There must be a clear link or nexus between the fact in issue (the
probandum) and the similar fact (the probans). In other words, the two sets of facts must
be connected by a chain of cause and effect to justify admissibility.
7. Context Matters: The context in which similar fact evidence is presented is crucial. The
circumstances of each case will determine the necessary degree of similarity and
relevance of the evidence.
8. Admissibility vs. Exclusion: The court should carefully consider whether the
admissibility of similar fact evidence will render the trial unfair. If it's likely to unfairly
prejudice the accused, it should be excluded.
9. Primary Concern: Fairness: Ultimately, the primary concern should be whether the
admission of similar fact evidence will render the trial unfair. The court should ensure
that the accused's right to a fair trial is protected.
CHAPTER 8
Colgate Palmolive (Pty) Ltd v Elida-Gibbs (Pty) Ltd- a lay witness was allowed to give an
opinion on the meaning of an advertisement to prove deception. This was considered
admissible because it was necessary to establish the witness's personal experience of
deception.
Courts should rely on opinion evidence only when it is necessary and when issues cannot be
resolved using ordinary knowledge or skills. Courts should not attempt to qualify as experts
or rely on their own specialized knowledge.
Explain what opinion evidence is.
Opinion evidence is a type of testimony or statement provided by a witness in a legal case
where they express their personal belief, conclusion, or interpretation about a specific
matter. This matter could be a fact in dispute, the credibility of other witnesses, or the
meaning of evidence presented in court. Opinion evidence is typically offered by both expert
witnesses and lay witnesses, but the rules governing its admissibility and the weight given to
it can vary significantly.
The admissibility of opinion evidence hinges on the principle of relevance. If an issue can be
decided by the court without relying on a witness's opinion, that opinion is considered
inadmissible as it is considered superfluous or irrelevant. The court's main goal is to exclude
evidence that does not add value to the case, which can lead to confusion, prolong trials, or
distract from the central issues.
However, if the court determines that a witness's opinion can genuinely assist in
understanding and deciding the issue at hand, it is considered relevant and admissible. Such
opinions are said to have "probative force." This means that the opinion helps the court in its
fact-finding process, and it is not seen as an attempt to replace the court's role but rather as
an aid to interpretation.
The ultimate issue doctrine, which suggests that witnesses should not express opinions on
the ultimate legal questions that the court must decide, is sometimes applied but not strictly
followed. In practice, courts may permit opinions on ultimate issues, especially when they
involve complex matters where expert insight is beneficial.
Breakdown of opinion evidence in legal proceedings:
1. Types of Witnesses:
o Expert Witnesses: These are individuals who possess specialized knowledge, skills,
or expertise in a particular field relevant to the case. Courts allow expert witnesses to
offer their opinions on matters within their area of expertise. Examples of expert
witnesses include forensic scientists, medical professionals, and financial analysts.
o Lay Witnesses: These are ordinary individuals who do not have specialized
knowledge or expertise in a particular field but have personal knowledge or
experience related to the case. Lay witnesses can also provide opinions in certain
circumstances.
2. Admissibility of Opinion Evidence:
o The admissibility of opinion evidence is subject to strict rules and standards. The key
criterion for admitting opinion evidence is relevance. In other words, the opinion must
be helpful to the trier of fact (usually the judge or jury) in understanding the case.
o Expert opinions are typically allowed if the court determines that the witness is indeed
an expert in the relevant field and that their opinion would assist the court in reaching
a decision. This is often referred to as the "Daubert Standard" in the United States,
which establishes the criteria for evaluating the admissibility of expert testimony.
o Lay witnesses can offer opinions in limited circumstances. Generally, their opinions
must be based on their personal observations or perceptions and should not
encompass legal conclusions or matters requiring specialized knowledge.
3. Ultimate Issue Doctrine:
o The "ultimate issue doctrine" is a concept that suggests witnesses should not provide
opinions on the ultimate legal questions that the court must decide. For example, in a
criminal trial, a witness should not directly express an opinion on whether the
defendant is guilty or not guilty, as this is the ultimate issue for the court to decide.
However, this doctrine is not always strictly followed, and courts may permit opinions
on ultimate issues if they are genuinely helpful.
4. Weight of Opinion Evidence:
o Even when opinion evidence is admitted, it is important to understand that the trier of
fact is not bound by it. They can give the evidence as much weight as they believe it
deserves. In some cases, expert opinions may carry significant weight, especially if
they are backed by strong reasoning and evidence. In other cases, the trier of fact
may choose to give little or no weight to opinions.
5. Challenges and Cross-Examination:
o The opposing party in a legal case has the right to challenge the admissibility and
credibility of opinion evidence. This can be done through cross-examination, where
the opposing counsel questions the witness about their qualifications, the basis for
their opinion, and the reliability of their conclusions.
Differentiate between fact and opinion as perceived in the Law of
Evidence.
1. Definition of Fact and Opinion:
o Fact: A fact is a statement that can be objectively observed, verified, or proven. It is
something that is capable of being proven true or false through evidence.
o Opinion: An opinion is an expression of a person's belief, inference, conclusion,
impression, or belief about a particular matter. It is a subjective judgment that may
not be based solely on verifiable evidence.
2. Relevance and Admissibility:
o Fact: Facts are generally admissible in court as they are directly related to the
events, circumstances, or details of a case. They are considered relevant to
establishing the truth of a matter.
o Opinion: Opinion evidence is admissible if it is relevant and has probative force. In
other words, if an opinion can assist the court in making a decision on an issue, it
may be admitted. If an opinion is irrelevant and doesn't contribute to the decisionmaking process, it is inadmissible.
