Character Evidence Flashcards
General rule on character evidence in Civil Law
v Evidence of a person’s character is generally irrelevant and, therefore,
inadmissible.
v A party may not adduce evidence pertaining to their own good character, even when it is alleged that they are immoral or acted
dishonestly. They may similarly not adduce evidence of the bad character of their opponents.
What does the exception to the general rule of character evidence in civil law pertain to?
Defamation
SFE
Seduction
Adultery
Maintenance
Credibility of a witness
Breach of promise
Admission of a legal practitioner
Why is defamation an exception to the GR
By its very nature, defamations center on the Plaintiff’s character:
§ Either the Defendant may plead and present evidence that the
defamatory remarks that they made are true (evidence
will go to specifics, such as specific lies if Plaintiff was called
a liar); or
§ Evidence on character will be presented in mitigation of the damages (here evidence will be presented on the character generally rather than specifics).
How do we quantify the damages claim for defamation?
In quantifying a damages claim for defamation, the character is relevant to the quantification of the claim, as it may reduce
(mitigate) the claim for damages.
Naylor v Jansen
§ Facts
* Jansen sued Naylor and was successful in the court a quo.
* It was then appealed to the SCA.
* Naylor informed a meeting that Mr Jansen of the South
African local office had been suspended from his position
because he had misappropriated company funds to a
company of which he holds a directorship.
* It has long been established that, while evidence of a
plaintiff’s general bad character is admissible to reduce the
damages that may be awarded, evidence of particular acts
of misconduct is not (para 15).
* The court a quo refused to hear evidence on Jansen’s
breach of employment contract.
§ Decision
* The SCA found that this evidence should have been heard
as it is relevant to the quantification of the damages claim:
The SCA held at para 15: It has long been established that
while evidence of a plaintiff’s general bad character is
admissible to reduce damages that may be awarded,
evidence of particular acts of misconduct is not.
Why is SFE an exception to the GR
Character evidence may also be admitted in terms of Similar Fact Evidence.
Why is Seduction an exception to the GR
Seduction is a delictual claim where a virgin Plaintiff suffers damages owing to being seduced into sexual relations.
Seductions refer to ‘leading astray of a woman from the path of virtue.’
The Plaintiff is entitled to damages for the loss of her virginity and for the impairment other marriage prospects.
Ø This delictual claim is questionable today and may not pass constitutional muster but it demonstrates that character may be relevant and thus admissible.
Ø As a defence, evidence may be presented by the Plaintiff’s previous sexual encounters with other men (proving she was not
a virgin) and evidence of a permissive disposition which makes such previous sexual encounters probable.
Why is Maintenance an exception to the GR
Where there is an agreement that a party would pay maintenance to the other on the condition of good behaviour character evidence
may be relevant.
Why is Credibility of a witness an exception to the GR
Ø Evidence may be adduced in cross-examination of a witness’s credit (evidence detrimental to their reputation in the wide sense)
which is a party to the action, but not if the only purpose of such evidence is to show that they are untruthful.
Ø Evidence of a person’s character may also be relevant to the witness’s credibility.
§ A party to the action may say that she was not drunk on the day of the accident and the evidence may be adduced that
this is false, which goes to the credit of the witness.
§ Her alcohol consumption is thus relevant.
Why is Breach of promise an exception to the GR
Ø In actions about breach of a promise, evidence on the Plaintiff’s character may be relevant to establish a defence and to mitigate
damages.
Why is Admission of a legal practioner an exception to the GR
Ø Kudo v Cape Law Society
§ The court held that the Applicant may adduce evidence of personal knowledge and belief to prove his character in the sense of disposition and not reputation in support of his
application of re-admission as an attorney.
Why are damages for rape an exception to the GR
M v N
The court held the Plaintiff’s character was relevant in an action for damages based on the allegation of rape.
