EVIDENCE MERGED MEMOS

Audrey: Evidence June 2010 Memo

1. The following is stated in the headnote to S v Mazhambe

“If the witness for the prosecution at a criminal trial gives evidence that is
inconsistent with his previous statement to the police, and the inconsistency is
such as to damage the State’s case, the prosecutor must act in order to
discredit the damaging testimony. There are two methods of so acting”
Describe the two methods and for each of them explain its purpose in relation
to the evidential value to the prosecution case [20marks]

A prior inconsistent statement is a scenario when a witness gives evidence in Court which is
inconsistent to the evidence that the witness previously gave. Proof of prior inconsistent
statement is permitted only if it is relevant and goes beyond mere collateral matters. There
are two methods of so acting in order to discredit the damaging testimony. Generally, a
party is not permitted to impeach the credibility of a witness that (s)he called. This is
because party which calls the witness vouches for/ guarantees the credibility of such
witness.

The two methods for discrediting the witness are:

(i) Calling another witness-

The prosecution may call another witness to contradict the damaging testimony given by the
witness. It must be borne in mind that that this evidence needs to needs to meet the
admissibility requirement.

(ii) Proving a previous inconsistent statement against own witness-

The general rule is that a party may not cross-examine his/her own witness unless the
witness has been declared by the court to be a hostile witness.

In S v Mazhambe- 3 uncles of the complainant were on trial for stealing from her. They were
all convicted in the magistrate’s court. In doing so the magistrate relied substantially - if not
exclusively - on the evidence of the complainant’s cousin, the son of one of the accused.
The cousin added that he lied in implicating the accuseds to the police after being assaulted
by the police. It was stated in the case that:

When a witness departs from his prior statement then a prosecutor is placed in a position of
potentially conflicting duties and responsibilities. Where the departure is not material then
the prosecutor need not necessarily take action. That witness’s changed evidence, whether
it favours the accused or otherwise, will stand as the evidence for the State. The prosecutor
has a considerable responsibility in making the decision whether or not the departure is
material and if he has any doubt he must disclose the discrepancy.

Where the departure is material, and particularly where it tends to incriminate or to increase
the evidence against the accused, then the defence must be informed. Where the accused is
unrepresented the court must be informed ... Where the material inconsistency is one which
favours the accused the prosecutor might still be inclined to allow that changed testimony to
stand as the State’s evidence, particularly where the general tenor of the evidence remains
in accordance with the State case. Even here, however, the duty of disclosure to the defence
(or the court as the case may be) remains.

The very fact of that departure, whether favourable to the defence or not, might be such as
to cast doubt on the remaining incriminatory evidence of that witness.
That doubt must be revealed. Where the departure, however, is such as tends to
damage the State case then the prosecutor must, if he persists in the prosecution, act
in order to discredit the damaging testimony. As in this scenario, the testimony is
damaging to the prosecution’s case therefore the prosecutor must act to discredit the
witnesses testimony. If he does nothing that testimony remains on record and must be given
proper weight by the court.

The procedure for the discrediting by the prosecutor of evidence led by him from his witness
is codified in s 316 of the CPEA:
316 Impeachment and support of witness credibility
It shall be competent for any party in criminal proceedings to impeach or support the
credibility of any witness called against or on behalf of that party in any manner and by any
evidence in and by which, if the proceedings were before the Supreme Court of Judicature in
England, the credibility of such witness might be impeached or supported by such party, and
in no other manner and by no other evidence whatever:
Provided that any such party who has called a witness who has given evidence in any such
proceedings, whether that witness is or is not, in the opinion of the judge or judicial officer
presiding at such proceedings, adverse to the party calling him, may, after the said party or
the said judge or judicial officer has asked the witness whether he has or has not previously
made a statement with which his testimony in the said proceedings is inconsistent and after
sufficient particulars of the alleged previous statement to designate the occasion when it was
made have been mentioned to the witness, prove that he previously made a statement with
which his said testimony is inconsistent.

The word ‘adverse’ in this section does not merely mean ‘unfavourable’. It means hostile. A
party may not cross-examine his own witness unless the judge is of the opinion that he is
hostile. A witness can only be considered adverse, or hostile, if:
(i) he is shown to bear a ‘hostile’ animus towards the party calling him and;
(ii) does not give his evidence fairly and with a desire to tell the truth. Where he is
‘not desirous of telling the truth to the court at the instance of the party calling
him’. A witness who refuses to testify may be treated as hostile. The discretion of
the judge to grant or refuse leave to cross-examine is absolute.

In this jurisdiction, the English and South African authorities have been followed. It has been
recognised that they are to the same effect and that a witness must be shown to be adverse,
in the sense of hostile, as explained above, before being exposed to impeachment. The
giving of a prior inconsistent statement does not of itself disclose hostility.
It may therefore be said that a witness may not be cross-examined unless he has been
declared hostile. The witness who gives unfavourable evidence to the party calling him; who
shows, for instance, a truculent demeanour; even he who deviates from a prior statement, is
not necessarily hostile. Hostility is demonstrated by a witness who shows his unwillingness
to speak the truth at the behest of the party calling him and an intention to damage the case
of that party. Such a witness may, at the discretion of the presiding officer, be declared
hostile and only then be impeached, in the sense of being exposed to cross-examination by
the party calling him.
The purpose of proving a prior inconsistent statement is to neutralize the effect of the
unexpectedly adverse testimony. The adverse evidence is effectively neutralized as
evidence led by the party against itself. It is not, however, ipso facto to be disregarded. The
evidence given by that witness, both under cross-examination by the party calling him and
otherwise, may be considered and accepted or rejected in whole or in part depending upon
the weight to be attached to it.

2. Briefly explain what categories of facts the court can take judicial notice of
[5marks]

The law of evidence to a limited extent allows judicial officers to accept the truth of certain
facts which are known to him/her even though no evidence is led to prove these facts. This
is known as judicial notice. Categories of facts the court can take judicial notice of:

1. Notorious facts- (i) general knowledgr eg 7 days in a week or (ii) specific facts
notorious within locality of court
2. Facts easily ascertainable- not generally known but which are readily ascertainable
3. Animals- instinctive behaviour of domesticated animals or other facts widely known
about animals
4. Political and constitutional matters- sovereignty of foreign states and trhe existence
of a state of war
5. Matters of science- Only judicially noticed if they have permeated into the
background knowledge of non-specialists. Eg no 2 fingerprints are the same
6. Financial matters and commercial practices- eg fact value of money declined over
the years, most public companies are incporporated in order to make profit
7. Crime- eg theft and fraud by people in trust sufficiently notorious for judicial notice to
be taken for the purposes of sentencing,
8. Historical facts, words and phrases- may take judicial notice

2b.

The purpose of this so called rule against self corroboration or the rule against
admissibility of previous consistent statements is designed to prevent a
witness from seeking to confirm or strengthen his evidence by saying in the
witness box what that he has made a similar statement on a previous occasion
or, if the statement is in writing by referring to it. There are however, some
exceptions to the general rule

State 5 exceptions were adduction of prior consistent statements are

admissible: [15 marks]

Previous Consistent Statement aka rule against self- corroboration. Witness testifying that
on an earlier occasion (s)he had made a statement (oral or written) consistent with the
testimony before court. Rationale for exclusion= generally PCS insufficiently relevant
because lacks probative value, can be easily fabricated, mostly superfluous and PCS has
ability to raise numerous side issues that court may not have any business investigating.

5 exceptions were adduction of prior inconsistent statements are admissible:

1. Rebuttal of recent fabrication

When a witness’ account is challenged as a recent fabrication, PCS may be used as a

defence shield. A witness may support his/her evidence using evidence of earlier
statements to show that there is no fabrication. The previous consistent statements will thus
be used as a defensive shield rather than an offensive weapon. It should be noted, the
contents of the statement may not, however, be used as evidence of the truth of what the
witness had said.

In Flanagan v Faly, witness allowed to call corroborative evidence of third party to testify he
had made statement about forgery of will by accused who was a beneficiary to the will. This
statement was shown to have been made before enmity between the witness and accused.
Likewise is Pincus v Solomon PCS accepted.

2. Prior identification:
Evidence is commonly received that a witness who identifies the accused in court has also
identified him on a previous occasion. It is admitted for the practical reason that a previous
act of identification is much more valuable than pointing out the man in the dock. In the case
of R v Christie a little boy gave evidence that he had been indecently assaulted and
identified the accused in court as the man, but did not say anything about a prior
identification. Evidence was then given by his mother and a constable that shortly after the
assault the boy had pointed out the accused to them. This evidence was admissible because
it was evidence of a prior act of identification. It was agreed that if the evidence was
admissible on this ground its purpose would be to show that the boy was able to identify at
the time and to exclude the idea that the identification of the prisoner in the dock was an
afterthought or mistake. The purpose of prior identification is thus is to show consistency, in
the same way as a previous statement is proved to rebut the suggestion of recent
fabrication.

3. Complaints in sexual offences (confirmed in S v Banana):

In sexual offences the complaints serve to negate or rebut any suspicions that the
complainant has fabricated the complaint and the requirements of admissibility of a
complaint are namely S v Banana:
1. Must be a voluntary complaint-
S v T - Victim had made a complaint to mother about pains in her private parts which were
swollen. The mother threatened to beat her with a stick if she did not tell her what had
happened and this induced the victim to narrate what had happened. It was held that the
complaint was inadmissible as it was made as a result of intimidation.

R v C- Charge of rape. The court took the opportunity to clarify the legal position relating to
complaints in sexual cases. It was held that:
1. The complaint must have been made voluntarily not as a result of leading
questions/intimidation;
 2. It must have been made at the earliest opportunity to the 1 st person to whom the
complainant is reasonably expected to report to.
In this case the court observed that the complainant was too young to comprehend the
nature of the offence perpetrated against her thus her evidence was admissible
2. The complainant must testify-
R v Burges
Victim must testify to show consistenvy in particulars of PCS made extra-curially and those
being made in court.
3. First reasonable opportunity
R v Gammon (paid money to silence child)
Court looked at factors such as age of child, ignorance of nature of offence, had been
prevailed upon by accused not to tell anyone & given money to buy silence.
R v Cummings
4. Complaint must have been of a sexual offence
R v Camellari - Accused was charged with gross indecent assault with a boy aged 12.
Accused objected to the evidence on the basis that it was only permissible in cases involving
women and girls. Court- no authority stating that the mere fact that a complainant is male
renders the complaint inadmissible. Such evidence is admissible regardless of the sex of the
victim.

5. Complaint can only be admitted for limited purpose of proving consistency.

S v Banana

4. Statements made on being confronted with incriminating facts

When taxed with incriminating facts, evidence is admissible because of its relevance in
showing his reaction. Again what an accused says in explanation of having been found in
possession of stolen property, may be relevant to show consistency if he tells the court the
same story. Such a statement is received for the purpose of proving consistency.

5. Statements that are part of the res gestae:

The phrase means “the facts” or “the transaction”. A statement is said to be part of the res
gestae when it forms “a part of the story”. A statement may be part of the story when it is so
closely associated with a fact in issue or a fact relevant to a fact in issue in time and
circumstances.

