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Admissibility of Evidence
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1|PageQuestion 1 a:
1) Cite six examples of instances where a court may allow for the evidence of a layperson.
(a) the approximate age of a person.
(b) the state of sobriety of a person.
(c) the general condition of something.
(d) the approximate speed at which a vehicle was travelling.
(e) a summary of factual data as perceived by him, for example, a witness may be permitted to say
that the complainant was “angry”.
(f) the identity of handwriting.
Question 1 b:
1. Should a court allow for unchallenged opinion evidence given by a layperson?
The court may allow the unchallenged opinion of a lay person, subject to the following provisos:
(a) The admissible opinion of a lay person is regarded as prima facie evidence.
(b) If the evidence is unchallenged the court has a discretion whether or not to accept it.
(c) This decision by the court will depend upon the issues and reasons that the witness can advance
to support his conclusion, that is, his opinion. There is also authority which supports an enquiry into
the ability of the witness to express an informed and sound opinion.
Question 1 c:
1. Fill in the missing words:
The inability to provide reasons for the opinion of a layperson shall, in principle, affect
the.........weight............and not the.......admissibility......... of the opinion evidence.
Question 2:
There are 4 requirements, which have to be met when opinion evidence is at issue:
1. The expert witness: the need to lay a foundation
The party seeking to adduce the opinion of a witness as an expert opinion must satisfy the court that
the opinion is not supererogatory — that is, not irrelevant. For this purpose, the court must be
satisfied:
(a) that the witness not only has specialist knowledge, training, skill
or experience but can furthermore, on account of these attributes or qualities, assist the court in
deciding the issues;
(b) that the witness is indeed an expert for the purpose for which he is called upon to express an
opinion; and
(c) that the witness does not or will not express an opinion on hypothetical facts, that is, facts which
have no bearing on the case or which cannot be reconciled with all the other evidence in the case.
In Menday v Protea Assurance Co Ltd Addleson J said: “In essence the function of an expert is to
assist the Court to reach a conclusion on matters on which the Court itself does not have the
necessary knowledge to decide. It is not the mere opinion of the witness which is decisive but his
ability to satisfy the Court that, because of his special skill, training or experience, the reasons for the
opinion which he expresses are acceptable
2. Reasons for opinion and probative value of the opinion
Expert witnesses are in principle required to support their opinions with valid reasons. But no hard-
and-fast rule can be laid down. Much will depend on the nature of the issue and the presence or
absence of an attack on the opinion of the expert. If proper reasons are advanced in support of an
opinion, the probative value of such opinion will of necessity be strengthened.
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In Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft Für Schädlingsbekämfung MBH it was
said: “[A]n expert’s opinion represents his reasoned conclusion based on certain facts or data, which
are either common cause, or established by his own evidence or that of some other competent
witness. Except possibly where it is not controverted, an expert’s bald statement of his opinion is not
of any real assistance.
3.Hearsay and expert opinion
An expert witness may not as a rule base his opinions on statements made by a person not called as
a witness. In Southern Transvaal Buildings (Pty) Ltd v Johannesburg City Council it was held that even
though expert witnesses expressing opinions on the value of land may not utilise or rely upon
conclusions arrived at by other valuers not called as witnesses, they may rely on other hearsay.
An expert witness may be allowed to rely on information which would technically be
hearsay.The realities of practice demand that impossible standards should not be set. In S v Kimimbi.
4. The expert referring to textbooks
The expert who relies on information contained in a textbook written by someone who is not called
as a witness, does in fact make use of hearsay. But he is allowed to do so if the following conditions
as set out in Menday v Protea Assurance Co Ltd are satisfied:
“Where . . . an expert relies on passages in a text-book, it must be shown, firstly, that he can, by
reason of his own training, affirm (at least in principle) the correctness of the statements in that
book; and, secondly, that the work to which he refers is reliable in the sense that it has been written
by a person of established repute or proved experience in that field.
Question 3:
Formal and informal admissions
An informal admission is usually made out of court and merely constitutes an item of evidence
which can be contradicted or explained away. The weight accorded by the court to an informal
admission will vary according to the surrounding circumstances.
A formal admission is generally made in the pleadings or in court and is considered to be “conclusive
proof” of the fact admitted. Formal admissions are binding on their makers and normally cannot be
withdrawn or contradicted unless certain legal requirements have been satisfied.
Question 4
Why did the court in S v Mphala 1998 (1) SASV 388 (W) exclude the evidence about
the confessions which the two accused made? Discuss fully with reference to section
35(5) of the Constitution.
Although the court in S v Mphala 1998 (1) SACR 388 (W) mentions that the admission of the
evidence would render the trial unfair, the evidence is actually excluded because its admission
would have been detrimental to the administration of justice (the second leg of the test for
exclusion). The court states that “I cannot accept that the conduct of the investigating officer was
anything but intentional. In such a case the emphasis falls on the ‘detrimental to the administration
of justice’ portion of s 35(5)”. The police conduct in the case was therefore objectively speaking
unreasonable in view of the specific circumstances of the case. The investigating officer deliberately
disobeyed investigative rules which seek to protect constitutional rights and that fact led to the
exclusion of the evidence.
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