3. Expert and Lay Opinions:
o Fact: Facts are based on direct observations, experiences, or evidence that can be
objectively demonstrated.
o Opinion: Opinions can be provided by both expert witnesses (those with specialized
knowledge or expertise) and lay witnesses (ordinary individuals). However, the
opinions offered must have probative value and assist the court in understanding the
case.
4. Ultimate Issue Doctrine:
o Fact: The ultimate issue in a case is the central legal question that the court is
required to decide.
o Opinion: Traditionally, witnesses were discouraged from giving opinions on ultimate
issues because it was thought to infringe upon the court's role. However, this
doctrine is not strictly followed. Opinions on ultimate issues are admitted if they have
relevance and probative value.
5. Distinguishing Fact and Opinion:
o Fact: Facts are objective observations that can be supported by concrete evidence.
o Opinion: The distinction between fact and opinion is not always clear-cut. Some
aspects that may seem like facts could actually involve an element of inference or
judgment. Identifying a person based on appearance, for instance, involves an
element of inference.
6. Purpose and Function:
o Fact: Facts provide the foundation for understanding the events and circumstances
of a case.
o Opinion: Opinion evidence helps the court by providing perspectives,
interpretations, and analyses that may aid in reaching a conclusion.
Explain the basis of the opinion rule.
The basis of the opinion rule, as explained in the provided text, revolves around the
admissibility of witness opinions (inferences, conclusions, impressions, beliefs) in legal
proceedings. The core principle is that any opinion, whether from an expert or a layperson, is
admissible as evidence only if it is relevant and has probative force.
1. Relevance: The foremost consideration in admitting opinion evidence is its relevance to
the issue at hand. If the opinion is not relevant to helping the court decide the case, it is
considered inadmissible. Irrelevant opinions are termed "superfluous" or "supererogatory
evidence" because they don't contribute to the fact-finding process and can potentially
confuse matters.
2. Probative Force: An opinion becomes admissible when it has probative force. Probative
force means that the opinion is valuable and can assist the court in making a
determination. In essence, it provides useful information to the court regarding the matter
in question.
3. The Role of Experts: Expert witnesses are often called upon to provide opinions because
they possess specialized knowledge or expertise in a particular field. Their opinions are
considered admissible when they can help the court understand complex issues that
require specialized knowledge.
4. Layperson Opinions: Lay witnesses, who lack expert knowledge, can also provide
opinions in certain situations. These opinions are admissible if they can aid the court in
understanding an issue better than the court could on its own. However, these opinions
must still be relevant and have probative force.
5. Exceptions and Hearsay: Some rules, like the hearsay rule, may call for the exclusion of
opinion evidence. In such cases, even if an opinion is relevant, it may not be admissible
due to other legal principles.
6. The Ultimate Issue Doctrine: This doctrine suggests that witnesses should not express
opinions on the ultimate issue that the court must decide. However, this doctrine is not
always strictly enforced, and exceptions can apply, especially when the witness's opinion
is valuable to the court's understanding of the case.
7. Inadmissibility of Opinions on Conclusions of Law: Opinions that entail conclusions of
law, involve applying legal standards to facts, or pertain to statutory interpretation are
generally inadmissible. These matters are considered within the exclusive jurisdiction of
the court.
8. Difficulty Distinguishing Fact and Opinion: Sometimes, it's challenging to distinguish
between fact and opinion. In the law of evidence, it's recognized that all testimony about
matters of fact inherently involves an element of opinion, as it reflects a conclusion drawn
from observations or mental impressions.
9. Exclusion of Unqualified Opinions: The court may decline to hear opinions when the
witness is unqualified as an expert and seeks to provide opinions that the court itself is
competent to determine based on common knowledge or skills.
Discuss when a lay person’s opinion will be accepted.
1. Admissibility Based on Assistance to the Court:
o The primary criterion for the admissibility of any opinion, whether from a
layperson or an expert, in a legal context is whether that opinion can assist the
court in deciding specific issues relevant to the case. It's not solely dependent on
whether the witness is a layperson or an expert.
2. Limited Scope of Lay Opinions:
o Lay witnesses are typically permitted to provide opinions on matters that fall
within the realm of common knowledge or their personal observations. This
includes opinions about a person's approximate age, their state of sobriety, the
general condition of an object, or the approximate speed of a vehicle. However,
this list is not exhaustive.
3. Inability to Provide Reasons:
o In cases where lay witnesses cannot provide detailed reasons for their opinions, it
is generally understood that this limitation should affect the weight given to their
opinions, not their admissibility. The legal system acknowledges that lay
witnesses may not always possess the ability to articulate the reasoning behind
their conclusions.
4. The Compendious Mode:
o The "compendious mode" is a concept used to describe situations in which a
witness, including lay witnesses, expresses an opinion as a summary of factual
information they have perceived. This mode of testimony is allowed because the
witness may be better situated than the court to provide a concise summary of
facts. Examples of this include a witness saying, "I see a Chinaman" as a summary
of observed characteristics.
5. Handwriting Identification:
o Lay witnesses are permitted to identify handwriting. They can express opinions on
whether a particular handwriting sample matches other known samples, and their
opinions are admissible as evidence. This applies both to handwritten documents
and signatures.
6. Probative Value of Lay Opinion:
o The value of a layperson's opinion is generally considered prima facie evidence if
uncontested. However, the probative value of the opinion can vary based on
factors such as the complexity of the issue and the reasons provided to support the
conclusion. If the issue is complex or disputed, expert testimony might be required
to resolve it definitively.
7. Expertise for Certain Issues:
o In some cases, issues may require specialized knowledge or expertise that goes
beyond common experience. In such situations, lay opinions may not be
sufficient, and the court may seek expert testimony to assist in making a
determination.
8. Challenging Lay Opinions:
o The admissibility and weight of a lay opinion can be challenged during legal
proceedings. Cross-examination and questioning regarding the reasons behind the
opinion are common methods to assess the validity and reliability of a lay opinion.
Herbst v R:
 In this case, the court emphasized the concept of the "compendious mode" of expressing
opinions. When an ordinary witness, such as a layperson, says something like "I see a
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Chinaman," they are essentially summarizing their observations and forming an opinion
based on their experience or knowledge.
The court recognized that it's not always possible to entirely separate statements of
opinion from statements of fact, especially in practical situations where witnesses
describe what they perceive. The legal system acknowledges that witnesses may naturally
express opinions, and this is not always a problem.
The compendious mode is allowed because it serves practical convenience and because
the witness, who observed the situation firsthand, might be in a better position to
summarize their observations.
lay witnesses can identify handwriting. Both common law principles and statutory
provisions often allow lay witnesses to express opinions about whether a particular piece
of handwriting matches known samples.
This recognition of lay opinions in handwriting identification cases reflects the
practicality of utilizing layperson observations. While experts may provide more precise
analysis, lay witnesses who are familiar with a person's handwriting can still offer
valuable insights.
These cases underscore the importance of considering the specific circumstances and issues
at hand when determining the admissibility of layperson opinions. While lay opinions are
generally admissible and can provide prima facie evidence, there are situations where
specialized knowledge or expertise is necessary to ensure the accuracy and reliability of the
opinion. The courts aim to strike a balance between practicality and the need for expertise in
the pursuit of justice.
Discuss when an expert witness is necessary/permitted.
Expert witnesses are necessary and permitted in legal proceedings when their specialized
knowledge, training, skill, or experience can assist the court in deciding issues that are
beyond the common understanding of judges and jurors. The information you provided offers
valuable insights into when expert witnesses are necessary and permitted in legal cases.
Here's an extensive discussion on this topic:
1. Nature of Expertise: The need for an expert witness arises when the subject matter
under consideration is sufficiently complex or specialized that it cannot be understood
or evaluated adequately by individuals without the relevant expertise. The information
mentions various fields where expert opinion evidence is readily received, such as
ballistics, engineering, chemistry, medicine, accounting, and psychiatry. This is not an
exhaustive list, but it illustrates the diverse areas in which experts are valuable.
2. Appreciable Help to the Court: The core criterion for admitting expert testimony is
whether the court can receive "appreciable help" from the expert on the particular
issue in question. This means that the expert's testimony should provide valuable
insights or clarifications that the court or jury couldn't arrive at independently.
3. Science or Skill: When the issue at hand involves scientific or specialized knowledge,
the court can seek input from experts who are better qualified than the court itself to
address these matters. For instance, in cases involving complex medical issues, the
viva voce evidence of medical practitioners is considered highly relevant.
4. Example Cases:
o
In the case of Ruto Flour Mills Ltd v Adelson, an accountant was called as an
expert to testify about the financial affairs of a bakery. The court allowed this
expert opinion because it provided insights that the court couldn't easily
deduce on its own.
o In cases of rape or serious assaults, expert testimony from clinical
psychologists or social workers may be admitted because they can shed light
on the psychological aspects of the case that are beyond the understanding of
the court.
5. Foundation for Expert Testimony: To admit expert testimony, the party seeking to
introduce it must establish several factors:
o The expert must possess specialist knowledge, training, skill, or experience
relevant to the case.
o The expert must be qualified as an expert in the specific field in which they
are offering an opinion.
o The expert's opinion must be based on facts that are relevant to the case.
o The expert's opinion should not be based on hypothetical facts that have no
bearing on the case.
6. Reasons for Opinion: Experts are generally required to provide valid reasons for
their opinions. This is critical because it helps the court assess the probative value of
the expert's testimony. Proper reasons can strengthen the credibility and reliability of
an expert's opinion.
7. Expert Neutrality: Experts should remain objective and neutral in presenting their
opinions. They are expected to assist the court, not to advocate for any party's
interests. Expert opinions should be based on their professional judgment and
expertise, not influenced by the side that called them.
8. Hearsay and Expert Opinion: Expert witnesses usually cannot base their opinions
on hearsay evidence (statements made by a person not called as a witness).
However, there may be exceptions when hearsay evidence is admissible under
specific conditions. In legal proceedings, an expert witness can use information from
a textbook authored by someone who is not called as a witness, but certain
conditions must be met, as established in the case of Menday v Protea Assurance
Co Ltd:
 Affirmation of Correctness: The expert must demonstrate that they can, based on
their own training and expertise, confirm the accuracy of the statements contained in
the textbook. In essence, they should be capable of vouching for the correctness of
the information in the book.
 Reliability of the Textbook: The textbook or work that the expert refers to must be
considered reliable. This means it should have been authored by a person with
established repute or proven experience in the relevant field. In other words, the
book must be authored by someone with a recognized and credible background in
that specific area of expertise.
The rationale behind these conditions is to ensure that expert witnesses do not rely on
hearsay evidence without proper validation. An expert with purely theoretical knowledge
cannot use passages from a non-authoritative source to support their opinion, especially if
they lack personal experience or knowledge in that particular field. This approach
safeguards against potential inaccuracies and ensures that the court does not place undue
reliance on publications that have not been established as authoritative or credible within the
relevant domain.
Case Background:
In Ruto Flour Mills Ltd v Adelson, there was a dispute between the plaintiff (P), Ruto Flour
Mills Ltd, and the defendant (D), Adelson. The nature of the dispute was defamation, with
the plaintiff alleging that the defendant had made false and damaging statements about the
plaintiff. Specifically, the defendant had reportedly told third parties that the plaintiff had
raped her when they were alone on a farm.
Expert Witness Involvement:
To support her claim that she had been raped by the plaintiff, the defendant wanted to call
an expert witness, referred to as "W," who was a registered clinical psychologist and a
member of the South African Society of Clinical Hypnosis. W was going to testify that, based
on several interviews and two hypnotherapy sessions with the defendant, she was indeed
raped by the plaintiff. Additionally, W would explain that hypnosis was a method for
accessing subconscious memories and thoughts from patients by inducing them into a state
of trance or deep relaxation.
Objection to Expert Testimony:
However, the plaintiff's counsel objected to the admissibility of W's opinion on the credibility
of the defendant. The objection appears to have been based on the argument that W's
evidence was irrelevant.
Court's Decision:
Satchwell J, the presiding judge in this case, made several significant determinations
regarding the admissibility of W's expert opinion:
1. Irrelevance: Satchwell J found that W's evidence was irrelevant. The judge explained
that the consistency of the defendant's statements was not in dispute, and her prior
statements to W added "no greater weight to that which she was telling the court."
2. Usurping the Court's Judgment: In addition to the issue of irrelevance, Satchwell J
concluded that the proposed evidence of W would "indeed displace the value judgment
of the Court." In other words, the judge believed that the court itself could determine
matters of credibility without relying on the opinion of the expert witness.
3. Role of the Court: The judge emphasized that the court, despite its lack of special
knowledge and skill, had the responsibility to draw inferences from the established
evidence. While expert opinions could be helpful, the court was not obliged to rely on
them when assessing credibility.
4. Value of Expert Opinion: Satchwell J acknowledged that the guidance and opinion of
the expert witness, in this case, B, would be just one aspect considered by the court. The
court would ultimately determine the probative value of B's evidence and how it
contributed to understanding the facts before the court
Differentiate between hearsay and expert opinion in a given scenario.
Hearsay:
1. Definition: Hearsay evidence is generally understood as an out-of-court statement that
is offered in court as evidence to prove the truth of the matter asserted in the statement.
In simpler terms, it involves someone testifying about what someone else said outside of
court.
2. Admissibility: Hearsay evidence is typically not admissible in court because it is seen
as less reliable due to the absence of the original declarant who can be cross-examined,
and it can lead to the propagation of inaccurate information.
3. Restrictions: There are exceptions and circumstances where hearsay evidence can be
admitted, such as when it falls under recognized exceptions like statements against
interest, excited utterances, or business records.
4. Examples: If a witness testifies, "John told me he saw the defendant steal the purse,"
this statement is hearsay because it is an out-of-court statement offered to prove the
truth of the matter asserted (i.e., that the defendant stole the purse).
Expert Opinion:
1. Definition: Expert opinion refers to the testimony of a qualified expert witness who
provides their professional judgment or analysis on a specific matter within their area of
expertise.
2. Admissibility: Expert opinions are generally admissible and valued in court because
they are based on the specialized knowledge and experience of the expert, which can
assist the court in understanding complex or technical issues.
3. Qualifications: For an expert opinion to be admissible, the expert must demonstrate
their qualifications, training, and experience relevant to the subject matter, and they must
be recognized by the court as an expert in that field.
4. Examples: An expert witness, such as a forensic scientist, may testify about the results
of a DNA analysis and offer an opinion on the likelihood of a match between the DNA
found at a crime scene and that of the defendant. This expert opinion is admissible
because it is based on the expert's specialized knowledge.
Intersection:
The intersection between hearsay and expert opinion occurs when an expert witness relies
on external information, such as statements in textbooks. In such cases, the court may allow
it if certain conditions are met, as outlined in Menday v Protea Assurance Co Ltd. These
conditions include the expert's ability to affirm the correctness of the statements in the
textbook based on their own training and the reliability of the textbook, which should be
authored by someone with established expertise in the field.
In summary, hearsay involves out-of-court statements used to prove the truth of the matter
asserted and is generally inadmissible, while expert opinion relies on the specialized
knowledge and experience of an expert witness and is typically admissible. However, expert
opinions can sometimes involve external information, and in such cases, they must meet
specific conditions to avoid being considered hearsay.
Apply the principles of opinion evidence to a given scenario.
1. Relevance is Key:

The foundational principle in the admission of opinion evidence is relevance. It is crucial
that any opinion expressed by a witness, whether they are a layperson or an expert,
must be relevant to the case at hand. If an opinion does not contribute to the court's
understanding of the issues in the case, it is generally inadmissible.
2. Laypersons vs. Experts:

While there is a distinction between layperson and expert opinions, the admissibility of
opinion evidence is not solely determined by this classification. The critical factor is
whether the opinion of a particular witness, considering the circumstances of the case,
can assist the court in making decisions. This means that even laypersons can provide
admissible opinions if their input is deemed valuable.
3. The Compendious Mode:

The "compendious mode" refers to instances where a witness, often a layperson,
expresses an opinion as a brief summary of factual data perceived by them. In such
cases, it is acknowledged that it may be practically impossible to entirely separate an
opinion from the facts. This mode of testimony is permitted for its practical convenience,
as it allows witnesses to summarize their observations, provided that the opinion remains
relevant.
4. Identification and Expertise:
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The principle recognizes that certain matters may require specialized knowledge or
expertise. Laypersons can offer opinions on matters within their common knowledge and
experience, such as the approximate age of a person, the state of sobriety of a person,
or the general condition of a thing.
However, when the issue in question demands specialized knowledge, layperson
opinions may not suffice. For example, identifying a substance like dagga (cannabis)
may require expert knowledge, as not everyone can reliably identify it.
When layperson opinions are challenged or when the issue requires expertise, expert
opinion evidence might be necessary.
5. Probative Value and Weight:


Admissible layperson opinions provide prima facie evidence, meaning they are accepted
as evidence unless challenged. However, their probative value can vary based on the
circumstances and the reasons presented by the witness.
