Theme 5: admissibility/inadmissibility of relevant evidence Flashcards
Q1: What is hearsay evidence? 🤔
Hearsay evidence is when a witness testifies about what they heard someone else say outside of court.
Q2: How was hearsay regulated under common law? ⚖️
Under common law (English law as of 30 May 1960), the exclusionary rule was strictly applied, and the court had no discretion to admit hearsay evidence unless it fell within a closed list of exceptions.
Q3: How did the Law of Evidence Amendment Act 45 of 1988 change the regulation of hearsay evidence? 📜
The Act replaced the rigid rule-and-exception approach with a more flexible system, allowing courts to admit hearsay evidence if traditional hearsay dangers are accounted for or deemed insignificant.
Q4: What is the new definition of hearsay evidence according to Section 3(4) of the Law of Evidence Amendment Act? 📖
Hearsay evidence refers to oral or written evidence whose probative value depends on the credibility of a person other than the witness giving evidence in court.
Q5: What are the three exceptions under Section 3(1)(a)-(c) that allow hearsay evidence? 🔎
a) By agreement – if parties consent.
b) Where the hearsay declarant later testifies.
c) Where admitting hearsay is in the interests of justice.
Q6: In what situation is hearsay evidence admissible by agreement? 🤝
hearsay is admissible if the parties to the trial agree, either expressly or through inferred consent (e.g., failure to object or deliberate elicitation during cross-examination).
Q7: What must a presiding officer do if an accused is unrepresented and hearsay evidence is being admitted? ⚖️
The presiding officer must explain the dangers of admitting hearsay and instruct witnesses to avoid giving hearsay evidence until the court rules on admissibility.
Q8: What was the rationale for provisionally admitting hearsay in S v Ndhlovu (2002 SCA)? 📜
The rationale was that a witness’s story may later be confirmed by another witness’s testimony.
Q9: How did the court rule on hearsay evidence in S v Shaik (2007 SCA)? ⚖️
The court stated that courts should not hesitate to admit hearsay evidence if it aligns with the interests of justice, as required under Section 3(1)(c).
Q10: What is the key test for admitting hearsay under the “interests of justice” exception? ⚖️
The key test is whether the interests of justice demand the reception of the hearsay evidence.
T/F 1: Under common law, courts had discretion to admit hearsay evidence outside the closed list of exceptions. ❌
False! Under common law, courts had no discretion to admit hearsay evidence unless it fell within a closed list of exceptions.
T/F 2: The Law of Evidence Amendment Act 45 of 1988 made hearsay evidence completely admissible in all cases. ❌
False! The Act did not make hearsay automatically admissible; it allowed a more flexible approach with specific conditions.
T/F 3: Hearsay evidence can be admitted if both parties agree, even if it was not originally intended as evidence. ✅
True! If parties consent—either explicitly or through lack of objection—hearsay evidence may be admitted.
T/F 4: In S v Ndhlovu (2002 SCA), the court ruled that hearsay should never be admitted. ❌
False! The court ruled that hearsay could be provisionally admitted if later confirmed by another witness.
T/F 5: Courts must always exclude hearsay evidence if the declarant is not present in court. ❌
False! Courts can admit hearsay evidence if it meets the exceptions outlined in the Law of Evidence Amendment Act.
MCQ 1: What is the main focus of the new definition of hearsay evidence under the Law of Evidence Amendment Act?
A) Whether the evidence is written or oral.
B) Whether the evidence was made under oath.
C) Whether the probative value depends on the credibility of someone other than the witness. ✅
D) Whether the statement was made in a court document.
MCQ 2: Under which of the following conditions is hearsay admissible?
A) When the declarant later testifies. ✅
B) Only if the statement was made in writing.
C) When the evidence is from a government official.
D) Only in criminal cases.
MCQ 3: What must be done before hearsay is admitted when the accused is unrepresented?
A) The presiding officer must ensure the accused understands the risks. ✅
B) The accused must provide a written statement.
C) The court must automatically reject the evidence.
D) The accused must call their own witness.
MCQ 4: The test for admitting hearsay in the interests of justice is based on:
A) Whether the declarant made a sworn statement.
B) Whether the statement aligns with common law exceptions.