3. The prosecution was unable to locate their key witness and no realistic chance
of locating him exists. Apart from the evidence from this witness, the
prosecutor notices the police docket contains statements with direct evidence
implicating the accused by
(a) His legal wife
(b) His erstwhile lawyer
(c) His now convicted accomplice

Advise the prosecutor on admissibility of evidence [20 marks]

a.Regarding the evidence given by the accused’s wife two issues are of importance here.
Firstly we have to discuss competence and compellability of the spouse for or against the
husband or wife. Then we will have to discuss the question of marital privilege.

According section 247 (2) the wife or husband of an accused person shall be competent and
compellable to give evidence for the prosecution without the consent of the accused person
where such person is prosecuted for any offence against the person of either of them or any
of the children of either of them, or for any of the following offences—
a. rape;
b. aggravated indecent assault;
c. sexual intercourse or performing an indecent act with a young person;
d. sexual intercourse within a prohibited degree of relationship;
e. kidnapping or unlawful detention of a child;
f. bigamy;
g. perjury committed in connection with or for the purpose, of any judicial proceedings
instituted or to be instituted or contemplated by the one of them against the other, or in
connection with or for the purpose of any criminal proceedings in respect of any offence
included in this subsection.

If in this case the husband is accused of the above crimes, then the wife becomes a
competent and compellable witness for the prosecution against the husband and can be
forced to give evidence for the prosecution without the consent of the husband.

Section 247(3) says the wife or husband of an accused person shall be competent, but not
compellable, to give evidence for the prosecution without the consent of the accused person
where such person is prosecuted for an offence against the separate property of the wife or
husband of the accused person.

If in this instance the husband is being prosecuted for an offence against the separate
property of the wife then the wife becomes a competent but not compellable witness. The
prosecutor will therefore not be able to compel the wife to give evidence against the
husband. She will have to do it of her own accord.

If the accused did not commit the above crimes section 248 (1) of the Criminal Procedure
and Evidence Act says that any accused person, and the wife, shall be a competent witness
for the defence at every stage of the proceedings, whether the accused person is charged
solely or jointly with any other person.

The prosecutor may be hindered in the prosecution of the husband by marital privilege.
Section 291 of the Criminal Procedure and Evidence Act which stipulates privilege arising
out the marital state says that a wife shall not be compelled to disclose any communication
made to her by her husband during the marriage. The wife might be called in as a witness
but she will refuse to answer certain questions while relying on marital privilege.

b.Regarding the erstwhile lawyer the prosecutor might face the hitch of legal professional
privilege. In common law jurisdictions legal professional privilege protects all communication
between a legal advisor (an advocate or an attorney) and his clients from being disclosed
without the permission of the client. The privilege is that of the client and not that of the
lawyer. The purpose is to protect an individual’s ability to access the justice system by
encouraging complete disclosure to legal advisors without fear that any disclosure of those
communications may prejudice the client in future.

It will depend on whether the communication between the two was for the purpose of
obtaining legal advice in the lawyer’s professional capacity or it was meant for the
commission of a crime. If the communication was for the purpose of getting legal advice with
no criminal connotations, then the information is privileged. The lawyer can only disclose the
information with the consent of the client. However, if the communication between the lawyer
and the client involved the commission of a crime, then according to section 291 the legal
practitioner can disclose the information without the consent of the client.

Regarding the evidence from the convicted accomplice in Zimbabwe the judicial approach to
the evidence of an accomplice starts with section 270 of the Criminal Procedure and
Evidence Act.

c.According to section 270, any court which is trying any person on any charge on any
offence, may convict him of any charge alleged in the indictment, summons or charge under
trial on the single evidence of any accomplice provided that the offence has by competent
evidence other than the single evidence of the accomplice been proved to have actually
been committed.

The question of accomplices is an area in which corroboration is called for because

traditionally accomplices are regarded as witnesses of uncertain reliability because they
generally have something to gain by falsely implicating the accused or exaggerate the part
played by the accused and minimise their own.

The court has to warn itself of the danger of convicting on the evidence of an accomplice
and show that it has heeded the warning by pointing to some factor which can properly be
regarded of reducing the risk of convicting an innocent person. Thus in terms of
Zimbabwean law, the court cannot convict on the single evidence of an accomplice unless
other evidence to the satisfaction of the court is led showing that the offence has been
committed.

These are the ways in which the evidence of an accomplice can be concluded to be
trustworthy by a court:

1. Corroboration: This is the best way in which court concludes a witness to be

trustworthy. Where corroboration is used to guarantee the accomplice’s veracity, it is
important for the corroborative evidence to implicate the accused since the object of
the rule is to avoid convicting the wrong person.
2. Denial by accused under oath of accomplice’s evidence: Another way in which the
accomplice’s evidence can be confirmed as being evidence that can be trusted is if
the accused chooses not to deny the accomplice’s evidence under oath.

Where the accomplice is proved to be a convincing or satisfactory witness beyond question,

while the accused is the opposite, then the evidence of the accomplice can be considered to
be that which the court can rely on.

4. In accordance with the doctrine of precedent, the Supreme Court is not bound
by its previous decisions. This principle is well illustrated in case S v Banana
 where the court revisted and looked at the longstanding approach of
Zimbabwean courts towards a number of of evidentiary issues raised in that
case.

In light of the pronouncement in the Banan case, explain and critically discuss
the approach of the courts in relation to the following important evidentiary
matters-

(a) Admissibility of Similar fact evidence

(b) The approach to the evidence to a complainant in a sexual assault case.
[20marks]

Similar fact evidence is evidence pertaining to similar conduct of the accused on other
occasions or of the commission by the accused of similar offences. It is evidence of
propensity or disposition or evidence of the past. The general rule is that it is inadmissible
because of its potential of prejudice. However, similar fact evidence can be admitted if it is
both relevant and probative value substantially outweighs the prejudicial effect. The locus
classicus of this principle is the Makin v Attorney General of New South Wales.

Over the years, our courts have generally held the view that similar fact evidence is
generally inadmissible although there are certain exceptions. Our courts have always
refused to accept similar fact evidence to prove the propensity of the accused to commit that
particular offence. Accordingly, in Banana it was held that the general rule in similar fact
evidence is that it is forbidden in law to reason saying the accused is the sort of person likely
to have committed the offence he is alleged to have committed because he has done it
before. If evidence is adduced to further the above conclusion, it should be excluded.

The test for the admissibility of similar fact evidence had always been determined as
according to Boardman v DPP which stated that the similar fact must be such of an unusual
nature or striking similarity that it would be an affront or insult to common sense to assume
that the similarity to the offence charged was explicable on the basis of coincidence.

In the Banana case the court referred to R v P where it was held that the requirement of
striking similarity was not indispensible. The test in every particular case must not be
whether there was striking similarity, but whether the probative value outweighed the
prejudicial effect on the accused. The probative force against the prejudicial effect must be
sufficiently great to make it just to admit the evidence notwithstanding that it is prejudicial to
the accused in tending to show that he was found guilty of another crime of a similar nature.

The judge in the Banana case held that this was the course to be followed. In this case, the
only prejudice on the accused was that the evidence revealed that he could have committed
other offences of a similar nature but the probative value of the evidence was greater
because it proved that he was the same person who committed those offences.

b. The approach of our courts towards compainants of sexual offences as according to the
case of Canaan S. Banana v the State is firstly that the judge should warn himself against
the danger of convicting an accused based on the uncorroborated evidence of 'suspect
witnesses'. Complainants of sexual offences fall into the category of 'suspect witnesses'.
Our courts apply a two-stage test as was applied in S v Mupfudza. The first question the
court asks is:

1. Is the complainant credible? If the answer is yes, then the next question is:
2. Is there corroboration ie independent evidence in support of the evidence of the
complainant. The witness must not only be credible, the court must be satisfied that
the witness is a plausible one by the application of the cautionary rule. The court
must seek corroboration tending to exclude the possibility of false incrimination.

In Banana v State the court referred to the approach used by other jurisdictions on
complainants of sexual offences. It referred to S v D, a Namibian case. In this case the
Namibian High Court re-examined the need for the cautionary rule in sexual offences. It held
that there is no rational basis for the continued existence of the rule. Furthermore it held that
while a trial court could consider the nature and circumstances of the particular case, in the
end only one test applies: was the accused's guilt proved beyond reasonable doubt? This
test must be the same regardless whether the crime is theft or rape.

The court examined cases in South Africa, which seemed to follow the Namibian approach.
In S v Jackson, a South African case, the court held that the cautionary rule in sexual
offences is based on an irrational and outdated notion. It particularly stereotypes
complainants (women) as unreliable. The burden of proof to prove the accused's guilt is on
the prosecution which should prove the guilt beyond reasonable doubt, no more, no less.
Evidence in a particular case may may call for the application of caution, but that is a far cry
from the cautionary rule.

Prior to the Jackson case it had long been accepted in criminal sexual offences cases that
they fell into a special category. It was said that there was an inherent danger of relying on
the unconfirmed testimony of a complainant. This resulted in the courts adopting a fixed
cautionary rule of practice. The Namibian courts followed the Jackson decision in the case of
S v K. were no convincing reasons for its continued application. The rule placed an added
burden on victims of sexual offences which could lead to grave injustice to the victims
involved.

Chief Justice Anthony Gubbay said in his opinion, the time had come for our courts to move
away from the approach of the cautionary rule and follow the South African approach. He
said that the cautionnary rule is not warranted but this does not mean that the nature of the
alleged offence need not be carefully considered.

Our courts, according to the Banana case hold that the cautionary rule is nolonger seen as a
rule of law, but a rule of practice (procedural safeguard) an admonition to scrupulous
objectivity where the scope of error is high.

5. During the course of his duty in his workplace, MR X fell into the acid bath, an
essential part of the company’s chrome plating process. His wife is now
claiming against the company for loss of support of her husband. At the time
of the accident, Mr X had not been wearing any protective apparel which was
provided by the company and was readily available to its employees engaged
 in the type of work Mr X was doing. The defendant company states in its
defence to the claim, that they are not guilty to any negligence since they
supplied the required clothing. In addition the defendant company also says
that, Mr X a foreman in the plating department was responsible for the
unfortunate accident that befell him in that he had neglected to wear
appropriate clothing, as is company regulation and therefore failed to take
proper safety steps.

A few days after the accident Mr X died from the acid burns. Nobody actually
witnessed the accident so the company wishes to adduce evidence of what Mr
X had said to his workmates who had come to assistance within 2-5 minutes of
the accident. The evidence is of the following effect:

“I should’ve known better as supervisor not to walk on gang-rail without

securing myself with safety belts…. I should not have tried to do it… At the
least I was supposed to wear the protective clothing provided…”

Using relevant authority comment on the admissibility of the statement

purportedly made by MR X. [20marks]

This evidence which the company wishes to adduce of what Mr X said is known as hearsay
evidence. Hearsay evidence is testimony or written evidence offered as an assertion to
show the truthfulness of matters stated therein. It is usually inadmissible because of the
following reasons:

1. There is a huge potential of fabrication on account of repeating statements so many

times.

