Chapter 25

Hearsay evidence
25.1 Introduction 265

25.2 The general rule 265

25.2.1 On oath 265
25.2.2 Cross-examination 265
25.2.3 Demeanour and credibility 266

25.3 Statutory definition of hearsay 266

25.3.1 Section 3 of the Law of Evidence Amendment Act, 1988 267
25.3.2 Constitutionality of section 3 268

25.4 Admissibility of hearsay 268

25.4.1 By agreement: section 3(1)(a) 269
25.4.2 Where the person testifies: sections 3(1)(b) and 3(3) 270
25.4.3 In the interests of justice: section 3(1)(c) 270
25.4.3.1 The nature of the proceedings 270
25.4.3.2 The nature of evidence 270
25.4.3.3 The purpose for which the evidence is tendered 271
25.4.3.4 The probative value of the evidence 271
25.4.3.5 The reason why the evidence is not given by the person
on whose credibility the probative value depends 272
25.4.3.6 Prejudice to opponents 272
25.4.3.7 Any other factor which in the opinion of the court should
be taken into account 273

25.5 Other statutory exceptions 273

25.5.1 The Criminal Procedure Act, 1977 273
25.5.1.1 Affidavits 274
25.5.1.2 Written statements 274
25.5.1.3 Preparatory examinations 274
25.5.1.4 Former trials 274
25.5.1.5 Business records 274
25.5.1.6 Judicial proceedings 275
25.5.1.7 Bankers’ books 275
25.5.2 The Civil Proceedings Evidence Act, 1965 275
25.5.2.1 Affidavits 275
25.5.2.2 Sunrise and sunset 275
25.5.2.3 Bankers’ books 275
25.5.2.4 Documentary evidence 275
25.5.3 Other examples 275
25.5.3.1 Electronic evidence 275
 CHAPTER 25 HEARSAY 265

25.5.3.2 Companies’ 276

books 276
25.5.3.3 Age 276

25.6 The South African Law Reform Commission (SALRC) Project 126 Review of the
Law of

25.1 Introduction
In its essence, hearsay is merely a witness testifying about what he or she ‘heard’ another
person ‘say’, hence the term ‘hearsay’. It is a basic rule of procedure that for the oral or
written testimony of a person to be admitted as evidence at trial, the person who made
the oral or written statement must be called to appear before the court as a witness.
Therefore, the oral or written statement of a non-witness is usually inadmissible at trial.
Although this is a simplified description, inadmissible evidence of this type is called
hearsay. For example, if witness B tells witness A, ‘I saw the accused kill the deceased,’
then only B actually saw the crime. If the prosecution only calls witness A to testify about
what B told him or her, such evidence will be hearsay.

25.2 The general rule

The common law definition of hearsay, which focuses on the purpose for which the hearsay
evidence is being tendered, has been replaced by a statutory definition in section 3(4) of
the Law of Evidence Amendment Act 45 of 1988. Hearsay evidence is now defined as
‘evidence, whether oral or in writing, the probative value of which depends upon the
credibility of any person other than the person giving such evidence’.1
By applying this definition to the example above, we can see that the probative value of
A’s evidence actually depends on B’s credibility, not A’s credibility, because it was B who
actually saw the crime, not A. This is the reason why the prosecution must call witness B
to the witness stand to admit as evidence the statement, ‘I saw the accused kill the
deceased.’ Hearsay has always been defined as an exclusionary rule. This means
that hearsay evidence is generally inadmissible. There are several reasons for this, all of
which have their basis in the unreliability of hearsay evidence and in the potential
prejudice that it can cause.
These reasons will be discussed below.

25.2.1 On oath
For evidence to be admissible, witnesses have to testify under oath. With hearsay evidence,
the statement that was made by the person who is not in court is not made under oath.2

25.2.2 Cross-examination
The moment a witness gives evidence, the opposing party acquires the right to cross-examine
that witness. The person who made the statement on which the hearsay evidence is based

1 Also referred to as a declarant-orientated definition.

2 If the person is subsequently called to testify under oath, his or her hearsay evidence will be provisionally
admissible in terms of s 3(3) of the Law of Evidence Amendment Act, 1988.
266 THE LAW OF EVIDENCE IN SOUTH

is not called to the witness box and therefore cannot be tested in court through cross-
examination. Furthermore, the statement that the person made cannot be challenged to
assess the strength or weakness of the statement.3 This right to cross-examine is now also
a constitutional right.4

25.2.3 Demeanour and credibility

A court will observe every witness who gives evidence to examine their demeanour and
assess their credibility as this will have an impact on how much weight the court attaches
to the witness’s evidence. Because the person who made the statement is not in court, the
court is denied this opportunity and is therefore unable to evaluate the evidence
properly.
Hearsay evidence is therefore unreliable, prejudicial to the party against whom it is
admitted and may render a trial unfair. Historically, this has always been recognised and the
exclusionary hearsay rule was developed in English common law to meet the needs of a trial
by jury and to guard against a jury’s probable inability to evaluate such evidence fairly.