The weight given to a layperson's opinion is not predetermined but is subject to the
court's discretion. Factors such as the witness's credibility, knowledge, and the nature of
the issue can influence the weight assigned to their opinion.
CASE LAW
1. S v Ndaba (1981 (3) SA 782 (N)):
 In "S v Ndaba," there is a mention of the value of a policeman's opinion regarding the
identification of a substance, specifically, whether it is dagga (cannabis). The case
recognizes that identifying certain substances may require specialized knowledge or
expertise.
 The principle from this case suggests that not everyone can reliably identify substances
like dagga, and special knowledge is necessary to make such determinations. This
highlights the importance of expertise in certain situations when it comes to opinion
evidence.
2. Holtzhauzen v Roodt (1997 (4) SA 766 (W)):
 DEALS WITH the probative value of layperson opinions. The case discusses the concept
that admissible layperson opinions provide prima facie evidence. In other words, they are
accepted as evidence unless challenged.

However, the weight given to such opinions is not predetermined but is subject to the
court's discretion. Factors like the credibility of the witness and the nature of the issue
can influence the weight assigned to their opinion.
3. Menday v Protea Assurance Co Ltd: In "Menday v Protea Assurance Co Ltd," the case
established several key principles regarding expert witnesses and their testimony:
 Qualifications of the Expert Witness: The court emphasized that an expert witness
should have specialized knowledge, training, skill, or experience in the relevant field. It is
not merely the expert's opinion that is considered but their ability to demonstrate that
their opinion is based on valid reasons due to their expertise.
 Relevance of Expert Testimony: The expert's opinion must be relevant to the case at
hand. The expert should be qualified to provide an opinion on the specific topic or issue
under consideration.
 Reliability of the Expert's Source: When an expert relies on information from textbooks
or other written sources not authored by themselves, it's important to establish that the
expert can affirm the correctness of the statements in those sources. Additionally, the
source, such as a textbook, should be reliable and authored by someone with
established repute or expertise in the field.
 Avoiding Hearsay: Expert witnesses are generally not allowed to base their opinions on
statements made by individuals who are not called as witnesses in the case. However,
there are exceptions and conditions that may allow hearsay information to be admitted.
 The Court's Role: The court's role is to assess the credibility and probative value of the
expert's testimony. While an expert's opinion is valuable, it is not binding on the court,
and the court has the authority to accept or reject it based on the evidence presented.
These principles underscore the importance of expert witnesses in providing specialized
knowledge to assist the court while ensuring that their opinions are based on reliable
information and expertise.
Explain the legal concept of character.
1. Character Evidence in Criminal Cases:
In criminal cases, character evidence is used to establish or challenge the character or
disposition of the accused, witnesses, or even the complainant. We'll start by discussing
character evidence concerning the accused.
a. Good Character of the Accused:
 General Rule: The general rule in criminal cases is that the accused has the right to
introduce evidence of their good character. This is based on the principle that such
evidence makes it less likely that the accusations made by the prosecution are true.
Essentially, it's used to bolster the accused's credibility and suggest that they are less
likely to have committed the alleged crime.
 R v Rowton (1865): This case is significant in the development of character evidence
rules. In R v Rowton, it was held that evidence of the accused's good character is
admissible because it renders it less probable that what the prosecution has alleged is
true. This makes it strictly relevant to the issue at hand.
b. Bad Character of the Accused:
 General Rule: Typically, evidence of the accused's bad character is excluded in criminal
cases. This is due to concerns that such evidence could unduly prejudice the jury or be
considered irrelevant. The general idea is that the trial should focus on the specific facts
and issues of the case, rather than the accused's past behavior.


Exceptions: There are exceptions to the rule against introducing evidence of bad
character. One such exception is when the accused introduces evidence of their own
good character, which might allow the prosecution to present evidence of the accused's
bad character under certain circumstances.
Section 197 of the Criminal Procedure Act: This section outlines the rules and
circumstances under which an accused may be cross-examined regarding their
character. It includes situations where the nature or conduct of the defense involves
making allegations about the character of the complainant or other prosecution
witnesses.
2. Character Evidence in Civil Cases:
In civil cases, character evidence plays a more limited role compared to criminal cases.
However, there are specific situations in which character evidence may be relevant.
a. Seduction Cases:
 In cases involving seduction, character evidence may come into play. For example, in an
action for seduction, the plaintiff's character, particularly issues related to virginity or
permissiveness, may be relevant to establish certain elements of the claim.
b. Defamation Cases:
 In defamation cases, character evidence may be introduced in mitigation of damages.
For instance, if a defendant's defense fails, they may present evidence of the plaintiff's
general bad reputation to argue for reduced damages.
3. Character of Witnesses:
Character evidence can also be relevant when assessing the credibility of witnesses,
regardless of whether it's a criminal or civil case. Witnesses may be cross-examined about
their character, particularly if their credibility has been questioned or if their character is
relevant to the issues in the case.
4. The Role of Case Law:
1. R v Rowton (1865):
 R v Rowton is a landmark case in the development of character evidence rules in
criminal law, specifically regarding the character of the accused.
 The case was heard in the Court of Queen's Bench in England in 1865.
Key Legal Points:
 Admissibility of Good Character Evidence: In R v Rowton, the court held that
evidence of the accused's good character is admissible. The rationale behind this ruling
was that such evidence makes it less probable that what the prosecution has alleged is
true. In other words, presenting evidence of the accused's good character is considered
strictly relevant to the issue at hand.
 Preventing Prejudice: On the flip side, the court also recognized that evidence of the
accused's bad character should generally be excluded. This is because it might have a
disproportionately prejudicial effect upon the jury, and it is often considered irrelevant.