2. There is the absence of cross examination of the person who made the statement.

3. The absence of the oath – the out of court maker of the statement is not under oath
so they can lie if they want.

4. There is a possibility that the out of court maker of the statement was speaking in jest
or wanted to mislead. However, there are instances when hearsay evidence may be
admitted in Court. There exists common law exceptions and statutory exceptions. In
dealing with matters concerning hearsay evidence, a three-legged inquiry exists:

1. It has to be established first whether the statement is hearsay or not.

2. If statement falls within ambits of hearsay evidence, determine whether the statement
is deemed admissible by any common law exceptions.
3. Lastly, if not admissible by common law exceptions, if it is admissible via statutory
law exceptions.

The exceptions are in place because of necessity and within certain classes of hearsay there
is a high degree of reliability of evidence of chances of fabrication are very low.

There exists 6 common law exceptions to the inadmissible nature of hearsay evidence.
Namely;

1. Declarations for public/ general interest

 2. Declarations against own interest
3. Declarations in course of duty
4. Dying declarations
5. Declarations in terms of one’s will
6. Declarations pertaining to pedigree

In this case, although Mr X died in the course of his duty, the applicable exception is that of a
declaration against his own interest. There are specific requirements which need to met first
before the declaration against one’s own will can be deemed admissible:

1. The declarant must be a competent witness

2. The declarant must be dead
3. The declarant must have knowledge that the statement being made is against his/
her own interest.

With regards to the first requirement, there is nothing to give rise to the idea that Mr X was
not a competent witness. A competent witness is a person who can be legally asked to give
evidence in Court. This refers to a person who is allowed by law to give evidence and looks
and capacity amongst other things. It is safe to assumed he was in his sound and sober
senses and did not suffer from any mental disorder. The passage illustrates that he later
died, thus satisfying the second requirement. Additionally his statement illustrates
knowledge of making a statement against his own interest as he states what he should have
done and safeguards he ought to have taken in order to prevent any such unfortunate
incident from occurring. Admissibility of this evidence is supported by the case of Willaims v
Eaglestine where the Court admitted hearsay evidence against the deceased’s own interest.
The deceased, a passenger who had fallen out of a bus had blamed himself thereby
exonerating the bus driver. Likewise, Mr X had died placing blame on himself. Using the
same reasoning this evidence should be admissible and will serve to exonerate the company
from liability.

McGodfrey: JUNE 2014 EVIDENCE. QN 2b and 4 are missing. 3b needs

improvements.

1. CIRCUMSTANTIAL AND DIRECT EVIDENCE.

i. Circumstantial evidence is evidence which is indirect but must only lead to one
inescapable conclusion. It is any fact from which a fact in dispute may be
referred. A court may draw inference from facts perceived by a person.
Circumstantial evidence is evidence that is based on circumstances.

Direct evidence is evidence that a witness testifies before the court as perceived with his or
her own senses. It is evidence that requires no mental process on the part of the tribunal of
fact in order to draw the conclusion sought by the proponent of evidence, other than
acceptance of the evidence itself.

ii. COMPETENCE AND COMPELLABILITY

These two terms are described in relation to witnesses.

A competent witness is one who may lawfully be called to give evidence. Every individual is
competent to give evidence unless there is a rule of law which stops them.
A witness is compellable if he can be forced to give evidence. If he is not compellable he is
entitled to refuse altogether to enter a witness box or take oath.

iii. FORMAL AND INFORMAL ADMISSIONS

Formal admissions are statements made expressly for purposes of a trial in pleadings in
order to save on time. They are non-contentious issues. Such admissions are binding on
their makers and cannot be withdrawn unless certain requirements have been satisfied.
They serve to narrow down issues or pleadings and are considered to be conclusive proof of
the fact admitted.

Informal admissions are out of court admissions and these cannot be admitted in court. They
merely constitute an item of evidence which can be contradicted or explained away. Weight
accorded by court varies according to surrounding circumstances. Informal admissions are
inadmissible.

iv. PRIMARY AND SECONDARY EVIDENCE

Primary evidence is that which by its very nature does not suggest that better evidence may
be available. If a document is original it is regarded as primary evidence.

Secondary evidence is that which by its very nature suggests that better evidence may be
available. It is secondary by virtue of it being a copy of the original document.

v. PRIMA FACIE PROOF AND CONCLUSIVE PROOF

Prima facie proof by its very own is proof to the contrary which is still possible. It needs to be
proved further.

Conclusive proof is where the facts in issue have been proved and rebuttal is no longer
possible. It is decisive and final.

b. In dealing with circumstantial evidence, the court is called upon to draw

inferences from the circumstantial evidence. Explain and distinguish the approach of
the courts in dealing with inferences to be drawn from circumstantial evidence in
criminal proceedings and in civil proceedings. (10)

The question requires one to address the issue of circumstantial evidence in both criminal
and civil matters.

We should demonstrate an understanding of what circumstantial evidence is (as

opposed to direct evidence).

That in civil matters proof being on a balance of probability, the inference sought to
be drawn must be the most plausible and need not be the only inference.

That in criminal cases, proof being beyond reasonable doubt, the inference sought to
be drawn must be consistent with all proven facts, if not, then it cannot be drawn. Further,
the proved facts should be such that they exclude every reasonable inference from them,
save the one sought to be drawn.
 All illustration of these rules by reference to case law would have been
necessary.

(These are the guidelines to the answer, I failed to interpret them clearly)

3a. In a civil suit before the High Court in Bulawayo, the Plaintiff claimed damages
for breach of contract. The contract involved a highly complex financial transaction
between the parties. The Defendant disputed the Plaintiff’s interpretation of the
contract. At the trial of the matter, each party called its own experts to deal with the
question of the proper interpretation of the contract. The evidence led in court by the
parties dealt in the main with the correct interpretation of the contract between the
parties. The judge is confronted with conflicting evidence of the parties’ expert
witnesses on the correct interpretation of the contract. As the judge’s research
assistant, you have been asked to assist in dealing with this issue.

a) With reference to case law and/or statute law explain the extent to which, if
any, the courts in Zimbabwe can rely an expert witness’ evidence. [15]

Expert witness’ evidence is admissible provided it is relevant. It is applicable where there are
people who are better placed to assist the court arriving at a sensible decision than the court
would have been able to do on its own without such assistance.

Courts in Zimbabwe can rely on expert witness’ evidence. Section 22 of the Civil
Evidence Act [8:01] says that the opinion of a person who is an expert on any subject, that is
to say, of a person who possesses special knowledge or skill in the subject, shall be
admissible in the civil proceedings to prove any fact relating to that subject that is relevant to
that issue in proceedings.

In R v Vilbro, a witness’s opinion may assist the court if the witness is better qualified
to form an opinion than the court.

Zimbabwean courts may rely on expert witness’s evidence where the courts are
satisfied that the expert has received formal training or experience. However it is the court’s
function and discretion to satisfy itself that the expert does indeed have the necessary
qualifications.

Civil courts except to decisions made in criminal courts. Civil courts find decisions
made in criminal courts to be inadmissible because it amounts to no more than the opinion
of the criminal court and thus the liability of the defendant would have to be proven all over
again. This has been the decision followed by our courts derived from the Hollington v
Hewthorne case.

b. On the facts set out above, to what extent can the court rely on the expert
witnesses’ evidence in interpreting the contract? (10)

In relation to the facts given, the court may not rely on the evidence adduced by the experts.
This is so due to the differences in arriving at their conclusions. By so doing, it questions the
knowledge or skill of both experts. In addition, the court may not rely on their evidence due
to the non-verification of their qualifications or skill. By raising different interpretations, it
leaves the court with confusion as to what to take or leave thus creating doubt. The court
may on the other hand accept evidence by one expert and draw inference from it if the
evidence makes sense.

5. The rule against admissibility of previous consistent statements is designed to

prevent witnesses from seeking to strengthen their evidence in court by relying on
the fact of having made on a prior occasion a similar statement consistent with the
evidence in court. The courts in Zimbabwe do allow, however, such previous
consistent statements in certain exceptional cases.

State and explain five (5) instances in which previous consistent statements
are allowed. (15)

To rebut an allegation

If a witness account is challenged as recent fabrication in cross examination, the

witness may support himself by evidence of earlier statements he would have made. PCS
are used as a defence in such circumstances.

In Flanagan v Faly, a witness who had testified about the forgery of a will was asked
in cross-examination that he had invented his story because of bad blood between him and
the accused. The witness was allowed to call corroborative evidence to show that long
before the enmity had arisen, he had told a third party about the story he was now telling.
The court was satisfied that the previous statement if correct would be relevant.

Prior Identification

PCS have been used in cases relating to prior identification, e.g an accused being
identified by the witness in court after earlier identification outside the court at an earlier
identification parade.

In R v Christie, a little boy gave evidence that he had been indecently assaulted and
identified the accused in court as the man, but did not say anything about prior identification.
His mother and a constable gave evidence that shortly after the assault the boy had pointed
out the accused to them. The evidence was admissible on the separate ground that it was
evidence of a prior act of identification.

Complaints of a sexual nature

Evidence of complaints made by witnesses in cases of rape, indecent assault and

sodomy has been accepted in court as having relevance. Victims of a sexual nature were
expected to tell somebody about it as keeping quiet would cause adverse inferences to be
drawn. This is called the hue and cry doctrine and it can be submitted in court and
considered admissible. In Dube v Banana it was held that hue and cry is needed to guard
against malicious reports. Even an honest error that could be made at the first reasonable
opportunity that presents itself, there must not be undue delay. There is no hard and fast rule
relating to the time frame. Each case must be decided on its facts and merits.
 Statement made by the defendant when questioned about the offence.

Statements made by a defendant concerning an offence charged in response to

questioning occasion great difficulty. The defendant may of course admit the offence
charged conversely, he may deny it in a manner consistent with his defence at trial, in which
case the statement which he makes is self-serving within the meaning of the role.

If a confession comes through coercion or force, its reliability becomes compromised and the
integrity of the system of administration of justice suffers. In Ibrahim v R it was stated that, it
has long been established that no statement by an accused is admissible in evidence
against him unless it is shown to have been a voluntary statement in the sense that it has
not been obtained from him either by fear of prejudice or hope of advantage exercised or
held out by a person in authority.

Tafadzwa : CLE EVIDENCE EXAM NOVEMBER 2014

QUESTION 1

Explain and discuss the basic evidential rules that apply to each of the following;

(a) Examination -in-chief;

The purpose of examination in chief is to present evidence favorable to the party calling the
witness. The legal practitioner often asks questions crafted to build his/her case and the
witness often gives answers favorable to their defence. The legal practitioner should control
the witness and the information the witness gives by using these specially crafted questions.
The witness should not be asked questions that would illicit inadmissible evidence.

During examination in chief the legal practitioner may not ask the witness leading questions.
Leading questions are questions that imply an answer or presume facts. Often they require
yes or no answers. Leading questions are, however, allowed when introducing the witness.

If during examination in chief the witness gives evidence that is not favorable to their case
then the legal practitioner may impeach/cross examine their witness. This can be done in
terms of s 316 of the CPEA. This can, however, only be done if the witness is shown to
have a hostile intention.

(b) Cross-examination;

The purpose of cross examination is to allow the opposing party to test their opponent’s
evidence. This is done by allowing opponents to ask the other side’s witnesses questions
aimed at putting into dispute the truthfulness or credibility of the opponent. One cross
examines by asking leading questions that challenge the witness’ version of events. The
rationale behind leading questions is that the cross examiner must lead the witness into a
trap or into giving contradictory evidence. Legal practitioners may not, however, bully or
badger witnesses.

The general rule is that any witness who has been called may be cross examined whether or
not they have given evidence in chief. Parties to litigation have a duty to cross examine the
opposing team’s witnesses if they want to put that side’s evidence in dispute. Adverse
influences can be drawn from a failure to cross examine and anything not cross examined
on will be taken to have been accepted as true.

Re-examination.

Re-examination follows cross examination and it is done by the party who called the witness.
The purpose of reexamination is to:

• Clarify evidence

• Correct wrong impressions

• Give the witness a fair opportunity to explain their answers

• To put before the court a full picture

Matters must be confined to issues arising out of cross examination. Re-examination should
not morph into a secondary examination in chief. [15]

QUESTION 2

Outline and explain the methods which the prosecution can employ to discredit the
damaging testimony of a witness for the prosecution who gives evidence that is
inconsistent with his previous statement to the police. [20]

When a witness gives a previous inconsistent statement the prosecution can follow the
procedure outlined in s 316 of the CPEA.

When a witness gives a statement to the police and then they depart from it in their evidence
in chief and the departure is not material then the prosecution need not take any action. This
is because even though the evidence is not favorable to the prosecution’s case it still stands
as the evidence of the witness and the Prosecutor who called the witness – S v Mazhambe.

Where the departure is material, and when it tends to incriminate or increase the evidence
against the accused then the prosecution must inform the defence and the court of the
departure. This duty to inform the courts also exists when the departure is material but
instead of incriminating the accused it tends to support the accused. - S v Mazhambe.

After advising the court of the departure the judicial officer must ask the witness about the
departure. This is done by giving the witness sufficient particulars to allow the witness to
know which statement is being referred to. Thereafter the party who called the witness may
proceed to prove the existence of the previous inconsistent statement. If the witnesses
confesses to making the statement it shall be deemed to have been proved. If the witness
denies the statement the prosecution must lead evidence from the party who recorded and
interpreted the statement. - S v Mazhambe

Upon proof of the previous inconsistent statement the witness must be asked which of the
two statements is true. The witness must also be given an opportunity to explain the
differences in the statement. If the explanation given by the witness reveals a hostile intent
the prosecution can apply to have the witness declared a hostile witness.

Before a party to proceedings can cross examine their witness they must make an
application to the court to the have the witness declared hostile. In S v Mazhambe it was
said that a hostile witness is one who possess a hostile animus towards the party that called
them and they are not desirous of telling the truth. This means that a witness cannot be
declared hostile merely because they gave unfavorable evidence. The evidence must have
been given out of a bad motive or intention. Once a witness has been declared hostile the
prosecution can cross examine and discredit them.

It is important to note that the presiding officer has a discretion as to whether or not to
declare the witness hostile.

The purpose of this procedures outlined above is to neutralize the effect of the previous
inconsistent statement. The statement itself doesn’t become evidence.

QUESTION 3

Mr Mabwe ("the Plaintiff") instituted court proceedings against Mr Mopo ("the

Defendant") in the High Court seeking an order reversing the transfer of a certain
property to the Defendant on the basis that the Defendant, at the time he bought and
took transfer of the property was aware of the Plaintiff's interest in the property and
the existence of litigation in the High Court between the Plaintiff and the previous
owner of the property. Such litigation had been decided in the Plaintiff's favour. The
property had in the meantime been sold and transferred to the Defendant who was
now staying in the property. The court proceedings against the Defendant had
previously been commenced by way of a court application. This court application had
been dismissed on the basis that there were numerous disputes of facts which the
Plaintiff should have foreseen. Plaintiff then commenced afresh and issued summons
seeking the same relief. After all the pleadings had been filed and while the parties
were waiting for the trial date, the Plaintiff passed on. His widow was appointed the
executrix of his estate and was substituted as the Plaintiff in her capacity as the
executrix of the estate. She continued with the litigation.
She was, however, not directly involved in the dealings between the deceased and the
Defendant concerning the property. Much of what she knew was information she got
from her late husband. At the trial she testified that her late husband had told her that he
(the deceased) had advised the Defendant of the pending litigation with the previous owner
and that he should not involve himself in the property. These allegations were also contained
in the affidavits filed in the court application between the deceased and the Defendant which
had been dismissed as stated above.

The Defendant through his lawyer objected to the testimony of the deceased's widow
as hearsay evidence. He also objected to the admission of the affidavits filed by the
deceased in the previous legal proceedings as constituting inadmissible hearsay
evidence. This evidence is crucial and if it is thrown out, the Plaintiff’s case is dead.

(a) Explain and briefly discuss the approach of the courts to hearsay evidence?
[15]

Hearsay evidence is evidence that asks the court to rely on the assertion of someone else
and not the personal knowledge of the witness giving the testimony. It is dealt with in s 253
of the CPEA and s 27 of the CEA. Hearsay evidence is usually inadmissible; especially if it
is aimed at showing that the contents of the hearsay statements are true Subramanium v
PP. The court will usually insist on the person who made the statement giving the evidence.
Hearsay evidence is dangerous as:

• the witness giving the evidence may fabricate it

• the outside asserted (person who made the initial statement) is not liable to
cross examination since they are not present

• the initial asserter was not under oath and they could have lied

• the initial asserter may have been joking

The courts may, in some instances, allow hearsay evidence and the test in determining
whether or not hearsay is admissible is as follows:

1. Is the evidence hearsay, if yes

2. It is admissible by a common law exception?

3. Is it admissible by a statutory exception?

The underlying rational for exceptions in this regard is that relevant evidence should not be
excluded and certain classes of hearsay evidence are by their nature reliable and their
exclusion would be unjust.

The common law exceptions to hearsay include declarations made by deceased persons:

• When they are against the deceased’s pecuniary and proprietary interest
Williams v Eagle Star Insurance + Ward v Pratt

• When they are made in the course of duty

Price v Thornton and s 253 (2) CPEA

• When they refer to pedigree

Ex Parte Lottering

• Dying

R v Hine and R v Pike s 254 of the CPEA

• When they pertain to public or generic rights

Du Toit v Lindenburg

• Declarations by testators concerning wills

Other common law exceptions include hearsay evidence referencing statements that are res
gestae, spontaneous exclamations and statements which accompany and explain relevant
facts.

Statutory exceptions include section 27 of the CEA. S 27 (1) states that hearsay evidence,
whether oral or in writing, shall be admissible in civil cases if direct oral evidence from that
person would have been admissible. Section 27 (3) (b) states that if the statement referred
to above is written in a document then no other evidence, other than the document itself,
shall be admissible. If the document is not available then the hearsay evidence is
inadmissible unless evidence is led from the person who saw, heard or otherwise perceived
the statement being made.

(b) On the basis of the facts of the matter set out above, advise the trial judge
whether there is merit in the objection by the Defendant's lawyer? Is the
evidence being objected to admissible? [10 ]
There are two hearsay statements in question. The first of these statements is the wife’s
testimony stating that her late husband had told her that he (the deceased) had advised the
Defendant of the pending litigation. The second is the affidavit in which the deceased himself
made the same allegations. In deciding whether or not the statements are admissible the
court must follow the three pronged test:

1. Is the evidence hearsay, if yes

2. It is admissible by a common law exception?

3. Is it admissible by a statutory exception?

In both instances it is clear that the evidence is hearsay. This is because it refers to
statements made by the husband, now deceased, who cannot and will not testify to the
truthfulness or otherwise of the statements. The next issue for the court to decide is whether
or not the court can admit the evidence based on common law exceptions. As stated above
the common law exceptions apply to declarations by deceased persons, statement that are
res gestae, spontaneous statements which accompany and explain relevant facts.

The statement made by the deceased, to his wife and in the affidavit, was with regards to his
proprietary interests. The common law exception states that these statements must be with
regards to something that is contrary to the deceased’s interest. They can be oral or written.
The requirements for this exception are that the deceased:

1. Must have known, deemed to have known, the declaration was against his
interest.

2. Declarant must be a competent witness

3. Declarant must have died

4. Declaration must have been within his personal knowledge.

In this instance the declaration was not against the declarant’s interest. As such it cannot fall
under the exception. One could try and argue that the statement made was res gestae but
this is likely to fail.

The court must then inquire as to whether or not the statements sought to be admitted may
be admitted in terms of statues. In this case s 27 of the CEA applies. S 27 (1) states that
hearsay evidence, whether oral or in writing, shall be admissible in civil cases if direct oral
evidence from that person would have been admissible. The present matter is a civil case
and the deceased would have been a competent witness. We have both oral and a written
statement from him; as such according to this section the hearsay evidence is admissible.
Section 27 (3) (b) states that if the statement referred to above is written in a document then
no other evidence, other than the document itself, shall be admissible. If the document is not
available then the hearsay evidence is inadmissible unless evidence is led from the person
who saw, heard or otherwise perceived the statement being made – s 27 (3) (a).
In this case it would be prudent to admit the document under s 27 (3) (b). This is because it
was sworn to by the deceased himself and he spoke about matters that were in his personal
knowledge. This means that danger of fabrication, and the issues that often outside attesters
are not sworn in, fall away.

QUESTION 4

Yup Limited ("Yup") was the subject of a tax audit by the Zimbabwe Revenue
Authority (ZIMRA). In the course of the audit ZIMRA officials requested copies of
certain invoices in respect of which substantial payments had been made to Yup's
lawyers. Yup gave ZIMRA copies of the invoices but had redacted portions of the
invoices claiming that these portions were subject to legal professional privilege.

Their internal legal advisor argued that certain of the contents of the disputed
invoices were privileged to the extent that they set out the nature of the advice sought
by Yup from their lawyers and/or the advice given by those attorneys and identified
documents on the basis of which one could infer the advice sought from and given by
the lawyers.

ZIMRA insisted on copies that were not redacted and argued that invoices were not
issued for purposes of obtaining legal advice but to state the services rendered and
the amount charged for such services. ZIMRA further argued that the mere
identification in the invoice of the work done and the documents looked by the
lawyers in the invoices would not by itself convey the nature or substance of any
advice that might have been sought or received. ZIMRA argued therefore that the
redacted portions of the invoices were not subject to legal professional advice.

Yup has now approached you for advice on whether the ambit of the legal
professional privilege extend to the redacted parts of an otherwise unprivileged
document. Yup does not want ZIMRA to know the information that it blacked out on
the invoices and is prepared to go to court for this.

With reference to case law and/or relevant statutory provisions, outline the
requirements for legal profession privilege and advise Yup Limited on whether their
argument based on legal professional privilege is sustainable. [20]

Privilege is a personal right for a witness to refuse to disclose admissible evidence. There
are various types of privilege and they include:
 1. Matrimonial Privilege

2. Privilege against self-incrimination

3. Legal Professional Privilege

4. Without Prejudice Negotiations

5. Public Interest Privilege

In this matter we will be dealing with legal privilege. Legal privilege protects disclosure of
communication between a legal practitioner and their client. The communication must have
been made in confidence and in light of actual or possible litigation. The privilege also
extends to statements, connected to pending/possible litigation, received from third parties. It
also applies to third parties who the legal practitioner and client use to convey information to
one another.

