Study Unit 3 – Informal Admissions and Formal Admissions

Question 1

General rule of informal admissions

Answer 1

➢ All relevant facts must be proved on the basis of evidence presented by the parties.

Question 2

Def pf informal admissions

Answer 2

➢ An admission is a statement made by a party, in civil or criminal proceedings, which is adverse to that party’s case.
➢ Informal admissions, which are usually made out of court, must be distinguished from formal admissions made in the pleadings or in court.

Question 3

Diff between formal and informal admissions

Answer 3

➢ Formal admissions are binding on the maker, and are generally made in order to reduce the number of issues before the court.
➢ Informal admissions merely constitute an item of evidence that can be contradicted or explained away

Question 4

Legal Representatives

Answer 4

➢ An admission made at trial by a legal representative is admissible against the client.

Question 5

S v Gouws
Sos Kinderhof International v Effie Lentin Architects (NB)

Answer 5

• The court held that a litigant is bound by counsel’s conduct of the case (within the limits of counsel’s brief) and by admissions which a legal representative makes in the pleadings or in the drafting of an affidavit unless satisfactory reasons are given to show that counsel
  had no right to make such admissions

Question 6

Process of legal representatives

Answer 6

➢ It must be properly established that the legal representative was properly instructed.

Question 7

Considerations ito legal representatives

Answer 7

➢ The court will often infer from the surrounding circumstances that a legal representative has general authority to act on behalf of his client

Question 8

S v Gouws

Answer 8

▪ It is only admissions of fact that are vicariously admissible and not expressions of opinion on the evidence adduced.

Question 9

General rule on admission of evidence by spouses

Answer 9

Oelofse v Grundling
▪ An admission by one spouse is generally inadmissible against the other spouse unless it relates to the joint interest of the spouses in the community estate or in a deferred sharing of profits under the accrual system
introduced by the Matrimonial Property Act 88 of 1984.’

Question 10

Exception to general rule on admission by spouses

Answer 10

However, the court may find on the facts that an express or implied agency has been created and apply the principles pertaining to agents

Question 11

General rule on statements made without prejudice

Answer 11

➢ The general rule in civil matters is that an admission will be accepted into evidence provided that it is relevant.
➢ However, admissions included in a statement by a person involved in a dispute and which are genuinely aimed at achieving a compromise are protected from disclosure.

Question 12

Waste-Tech (Pty) Ltd v Van Zyl and Glanville NNO (NB)

Answer 12

▪ In general mediation proceedings should be regarded as privileged.

Question 13

The rationale behind statements made without prejudice

Answer 13

➢ The rationale of the rule is based on public policy which encourages the private settlement of disputes by the parties themselves.
➢ Parties would not be willing to be honest and frank if what they said might be held against them in the event of negotiations
failing

Question 14

Practical implications of statements made without prejudice

Answer 14

➢ Legal representatives would preface such statements with the words “without prejudice” to prevent the statements being used
against them if the negotiations fail.
➢ Except where the maker of the offer waives their right to nondisclosure, these statements cannot be admitted without the
consent of both parties.

Question 15

Bona fide rule

Answer 15

➢ The words “without prejudice” alone are not enough.
➢ Even where the words are not used but the statement is made in a bona fide (good faith) attempt to negotiate, the statement is protected by privilege.
➢ Even where the words “without prejudice” are invoked, if it is not made in a bona fide attempt, then the statement may be disclosed.
➢ Thus a “without prejudice” will only be protected from disclosure if made in good faith.

Question 16

Criminal and Fraudulent Contents

Answer 16

➢ If a statement contains criminal or fraudulent elements it will not automatically be presumed to be in bad faith.
➢ It will only be relevant to admissibility if it tends to show bad faith

Question 17

Threat of Litigation Rule

Answer 17

➢ If the statement is accompanied by a threat of litigation should the offer not be accepted, it will remain privileged since such a threat is implicit in every offer of compromise.
➢ However, where an offer contains a threat which is relevant to establishing that the offer was not bona fide, evidence of both the offer and the threat will be heard by the court.