 Relevance and Significance: The case essentially established a principle that evidence
of the accused's good character is relevant and admissible because it can undermine the
prosecution's case. This principle has had a lasting impact on the rules surrounding
character evidence in criminal law.
2. S v Hlati 2000 (2) SACR 325 (N):
 S v Hlati is a South African case that deals with character evidence and its admissibility
in a criminal trial.
 The case was heard in the South African High Court in 2000.
Key Legal Points:
 Application of Section 197 of the Criminal Procedure Act (CPA): S v Hlati revolves
around the interpretation and application of Section 197 of the Criminal Procedure Act.
This section outlines the circumstances under which an accused may be cross-examined
regarding their character in a criminal trial.
 Limitations on Cross-Examination: The case clarifies that Section 197 of the CPA
imposes limitations on cross-examination related to the character of the accused. It
specifies conditions under which such cross-examination is permissible, particularly
when the accused has introduced evidence of their own good character.
 Discretion of the Court: S v Hlati emphasizes that the court has a role in exercising
discretion when it comes to character evidence. While the section provides conditions
under which cross-examination may occur, the court can still control and restrict the
scope of such cross-examination, especially if it risks prejudicing the accused or
undermining a fair trial.
 Balancing Relevance and Fairness: The case underscores the importance of
balancing the relevance of character evidence with the accused's right to a fair trial. It
acknowledges that character evidence may be relevant to credibility but should not
unduly prejudice the accused.
In summary, S v Hlati 2000 (2) SACR 325 (N) is a South African case that clarifies the
application of Section 197 of the Criminal Procedure Act, emphasizing the discretion of the
court in controlling character evidence cross-examination. Both R v Rowton and S v Hlati are
pivotal in shaping the rules and principles surrounding character evidence in criminal law,
ensuring a balance between relevance and fairness in trial proceedings.
Discuss the categories of persons and circumstances to which
character evidence applies in court
1. Character of the Accused in Criminal Cases:
 Good Character: In criminal cases, the accused is generally allowed to present
evidence of their own good character. This evidence can be introduced in several ways:
o Accused's Testimony: The accused can personally testify about their good
character, emphasizing traits or behaviors that are inconsistent with the alleged crime.
This can help create doubt in the minds of the jury.
o Character Witnesses: The accused can call witnesses who will testify about their
good character. These character witnesses may be friends, family members, or
acquaintances who can vouch for the accused's reputation.
o Cross-Examination of Prosecution Witnesses: The accused can also attempt to
establish their good character by cross-examining prosecution witnesses. This may
involve questioning witnesses about the accused's reputation.
 Bad Character: Under English law, evidence of the accused's bad character is generally
excluded from proceedings. This exclusion is primarily based on two reasons:
o Prejudicial Effect: Bad character evidence can have a disproportionately prejudicial
effect on the jury, potentially swaying their judgment based on irrelevant factors.
o Irrelevance: Bad character evidence is often considered irrelevant to the specific
charges at hand.
 Section 197 of the CPA: In South African law, Section 197 of the Criminal Procedure
Act (CPA) provides rules for cross-examining the accused on character. This section
allows for cross-examination in specific circumstances, such as when the accused
introduces evidence of their own good character or when the nature of the defense
involves imputations of the character of the complainant or prosecution witnesses.
2. Witnesses Other Than the Accused in Criminal Cases:
 In criminal cases, character evidence pertaining to witnesses other than the accused is
generally not relevant. However, if a witness's credibility is called into question by
evidence of their bad reputation for truthfulness, character evidence may become
relevant.
3. Character of the Complainant in Criminal Cases:
 In most criminal cases, the character of the complainant is not relevant to assessing
credibility. However, there are exceptions, such as in cases of rape or indecent assault:
o Rape or Indecent Assault: In these cases, the accused may introduce evidence
related to the complainant's bad reputation for chastity. This evidence can be
presented to support the defense's argument, but recent amendments require court
approval for such evidence, ensuring it is relevant, fair, and respectful of the
complainant's dignity.
4. Character in Civil Cases:
 In civil cases, the character of the parties involved is typically considered irrelevant to the
proceedings. However, there are specific circumstances where character evidence may
be relevant:
o Seduction Cases: In cases of seduction, a party's permissive disposition may be
considered relevant as an essential element of the case.
o Defamation Cases: In defamation cases, if a defendant fails in their defense, they may
introduce evidence of the plaintiff's general bad reputation to mitigate damages.
5. Cross-Examination and Credibility:
 Parties acting as witnesses in both criminal and civil cases may be subject to crossexamination on their character. This cross-examination aims to assess the credibility of
the witness.
6. Similar Fact Evidence:
 The information mentions the similar fact rule, which limits the admission of evidence of
past misconduct on the part of the accused when the sole relevance of the evidence is
the accused's disposition.
Character evidence, whether related to the accused, witnesses, or complainants, is subject
to specific rules and limitations. The admissibility of character evidence depends on the type
of case, the specific circumstances, and the applicable legal framework. These rules are in
place to maintain fairness, relevance, and the protection of the rights of all parties involved in
legal proceedings.
Apply principles of character evidence to a given scenario.
1. Character Evidence in Court: Character evidence pertains to information about an
individual's character and disposition. It is often introduced in court proceedings to establish
the credibility, trustworthiness, or moral character of a party, witness, or accused.
2. Historical Distinction: Historically, character evidence was categorized into two primary
forms: General Reputation: This category involved presenting evidence about an
individual's general reputation in the community. It was commonly used in the 19th century
in English common law. Disposition Evidence: This category focused on a person's
disposition to think or act in a particular way, often based on their past behavior. Notably,
historical English common law preferred evidence of general reputation over disposition
evidence when establishing character.
