HEARSAY

A “testimony” or even written evidence which is being offered as an

assertion to show the veracity (truthfulness) of matters stated therein.
Statements made by persons who are not giving evidence are
generally excluded if the purpose of such statements is to prove their
contents as the truth.
A may testify that B told him that C killed D.
Why exclude hearsay?
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.
Subramium v. Public Prosecutor 1956 1 WLR 965
The accused was charged with the unlawful possession of weapons
of war under the laws of Malaysia. His defence was that he was
acting under duress from terrorists who had captured him in one of
the Malaysian jungles. The court ruled that evidence of his
conversation with terrorists was inadmissible unless the terrorists
themselves came to give evidence and the basis of that
inadmissibility was that this was hearsay. The court held that “the
evidence of a statement made to a witness by a person who is not
himself called as a witness may or may not be hearsay. It is
hearsay and inadmissible if the purpose of evidence is to establish
the truth of what is contained in the statements. It is not hearsay
 and therefore admissible when it is sought to establish by the
evidence in question, not the truth of a statement but the fact that it
was said.”
International Tobacco Co. V. United Tobacco Co. 1953 (3) SA
343
The plaintiff company sued the defendant for damages arising
out of malicious false statements that its cigarettes caused illness.
The plaintiff attempted to lead evidence from a commercial
traveller who heard prospective customers saying the cigarettes
caused illness. The defendant then objected on the basis that the
statements were of a hearsay nature. Overruling the objection the
court held that the evidence was admissible to show that rumours
to that effect were circulating and not to prove the truth of what
was said.

Exceptions
There are statutory and common law exceptions. In dealing with
material of a hearsay nature a three legged inquiry is needed.
1. Establish whether the material being laid falls within hearsay.
2. If it is hearsay is it rendered admissible by some common law
exception, if so what are the requirements?
3. If it is not rendered admissible by common law exceptions is it
rendered admissible by statutory law exceptions, if so what are
the requirements?
Reasons for exceptions
1. Necessity (relevant hearsay would be a loss to the court if
rejected altogether).
 2. With certain classes of hearsay there is a high degree of
reliability and the possibility of fabrication is minimal e.g.
spontaneous exclamations uttered in the heat of the moment in
response to an exciting event where there is no premeditation.
Common Law Exceptions
They take the generic form of declarations by deceased persons.
There are a number of scenarios
a. Declarations as to place or general rights.
b. Declarations against interest.
c. Declarations in the course of duty.
d. Dying declarations.
e. Declarations pertaining to pedigree.
f. Declarations concerning one’s will.

Dying Declarations
This relates to cases involving murder or culpable homicide. Oral or
written declarations of a deceased person are admissible in order to
show what caused the death of a declarant provided that the following
requirements are satisfied.
i. That the declarant is dead.
ii. That the declaration refers to the deceased’s death.
iii. That at the time the declaration was made, the deceased was
under a settled, hopeless and definite expectation of death
iv. That the declaration must be a complete representation of the
deceased’s thoughts on the matter. If death intervenes before
a complete declaration, then it becomes inadmissible.
 Waugh v. R 1950 AC 203
Deceased whilst referring to the appellant said, “The man
has an old grudge for me simply because...” then fell into a
coma and died afterwards.
Held, that the statement was incomplete and therefore
inadmissible.
v. That the declarant was a competent witness.
The imminence of death is quite critical. The rationale is necessary –
relevant evidence would otherwise be lost to the court.
The law accepts the spiritual point of view that no person would not
tell the truth on their deathbed.
R v. Woodcock
The accused was charged with murdering his wife, she made a
statement implicating the accused ,she sustained head injuries and
died 48hours later. She remained coherent until her death, but
never expressed any realisation of dying. It was held that the
general principle on which this type of evidence is based is that
these declarations are made in extremity when the party making
them is at the point of death and every hope of living is gone, every
motive to falsehood is silenced and the mind is induced by the most
powerful considerations to speak the truth, a situation so solemn
that in the eyes of the law creates an obligation almost equal to that
which is imposed by oath.
S v. Hine 1910 CPD 371
The accused was charged with the murder of one Dorra by
performing an illegal abortion on her. Two days before Dorra’s
death, a magistrate recorded Dorra’s declarations, “I Dorra, with
the fear of death before me and without hope of recovery make the
following statement, I am going to die, Mrs. Hine is the cause of it, I
want her to go to the black waters.”
The statement was received in evidence because the declarant knew
she was going to die. The court said, “It seems from the authorities
that declarations made by persons under a conviction of impending
death, and who at the time are in actual danger of death are
admissible in evidence.” R v. Abdul 1905 TS 119 summarises the
requirements of dying decl
arations.
- It is not necessary that the person died immediately
- One must have lost all hope of living
R v. Nzobi 1932 WLD 98
Deceased said, “I feel so weak that I don’t think I’ll succeed in
getting well”. Held, that although all the words were pessimistic,
they did not exclude all hope of living.
NB: Dying declarations are admissible whether favourable or
unfavourable.
R v. Pike
Held, that the dying declarations of a child of 4 years was held to be
inadmissible because the child could not properly appreciate the
nature of an oath.