DISCUSSION Should the rule against hearsay be abolished?

25.1 South Africa has abolished the jury system and it has been suggested that
there may, therefore, no longer be a justification for the continued
existence of a hearsay rule. It is reasonable to argue that hearsay should
be admissible at trial and that a judge should be allowed to assess its
probative value and weight when making a judgment at the end of the
trial. Alternatively, it may also be argued that hearsay should be allowed
but that it should be subject to the cautionary rule that some form of
safeguard be sought due to its inherent unreliability. What is your view?

The statutory definition of hearsay replaced the common law definition because the
common law rule was somewhat vague in meaning and had developed into an inflexible
rule of exclusion.5 As a result, courts did not have the discretionary power to admit
hearsay evidence, despite its relevance, if it fell outside the parameters of the recognised
common law exceptions. Neither did courts have the discretionary power to create new
exceptions. There was therefore a need to develop a new, flexible hearsay rule that
allowed for the admission of hearsay where it was relevant, procedurally fair and in the
interests of justice to do so.6

25.3 Statutory definition of hearsay

The following section will examine the statutory definition of hearsay, as outlined in
section 3 of the Law of Evidence Amendment Act, 1988,7 and will also discuss the
constitutionality and procedural fairness of section 3.

3 The four dangers of hearsay are faulty perception, erroneous memory, insincerity and ambiguity in narration.
4 Section 35(3)(i) of the Constitution.
5 Estate de Wet v De Wet 1924 CPD 341 at 343: ‘Evidence of statements made by persons not called as witnesses
which are tendered for the purpose of proving the truth of what is contained in the statement’. The common law
definition is an assertion-orientated definition.
6 DT Zeffertt and AP Paizes The South African Law of Evidence 2 ed (2009) at 385–388.
7 Sometimes also referred to as the Hearsay Amendment Act.
 CHAPTER 25 HEARSAY 267

25.3.1 Section 3 of the Law of Evidence Amendment Act, 1988

Section 3 of the Law of Evidence Amendment Act, 1988 reads as follows:
3. Hearsay evidence
(1) Subject to the provisions of any other law, hearsay evidence shall not
be admitted as evidence in criminal or civil proceedings, unless –
(a) each party against whom the evidence is to be adduced agrees to
the admission thereof as evidence at such proceedings;
(b) the person upon whose credibility the probative value of such
evidence depends, himself testifies at such proceedings; or
(c) the court, having regard to –
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person upon
whose credibility the probative value of such evidence depends;
(vi) any prejudice to a party which the admission of such evidence
might entail; and
(vii) any other factor which should in the opinion of the court be
taken into account,
is of the opinion that such evidence should be admitted in the interests of
justice. [Our emphasis]
(2) The provisions of subsection (1) shall not render admissible any evidence
which is inadmissible on any ground other than that such evidence is hearsay
evidence.
(3) Hearsay evidence may be provisionally admitted in terms of subsection
(1)(b) if the court is informed that the person upon whose credibility the
probative value of such evidence depends will himself testify in such
proceedings. Provided that if such a person does not later testify in such
proceedings, the hearsay evidence shall be left out of account, unless the
hearsay evidence is admitted in terms of paragraph (a) of subsection (1) or
is admitted by the court in terms of paragraph
(c) of that subsection.
(4) For the purposes of this section –
‘hearsay evidence’ means evidence, whether oral or in writing, the
probative value of which depends upon the credibility of any person other
than the person giving such evidence;
‘party’ means the accused or party against whom hearsay evidence is to
be adduced, including the prosecution.

The statutory definition of hearsay is still exclusionary in purpose but it is more flexible
than the rigid rule-and-exception approach of the common law. The statutory definition
gives the courts the power to admit hearsay in circumstances where the dangers
attached to hearsay can be minimised or are insignificant.
The crucial question in applying the statutory definition of hearsay is to ask whether
the probative value of the evidence sought to be admitted ‘depends’ on the credibility of
a non-witness. Accordingly, evidence would be hearsay as defined in section 3(4) if
its
268 THE LAW OF EVIDENCE IN SOUTH

probative value sufficiently depends on – that is, is controlled by or governed by – the

credibility of a non-witness. Realistically, the probative value of evidence will never solely
depend on a non-witness, hence the use of the term ‘sufficiently depends on’. This is assessed
by examining all the circumstances of the case including the testimony of other witnesses.8