3. Modern Law of Evidence: In contrast to historical preferences, modern law does not
show a preference between general reputation and disposition evidence when admitting
character evidence.
4. Character Evidence in Criminal Cases: In criminal cases, character evidence plays a
crucial role, especially regarding the accused:
- Accused's Good Character: The general rule allows the accused to present evidence of
their good character. This evidence aims to create doubt regarding the prosecution's claims
and is considered strictly relevant to the case.
- Prosecution's Limitations: The prosecution is generally prohibited from introducing
evidence of the accused's bad character, subject to specific exceptions. The prohibition
against introducing the accused's bad character is based on concerns that it could unduly
prejudice the jury and that it is generally irrelevant to the case. Section 197 of the Criminal
Procedure Act (CPA) outlines rules for character evidence in criminal cases in South African
law. It addresses situations where evidence of bad character may be introduced by the
prosecution.
5. Witnesses and Character in Criminal Cases: In criminal cases, character evidence
pertaining to witnesses other than the accused is typically not relevant. However, it may
become relevant if a witness's credibility is challenged by evidence of their bad reputation for
truthfulness.
6. Character of the Complainant in Criminal Cases: Generally, the character of the
complainant in criminal cases is not relevant to credibility. However, there are exceptions,
such as in cases of rape or indecent assault, where evidence related to the complainant's
character may be introduced. Recent amendments require court approval for introducing such
evidence to ensure fairness and respect for the complainant's dignity.
7. Character in Civil Cases: In civil cases, the character of the parties involved is typically
considered irrelevant. However, there are specific circumstances where character evidence
may be relevant, such as in seduction cases or defamation cases.
8. Cross-Examination and Credibility: Parties acting as witnesses in both criminal and civil
cases may be subject to cross-examination on their character. This cross-examination aims to
assess the credibility of the witness.
9. Similar Fact Evidence: The information mentions the similar fact rule, which limits the
admission of evidence of past misconduct on the part of the accused when the sole relevance
of the evidence is the accused's disposition.
Analyse the meaning of a previous consistent statement
1. Definition of a Previous Consistent Statement: A previous consistent statement is a
statement made by a witness before testifying in court that aligns with their testimony during
the trial. A previous consistent statement, refers to a statement made by a witness on some
occasion prior to testifying in court. This statement is considered consistent or substantially
similar to the testimony the witness provides during their court appearance. However, there
is a general rule that prohibits witnesses from testifying about these previous consistent
statements in court. This exclusion is based on several factors.
2. Rationale for Its Exclusion as a Form of Evidence:

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



Relevance: The primary rationale for excluding previous consistent statements is that
they are often considered irrelevant. This is because such statements lack probative
value. In other words, they don't contribute significantly to the determination of the truth
or accuracy of the witness's testimony.
Insufficient Probative Force: A consistent statement may not necessarily be more
reliable than inconsistent ones. A person can repeat a lie as often as the truth, so the
mere consistency of a statement does not guarantee its accuracy.
Risk of Fabrication: Allowing previous consistent statements could open the door to the
fabrication of evidence, as witnesses might be tempted to create statements that support
their case.
Superfluous Evidence: In most cases, it can be reasonably assumed that a witness's
testimony will be consistent with what they have said on previous occasions about the
same topic or incident. Therefore, introducing previous consistent statements would be
redundant and time-consuming.
Collateral Inquiries: Proving previous consistent statements in every case would lead to
extensive collateral inquiries and consume considerable time without adding significant
value to the case.
Rule Against Self-Corroboration: There is a rule against self-corroboration, which
limits the probative value of a previous consistent statement. Essentially, it means that if
a statement merely corroborates what a witness is saying in court, it is generally
excluded as evidence.
3. Example from Case Law (R v Roberts):


In the case of R v Roberts, the accused was charged with murder and testified that the
killing was an accident. However, he was not permitted to testify that he had told his
father two days after the incident that it was an accident. The court ruled that this
narration to his father was excluded because it was considered irrelevant.
The court's rationale was that the law prohibits a party from making evidence for
themselves. This rule applies to both civil and criminal cases. In essence, a person
cannot call evidence to show that they had told others what their defense was going to
be after being charged with a criminal offense. This is because such testimony doesn't
assist in elucidating the matters in dispute and has no evidential value.
The exceptions to the general rule regarding the admissibility of previous consistent
statements in the context of evidence in legal proceedings, particularly in cases of
allegations of recent fabrication and complaints in sexual cases:
1. General Rule on Admissibility: The general rule in legal proceedings is that statements
made outside the courtroom by a witness are considered hearsay and are generally not
admissible as evidence. This means that if a witness wants to testify about something, they
should provide that information in court during the trial, rather than relying on previous
statements made elsewhere.
2. Exceptions to the General Rule: The information provided discusses two main
exceptions to this general rule:
A. Exception for Recent Fabrication (§ 9 5):
 Purpose: This exception comes into play when it is suggested that a witness has
fabricated their evidence within a certain period of time before the trial.
 Criteria for Admissibility: To rebut the suggestion of recent fabrication, the witness can
introduce a previous consistent statement they made either in writing or orally, which
aligns with their testimony in court.
 Key Points:
o The term "recent" in "recent fabrication" is somewhat misleading; the focus is on
whether the witness invented a false version of events between the event being
investigated and the trial.
o The previous consistent statement is admitted to show that the witness has not
fabricated their evidence recently and has consistently maintained their account of
events.
o The statement's contents cannot be used as evidence of the truth of what the witness
said; it is not considered corroboration of their evidence.
B. Exception for Complaints in Sexual Cases (§ 9 6):
 Purpose: This exception deals with evidence of a voluntary complaint made by the
victim in cases of alleged sexual offenses.