Declaration as to Public/General Rights

This is an oral or written declaration made by a dead person
concerning matters of a public nature. A general right is a right that
affects a class of persons e.g. grazing rights whereas public rights
affect the public as a whole e.g. use of a public road.
 1. It is admissible if made before the dispute arose.
2. The declarant must have been competent to make a declaration.
3. The declarant must be dead.
4. The declaration itself must relate to a dispute over the existence
or non-existence of a public right.
Du Toit v. Lindernburg 1909 TS 527
The boundary of the town lands was proved by evidence that a
deceased resident who had known the beacons which signified the
boundaries for at least half a century had pointed them out to his
son and this evidence was held to be admissible.

Declarations against Interest

This one must be contrary or disadvantageous to the declarant. The
oral or written statement of a person who has since died of a fact he
knew to be of his propriety interest at the time the declaration was
made is admissible as evidence of that fact provided that the declarant
had personal knowledge of that fact. The rationale is that nobody in
their right senses would make a statement contrary to their interest
unless it is true e.g. admitting paternity, acknowledging a debt, receipt
of money, etc.

1. The declarant must be dead.

2. Must have known at the time he made his statement that it is
against his interest.
3. The declarant must be a competent witness.
Williams v. Eaglestine 1961 (2) SA 631
Court admitted statement of a passenger who had fallen off a bus
and died and which he blamed the fault on himself and completely
exonerated the driver.
Ward v. Pitt [1913] 2 KB 130
Court of appeal held that an acknowledgement by the deceased that
he was responsible for a woman’s pregnancy coupled with a
promise to marry was not necessarily against interest particularly in
a working situation where the wife is expected to prop up the
husband in their joined efforts. The other reason is that a
declaration by a man that he is the father of a woman’s pregnancy
is not something within his definite knowledge.
Tucker v. Old Berry [1912] 2 KB 317
Involved a claim for workman’s compensation, brought by
dependent of a workman who was dying of blood poisoning because
of injury to his thumb. It was held that the statement by the
deceased that the injury was due to other causes was inadmissible as
he was unaware at the time that it was contrary to his interest
because he did not know about the possibility of making a claim
under legislation of workman’s compensation.

Declaration In The Course Of Duty

Involves statements made by somebody who has since died that were
recorded contemporaneously with the occurrence of an event at the
time when the motive of misrepresentation has been excluded e.g. a
nurse who completes a patient’s chart.
1. Declarant must be dead.
2. Must be a duty by the declarant to record or report.
 3. Duty must have related to acts by the declarant in his official
capacity e.g. as an employee.
4. The recording must have been done contemporaneously with the
act itself, for accuracy to be ensured.
There must be a threat of sanctions that if the recording is due
inaccurately the declarant would have been subject to some
disciplinary action e.g. dismissal or demotion.
Price v. Torrington
Entries made by deceased delivery man in certain records were held
inadmissible to prove a beer delivery which was the subject of action.
Norlan v. Bernad 1908 TS 114
Entries made by a deceased farm manager in his diary in the course
of duty were admissible that strange cattle had made an appearance
at the farm.;;;;;;;;;;;;;;;;;;;

Pedigree Declaration
Relates to a person’s ancestry. They are admissible both in civil and
criminal cases if the issue relates to somebody’s family tree. The
statement may be written or oral.
1. Must relate to the pedigree of the person under discussion.
2. Declarant must be a blood relation or the spouse of a blood
relation to the person whose ancestral pedigree is under question
e.g. found in family literature, inscriptions on tombstones or
even condolences messages.
Ex Parte Lottering 1936 TPD 29
An application was made to the registrar of births and deaths to issue
a birth certificate and register the birth of the applicant. The
applicant’s case depended on an entry relating to his birth in his
mother’s bible. The courts refused to accept the birth’s entry since it
had nothing to do with the pedigree. The court said, “According to
the law of evidence unless the matter of pedigree be in debate the
entry in the family bible is not admissible. In this case no question of
decent or legitimacy had been raised.”

Declarations by Testator Concerning their Wills

This is part of res gestae i.e. part of the story. Whilst most rules of
evidence are exclusionary this one is inclusionary. Under this concept
evidence may be admitted although it may infringe the rules against
hearsay, opinion and similar facts evidence. It has been criticised for
lack of specifity part of the transactions means that the issue is much
related to the matter under discussion.
The safeguards are spontaneity and contemporenity. Most common
examples of res gestae involve spontaneous exclamations. These are
excited exclamations made by people when they are in the thick of
things, when fabrication is highly unlikely.
The chief justification behind the res gestae doctrine is the guarantee
by the fact that the event to which it relates is an excited one that the
utterance is a natural reaction evoked by intense participation and
nervous reaction that it is unlikely to be false.
R v. Tuge 1966 (4) SA 565
The court said that there must be an occurrence which could produce
nervous excitement or stress and the statement must be made while
the stress was still operative upon the speaker that his reflective
powers must be assumed to have been in suspension.
The statement must not amount to reconstruction of past events. The
event must be unusual or starkly extra-ordinary or dramatic as to
dominate the mind of the victim.
R v. Rutten [1971] 3 ALL ER 801
Accused’s wife telephoned the operator and said in a ‘hysterical
voice’, “Get me the police please”. Moments later she was shot dead.
Court held that although the statement was hearsay, since it implied
when taken with the rest of the evidence that the accused was
attacking the deceased, the statement made was part of res gestae
because of the nervous stress under which the wife was speaking.
R v. