LEV3701 Lecture5

Weekly Lecture/Comment: Lecture 5 (Learning
Units 11, 12 and 13)
This is a very important part of the work and it is essential that you firstly
understand the difference between evidence about previous consistent
statements, hearsay evidence and evidence about admissions and confessions.
These three different types of evidence are sometimes difficult to tell apart and it
is very important that you understand the definition of each of them. Without a
clear understanding in this regard, you will not be able to distinguish between
them and will hence not be able to provide the correct answer in the exam. You
will get questions about these types of evidence in the exam. In the next section I
will explain the basic differences between these types of evidence. You may not
at first understand the explanation but should come back to this section when
you study the specific concept later.
Distinguishing between previous consistent statements, hearsay and admissions

and confessions
1. First determine whether the witness testifies solely about her own experiences. If
the witness relates what another person showed or told her, or what she read or
saw of another’s observations or experiences, the evidence will generally be hearsay. It
is, however, important to determine whether evidence in the form of hearsay is
presented as the truth and to prove a fact in dispute. If so, it will generally be hearsay. If
evidence in the form of hearsay is, however, not presented for the truth thereof, but
merely to prove that, for example, a certain statement was previously made, to show the
consistency or credibility of a specific witness, as in the case of previous consistent
statements, it will not be hearsay. Remember that evidence of a previous consistent
statement is not given to prove the truth of that statement, but merely to show that a
particular witness is consistent in her testimony. Such evidence can never serve as
corroboration of the witness’s evidence. Also remember that the witness is available to
be cross-examined and hearsay is therefore not at issue.
2. If the witness in a criminal case tells the court that something was admitted or
confessed by another person (see learning unit 14 for the exact meaning of these
terms), the admissibility of that evidence should only be determined with reference to
the law on admissions (or confessions, depending on the nature of the other person’s
statement). Although evidence about such statements is strictly speaking hearsay
evidence, their admissibility is only determined in terms of the law on admissions and
confessions. This is because the Law of Evidence Amendment Act 45 of 1988 gives
section 217 and section 219 of the Criminal Procedure Act preference when the
admissibility of such statements is determined in criminal proceedings. If the witness in
a civil case tells the court that something was admitted by another person, such
evidence will constitute hearsay and the court must, therefore, decide whether it should
admit the hearsay in the interest of justice after exercising its judicial discretion in this
regard (see section 3(1)(c) of the Law of Evidence Amendment Act).
3. Generally, in all other situations that comply with the definition of hearsay, the law
of hearsay will determine the admissibility (or otherwise) of the evidence.
Learning Unit 11 (Previous Consistent Statements)
Take care to study the requirements for the admissibility of each type of previous
consistent statement carefully. You should be able to mention and explain the meaning
of each requirement with reference to an example. Only mentioning a requirement will
not be enough in the exam. Note there can be two different types of previous consistent
statements:
• a witness can, during testimony in court, repeat a previous statement made by

him that is consistent to his evidence in court on order to corroborate his
evidence in court.
• a witness can, during testimony in court, repeat a previous statement made by
another witness which is consistent with the other witness’s evidence in court
and which serves as self-corroboration for the other witness’s evidence in court.
Also note that there is a huge difference between the admissibility of character evidence
about the complainant in a sexual matter (Learning Unit 10) and the admissibility of
previous consistent statements in the case of a sexual nature.
Note that S v Cornick is a case that you must study according to the guidelines in the
casebook.
Learning Unit 12 (Hearsay Evidence)
As was explained above, the definition of hearsay is important, and you should
understand the difference between hearsay, previous consistent statements and
evidence about admissions and confessions. Note that hearsay can also be in a written
or documentary form.
It is important that you understand that hearsay is exceptionally admissible and that you
know these exceptions. The most important of these exceptions is when the court
exercises a discretion to allow hearsay in terms of section (3)(1)(c) of the Law of
Evidence Amendment Act after considering several factors in this regard. You must be
able to mention and explain the meaning of each factor that a court can consider. Only
mentioning a requirement will not be enough in the exam. It is very important that you
do and understand Activity 12.3 and 12.4 in this regard.
Learning Unit 13 (Opinion Evidence)
The rule that determine the admissibility of opinion evidence is a good example of the
principle that all evidence must be legally relevant to be admissible (see the discussion
at the previous lecture). We can all have an opinion on something, but only the opinion
of some witnesses can assist the court to come to a conclusion about a certain fact.
This will be when such opinion has enough probative value to justify its admission in
court. Put in another way, when it can assist the court. This is also why opinion
evidence is normally presented by expert witnesses. Note, however, that a court may
also allow the opinion of a layperson under certain circumstances.
Please see the discussion at Lecture 4 that deals with the presentation of real evidence.
Expert witnesses are often called to provide insight into a specific type of evidence and
this is a form of opinion evidence.
Take care to study the requirements for the admissibility of expert evidence. You should
be able to mention and explain the meaning of each requirement with reference to an
example. Only mentioning a requirement will not be enough in the exam.
Ensure that you understand the rule in Hollington v Hewthorne (see paragraph 13.5).
Note that the rule states that the finding of an issue in a criminal trial cannot serve as
proof of that issue in an ensuing civil trial, since the finding of the criminal court is mere
opinion. Also note that there is a big difference between the finding of the court (opinion
evidence) and the record of a witness’s testimony in the first trial (hearsay evidence).
The record of the witness’s testimony is written hearsay and the probative value of such
evidence depends upon the credibility of a person that is not present before the civil
court. Obviously, it will not be hearsay where the witness repeats his testimony in
person before the civil court.

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Weekly Lecture/Comment: Lecture 5 (Learning

Units 11, 12 and 13)

Distinguishing between previous consistent statements, hearsay and admissions

Learning Unit 11 (Previous Consistent Statements)

• a witness can, during testimony in court, repeat a previous statement made by

Learning Unit 12 (Hearsay Evidence)

Learning Unit 13 (Opinion Evidence)

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