C) Whether the interests of justice demand its reception. ✅
D) Whether the statement was recorded electronically.
Hearsay evidence is when a witness testifies about something they ____________ someone else say outside of court.
heard
Under common law, the ______________ rule was strictly applied, meaning courts had no discretion to admit hearsay evidence outside a closed list of exceptions.
exclusionary
The Law of Evidence Amendment Act 45 of 1988 introduced a ________________ approach to hearsay evidence, replacing the rigid common law rule.
flexible
Section 3(4) defines hearsay evidence as evidence, either oral or in writing, where the ______________ value depends on the credibility of someone other than the witness.
probative
Hearsay evidence can be admissible under Section 3(1) of the Act if parties agree, if the hearsay declarant later testifies, or if admitting it is in the ______________ of justice.
interests
What is the Parole Evidence Rule?
✅ The Parole Evidence Rule states that no extrinsic (outside) evidence is allowed to interpret a written agreement between parties.
What is the main purpose of the Parole Evidence Rule?
✅ The rule ensures that if a document is meant to be a complete record of an agreement, no outside evidence can alter or contradict its meaning.
Which case confirmed that the Parole Evidence Rule remains part of South African law?
✅ KPMG Chartered Accountants (SA) v Securefin Ltd and Another 2009 (4) SA 399 (SCA) confirmed that the rule remains part of South African law.
In which case was it stated that interpretation is a matter of law, not fact?
✅ Johnson v Leal 1980 (3) SA 927 (A) at 943B
What is meant by ‘context is everything’ in legal interpretation?
✅ It means that while contextual evidence may help clarify a document, it should be used conservatively and not override the written agreement.
What alternative terms should be used instead of ‘background circumstances’ and ‘surrounding circumstances’?
✅ ‘Context’ or ‘factual matrix’ should be used instead, as the previous terms are vague and confusing.
Can the Parole Evidence Rule apply to different types of legal documents?
✅ Yes, it applies to statutes, contracts, and patents.
What case criticized distinguishing between ‘background’ and ‘surrounding circumstances’?
✅ Van der Westhuizen v Arnold 2002 (6) SA 453 (SCA)
1️⃣ The Parole Evidence Rule allows extrinsic evidence to modify a written agreement.
❌ False. The rule prohibits extrinsic evidence from contradicting, adding to, or modifying a written agreement.
The Parole Evidence Rule has been removed from South African law.
❌ False. The rule remains part of South African law, as confirmed in KPMG Chartered Accountants v Securefin Ltd (2009).
Interpretation of contracts is a question of fact, not law.
❌ False. Interpretation is a matter of law, meaning it is determined by the courts, not witnesses.
The rule applies only to contracts and not to statutes or patents.
❌ False. The rule applies to contracts, statutes, and patents, as confirmed in Johnson & Johnson (Pty) Ltd v Kimberly-Clark Corp (1985).
The phrase ‘context is everything’ means courts should admit all forms of extrinsic evidence.
❌ False. While context is important, evidence should be used conservatively to establish the factual matrix or purpose.
The Parole Evidence Rule states that no __________ evidence is allowed to interpret a written agreement.
✅ extrinsic
According to Johnson v Leal (1980), interpretation is a matter of __________, not fact.
✅ law
The case of KPMG Chartered Accountants v Securefin Ltd (2009) confirmed that the __________ rule remains part of South African law.
integration (Parole Evidence)
The distinction between ‘background circumstances’ and ‘surrounding circumstances’ was criticized in __________.
✅ Van der Westhuizen v Arnold (2002)
The terms ‘context’ or __________ should be used instead of vague terms like ‘background circumstances.’
✅ factual matrix
What is the main principle of the Parole Evidence Rule?
A) It allows oral agreements to modify a written contract
B) It prohibits extrinsic evidence from contradicting a written contract
C) It permits unlimited evidence to determine the true intention of the parties
D) It only applies to verbal contracts
✅ B) It prohibits extrinsic evidence from contradicting a written contract
Which case confirmed that the Parole Evidence Rule remains part of South African law?
A) S v Shaik (2007)
B) KPMG Chartered Accountants v Securefin Ltd (2009)
C) S v Ndhlovu (2002)
D) Delmas Milling Co Ltd v du Plessis (1955)
✅ B) KPMG Chartered Accountants v Securefin Ltd (2009)
Which statement is TRUE regarding contract interpretation?