S 294 of the CPEA refers to the incompetence of a legal practitioner to divulge privileged
information when they were:

• Acting in their professional capacity

• Communication was made in confidence

• The client claims privilege

QUESTION 5

Using case law and/or relevant statutory provisions outline and explain the
circumstances in which character evidence is admissible in evidence in courts in
Zimbabwe. [20]

Character evidence is evidence which refers to the reputation of an accused or a party to

litigation. Generally character evidence is inadmissible as it is considered irrelevant – s 260
of the CPEA. This is because the good nature, or otherwise, of a person does not in and of
itself prove the facts in issue. As such the court must limit its scope of inquiry to relevant
matters.

There are some exceptions to the admissibility of character evidence. One such exception is
with similar fact evidence. Similar fact evidence is evidence of improper conduct by an
accused on previous occasions. This evidence, like character evidence, is inadmissible
if its only purpose is to show that the accused has a bad disposition. There are several
reasons for the exclusion of such evidence. Examples include:

• It is unfair to the accused who must now be prepared to rebut accusations on all
aspects of his/her life

• The evidence is prejudicial

• It involves too many collateral issues

Similar fact evidence is, however, admissible if it is relevant to an issues and such
relevance does not rest solely on character. The traditional approach to character
evidence was stated in Makin v Attorney General for New South Wales (deceased kids). In
this case it was stated that the Prosecution may not adduce similar fact evidence if their goal
is to show that the accused is a person likely to commit crimes of a certain nature. On the
other hand the fact that evidence tends to show that the accused has committed a similar
crime in the past doesn’t necessarily make it inadmissible. If it is relevant to a fact in issue
then it will be admissible eg showing that the crime charged was by design and not an
accident. Also note R v Ball (incest) and DDPP v Boardman (Headmaster/Students) - similar
fact evidence of a sexual assault on two boys was ruled admissible in each of the boy’s
cases as it showed a striking similarities in the assaults.

Similar fact evidence can be used in crimes involving sexual offences to:

1. Rebut defenses of accident or coincidence - R v Bond (Dr./ Abortion/ Servants)

2. Rebut defenses of innocent association - R v Ball

3. Rebutt innocent explanation - R v Armstrong (Lawyer/Arsenic/Wife)

Similar fact evidence also applies in civil litigation. For example in Mood Music v De Wolf
the plaintiff in a copyright infringement case was allowed to lead evidence to show that the
defendant had 3 recordings which bore a striking similarity to words in a copyright which had
been reproduced by the defendant without consent. In Laubscher v National Foods the
courts refused to admit similar fact evidence as the other cases sought to be introduced
were not similar to the case in the trial.

END OF EXAMINATION PAPER

TOTAL MARKS [100]

___________________________________________________________________
Tsitsi: Law of Evidence Answer Sheet: June 2013

Question 1

Admissibility of accomplice evidence is regulated by section 267 and 270 of the Criminal
and Procedure Act. It reads as follows:

S 267 (1) When the prosecutor at any trial informs the court that any person produced by
him or her as a witness on behalf of the prosecution has, in his or her opinion, been an
accomplice, either as principal or accessory, in the commission of the offence alleged in the
charge, such person shall, notwithstanding anything to the contrary in this Act, be compelled
to be sworn or to make affirmation as a witness and to answer any question the reply to
which would tend to incriminate him or her in respect of such offence.[Subsection substituted
by section 22 of Act 9 of 2006.]

270 Conviction on single evidence of accomplice, provided the offence is proved

aliunde

Any court which is trying any person on a charge of any offence may convict him of any
offence alleged against him in the indictment, summons or charge under trial on the single
evidence of any accomplice: Provided that the offence has, by competent evidence other
than the single and unconfirmed evidence of the accomplice, been proved to the satisfaction
of such court to have been actually committed.

Accomplice evidence falls under corroboration, for which it is called for, because
traditionally accomplices are regarded as witnesses of uncertain reliability because they
generally have something to gain by falsely implicating the accused or exaggerate the part
played by the accused and minimising their own. In the case of R v Ncanana the judge
described accomplices as witnesses with a motive to tell lies about the accused person. The
witnesses are peculiarly equipped with inside knowledge of the offence and can easily lie
and an accomplice is a person liable to be prosecuted either of the same offence or as
accessory to such an offence. The question of whether the witness is an accomplice or not is
a factual enquiry to be determined by the court thus in casu the prosecutor cannot determine
whether Paul will give an accurate account of evidence, it has to be thus be taken with a
pinch of salt. S 267 of the Criminal and Procedure Act has to be read together with S 270.
Accomplice evidence has to be corroborated with another’s evidence. Unlike in civil matters,
in criminal trials the court will not take the account of evidence from one witness if that
witness is an accomplice. This is so, as it has been mentioned above, that the accomplice
can easily lie and implicate the accused’s actions more in the crime than his own actions.
The case of R v. Levy in clarifying the operational dynamics of section 270 of the Criminal
Procedure and Evidence Act it said that corroborative evidence need only show that an
accomplice is a reliable witness but not necessarily in every detail but at least in regard to
those material statements the court basis its conviction. R v Lakhathula further emphasises
this. The court held that in order to satisfy demands of section 270 there must be other
evidence apart from evidence of the accomplice that the crime was actually committed so
that if the court has shown itself to be fully appreciative of the dangers caused by accomplice
evidence and is still satisfied beyond reasonable doubt that the accused is guilty it may
convict.

Paul and John were jointly charged and Paul wishes to be a state witness, however because
of this Paul and John cannot be tried together. The two accused have to be tried separately.
It is a well established rule of practice that trials should be separated where one of the
accused pleads guilty but the others plead not guilty the purpose of this practice is to save
those who have pleaded not guilty from being prejudiced, for instance, from cross-
examination or evidence of those who have pleaded guilty, and vice versa. In casu, if Paul
and John are charged and jointly tried together, it would be not competent for the prosecutor
to do so as it would be prejudicial to John who has pleaded not guilty. For the prosecutor to
secure a conviction he has to apply for separation of trial. Section 190 of the C.P.n.E.A gives
provision for the application of a separation of trial.

Question 2

The nature of evidence in this case is similar fact evidence which is characterised as
evidence of propensity or disposition or evidence of the past. The general rule is that it is
inadmissible because of its potential of prejudice. It is evidence that pertains to the particular
immoral or illegal conduct of a party on occasions other than those in the dispute but also
which is of such nature that it is logically connected with or substantially similar to the
conduct which forms substance to the dispute. However,evidence of similar facts can only
be admitted if it is both relevant and probative to a degree that it substantially outweighs the
unfair prejudicial effect. The locus classicus of this principle is the Makin v Attorney
Genenral of New South Wales case. The couple were charged with and convicted of the
murder of a baby in the court a quo. The State presented evidence of common cause that
the at all the previous residences that the couple lived remains of infants were found buried.
On appeal the couple challenged the evidence presented and the question which the court
had to determine was the admissibility of evidence relating to the discovery of other bodies
and the fact that other children had been similarly entrusted to the appellants. Lord
Hershell, in the appellant court, held that;

“It is undoubtedly not competent for the prosecution to adduce evidence tending to show that
the accused has been guilty of criminal acts other than those covered by the indictment, for
the purpose of leading to the conclusion that the accused is a person likely from his criminal
conduct or character to have committed the offence for which he is being tried. On the other
hand, the mere fact that the evidence adduced tends to show the commission of other
crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may
be so relevant if it bears upon the question whether the acts alleged to constitute the crime
charged in the indictment were designed or accidental, or to rebut a defence which would
otherwise be open to the accused. The statement of these general principles is easy, but it is
obvious that it may often be very difficult to draw the line and to decide whether a particular
piece of evidence is on the one side or the other.”

The Court held that the evidence was admissible, however, as a general rule evidence of a
past similar fact should not be admissible unless there are exceptional circumstances.
In casu, the defendant thus has to show that the similar facts to some degree that it
substantially outweighs the unfair prejudicial effect. However, similar facts evidence is
admissible when relevant. Relevance is originally meant that there must be striking
similarities and that it will be an affront to common sense to ignore them. This requirement
later evolved that the probative value must outweigh its prejudicial effect, such that it would
be a gross miscarriage of justice not to admit it. Similarities include;

a) The substance of the offence

b) The modus operandi

c) The time

d) The place

e) The motive or objective

f) The class of victims

The case of the Hollingham v Head has similar facts with the case in casu, the plaintiff had
bought manure from the defendant and was claiming that the defendant had given him a
warranty as to the quality of the manure. The plaintiff then sought evidence from other
buyers that they had been given similar warranties by the defendant. The court held that
such evidence was insufficiently relevant.

Thus the court may not allow Mr Mayo lead evidence from other pig farmers who have
sustained similar losses as the evidence may be found to be irrelevant and prejudicial to the
defendant.

Question 3

This is a rule which states that were a contract has been reduced to writing no other
evidence of its content will be acceptable save for the written document itself or secondary
evidence thereof. Basically the point is that the moment you have a written document you
may not adduce or lead oral evidence as to the content of the contract whether to alter,
contradict or vary such contents.

It is not a single rule but at least two rules which are quite independent from each other.

1. The first rule deals with the extent to which a document recording a legal act or
transaction is conclusive as to its terms. The question here is that is it relevant to show that
parties to transactions had in fact agreed to different or additional terms, or whether they are
bound by the terms as recorded.

2. The second rule is concerned with the extent to which extrinsic facts may affect the
meaning to be given to those terms. This question is one entirely of construction and
interpretation of the written words.
Neither of the rules can be said to belong to the law of evidence. They both deal with the
substantive effect of transactions recorded in documents. If the document is conclusive as to
the terms of the transaction, evidence of different or additional terms will be excluded
because the rule of substantive law makes such evidence irrelevant.

The rules are not solely concerned with the exclusion of ―parole‖ or oral evidence. The
rules may also exclude other documents. It includes the direct testimony of the parties, their
extra-curial statements and their physical acts which are tendered to supplement and
contradict a complete transaction and it excludes documents and correspondence other than
those that actually constitute the transaction or act being considered.

It is not only confined to written contracts. Thus, for instance, it has been applied to judicial
documents and even to unilateral, non-formal acts such as the declarations of deceased
persons that had been made in the course of duty.

Extrinsic evidence may be received to indicate whether the signatory signed as an agent or
a principal. Even if the document incorporates a jural act that makes subject to the rule
against parole, part of it, such as the receipt added to the substance of what has been
written; or a date may be proved by extrinsic evidence.

Union Government v. Vianini Ferro-Concrete Pipes (Pty) Ltd 1941 AD 43

Watermayer JA said, “...this court has accepted the rule that when a contract has been
reduced to writing, the writing is, in general, regarded as the exclusive memorial of the
transaction and in a suit between the parties no evidence to prove its terms may be given
save the document or secondary evidence of its contents, nor may the contents of such a
document be contradicted, altered, added to or varied by parole evidence.”