 Criteria for Admissibility: The common-law requirements governing the admissibility of
the complaint are as follows:
o The complaint must have been made voluntarily.
o The complainant must testify.
o The complaint must have been made at the first reasonable opportunity.
o The complainant must have been a victim of a sexual offense.
o The complaint can only be admitted for the limited purpose of proving consistency.
 Common-Law Critique: This rule, although historically rooted, has been criticized for
not having a rational basis and potentially being prejudicial. It's argued that it may fail to
consider the psychological impact of sexual offenses and the potential for delayed
reporting.
 Legal Changes: Some jurisdictions have abolished or modified this common-law rule
through statute. In South Africa, sections 58 and 59 of the Criminal Law (Sexual
Offenses and Related Matters) Amendment Act 32 of 2007 have made significant
changes, allowing for the admissibility of previous consistent statements by a
complainant in sexual offense cases.
3. Application of the Exceptions:
 In both exceptions, the previous consistent statement is introduced to show that the
witness's story was not concocted or fabricated at a later date, and it is used to rebut
challenges to the witness's credibility.
4. Retaining Discretion:
 The courts retain discretion in determining the admissibility of complaints or statements,
especially considering the circumstances under which they were obtained and the nature
of the questions or suggestions posed to the complainant.
1. General Rule and Timing of Complaints: a complaint about a sexual offense should be
made promptly, at the first reasonable opportunity after the incident. This is based on the
expectation that victims should report such offenses promptly to the authorities.
2. Exceptions to the General Rule:
o Age of the Complainant: complaints by young children have been admitted even after
significant delays, ranging from days to weeks.
o
o
Factors for Determining Reasonableness: The timing of a complaint is influenced by
factors such as the presence or absence of a person to whom the victim could
reasonably complain and whether the victim realized the immoral nature of the act.
Risk of False Complaints: whether the complainant, due to the passage of time, could
have possibly made a false complaint. This recognizes that the credibility of the
complaint can be influenced by the circumstances.
3. Case Examples: an 11-year-old girl's delayed reporting was considered reasonable
because she wanted to inform her mother first. The court took into account her age and the
specific circumstances in reaching this conclusion.
4. Legal Provisions: Section 58 of Act 32 of 2007 deals with the admissibility of evidence
related to prior consistent complaints. It suggests that this section raises questions about
whether it has abolished the common law's requirement for complaints to be made at the
first reasonable opportunity.
5. Limited Evidential Value: both under common law and the provisions of Act 32 of 2007,
the primary purpose of admitting complaints is not to prove the truth of the allegations but to
demonstrate consistency in the victim's statements. These complaints are not treated as
independent evidence that can directly corroborate the victim's testimony about the offense.
6. Inferences and the Law: Sections 58 and 59, aim to influence the inferential processes
of courts. There is discussion on whether these legislative restrictions align with the
principles of free evaluation of evidence and whether they could raise constitutional or
judicial discretion concerns. There is tension between legislative guidance and judicial
discretion in evaluating evidence related to complaints.
7. Identification: dock identifications, where victims identify an accused person in the
courtroom, are of limited probative value compared to prior identifications made outside the
courtroom. This implies that prior identifications are considered more reliable than
identifications made under the pressure of a courtroom setting.
8. Part VI of the CPEA: deals with the admissibility of signed statements made by witnesses
who also provide oral evidence. Such statements cannot serve as corroboration of the oral
evidence presented, emphasizing the distinct roles of written statements and oral testimony.
Apply to a given scenario when previous consistent statements are
inadmissible or admissible taking into consideration the following
headings
1. Part VI of the Civil Proceedings Evidence Act 25 of 1965:
Part VI of the Civil Proceedings Evidence Act addresses the admissibility of previous
consistent statements in civil proceedings. The act generally allows for the admissibility of
previous consistent statements, subject to certain conditions and exceptions. However, it is
important to note that the admissibility of these statements may vary based on the specific
circumstances of the case and the rules of evidence.
2. Res Gestae:
Res Gestae refers to statements made spontaneously or as part of the events surrounding a
particular occurrence. Under the principle of Res Gestae, previous consistent statements may
be admissible if they are considered part of the res gestae. This means that if the statements
were made spontaneously in connection with the relevant event and are closely tied to it, they
may be admitted as evidence.
3. Refreshing Memory:
A witness's earlier statement may be used to refresh their memory while they are testifying in
court. This is permissible in certain circumstances. When using an earlier statement to refresh
memory, the primary purpose is to assist the witness in accurately recalling the events. The
contents of the statement are not introduced as independent evidence, and they do not
corroborate the witness's testimony. Therefore, the admissibility of previous consistent
statements does not typically arise in this context.
4. Statements Made at Arrest or on Discovery of Incriminating Articles:
Statements made by a person at the time of their arrest or upon the discovery of incriminating
articles may be used to prove consistency in their statements. This means that if a person
makes consistent statements about the circumstances of their arrest or the discovery of
incriminating evidence, these statements may be admissible to show that their version of
events has remained consistent over time.
5. Section 213 of the Criminal Procedure Act 51 of 1977:
Section 213 of the Criminal Procedure Act provides for the circumstances in which a
witness's statement may be proved by consent, without calling the witness to testify in court.
In such cases, the witness's statement may serve to show consistency. However, it is
important to note that this section does not apply to an accused person.
In summary, the admissibility of previous consistent statements in South African law depends
on various factors, including whether they are part of the res gestae, used to refresh memory,
related to statements made at the time of arrest or discovery of evidence, or covered by
Section 213 of the Criminal Procedure Act. The admissibility of such statements will be
determined on a case-by-case basis, taking into consideration the specific circumstances and
applicable legal provisions. It's also important to note that these statements generally cannot
be used to corroborate a witness's testimony but may serve to demonstrate consistency in
their statements.