25.3.2 Constitutionality of section 3

The constitutional validity of section 3(1)–(4) was put to the test in S v Ndhlovu and
Others9 where it was argued that the admission of hearsay constitutionally infringed the
right to challenge evidence as defined in section 35(3)(i) of the Constitution. It was
argued that hearsay was procedurally and substantially unfair as, first, hearsay could not
be subject to cross-examination. Second, its admission was unfair in that the opposing
party could not effectively counter the inferences that could be drawn from admissible
hearsay.
The Supreme Court of Appeal reasoned that hearsay as an exclusionary rule, together
with the ‘interests of justice test’ set out in section 3(1), did not unreasonably infringe the
Constitution.10 The Supreme Court of Appeal noted that the Constitution does not guarantee
an entitlement to subject all evidence to cross-examination. What it does guarantee is
the right to challenge evidence. The statutory hearsay rule in section 3 allows a party to
challenge its admission and to scrutinise its probative value and its reliability. The Court
held section 3 to be constitutionally sound because hearsay could not be admitted unless
there were compelling reasons to do so. In addition, there were an adequate number
of procedural duties on a judge to ensure fairness to the opposing party after the
admission of hearsay.11
These procedural duties on a judge to ensure fairness include:
• guarding against the unreasonable admission of hearsay
• adequately explaining the evidentiary consequences of admitting hearsay to an
unrepresented opposing party
• the judge’s ability to protect an opposing party from the late or unheralded admission
of hearsay.

Note that in terms of section 3(1)(c), hearsay cannot be admitted late in the proceedings
to ambush an opposing party, but in section 3(1)(b) hearsay may be provisionally
admitted at an early stage as long as the person testifies later in the proceedings. To
ensure procedural fairness to the opposing party, the admission of hearsay must be dealt
with clearly and timeously by the court. The opposing party should not be ambushed by
the late admission of hearsay.12

25.4 Admissibility of hearsay

The Supreme Court of Appeal in McDonald’s Corporation v Joburgers Drive-Inn Restaurant
(Pty) Ltd and Another13 stated that the decision by a trial court to admit hearsay evidence
in terms of section 3 was not an exercise of judicial discretion but a decision of law. A
court of

8 Zeffertt and Paizes 2 ed (2009) at 390–391.

9 2002 (2) SACR 325 (SCA).
10 At para 24.
11 See also S v Molimi 2008 (3) SA 608 (CC).
12 S v Ndhlovu and Others 2002 (2) SACR 325 (SCA) at para 17. In S v Molimi 2008 (3) SA 608 (CC) it was noted that a
ruling on the admissibility of hearsay should be given prior to the accused testifying.
13 1997 (1) SA 1 (A) at 27D–E where the Court stated that ‘a decision on the admissibility of evidence is, in general, one
of law, not discretion and this Court is fully entitled to overrule such a decision by a lower court’. See also Zeffertt
and Paizes 2 ed (2009) at 393.
 CHAPTER 25 HEARSAY 269

appeal is entitled to overrule the decision of a lower court if its application of section 3 is
found to be wrong.
Section 3(1)(a), (b) and (c) creates three exceptions of wide scope and admissibility.14
These three exceptions allow hearsay to be admitted:
• by agreement in terms of section 3(1)(a)
• where the person, on whose credibility the evidence depends, testifies in terms
of sections 3(1)(b) and 3(3)
• in the interests of justice in terms of section 3(1)(c).

By
consent:

ADMISSIB In the
interest
LE s of
HEARSAY justice:
s

Provisionally
– subject to
later
testimony:
s 3(1)(b)

Figure 25.1 Admissible hearsay (section 3)

25.4.1 By agreement: section 3(1)(a)

Hearsay evidence may be admitted by an informed agreement or consent between the
parties to trial proceedings. Consent must be based on a full understanding and appreciation
of the potential prejudicial consequences of admitting hearsay evidence. Consent may be
express, but a failure to object to its admission at trial may in certain circumstances be
regarded as agreement. Tacit consent may also be inferred from a failure to object to
hearsay evidence given under cross-examination.15 In criminal proceedings, a judge must
properly explain to an unrepresented accused the prejudicial consequences of
consenting to the admission of hearsay.16

14 The old common law exceptions have been abolished although the court may take them into account when making a
decision in terms of the interests of justice factors set out in s 3(1)(c).
15 Mahomed v Attorney-General of Natal and Others 1996 (1) SACR 139 (N).
16 S v Ngwani 1990 (1) SACR 449 (N). In S v M M 2012 (2) SACR 18 (SCA) the Supreme Court of Appeal observed the
negative effect of an increasing trend that doctors’ reports are simply handed in by consent, without the doctor
being called to give evidence in terms of section 3(1)(a). The Court observed that this practice deprived the court of
hearing the nuances of the doctor’s oral evidence. See Bellengère A ‘We’ll Teach You a Lesson’: The Role of the SCA
as Educator and Disciplinarian – A Note on S v Mashinini 2012 1 SACR 604 (SCA) and S v M M 2012 2 SACR 18 (SCA)
with reference to S v Kolea 2013 1 SACR 409 (SCA)’ Speculum Juris 30 Part 2 2016.
270 THE LAW OF EVIDENCE IN SOUTH