The application of the integration rule may result in a party‘s being bound by terms which it
never really intended to agree, but its justification is that it enables the terms of the contract
to be proved with certainty and precision

Like all other rules of evidence the parole evidence rule has exceptions to it. The reason for
the exceptions is as stated by Christie, Business Law in Zimbabwe (page 65), ―It is
obvious that the parole evidence rule contains seeds of injustice because it excludes
evidence which might reveal the true agreement between the parties. To minimise this
danger, the application of this rule is subject to a number of limitations.‖ These are where
there is misrepresentation, fraud, illegality, duress and mistake.

Exceptions

1. It doesn‘t exclude the leading of evidence to establish that the contract was subject to a
suspensive condition because one would not be varying the contract in leading such
evidence.

2. The rule will not be applicable where it is the intention of the parties that the contract
should partly be in writing or partly oral. The court will give effect to the intention of the
parties.
There is what is regarded as the so-called partial integration rule which is but a corollary of
the integration rule. Cobett JA in Johnson v. Leal defines it thus, ―Where a written
contract is not intended by the parties to be the exclusive memorial of the whole of their
agreement but merely to record portion of the agreed transaction, leaving the remainder as
an oral agreement, then the integration rule merely prevents the admission of extrinsic
evidence to contradict or vary the written portion; it does not preclude proof of the additional
or supplemental oral agreement.‖

Avis v. Versput 1943 AD 331

The court took the view that this was a situation where the parties had intended that their
contracts should be partly in writing and partly oral. The court held that the oral agreement
had to be given effect.

To counter the problem of including evidence outside the written contract one has to include
an integration clause or a whole contract clause. This will be a term stating that the
document will be the entire contract between the parties and all terms, conditions, warranties
or representations not herein included will be expressly excluded. This means that one will
be entrenching the parole evidence rule into the contract. (See Mhene v. Teubes 1986 (2)
ZLR 179)

The parole evidence rule is designed to promote certainty and as such the contract
document serves all purposes on evidential aspects. However, the exceptions to the parole
evidence rule make the written document uncertain and ultimately the court has to balance
the competing interests of the parties.

3. The parole evidence rule does not apply where the validity of the contract itself is being
challenged by one of the parties thereto.

Cock v. Osbourne 1993 (4) SA 788

The court held that one could not exclude oral evidence to establish the grounds of invalidity
of a contract e.g. due to mistake.

Thus the courts are sometimes prepared to disregard the integration clause as it did in the
Mhene case supra.

To seal the loose valve, an integration clause is often coupled with a non-variation clause. If
the parties intend to vary the terms of the contract it has to be in writing and signed. Any
such purported oral evidence to vary the terms of the contract would be of no force and
effect.

In 1964 the CPD decided that the non-variation clause is binding on both parties and any
purported oral variation inconsistent with such a clause would be invalid. However, a non-
variation clause does not in itself preclude a waiver and to completely seal the loose valve a
non-variation clause is often coupled with a non-waiver clause, in that way one will have
gotten rid of all the exceptions. A non-waiver or indulgence clause says that no indulgence
made by the party can be taken to be a waiver of his rights.

Agricultural Finance Corporation v. Pocock 1986 (2) ZLR 229 (SC)

A non-variation clause in a contract entrenches the requirement that any variation has to be
in writing but does not prevent a party for whose benefit it is inserted from waiving the
requirement.

A non-waiver clause negatives any raising of a waiver or any estoppel in that it amounts to
notice given in advance, acknowledged by the other party, that conduct which might
otherwise be a waiver or give rise to an estoppel, may not be taken to be such conduct.

The combined effect of the two clauses is that two parties to a written agreement containing
carefully and extensively worded non-variation and non-waiver clauses cannot enter an
enforceable oral agreement departing from the written terms since to the extent it is a
variation of the contract it is precluded by the non-variation clause whereas if it be said to be
a waiver or conduct giving rise to an estoppel then the non-waiver clause provides the
complete answer to the point.

Maparanyanga v. The Sheriff & Ors SC 132-02

The sheriff entered into a standard form agreement with the purchaser after the purchaser
had offered to purchase the debtor‟s property by private treaty. The purchaser‟s offer had
conditions of payment different from those in the standard form. The standard form provided
for the full purchase price to be paid on signature thereof. However, both parties regarded
themselves as being bound by the terms of payment set out in the written offer made by the
purchaser and accepted by the sheriff. The High Court concluded that although the standard
form contract could both reflect the terms of the agreement between the parties, that form
had been signed merely as a formality that was required by the practice in the sheriff‟s
office. The parties were well aware of the

conditions of the sale that had been agreed upon between them and those conditions were
observed. On appeal the Supreme Court set aside the High Court order, one of the reasons
given by the Supreme Court for setting aside the order was that it did not regard the
standard form of agreement of the sale to be inferior to, or less binding than any other
contract properly entered into by the contracting parties. The Supreme Court went on to
state that it was satisfied that the consequences of disregarding a material term of such a
contract were not more elastic than suggested by the High Court. The sheriff denied
breaching the agreement; his evidence was that the standard form did not record accurately
the agreed terms of the contract. This is also supported by the offer made by the purchaser
which culminated in the signing of the agreement. The offer by the purchaser did not state
that full payment would be made upon the signing of the agreement. Other
contemporaneous documents may be looked to when the written contract is only one part of
a larger transaction. The purchaser and the sheriff were agreed as to the true nature of the
terms of the agreement. The standard form agreement had no whole contract clause in it.
The Supreme Court held that from a contractual point of view, having signed such a
contract, both parties were bound and obliged to adhere to its contents.
It is submitted that this is not the correct statement of the law. The words of a contract are
not engraved in stone. If parties can show that a written contract does not reflect what was
agreed between them, a court cannot insist that they perform according to it. Rather, it will
insist that they comply with what each had agreed to do because they consider themselves
bound by the terms not expressed.

4. No conclusive effect is attached to a note or memorandum drawn up merely for the

purpose of providing evidence of an essentially oral agreement. Such a document may
constitute an admission by a party who made or assented to it, but like all informal
admissions it can be contradicted or explained away by other evidence.

Allen v. Pink [1838] 4 M&W 140

The plaintiff bought a horse from the defendant and received from him a note reading,
“Bought by G. Pink, a horse for the sum of £7.2s.6d.” The court held that this document was
not intended to record the terms of the sale and therefore did not prevent the plaintiff from
proving that the oral contract had included a warranty as to the horse‟s condition. The fact
that only one party had signed the document is some indication that it was intended to be no
more than a memorandum, but this is by no means conclusive.

Where the parties intend a document signed by only one of them to represent the contract
between them, parole evidence to vary the document is inadmissible. Although the rest is
said to be the intention of the parties this has been taken to mean their intention objectively
ascertained from the nature of the document and the surrounding circumstances.

5. As the rule applies only when the document was intended to record the terms of the
transaction, it is open to a party to show that the document was drawn up for a special
purpose and that the real transaction was something different.

Moodley v. Moodley & Anor

The respondents did not seek to upset the validity of a written contract for the sale of land.
They sought to prove an agreement which was “in fact, not a simple agreement of sale” – if it
was an agreement of sale at all – in terms of which the applicant was to obtain a transfer of
the property. Milne JP held that extrinsic evidence was admissible to show that there had
been this special purpose.

6. Evidence may be adduced of a trade usage whereby additional terms are implied in a
written contract if the usage does not contradict the terms of the document.

Brown v. Byrne [1864] 3 E&B 703

A custom by which ship owners allowed a discount on freight charges was held not to be
inconsistent with a statement of the full amount in a bill of lading.

Does the rule bind third parties?

Where parties make a document the sole embodiment of their jural act, the effect of the act
has to be found only in the writing no matter who may wish to avail himself to it. The parole
evidence rule therefore applies against a third party if it sought to use those utterances for
the very purpose for which the writing has superseded them as the legal act. If the question
is what the parties―really‖ agreed then it is not bound by the terms of the document. But if a
third party is concerned to prove the terms actually enforceable by the contracting parties, he
should also be bound by the document because as a matter of substantive law this
determines what those terms are.

Question 4

Section 260 and section 290

Question 5

a) i) The State can compel Joesph’s wife but cannot compel his childhood friend.

ii) Joseph has a legal basis to stop his wife but does not have a legal basis to stop his friend
from testifying against him at his trial. He has a legal basis to stop his wife based on marital
privilege. The rationale behind this is that it is to encourage spouse to be free, as well s that
marriage is seen as a sacred institution. In the case of Rumping v DPP it was held that

Joseph on the other hand cannot stop his friend from testifying because there was no
professional relationship established thus he does not enjoy lawyer-client privilege. He
sought advice from Peter as a friend and not as his legal practitioner. Legal profession
privilege is regulated by section 8 of the Civil Act. If he had employed or consulted Peter in
his professional capacity then Joseph would have had a legal basis to stop Peter from
testifying at his trial.

b) Circumstantial evidence is evidence that relies on an inference to connect it to a

conclusion of fact like a fingerprint at the scene of a crime. On its own circumstantial
evidence allows for more than one explanation. Different piece or circumstantial
evidence may be required, so that each corroborates the conclusions from the
others, together, they may more strongly support one particular inference over
another. Circumstantial evidence is used in civil courts to establish or refute liability.
In criminal case circumstantial evidence is used to establish guilt or innocence
through reasoning.

Yemurai : June 2015 CLE Answer Sheet

Question 1

Write explanatory notes and distinguish between each of the following:- [20]

a)Evidence and proof

Proof of a fact means that the court has received probative material with regard to such fact
and has accepted such fact as being truth for purposes of a specific case.
Evidence of a fact on the other hand means that there has not yet been proof of such fact:
the court must still decide whether or not such fact has been proved. In criminal cases the
fact will be considered proved in accordance with the standard of proof beyond a reasonable
doubt. Whilst in civil cases the standard of proof is proof on a balance of probabilities.

b) Admissibility of evidence and weight of evidence

According to Lansdown & Campbell :

“If what is adduced can in law properly be put before the court it is admissible. It is only once
it has been or could be admitted that its persuasiveness, alone or in conjuction with other
evidence is satisfying the court as to the facta probanda (which) has to be considered”.

There are no degrees of admissibility. Evidence is either admissible or inadmissible. Once

admissible, however it may carry more or less weight according to the particular
circumstances of the case.

c) Competence and compellability of a witness

A witness is competent if he may lawfully give evidence. A witness is compellable if he may

be obliged to give evidence. If a witness is not compellable he is entitled to refuse altogether
to testify (ie taking the stand and taking the oath).

d) Facts in issue and facts relevant to the facts in issue

Facts in issue (facta probanda) are those facts which a party must prove in order to succeed:
The facts relevant to the facts in issue (facta probantia) are those facts which tend to prove
or disprove the facts in issue. For example in a paternity case the identity of the father will be
a facta probandum (fact in issue) sexual intercourse with the alleged father will be a facta
probans (a fact relevant to the fact in issue).

e) Direct and circumstantial evidence

Direct evidence of a fact is the assertion of a person who claims to have pereceived it with
his own senses. In other words direct evidence is evidence directly proving a fact in issue,
e.g when a witness claims he saw the accused stab someone.