A) It is a question of fact and should be decided by witnesses
B) It is a question of law and must be decided by the court
C) It depends entirely on the intentions of the parties, even if not in writing
D) None of the above
✅ B) It is a question of law and must be decided by the court
According to Delmas Milling Co Ltd v du Plessis (1955), evidence to contextualize a document should be used:
A) As freely as possible
B) Only if both parties agree
C) As conservatively as possible
D) Only if a witness supports it
✅ C) As conservatively as possible
Which of the following is NOT a valid reason for admitting extrinsic evidence under the Parole Evidence Rule?
A) Establishing the factual matrix of the document
B) Identifying the purpose of the document
C) Contradicting the clear terms of the written agreement
D) Clarifying ambiguous language in the document
✅ C) Contradicting the clear terms of the written agreement
What is Similar Fact Evidence (SFE)?
SFE refers to evidence that shows the accused has, on other occasions, behaved in the same way as alleged in the current case.
Q2: Why is Similar Fact Evidence usually inadmissible?
It is usually inadmissible because it is irrelevant to the case at hand and prejudicial to the accused.
Q3: Under what condition can Similar Fact Evidence be admitted in court?
It can be admitted if there is a nexus (a link) between the SFE and the fact in issue, which must be more than mere similarity and must have relevance beyond just showing the accused’s character.
Q4: What was the significance of Makin v Attorney-General for New South Wales (1894)?
The Privy Council (PC) ruled that the trial court correctly admitted SFE because it was relevant to proving whether the acts were designed or accidental. However, SFE cannot be used solely to argue that the accused has a criminal disposition.
Q5: What was the ruling in DPP v Boardman (1975)?
The court stated that SFE can be exceptionally admissible if its probative value outweighs its prejudicial effect.
Q6: What does the “Makin Formulation” state about SFE?
It states that SFE cannot be used simply to prove that the accused has a criminal past, but it can be admitted if relevant to the issue before the court.
Q7: What is the “Boardman Formulation” regarding SFE?
It states that SFE is circumstantial evidence and can be admissible if its probative value is greater than its prejudicial effect.
T/F: Similar Fact Evidence is always admissible in court.
False – SFE is usually inadmissible unless it has a relevant nexus to the case beyond just character evidence.
T/F: The Makin v Attorney-General for New South Wales case ruled that SFE can never be admitted.
❌ False – The Makin case ruled that SFE can be admitted if relevant to the fact in issue, such as determining whether an act was intentional or accidental.
T/F: The Boardman case ruled that SFE should always be excluded if it could be prejudicial to the accused.
❌ False – The Boardman case ruled that SFE can be admitted if its probative value outweighs its prejudicial effect.
❓ T/F: The “nexus” required for admitting SFE must be more than just showing similar behavior.
✅ True
Q1: Why is Similar Fact Evidence generally inadmissible in court?
A) It is always irrelevant
B) It can be unfairly prejudicial to the accused
C) It is considered direct evidence
D) It is always unreliable
✅ Answer: B) It can be unfairly prejudicial to the accused
What must be proven for SFE to be admitted?
A) That the accused has committed previous crimes
B) That the SFE is more similar than different
C) That there is a nexus between the SFE and the fact in issue
D) That the accused had a bad character
✅ Answer: C) That there is a nexus between the SFE and the fact in issue
What did the court decide in Makin v Attorney-General for New South Wales (1894)?
A) SFE should never be admitted
B) SFE can be admitted if it proves intent rather than just character
C) SFE can be admitted only when the accused confesses
D) SFE should always be admitted to show the accused’s criminal history
✅ Answer: B) SFE can be admitted if it proves intent rather than just character
What is the key principle in DPP v Boardman (1975)?
A) SFE is always inadmissible
B) SFE is admissible if its probative value outweighs its prejudicial effect
C) SFE can only be admitted when both parties agree
D) SFE is a form of direct evidence
✅ Answer: B) SFE is admissible if its probative value outweighs its prejudicial effect
Q1: Similar Fact Evidence is generally ________ because it may unfairly prejudice the accused.
inadmissible
Q2: The ________ Formulation states that SFE can be admitted if it is relevant to determining whether an act was designed or accidental.