25.4.2 Where the person testifies: sections 3(1)(b) and 3(3)

If the person on whose credibility the probative value of evidence depends testifies at a
later stage of the proceedings, the hearsay evidence becomes admissible (section 3(1)(b)). A
court may provisionally allow hearsay evidence on the understanding that the person will
testify at some future time in the proceedings (section 3(3)). These provisions allow a
party to admit evidence in a coherent manner, that is, without rendering the delivery of
evidence fragmentary,17 and without having to call the person as a witness at an early stage
of the trial where this may be undesirable. If the person does not testify or repudiates the
evidence, the hearsay evidence will not be taken into account unless it is admitted by
agreement or in the interests of justice.
25.4.3 In the interests of justice: section 3(1)(c)
Hearsay evidence may be admitted in terms of the multiple factors listed under the
‘interests of justice’ provision. This provision is the most far-reaching of the exceptions
created by section 3. According to the Supreme Court of Appeal in S v Shaik and Others,18
the courts should not hesitate in admitting hearsay in terms of this provision and they
should not lose sight of the true test for the admission of hearsay, that is, whether the
interests of justice demands its reception. The court must assess all the factors according
to the circumstances of a particular case. It is the combined assessment of all the factors,
not an isolated assessment of individual factors, that will result in a proper application of
the provision.19 A discussion of these factors follows below.

25.4.3.1 The nature of the proceedings

It is easier to admit hearsay in civil proceedings where the standard of proof is on a
balance of probabilities than in criminal proceedings.20 The reluctance to admit hearsay in
criminal trials is based on:
• the presumption of innocence
• the objection to the admission of unreliable, untested evidence
• the right of an accused to confront an accuser.21

Hearsay evidence may be admitted at bail applications,22 inquest proceedings, in the Small
Claims Court,23 the Land Claims Court,24 the Admiralty Court25 and the Competition
Tribunal, but not in interlocutory motion proceedings in the absence of urgency.26

25.4.3.2 The nature of evidence

When assessing the nature of hearsay evidence, that is, its reliability or unreliability, the
courts will take into consideration a number of additional issues, such as the following:

17 S v Ndhlovu and Others 2002 (2) SACR 325 (SCA) at para 28.
18 2007 (1) SA 240 (SCA) at paras 170–171.
19 S v Shaik and Others 2007 (1) SA 240 (SCA) at paras 170–171. Where these factors overlap, it is more important to
give effect to their combined weight than to regard each as a separate factor of admissibility.
20 Although s 2(2) of the Prevention of Organised Crime Act 121 of 1998 permits the admission of hearsay evidence in
racketeering offences. The constitutionality of this section was upheld in Savoi and Others v NDPP and Another 2014
(1) SACR 545 (CC). Courts will, however, more readily admit hearsay evidence in criminal proceedings when the purpose
of admitting the evidence is exculpatory. See S v Rautenbach 2014 (1) SACR 1 (GSJ).
21 Metedad v National Employers’ General Insurance Co Ltd 1992 (1) SA 494 (W) at 499.
22 S v Yanta 2000 (1) SACR 237 (Tk).
23 S 26 of the Small Claims Courts Act 61 of 1984.
24 S 30(2)(a) of the Restitution of Land Rights Act 22 of 1994.
25 S 6(3) and (4) of the Admiralty Jurisdiction Regulation Act 105 of 1983.
26 Swissborough Diamond Mines (Pty) Ltd and Others v Government of RSA and Others 1999 (2) SA 279 (T) at 336.
 CHAPTER 25 HEARSAY 271

• Was the person making the hearsay statement telling the truth? For example: Was the
statement made voluntarily and spontaneously? Is it against the interests of the
person? Does it pre-date the subject matter of the litigation? Did the person have a
motive to lie? Does the person have a reputation for honesty?
• Did the person accurately remember and describe the events making up the statement?
For example: What period of time has elapsed since the making of the statement? Are
the events described by the person making the statement first-hand or second-hand,
spontaneous, vivid, dramatic, simple or complex, unusual and unlikely to be forgotten?
Do the events concern the person’s own affairs or those of another?
• Did the person properly see or hear the events making up the statement? For
example: Was there an opportunity for a clear and accurate observation of the events
making up the statement? Does the person have poor eyesight or hearing? Is the court
in a position to assess the person’s perceptive powers accurately? Is there
corroborating evidence supporting the accuracy of the statement?
• Was the person lucid and coherent when making the statement? For example: Is the
statement oral or written? Is the statement vague and susceptible to inaccurate
transmission or explanation?

25.4.3.3 The purpose for which the evidence is tendered

Hearsay evidence is more likely to be admitted when it is tendered to prove a subsidiary
issue rather than a fundamental issue (although some cases hold the opposite).27 It will
be admitted for a compelling reason and not for a doubtful reason or illegitimate
purpose, or for a purpose other than proving the truth of what the statement asserts.28

25.4.3.4 The probative value of the evidence

In determining whether hearsay evidence is sufficiently relevant to a fact in issue, the
courts must assess the dual aspects of relevance, namely, assessing the probative weight
of the evidence against the potential prejudice of its reception to an opposing party. In other
words, what is the evidentiary weight of the hearsay evidence in relation to a fact in issue
and does it reliably prove the fact in issue?29
The case that is relevant to this aspect is the case of S v Rathumbu,30 which involved an
appeal against the appellant’s conviction for murdering his wife. The issue before the Court
was to determine whether the trial court had properly admitted evidence which was
a written, sworn statement by the appellant’s sister. This evidence was that she had stated
that she had seen the appellant stab the deceased with a knife. The State had conceded
that without the statement, which was, in essence, hearsay evidence, the appeal should
succeed. The Court in this case stated that the probative value of the statement
depended on the credibility of the witness at the time of making the statement. The
central question was whether the interests of justice required that the prior statement be
admitted despite the witness’s later disavowal of it. The Court, having regard to the
substantial corroboration for the truthfulness of the statement found in other evidence
tendered by the State, held that it
was correctly admitted by the trial court.31

27 Hlongwane and Others v Rector, St Francis College and Others 1989 (3) SA 318 (D); S v Ramavhale 1996 (1) SACR 639
(A) at 649D–E.
28 Metedad v National Employers’ General Insurance Co Ltd 1992 (1) SA 494 (W).
29 S v Ndhlovu and Others 2002 (2) SACR 325 (SCA) at para 45.
30 2012 (2) SACR 219 (SCA).
31 S v Rathumbu 2012 (2) SACR 219 (SCA) at paras 222J and 223E.
272 THE LAW OF EVIDENCE IN SOUTH

25.4.3.5 The reason why the evidence is not given by the

person on whose credibility the probative value
depends
As explained above, the admissibility of hearsay evidence depends on minimising the degree
of untrustworthiness, unreliability and prejudice to an opposing party. It will also depend
on whether there are acceptable reasons for the failure of the person making the
statement to testify. Acceptable reasons for a failure to testify include:
• the death of the person making the statement
• the ill health or mental instability of the person
• the absence of the person from the country during a trial
• the existence of legislation prohibiting a person from testifying32
• the fear of violent reprisals33
• an inability to trace the person34
• a reluctant person who is likely to lie about the correctness of an earlier out-of-court
statement.

25.4.3.6 Prejudice to opponents

It has been argued that the admission of hearsay would place the opposing party at a
procedurally unfair disadvantage. The admission of hearsay would:
• place an unfair burden of rebuttal on the opposing party
• prevent the opposing party from effectively countering inferences drawn from hearsay
• unfairly lengthen trial proceedings
• mean that the opposing party would be unable to cross-examine the person who made
the hearsay statement since hearsay is not subject to the usual reliability checks
which apply to first-hand testimony.

In S v Ndhlovu and Others, the Supreme Court of Appeal held that the use of hearsay by the
prosecution did not amount to a procedural prejudice:35
… where the interests of justice require the admission of hearsay, the resulting
strengthening of the opposing case cannot count as prejudice … since in
weighing the interests of justice the court must already have concluded that
the reliability of the evidence is such that its admission is necessary and
justified.
The Court concluded that the admission of hearsay did not unreasonably infringe the
constitutional right to challenge evidence and that s 3(1)(c) constituted a justified limitation
on the right to a fair trial set out in s 35(3)(i) of the Constitution:36
[T]he Bill of Rights does not guarantee an entitlement to subject all evidence
to cross-examination. What it contains is the right … to ‘challenge evidence’.
Where that evidence is hearsay, the right entails that the accused is entitled to
resist its

32 Welz and Another v Hall and Others 1996 (4) SA 1073 (C).
33 Hlongwane and Others v Rector, St Francis College and Others 1989 (3) SA 318 (D) at 325I; S v Staggie and Another 2003
(1) SACR 232 (C).
34 Makhathini v Road Accident Fund 2002 (1) SA 511 (SCA) at 524B.
35 2002 (2) SACR 325 (SCA) at para 50. However, with regard to extra curial admissions, the Constitutional Court in
Mhlongo v S; Nkosi v S 2015 (2) SACR 323 (CC) overturned this decision, holding that s 3(1)(c) cannot be relied on to
admit extra- curial admissions of an accused against a co accused. See also S v Khanye and Another 2017(2) SACR
630(CC) where the court restored the common law position that extra curial confessions or admissions of an accused
are inadmissible against a co-accused.
36 At para 24.
 CHAPTER 25 HEARSAY 273

admission and to scrutinise its probative value, including its reliability … But
where the interests of justice, constitutionally measured, require that hearsay
evidence be admitted, no constitutional right is infringed.
The degree of prejudice caused by the admission of hearsay may be lessened if a court takes
into account the following:
• Was the hearsay statement made under oath?
• Did the opposing party have any opportunity to question the person making the statement?
• Was the opposing party given a reasonable opportunity to analyse the statement and
to prepare evidence in rebuttal?
• Would cross-examination have produced a positive or negative result for the opposing party?