Circumstantial evidence is evidence that furnished indirect proof. It requires the court to
draw inferences, because the witness made no direct assertions with regard to the fact in
issue. For example in a murder trial, the fact that the accused had a motive for killing the
deceased and the fact that the accused was seen running away from the deceased’s house
with a bloodstained knife is circumstantial evidence.
Question 2

a) With reference to statutory and case law authorities comment on the role of expert
evidence in civil and criminal matters and advise John’s family on the correctness of the
approach adopted by the trial court to the expert evidence of the psychiatrist and whether
John’s appeal carries prospects of success on appeal (20 marks)

Section 22 of the Civil Evidence Act provides that”

“the opinion of a person who is an expert on any subject, that is to say a person who
possesses special knowledge or skill in the subject , shall be admissible in civil proceedings
to prove any fact relating to that subject which is relevant to an issue in the proceedings.”

Expert evidence often falls outside the competence of the average reasonable court
because the average judicial officer cannot be expected to be a heart surgeon or professor
of robotics. Experts are expected to facilitate the resolution of a fact in issue. The party
seeking to adduce the opinion of a witness as an expert opinion must thus satisfy the court
that the opinion is not supererogatory (that is irrelevant). The court must be satisfied the

i) the witness not only has a specialist knowledge, training and skill or experience but can
furthermore on account of these attributes or qualities assist the court in deciding the issues.
Menday v Protea Assurance Co Ltd.

ii) that the witness is an expert for the purposes for which he is called upon to express an
opinion;

iii) 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.

Thus expert opinion will only be received when his skill is greater than that of the court. And
the pertinent criterion is whether the court can receive appreciable held from the opinion of
the expert witness.

In Holtzhauzen v Roodt the complainant in a rape case sort to introduce evidence from a
registered clinical psychologist in order to prove that indeed the rape took place. The court
held that such evidence was irrelevant and inadmissible because the psychologists evidence
would displace the value judgment of the court. The court was competent to decide on the
credibility of the complainant’s evidence without the assistance of the clinical psychologist. It
was further held that the evidence sought to be adduced by the clinical psycholgists with
regards to the statements made by the complainant whilst under hypnosis “(would) go a long
way in usurping the judgment of the Court”.

In Mohammed v Shaik it was held that a medical practioner although holding degrees MB
ChB with four years experience could not speak authoritatively on the significance of findings
in a pathologists report concerning the fertility of semen.

Expert evidence in civil matters is dealt with in section 22 of the Civil Evidence Act

"Expert and lay opinion evidence

(1) The opinion of a person who is an expert on any subject, that is to say, of a person who
possesses special knowledge or skill in the subject, shall be admissible in civil proceedings
to prove any fact relating to that subject which is relevant to an issue in the proceedings.

(2) .....

(3) A court shall not be bound by the opinion of any person referred to in subsection (1) or
(2), but may have regard to the person's opinion in reaching its decision.

Thus it is clear that although opinion evidence by an expert is admissible it is not considered
binding on the court and is merely given its appropriate weight in the assessment of the facts
of the case as a whole.

Expert evidence in criminal cases

The law

The position in our law was stated extensively in the case of S v Motsi in which the case held
that the report given as expert evidence was not compiled In a manner which would permit a
court to understand and follow the reasoning behind the conclusions. It was further held that
the expert evidence laid before the trier must be sufficient for the court to make a just
conclusion as to the correctness of any proposition which the expert makes in his testimony.

The Constitutional Court of South Africa expressed itself on the subject of expert witnesses
in Glenister v President of the Republic of South Africa and Others :

“In essence, the function of an expert is to assist the court to reach a conclusion on a matter
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 opinions he expresses are
acceptable. Any expert opinion which is expressed on an issue which the court can decide
without receiving expert opinion is in principle inadmissible because of its irrelevance. The
rule was crisply stated in Gentiruco A.G. v Firestone S.A. (Pty.) Ltd.1972 (1) SA 589 (A) at
616H: ‘[T]he true and practical test of the admissibility of the opinion of a skilled witness is
whether or not the Court can receive “appreciable help” from that witness on the particular
issue’. Expert witness testimony on an ultimate issue will more readily tend to be relevant
when the subject is one upon which the court is usually quite incapable of forming an
unassisted conclusion. On the other hand the opinion of the witness is excluded not because
of a need to preserve or protect the fact-finding duty of the court, but because the evidence
makes no probative contribution.”

Expert testimony, like all other evidence, must be given only appropriate weight. It must be
as influential in the overall decision-making process as it deserves: no more, no less. The
weight to be given to expert evidence will derive from how that evidence is assessed in the
context of all other evidence. This is because, while expert evidence is important evidence, it
is nevertheless merely part of the evidence which a court has to take into account. Two
critical matters spring to mind as a consequence. Firstly, expert evidence does not “trump all
other evidence”. Woodhouse v Britannic Assurance p.l.c., Employment Appeal Tribunal.

Expert evidence should be tested against known facts, as it is the primary factual evidence
which is of the greatest importance. It is therefore necessary to ensure that expert evidence
is not elevated into a fixed framework or formula, against which actions are then to be rigidly
judged with a mathematical precision. Stewart v Glaze

In HKSAR v Chan Sze Pui, Gloria (2004) was held that a court is not compelled to accept
the evidence of an expert but is entitled to accept or reject that evidence like any other,
bearing in mind the whole of the evidence in the case. The court had placed the expert
testimony in the context of the whole of the evidence and determined what weight could be
placed upon it.

Secondly, a court must not consider expert evidence in a vacuum. It should not therefore be
artificially separated from the rest of the evidence. To do so is a structural failing. A court’s
findings will often derive from an interaction of its views on the factual and the expert
evidence taken together. The more persuasive elements of the factual evidence will assist
the court in forming its views on the expert testimony and vice versa.

Similarly, the South African courts have said that expert testimony can serve as a useful tool
or guide against which the reliability of the testimony of eyewitnesses can be checked and
tested. Van der Westhuizen and Another v SA Liberal Insurance Co. Ltd 1949. It is for the
court to determine, on the balance of probability, on all the evidence, where the probabilities
lie.

In Routestone Ltd v Minories Finance Ltd and Another (1997) observed that what really
mattered in most cases was the reasons given for an expert’s opinion, noting that a well-
constructed expert report containing opinion evidence sets out both the opinion and the
reasons for it. The judge pithily commented “(if) the reasons stand up the opinion does, if
not, not” (at p 188). A court should not therefore allow an expert merely to present their
conclusion without also presenting the analytical process by which they reached that
conclusion.

In R v Nyamayaro 1967 (4) SA 263 (RA) BEADLE CJ adopted the well-known dicta of
GREENBERG JA in Annama v Chetty and Others 1947 AD 142 @ p 155 where the learned
Judge of Appeal said, in speaking of the evidence of a handwriting expert:

“His function is to point out similarities or differences in two or more specimens of

handwriting and the court is not entitled to accept his opinion that these similarities or
differences exist, but once it has seen for itself the factors to which the expert draws
attention, it may accept his opinion in regard to the significance of these factors".

Section 278 of the Criminal Procedure and Evidence Act (CPEA) allows the production of
medical reports from doctors in affidavit form. However, the court has the discretion in terms
of s 280 to order that the doctor be summoned to give oral evidence at the trial. The court
may also send written questions to the expert who is enjoined to reply thereto. As was
observed in G. Feltoe’s Judges’ Handbook For Criminal Cases 1st ed, 2009 Legal
Resources Foundation p. 71.

“It will be necessary to use the power to ask the doctor to give oral testimony when the
original affidavit is inadequate and the court is unable to arrive at a just decision on the basis
of this report. If the information is very scanty or vital information is omitted, or the
information in the report seems to be contradictory, this power should be exercised. But if it
contains all the necessary information there will be no need to summon the doctor. Anock
1973 RLR 154 (A); Sibanda A – 10 – 72 Melrose 1984 (2) ZLR 217 (S).”

Application

The facts of this case are similar to that of S v Ndzombane where it was held that the
interrogation through oral testimony of expert evidence given on affidavit is necessary to
avoid the error of treating such evidence as gospel truth or divine revelation.

Thus it is clear that the judge erred in failing to call upon the psychiatrist to give oral
evidence in order to substantiate the conclusions made in her affidavit. This was especially
pertinent given the evidence of some mental defect which led to the accused's referral to a
psychiatrist as well as the fact that the accused's mother averred that she had noticed
strange behavior on the part of the accused for a period spanning two years prior to his
commission of murder. Both doctors and the mother should similarly have been called to
give viva vice evidence in order to ascertain the accused's state of mind which led to the
referral to the psychiatrist as well as the nature of the 'strange behavior' exhibited by the
accused to the mother over a period of two years. It appears that the judge in its final
analysis, drew its conclusions largely based on the expert evidence of the psychiatrist
without questioning or testing it against known parameters. [Mandy v Protea Assurance]

That the court erred in its lack of calling for oral evidence and heavy reliance on the expert
opinion of the psychiatrist is further supported by by the case of S v Zuma. In this case it was
held that the expertise of a professional witness should not be elevated to such heights that
sight is lost of the court’s own capabilities and responsibilities in drawing inferences from the
evidence. And, in my view, the court can only do this well if it requires the expert witness to
give oral evidence in the clarification and elucidation of an affidavit that is otherwise
technically dense and incomprehensible, contradictory or inadequate in all respects except
the conclusion. A court errs when it merely adopts the conclusions of an expert report
without exercising its mind on it by, for example, calling for oral testimony or drawing the
necessary inferences from the evidence.

I would advise Johns relatives that he has an automatic right to appeal the conviction and
sentence in the Supreme Court and that the errors made by the judge should be argued on
the behalf of John at his appeal.

(b) explain how courts in Zimbabwe deal with conflicting testimony of experts called in court
by opposing parties

This issue was dealt with in the South African case of Nicholson v Road Accident Fund

The approach to conflicting expert evidence, insofar as there is conflict, has been set out in
Michael and Another v Linksfield Park Clinic (Pty) Ltd and as follows “ That being so, what is
required in the evaluation of such evidence is to determine whether and to what extent their
opinions advanced are founded on logical reasoning. That is the thrust of the decision of the
House of Lords in the medical negligence case of Bolitho v City and Hackney Health
Authority. With the relevant dicta in the speech of Lord Browne-Wilkinson we respectfully
agree. Summarised, they are to the following effect. The Court is not bound to absolve a
defendant from liability for allegedly negligent medical treatment or diagnosis just because
evidence of expert opinion, albeit genuinely held, is that the treatment or diagnosis in issue
accorded with sound medical practice. The Court must be satisfied that such opinion has
logical basis, in other words that the expert has considered comparative risks and benefits
and has reached ‘a defensible conclusion’.”