Makin
Q3: In DPP v Boardman, the court ruled that SFE is exceptionally admissible when its ________ value outweighs its prejudicial effect.
probative
To be admissible, Similar Fact Evidence must have a ________ to the fact in issue, rather than simply showing the accused’s character.
nexus
How can an accused person adduce evidence of their own good character in a criminal trial?
✅ A: The accused can adduce evidence of their own good character by:
Giving evidence themselves
Calling witnesses to testify on their behalf
Cross-examining a state witness
Q: Under what conditions can the state adduce evidence of the accused’s bad character?
✅ A: The state can adduce evidence of the accused’s bad character if:
The accused adduces evidence of their own good character
The accused attacks the character of a state witness
The accused testifies against a co-accused
Q: What does Section 197 of the Criminal Procedure Act (CPA) state regarding character evidence?
✅ A: Section 197 of the CPA prohibits the state from adducing evidence of the accused’s bad character, except in cross-examination. It protects the accused from cross-examination about their previous criminal convictions, charges, or bad character unless they lose this protection by their own actions.
Q: What are the exceptions under Section 211 of the CPA that allow the state to adduce evidence of previous convictions?
✅ A: The state can adduce evidence of the accused’s previous convictions in the following situations:
If the accused testifies about their own previous convictions
During bail proceedings
During sentencing procedures
Q: Is character evidence generally admissible in civil trials?
No, character evidence is generally irrelevant in civil trials. However, it may be relevant in specific cases, such as:
Defamation cases
Where parties are cross-examined regarding their credibility
Q: How is character evidence related to Similar Fact Evidence (SFE)?
Character evidence can be admitted as part of Similar Fact Evidence (SFE) when it is relevant and has a strong probative value outweighing its prejudicial effect.
1️⃣ Section ____ of the CPA protects the accused from cross-examination about previous convictions, charges, or bad character.
197
2️⃣ The accused can lose protection under Section 197 by adducing evidence of their own ________, attacking a state witness, or testifying against a ________.
good character, co-accused
3️⃣ In civil trials, character evidence is generally ________, except in cases such as defamation.
irrelevant
4️⃣ Section 211 of the CPA prohibits the state from adducing evidence of an accused’s ________ to show they have previously been convicted of the same offence.
previous conviction
True or False: The state is always allowed to introduce evidence of the accused’s bad character in criminal trials
❌ False! The state is prohibited from adducing evidence of bad character unless the accused introduces evidence of their good character, attacks a state witness, or testifies against a co-accused.
❓ True or False: The accused can never be questioned about their past convictions under any circumstances.
❌ False! The accused can be questioned about their past convictions if they testify about them, during bail proceedings, or in sentencing procedures.
❓ True or False: Character evidence is always relevant in civil cases.
❌ False! Character evidence is generally irrelevant in civil cases but may be relevant in specific situations, such as defamation cases or when assessing a witness’s credibility.
❓ True or False: Similar Fact Evidence (SFE) can include character evidence when it has strong probative value.
✅ True! SFE may include character evidence if it is highly relevant to proving a fact in issue and its probative value outweighs its prejudicial effect.
1️⃣ How can an accused person adduce evidence of their own good character?
A. By attacking the prosecutor
B. By refusing to testify
C. By giving evidence, calling witnesses, or cross-examining a state witness
D. By making a plea deal
✅ Answer: C
2️⃣ Which of the following is NOT a way the accused loses protection under Section 197 of the CPA?
A. By adducing evidence of their own good character
B. By refusing to testify
C. By attacking a state witness’s character
D. By testifying against a co-accused
✅ Answer: B
3️⃣ When can the state introduce evidence of the accused’s past convictions?
A. Always
B. When the accused remains silent
C. When the accused testifies about them, during bail, or during sentencing
D. Only if the accused has multiple past convictions
✅ Answer: C
4️⃣ Character evidence is generally inadmissible in civil trials except in cases involving:
A. Bail applications
B. Speeding violations
C. Defamation and witness credibility issues
D. Family law disputes
✅ Answer: C
What is the Hollington Rule?
The Hollington Rule prevents the admission of any criminal findings as evidence in a subsequent civil action, even if the civil action arises from the same facts.