25.4.3.7 Any other factor which in the opinion of the court

should be taken into account
A court may take into account any other factor, depending on the circumstances of a case, as
there is no fixed or closed list of such factors.37 Although section 3 has abolished the common
law exceptions to the hearsay rule, courts still refer to them as additional factors and may take
them into account when exercising their discretion to admit hearsay in the interests of justice.
The more important common law exceptions are explained in the discussion on res gestae
and include spontaneous statements, composite acts, declarations of state of mind and
declarations of physical sensations.
Another old common law exception that has survived as a factor that the courts may
refer to is that of dying declarations. These are statements made by a person, who has since
died, in circumstances where the person was under a hopeless expectation of death. The
person must have been a competent witness at the time of making the statement and the
statement must be relevant to the person’s death. These are admissible only in cases of
murder or culpable homicide. The lack of a rational basis for this exception has seen it
become increasingly less used and in some jurisdictions (England) it has been removed
by legislation.38

25.5 Other statutory exceptions

Section 3 abolishes the common law exceptions but not the pre-1988 statutory
exceptions. Section 3 also states that its provisions are ‘subject to the provisions of any
other law’. Therefore, a court may admit hearsay in terms of the broad exceptions set out
in section 3(1)(c) or it may elect to receive hearsay in terms of a specific provision
contained in another statute. Some of the most important statues that allow for the
admission of hearsay evidence are the Criminal Procedure Act 51 of 1977 and the Civil
Proceedings Evidence Act 25 of 1965.

25.5.1 The Criminal Procedure Act, 1977

The Criminal Procedure Act, 1977 allows for the admission of hearsay evidence in certain
circumstances, outlined below.

37 Other factors which have been taken into account are consistency with the proved facts and the accused’s participation
in the events written into the hearsay document. See Skilya Property Investments (Pty) Ltd v Lloyds of London
Underwriting 2002 (3) SA 765 (T).
38 In South Africa, see R v Baloi 1949 (1) SA 491 (T); R v Dinehine 1910 CPD 371. In England s 118(2) of the Criminal
Justice Act, 2003 has abolished most of the common law exceptions to the hearsay rule, including a dying
declaration.
274 THE LAW OF EVIDENCE IN SOUTH

25.5.1.1 Affidavits
To avoid the procedural inconvenience of admitting oral testimony, certain facts, as
described in section 212 of the Criminal Procedure Act, 1977, may be admitted in the
form of an affidavit which will constitute prima facie evidence of the facts contained therein.
These are described below:39
• Section 212(1): Whether an act, transaction or occurrence did or did not take place in
a state department, provincial administration, court of law or bank may be proved by
way of affidavit. In terms of section 212A, an act, transaction or occurrence which
takes place in a foreign state department, court or bank may also be proved by way of
affidavit.
• Section 212(2): The fact that a person did not supply an official with information
relevant to an issue in criminal proceedings may be explained by the official by way of
an affidavit.
• Section 212(3): The registration and recording of official acts or matters required by
law and the proof of such registration or recording may be proved by way of affidavit.
• Section 212(4): An examination or process and the test results thereof requiring skill
in science, medicine, mathematics, computers, ballistics and so on, and relevant to an
issue in criminal proceedings may be set out in the form of an affidavit. In
examinations requiring skill in chemistry, anatomy or pathology, a certificate instead
of an affidavit may be issued.
• Section 212(5): The existence and nature of precious metals and stones.
• Section 212(7): The condition and identity of a dead body.
• Section 212(8): The chain of custody, that is, the receipt, packing, marking and delivery,
of an object.

25.5.1.2 Written statements

Section 213 allows a written witness statement, except that of an accused, to be admitted
at trial in the place of oral evidence, but only with the consent of all the parties.

25.5.1.3 Preparatory examinations

Section 214 allows evidence by a witness recorded at a preparatory examination to be
admitted at trial where the witness is dead, ill or incapable of attending the trial.

25.5.1.4 Former trials

Section 215 allows the recorded evidence of a witness at a prior trial to be admitted by
way of affidavit at a later trial. Section 60(11B)(c) allows the record of bail proceedings
to be admitted at trial.

25.5.1.5 Business records

Section 221 allows certain trade or business records compiled from information supplied
by a person having personal knowledge of such trade or business to be admitted where
the person is dead, physically or mentally ill and thus unfit to attend as a witness, out of
the country, or cannot be found or identified.

39 In S v Van der Sandt 1997 (2) SACR 116 (W) at 132E, the Court stated that the evidence allowed by s 212 is usually
peripheral to the real issues and often essential to the proper administration of justice. It does not unreasonably infringe
the Constitution.
 CHAPTER 25 HEARSAY 275

25.5.1.6 Judicial proceedings

Section 235 allows an original record of a judicial proceeding to be proved by way of a
certified copy.

25.5.1.7 Bankers’ books

In terms of section 236, bankers’ books, that is, entries in ledgers, cashbooks, account
books and so on, are admissible if proof is given, by way of an accompanying affidavit by an
official in the service of the bank, that such entries have been made in the ordinary
course of business and that the books are in the control and custody of the bank.

25.5.2 The Civil Proceedings Evidence Act, 1965

The Civil Proceedings Evidence Act, 1965 allows for the admission of hearsay evidence in
certain circumstances, outlined below.