Also, in Louwrens v Oldwage it was said:

“Confronted with the battery of experts on either side, presenting competing and contrasting
evidence, the learned Judge preferred the evidence of the plaintiff's experts to that of the
defendant without advancing any basis for so doing. All that he said was that the opinions of
Professor De Villiers and Dr Parker are based on logical reasoning but he failed to give any
demonstration of this. The learned Judge did not give equal credit to Drs de Kock and Stein
and Professor Immelman whose views he harshly dismissed as being incapable of logical
analysis and support. I do not share these views. The conclusion reached was clearly wrong.
It is an approach which this Court has recently decried in Michael and Another v Linksfield
Park Clinic (Pty) Ltd and Another, where it was said:'(I)t would be wrong to decide a case by
simple preference where there are conflicting views on either side, both capable of logical
support. Only where expert opinion cannot be logically supported at all will it fail to provide
''the benchmark by reference to which the defendant's conduct falls to be assessed''. The
uncritical acceptance of the evidence of Professor De Villiers and the plaintiff's other expert
evidence and the rejection of the evidence of the defendant's expert witnesses falls short of
the requisite standard and the approach laid down by this Court in Michael v Linksfield Park
Clinic. What was required of the trial Judge was to determine to what extent the opinions
advanced by the experts were founded on logical reasoning and how the competing sets of
evidence stood in relation to one another, viewed in the light of the probabilities. I have
already indicated why I found the evidence adduced on behalf of the defendant to be more
acceptable than that of the plaintiff's witnesses and why the conclusion of the trial Court I
cannot stand.”

Question 3

Briefly explain each of the following concepts and set out the importance of each of the
following determination of disputes before the courts:- [15 marks]

a) FORMAL ADMISSION

Evidence need not be adduced to prove a fact where a formal admission has been made.

A formal admission is generally made in the pleadings or in court and is considered as

'conclusive proof' of the fact admitted. Formal admissions thus serve to narrow down the
issues and save courts time and the costs. Generally speaking formal admissions are
binding on their makers and normally cannot be withdrawn or contradicted by their maker. A
party must intend to make to make a formal admission and the existence of the requisite
intention will be determined by means of a subjective test.
In S v Kuzway the court held that a party cannot employ a formal admission as a means of
getting on record something which the opponent does not propose to make part of his case.
The court also noted that when the state elects to accept an admission then the admission
constitutes sufficient proof of every fact which it covers. In S v Groenwald the court held that
an admission does not stand in isolation and must be interpreted in the circumstances of the
case. Cameron JA noted that the rule of interpretation in terms of which an ambiguous
admission made by the accused should be interpreted in favor of the accused.

Section 36 of the Civil evidence Act deals with formal admissions

"(1) An admission as to any fact in issue in civil proceedings, made by or on behalf of a

party to those pro-ceedings, shall be admissible in evidence as proof of that fact, whether
the admission was made orally or in writ-ing or otherwise.

(2) Subject to subsection(3), in determining whether or not any fact in issue in civil
proceedings has been proved, the court shall give such weight to any admission proved to
have been made in respect of that fact as the court considers appropriate, bearing in mind
the circumstances and manner in which the admission was made.

(3) It shall not be necessary for any party to civil proceedings to prove any fact admitted on
the record of the proceedings.

(4) It shall not be competent for any party to civil proceedings to disprove any fact admitted
by him on the record of the proceedings: Provided that this subsection shall not prevent any
such admission being withdrawn with leave of the court, in which event the fact that the
admission was made may be proved in evidence and the court may give such weight to the
admission as the court considers appropriate, bearing in mind the circumstances in which it
was made and withdrawn."

b) JUDICIAL NOTICE

Refers to when a court declares a fact presented as evidence true without furnishing proof
because the fact is notoriously well known or readily verifiable.

In Zimbabwe our courts can take judicial notice of the following in terms of section 4 of he
Civil Evidence Act:-

"(1)

(a) the law of Zimbabwe; and

(b) decisions of the High Court or the Supreme Court, if reported or recorded in citable form;
and

(c) any enactment published in or as a supplement to the Gazette; and

(d) any other matter whatsoever which, in terms of rules of court or any other enactment, the
court is re-quired to accept as correct or of which it is required to take judicial notice.
(2) Subsection (1) shall apply without prejudice to Part VII of the Interpretation Act [Chapter
1:01].

(3) A court may and, if the necessary information is supplied, shall take judicial notice of any
fact which is not subject to reasonable dispute in that it is— (a) generally known among
reasonably informed people in Zimbabwe or within the area of jurisdiction of the court; or

(b) capable of accurate and ready determination by resort to sources whose accuracy can
not reasonably be questioned."

c)PRESUMPTIONS OF LAW

A presumption of law has been defined as a deduction which the law expressly directs to be
made from particular facts. In actuality it is a rule of law which declares that one fact is
presumed to exist if another fact or set of facts is proved. A classic example of a pre-
sumption of law is the presumption of death that arises when a person is shown to have
been continually absent from his home for seven years and has not been heard from during
such period by persons who would naturally have heard from him had he been alive.
Presumptions of law are artificial creations because while "presumptions de-clared by the
courts should have the support of reason," there is often no logical connection between the
presumed fact and the proven fact. Legal presumptions usually arise from considerations of
public policy; for purposes of convenience; from a desire to provide an escape from a
dilemma; or to force a litigant to whom certain information is more easily accessible to make
it known.

Certain logic does not require us to conclude from the fact of death that the deceased,
immediately prior thereto, exercised due care for his safety; however, it is a con-clusion
which accords with the judicial concept of sound social policy.

PRESUMPTIONS OF FACT

A presumption of fact has been described as the process of ascer-taining one fact from the
existence of another without the aid of any rule of law. The term is used to denote the
reasoning or fact finding process of the triers of the facts and as such it is a logical and not a
legal deduction of one fact from another. The presumption is drawn from the circumstances
of the case by the ordinary reasoning powers and not by virtue of any rule of law. It is "an
inference which a reasonable person would as a rule draw from given circumstances."

A presumption of guilt may arise from proof that the defendant, when arrested, was in
possession of stolen goods and was attempting to leave the country. The presumption would
be one of fact since there is no legal rule which compels the presumption to be made.

Main difference between presumptions of law and presumptions of fact

Presumptions of law differ from presumptions of fact in this essential respect: the former are
fixed rules of law which compel a certain inference to be drawn from particular facts; the
latter are mere logical arguments that are derived entirely and directly from the
circumstances of the particular case and which depend not upon a rule of law but upon their
own natural force and efficacy in generating belief."
Question 4

Advise the prosecutor on the admissibility of the evidence of Joseph's wife, his partner in
crime Bruce and his lawyer friend Peter. [20 marks]

THE LAW APPLICABLE

Matrimonial Privilege

The privilege may be claimed only by the spouse to whom the communication is made. If the
spouse is a competent witness and is willing to disclose the communication made by the
spouse then there is nothing the other spouse can do to stop the spouse from disclosing the
communication. However, a communication between spouses may be proved by a witness
who overheard or intercepted it.

In Rumping v DPP [1964] AC 814, the accused was a Dutch sailor charged with the murder
of a woman in an English port. The principal evidence against him was a letter which he had
written to his wife containing what amounted to a confession. He had given the letter to a
shipmate to post, but the man had handed it over to the police instead. The House of Lords
held that there was no rule which prevented the letter from being received in evidence.

Section 291(2) of the CPEA extends the privilege to cover situations where the marriage has
been dissolved judicially.

Legal Professional Privilege

Professional privilege protects from disclosure communications between a legal adviser and
his client which are made in confidence for the purpose of enabling the client to obtain legal
advice.

Section 8 of the Civil Evidence Act deals with privilege relating to the legal profession

"(2) No person shall disclose in evidence any confidential communication between—

(a) a client and his legal practitioner or the legal practitioner's employee or agent; or

(b) a client's employee or agent and the client's legal practitioner or the legal practitioner's
employee or agent; where the confidential communication was made for the purpose of
enabling the client to obtain, or the legal practitioner to give the client, any legal advice."

Section 294 of the CPEA (Criminal Procedure and Evidence Act) refers only to the
incompetence of the legal adviser to divulge privileged information without the consent of the
client.

Thus the essential requirements for legal professional privilege to apply are that:-
a. The adviser should have been acting in a professional capacity;

b. The communication should have been made in confidence, for the purposes of obtaining
legal advice and not so as to facilitate the commission of a crime or fraud;

c. The privilege must be claimed by the client who may waive it, and it is only available to
him and his successors in title.

The accused

An accused may give evidence on behalf of the co-accused. If he does so, he will be liable
for cross-examination on his part in the alleged offence. But as one can only be called at
one‘s request, there is no way in which the co-accused can compel him to testify. S v.
Chamane 1962 (2) SA 428 (A) An accused attempted to call his co-accused to give
evidence for him on the preliminary issue of whether his alleged confession had been
voluntary but the Appellate Division ruled that at no stage of the proceedings could an
accused person be a compellable witness. But the non-compellability of the accused will
disappear if for any reason he ceases to be an accused person in the same proceedings. If
his trial is concluded by a verdicty of guilty or not guilty, or if there is a separation of trials he
will become a compellable witness for his former co-accused.

An accused person is not a competent witness for the prosecution against his co-accused.
The only way in which a person jointly indicted can be made a competent witness against his
co-accused is by putting an end to his status as an accused person in the same
proceedings. This can happen in four ways,

i. By entry of a nolle prosequi (the state is not prosecuting).

ii. By a plea of guilty.

iii. By an acquittal.

iv. By separation of trials.

Application

Question 5

Clearly outline the approach of the courts in Zimbabwe in dealing with circumstantial
evidence in civil and criminal cases highlighting any differences in the treatment of such
evidence. [10]

Circumstantial evidence is evidence which may allow a trial judge or jury to deduce or
logically infer a certain fact from established facts, which have been proven.
The court should always consider the cumulative effect of circumstantial evidence and not
consider each item in isolation.

Circumstantial Evidence in Criminal proceedings

In S v Jekiseni it was held that our law as regards a criminal conviction leaning on
circumstantial evidence is settled. What has become the accepted legal position on
circumstantial evidence can be traced back to the position enunciated by WATERMEYER JA
in the case of R v Blom1where the learned Judge of Appeal summed up the position by
referring to two cardinal rules of logic which he referred to as follows;

“(1)the inference sought to be drawn must be consistent with all the proved facts. If it is not,
then the inference cannot be drawn.

(The second rule, is that) the proved facts should be such that they exclude every
reasonable inference from them save the one to be drawn. If they do not exclude other
reasonable inferences, then there must be doubt whether the inference sought to be drawn
is correct.”

This position was similarly pronounced in S v Marange and S v Masawiand. The second
rule takes account of the fact that in criminal matters the state should furnish proof beyond a
reasonable doubt.

Circumstantial Evidence in civil proceedings

In civil proceedings the inference sought to be drawn from circumstantial evidence, while it
must be consistent with all proved facts, need not be the only reasonable inference. This
position was pronounced in the case of Olivine industries pvt ltd v Shonhiwa. The court
further noted that "this point is stressed in the South African case of AA Onderlinge
Assurance Bpk v De Beer where it was held that a plaintiff who relies on circumstantial
evidence does not have to prove that the inference which he asks the court to draw is the
only reasonable inference: he will discharge his burden of proof if he can convince the court
that the inference he advocates is the most readily apparent and acceptable inference from
a number of possible inferences. " The strict rules applicable to circumstantial evidence in
criminal proceedings do not apply in civil matters because of the lesser standard of proof in
civil cases, namely -proof on a balance of probabilities.