When can a layperson provide opinion evidence?
A layperson can provide opinion evidence when it assists the court. They may express opinions on matters such as:
Approximate age of a person
Stage of sobriety
General condition of an object
Approximate speed of a vehicle
State of weather
Handwriting familiar to them
Under what circumstances can a court admit or exclude lay opinion evidence?
The admission of lay opinion evidence is at the discretion of the court, which will determine whether the opinion assists in reaching a conclusion.
When is expert opinion evidence necessary?
Expert opinion is necessary when issues cannot be decided without specialized guidance. Fields where expert opinions are commonly accepted include:
Ballistics
Engineering
Chemistry
Medicine
Accounting
Psychiatry
What was the key principle in Menday v Protea Assurance Co Ltd (1976)?
The expert witness’s role is to assist the court in making decisions on matters beyond the court’s knowledge. Their opinion is only valuable if they justify it with reasoned conclusions based on skill, training, or experience.
What is the main purpose of Rule 36(9)(b) as discussed in Coopers (SA) Pty Ltd v Deutsche Gesselschaff Fur Schadlingsbekampfung Mbh (1976)?
The main purpose of Rule 36(9)(b) is to prevent surprises in court by ensuring that an expert’s evidence is disclosed beforehand, allowing both parties to prepare adequately and avoid trial delays.
What was emphasized in Schneider NO and Others v AA and Another (2010)?
An expert witness must provide an objective and unbiased opinion, rather than acting as an advocate for the party that called them. They should base their testimony strictly on scientific knowledge and logical reasoning.
The Hollington Rule prevents the admission of ___________ findings as evidence in a ___________ action.
(criminal, civil)
A layperson can express opinions on everyday matters such as ___________, ___________, and ___________.
age, sobriety, speed of a vehicle, weather, handwriting, etc.)
Expert opinion evidence is required in cases where ___________ is necessary to decide the issue.
(specialized knowledge or training)
In Menday v Protea Assurance Co Ltd (1976), the court ruled that an expert’s opinion is valuable only if they can ___________ their reasoning.
(justify or explain)
Rule 36(9)(b) requires parties calling expert witnesses to provide ___________ to prevent ___________ in trials.
(summaries of expert evidence, surprises)
In Schneider NO and Others v AA and Another (2010), the court ruled that an expert witness must provide an opinion that is ___________ and ___________.
objective, unbiased)
What does the Hollington Rule state?
A) Criminal evidence is always admissible in civil cases
B) Criminal findings cannot be admitted as evidence in a related civil case
C) Laypersons cannot provide opinions in court
D) Only forensic experts can testify in criminal trials
Answer: B) Criminal findings cannot be admitted as evidence in a related civil case
Which of the following is NOT an area where expert opinions are commonly needed?
A) Ballistics
B) Medicine
C) Stage of sobriety
D) Psychiatry
Answer: C) Stage of sobriety (This can be determined by a layperson, not necessarily an expert.)
What is the main role of an expert witness in court?
A) To argue in favor of the party that called them
B) To assist the court in understanding complex matters
C) To replace the judge’s decision with their own
D) To provide their personal opinion without justification
Answer: B) To assist the court in understanding complex matters
What is the purpose of Rule 36(9)(b)?
A) To prevent expert witnesses from testifying
B) To allow surprise evidence in trials
C) To ensure that expert testimony is disclosed before the trial
D) To prohibit all forms of opinion evidence
Answer: C) To ensure that expert testimony is disclosed before the trial
In Schneider NO and Others v AA and Another (2010), the court ruled that an expert witness must be:
A) An advocate for the party that called them
B) Completely biased
C) Objective and unbiased
D) Allowed to express any opinion, even if unscientific
Answer: C) Objective and unbiased
True or False: The Hollington Rule allows criminal convictions to be used as evidence in civil trials.
False. The Hollington Rule prevents the use of criminal findings in a related civil case.
True or False: Laypersons can provide opinion evidence on technical issues such as forensic analysis.
False. Technical issues require expert testimony, not lay opinions.
True or False: Courts must always accept expert testimony without scrutiny.
False. Courts must assess the expert’s qualifications, reasoning, and whether the testimony is logically sound.