25.5.2.1 Affidavits
Section 22(1) allows any examination or process requiring skill in bacteriology, biology,
chemistry, physics, pathology, and so on and which is relevant to an issue in civil proceedings
to be admitted by way of an affidavit. This section is similar to section 212(4) of the
Criminal Procedure Act, 1977.

25.5.2.2 Sunrise and sunset

Section 26 allows the admission of tables of sunset and sunrise times prepared by any
official observatory and published in the Government Gazette.

25.5.2.3 Bankers’ books

In terms of section 28, bankers’ books, that is, entries in ledgers, cashbooks, account books
and so on, are admissible if proof is given by way of an accompanying affidavit by an official
in the service of the bank that such entries have been made in the ordinary course of
business and that the books are in the control and custody of the bank. This section is also
similar to the corresponding section 236 of the Criminal Procedure Act, 1977.

25.5.2.4 Documentary evidence

Part VI (sections 33–38) of the Civil Proceedings Evidence Act, 1965 allows for the
admission of documentary evidence of a fact in issue. In particular, section 34 permits the
admission of an original document containing a statement made by a person about a fact
in issue, provided that:
• the person who made the document must either have had personal knowledge of the
facts contained in the document or, where the document forms part of a continuous
record, they must have done so under a duty to record the statement
• the person must be called to testify unless the person is dead, unfit to attend, out of
the country or cannot be found. The court has a discretion to admit such a document
where undue expense or delay would result if it did not.

25.5.3 Other examples

25.5.3.1 Electronic evidence

Computer-generated evidence (that is, data messages) described in sections 12–15 of the
Electronic Communications and Transactions Act 25 of 2002 may be admitted as
hearsay
276 THE LAW OF EVIDENCE IN SOUTH

evidence in terms of section 3(1) of the Law of Evidence Amendment Act, 1988 or section
221 of the Criminal Procedure Act, 1977.

25.5.3.2 Companies’ books

The Companies Act 71 of 2008 in sections 50(4) and 51(1)(c) states that the securities
register of a company shall constitute prima facie proof of the matters contained therein.

25.5.3.3 Age
A person’s age may be proved by furnishing a birth certificate or the court may, in terms
of section 337 of the Criminal Procedure Act, 1977, estimate a person’s age.

25.5.3.4 Public documents

A document made by a public official in the execution of a public duty, intended for public
use and to which there is public access, may be admitted as an exception to the hearsay rule.
Although this is a common law hearsay exception, which has been abolished, the courts
continue to be influenced by it.40

25.6 The South African Law Reform Commission (SALRC)

Project 126 Review of the Law of Evidence Discussion Paper
113 Hearsay and Relevance
This discussion paper deals with an investigation that arose out of a previous study
conducted in 2002. The findings of this study identified areas of the law of evidence that
needed reform were identified and suggested the possibility of conducting such reform. The
committee, which was tasked with finding the problem areas of the law of evidence,
identified the topics of relevance and hearsay as the two topics for investigation.
The preliminary investigations pointed out the need to take into account the structural
features of the courts, which include the limited role of lay assessors as well as the
adversarial nature of the court proceedings.
This paper looks at the implications of the structural features for the law of evidence
reform and reiterates the policy considerations identified in the preliminary survey. It
also examines the hearsay evidence and relevance areas.
The recommendations put forward by this discussion paper41 are summarised below:
1. Retain the status quo (with or without the introduction of a notice requirement): This
option involves the giving of a notice by a party of his or her intention to rely on
hearsay evidence and should be a factor taken into account when the court is
determining a prejudicial effect of the hearsay evidence. The notice would remove the
element of surprise and would count as a factor that favours hearsay evidence.42
2. Free admission: This option means that the hearsay rules in their entirety would be
considered obsolete and hearsay would be freely admitted unless excluded on some
other ground, for example relevance.43
3. Free admission coupled with decision rules pertaining to weight: This option means that
if free admission is coupled with decision rules pertaining to weight it would
eliminate

40 Zeffertt and Paizes 2 ed (2009) at 439–441.

41 SALRC Project 126 Review of the Law of Evidence Discussion Paper 113 Hearsay and Relevance (2008) at 49–57.
42 Ibid. at 49–52.
43 Ibid. at 52.
 CHAPTER 25 HEARSAY 277

inefficiencies which arise from determining the admissibility of hearsay (as well as
doubt in respect of admissibility) but would require presiding officers to articulate the
basis on which they have afforded a particular weight to an item of hearsay evidence.
This would then serve as a safeguard against a potential misuse of the hearsay
evidence.44
4. Apply different rules in civil and criminal trials: This means that the approach to hearsay
in civil trials should be an inclusionary one, which will be subject to safeguards. The
admission in criminal trials should then be subject to the provisions that are similar
substantially to the provisions of section 3 of the Law of Evidence Amendment Act,
1988.45

The current status of the discussion paper is that the closing date for commentary
was 30 June 2008. However, there have not been any follow-up reports conducted nor has
there been progress made on this discussion paper.