Question 18

Davenport case under Threat of Litigation Rule

Answer 18

▪ The defendant in a letter marked “without prejudice” warned the plaintiff (his wife) that unless she withdrew a divorce application he would ensure that criminal proceedings
would be instituted against her.
▪ The court held that the evidence was admissible

Question 19

Consequences of Reaching Settlement

Answer 19

➢ The privilege ceases to exist, because the rationale for its existence has fallen away.

Question 20

Patlansky v Patlansky as case law for Consequences of reaching settlement

Answer 20

▪ The court held that if the same or some connected issue is
later disputed, the earlier ‘without prejudice’ statement will
remain protected from disclosure

Question 21

Venmop 275 (Pty) Ltd as case law for Consequences of reaching settlement

Answer 21

The court limits protection to statements made before the ruling of the original court (the ‘court a quo’).
This approach aims to encourage private dispute settlement, and it aligns with the reasoning in the Patlansky case

Question 22

KLD Residential CC v Empire Earth Investments 17 (Pty) Ltd

Answer 22

• The “without prejudice” rule is not absolute; there are exceptions.
• The South African Supreme Court of Appeal (SCA) held that the running of prescription (time limits for legal claims) can be interrupted under Section 14 of the Prescriptions Act, even if an admission of liability is made “without prejudice.”
• Exceptions depend on case-specific facts and the balance of public interests.
• Settlement offers are admissible if they relate to insolvency, offenses, or incitement to commit offenses.
• Statements with unequivocal acknowledgments of liability are not protected from disclosure.

Question 23

Awards of Costs

Answer 23

➢ As a general rule a settlement offer cannot be used to support
an award of costs.

Question 24

AD v MEC for Health and Social Development, Western Cape

Answer 24

▪ Facts:
* The issue that arose was whether a settlement offer could be taken into consideration in determining if punitive costs should be awarded.
* Rogers J referred to the ‘without prejudice’ offer as a ‘secret offer of settlement.’
* In this case the plaintiff’s offer was one made ‘without prejudice save as to costs.’
* The court called this a “Calderbank offer” as derived from the English judgement of the same Bank name.

▪ Ruling
* As was held in the Calderbank case, the offer was admissible on public policy grounds, as the substantive issues between the parties have been determined.
* The impact of the offer on the costs determination will depend on the court’s consideration of the surrounding
circumstances, and thus, a Calderbank offer does not guarantee that costs will be awarded on its mere production.

Question 25

Formal Admissions
❖ Section 15 CPEA

Answer 25

➢ Formal admissions are binding on the maker, are generally made in the pleadings or in court and considered to be conclusive proof of the fact admitted to reduce the number of issues before
the court.
➢ Formal admissions regarding pleadings cannot be amended unless:
▪ It is established that a bona fide mistake was made; and
▪ That the amendment will not cause prejudice to the other side which cannot be cured with an appropriate order as to costs.

Answer 26

General
➢ Questions put in cross-examination may be of such a nature as to involve an explicit assertion of fact by the cross-examiner.

Question 27

S v Magubane

Answer 27

▪ It was said that assertions, for example, the driving of a vehicle and the presence of the accused at the scene, are to be accepted as unequivocal admissions of the facts so asserted.
▪ For example, the legal representative of an accused might put to a state witness that the accused will say that she (the accused) was the driver of the motor vehicle at the alleged place and time, but that she was not involved in any accident.
▪ Thus, those parts which are not in contention (that she was driving at the scene) are accepted as admissions, and then the only issue that remains is whether she was part of an
accident. The latter is not accepted as an admission as it is not a fact favorable to the accused

Question 28

S v W

Answer 28

▪ It was held that assertions which amount to admissions and which are deliberately and specifically made by the crossexaminer during the course of their cross-examination require no formal proof before they may be used against the party concerned.
▪ This type of admission, it appears, should for all practical purposes be treated as a formal admission.
▪ An implicit assertion in the course of a cross-examination can amount to an unequivocal informal admission by implication requiring no formal proof.