True or False: Rule 36(9)(b) aims to prevent unfair surprises during trial by requiring expert evidence disclosure.
True. The rule ensures both parties have prior knowledge of expert testimony to avoid unfairness.
True or False: In Schneider NO and Others v AA and Another (2010), the court ruled that expert witnesses should act as advocates for the party that hired them.
False. Expert witnesses must provide objective and unbiased opinions, not act as advocates
What is a previous consistent statement?
A previous consistent statement is an oral or written statement made by a witness before testifying in court that is the same or substantially similar to their testimony in court.
Why are previous consistent statements generally inadmissible in court?
They are generally inadmissible because they are considered irrelevant; corroboration should come from an independent source, and a witness cannot corroborate themselves by pointing out they had said the same thing before.
Are previous inconsistent statements admissible in court? If so, why?
Yes, previous inconsistent statements are admissible because they are relevant to assessing a witness’s credibility.
When can a previous consistent statement be admissible in court?
previous consistent statement can be admissible in specific circumstances, such as:
To rebut a suggestion of recent fabrication.
In sexual offence cases, where a voluntary complaint was made within a reasonable time.
What must a cross-examiner specifically attack for the exception regarding fabrication to apply?
The cross-examiner must specifically attack the witness’s testimony as being fabricated, not merely the witness’s general credibility.
Under common law, when is a previous consistent statement admissible in a sexual offence case?
When it is a voluntary complaint made by the victim within a reasonable time after the offence.
What are the requirements for admitting a previous consistent statement in a sexual offence case?
The complainant must:
Testify in court.
Be the victim of the sexual offence.
Have made the complaint at the first reasonable opportunity.
Have made the complaint voluntarily.
The complaint can only be admitted for proving consistency.
What is dock identification?
Dock identification is when a prosecutor asks a witness to identify the accused in court.
Why does identification prior to court have more probative value than dock identification?
Because prior identification (such as through an identification parade) is less suggestive and carries more weight in confirming the identity of the accused.
Because prior identification (such as through an identification parade) is less suggestive and carries more weight in confirming the identity of the accused.
A) They are unreliable
B) They are irrelevant as corroboration should come from an independent source
C) They are only applicable in criminal trials
D) They are considered hearsay
Answer: B) They are irrelevant as corroboration should come from an independent source
Which of the following is an exception to the rule against admitting previous consistent statements?
A) To support the witness’s overall credibility
B) To rebut an allegation of recent fabrication
C) To confirm an inconsistent statement made in the past
D) To show the witness had testified before
Answer: B) To rebut an allegation of recent fabrication
Which of the following is NOT a requirement for admitting a previous consistent statement in a sexual offence case?
A) The complainant must testify in court
B) The complaint must be voluntary
C) The complaint must be made at least a month after the alleged offence
D) The complaint must be made at the first reasonable opportunity
Answer: C) The complaint must be made at least a month after the alleged offence
Which method of identification carries more probative value?
A) Dock identification
B) Identification through an identification parade
C) Identification through a sketch artist
D) None of the above
Answer: B) Identification through an identification parade
Previous consistent statements are always admissible in court.
False. They are generally inadmissible unless they fall under an exception, such as rebutting a claim of fabrication or in sexual offence cases.
A witness can corroborate their own testimony by pointing out they said the same thing before.
False. Corroboration must come from an independent source.
Previous inconsistent statements are inadmissible because they do not support credibility.
False. Previous inconsistent statements are admissible because they help assess the witness’s credibility.
In a sexual offence case, a voluntary complaint made two weeks after the offence is always inadmissible.
False. The complaint must be made within a reasonable time, which depends on the circumstances of the case.
Dock identification is the strongest form of identification.
False. Identification done prior to court (e.g., an identification parade) carries more probative value.
Previous consistent statements are generally __________ because a witness cannot corroborate themselves.
inadmissible)
One exception to the rule against previous consistent statements is when they are used to rebut a suggestion of __________.
recent fabrication)
In a sexual offence case, a previous consistent statement is admissible only if the complaint was made at the __________ opportunity.
first reasonable)
Dock identification is when a witness is asked to identify the accused in __________.
court)
Prior identification has more probative value than dock identification because it is conducted under __________ conditions.
controlled or objective)