S 3(1)(c)(i)–(vii)
INTERESTS OF JUSTICE FACTORS IN ADMITTING HEARSAY
EVIDENCE:
All factors to be assessed together:

S 3(1)(c)(i) Nature of proceedings:

• Easier to admit hearsay in civil proceedings than in criminal proceedings

S 3(1)(c)(ii) Nature of the evidence:

• Was the declarant telling the truth;
• Did the declarant accurately remember the events described by the witness;
• Did the declarant properly see/hear what he/she described;
• Was the declarant clear and specific in his/her statement.

S 3(1)(c)(iii) The purpose for tendering the evidence:

• Hearsay more likely to be admitted when tendered to prove a subsidiary issue rather than a
direct issue.

S 3(1)(c)(iv) The probative value of the evidence:

• Hearsay only admitted when its probative value is high & its prejudicial effect low.

S 3(1)(c)(v) The reason why the evidence is not given by the person on whom its credibility
depends:
• Person mentally/physically unfit to attend at trial;
• Outside the country/cannot be traced;
• Threats/intimidation or recalcitrant witness.

S 3(1)(c)(vi) Any prejudice to opposing party:

• Will the opposing party be prejudiced by its inability to cross- S 3(1)(c)(vii)
examine the person on whom the credibility of the hearsay Any other
depends factor.

Figure 25.2 Hearsay: Interests of justice test

44 Ibid. at 52– 53.

45 Ibid. at 53–57.
278 THE LAW OF EVIDENCE IN SOUTH

THIS CHAPTER IN ESSENCE

1 The common law definition of hearsay has been replaced with a statutory definition
describing hearsay as ‘evidence, whether oral or in writing, the probative value of
which depends upon the credibility of any person other than the person giving such
evidence’.
2 Generally, hearsay evidence is inadmissible for the following reasons:
2.1 The witness who made the statement is not in court and under oath.
2.2 The witness cannot be tested through cross-examination.
2.3 The court is not able to observe the demeanour and evaluate the credibility of the
witness who made the statement.
3 The statutory definition of hearsay has the effect of granting the courts the power to
admit hearsay in the following cases:
3.1 by an agreement between the parties
3.2 where the person on whose credibility the evidence depends testifies
3.3 in the interests of justice.
4 Although the constitutionality of the statutory definition of hearsay has been
challenged, it has been found to be in line with the Constitution as hearsay cannot be
admitted unless there are compelling reasons to do so. Furthermore, there are an
adequate number of procedural duties on a judge to ensure fairness to the opposing
party after the admission of hearsay.
5 Despite the new statutory definition, the following exceptions to the hearsay rule in
the Criminal Procedure Act, 1977 have not been abolished:
5.1 Certain evidence provided through affidavits is admissible.
5.2 Written witness statements, except that of an accused, are admissible in the
place of oral evidence.
5.3 Evidence by a witness recorded at a preparatory examination is admissible.
5.4 Recorded evidence of a witness at a prior trial is admissible by way of affidavit at a
later trial.
5.5 Certain trade or business records drafted in a particular manner are admissible
under certain circumstances.
5.6 Original records of a judicial proceeding can be proved by way of a certified copy.
5.7 Bankers’ books are admissible if it can be proved that the entries were made in
the ordinary course of business.
6 The following exceptions to the hearsay rule in the Civil Proceedings Evidence Act,
1965, also have not been abolished by the statutory definition:
6.1 Highly skilled examinations or processes that are relevant to civil proceedings
may be admitted by way of affidavit.
6.2 Tables of sunset and sunrise times prepared by any official observatory and
published in the
Government Gazette are admissible.
6.3 Bankers’ books are admissible if it can be proved that the entries were made in
the ordinary course of business.
6.4 Documentary evidence meeting certain requirements is admissible.
7 Other examples of exceptions to the statutory definition of hearsay include:
7.1 Electronic evidence described in the Electronic Communications and Transactions
Act, 2002.
7.2 The securities register of a company serves as prima facie proof of its content.
7.3 Proof of age may be furnished by a birth certificate.
7.4 Public documents drafted by certain persons and meeting certain requirements are
admissible.
 CHAPTER 25 HEARSAY 279

8 The SALRC Project 126 The Review of the Law of Evidence Discussion Paper 113
Hearsay and Relevance identified a need to reform certain areas of the law of evidence.
The following recommendations are put forward in this Discussion Paper:
8.1 The status quo should be retained with or without the requirement that a party
intending to rely on hearsay evidence should give notice thereof.
8.2 The hearsay rules in their entirety should be considered obsolete and hearsay
freely admitted unless excluded on some other ground.
8.3 If hearsay evidence was freely admitted, a safeguard could be built in by coupling
the free admission with decision rules pertaining to the weight to be attached
thereto.
8.4 Different rules should be applied in civil and criminal trials. Civil trials should follow
an inclusionary approach, subject to safeguards, while the admission of hearsay in
criminal trials should be subject to the provisions similar to the statutory
definition of hearsay.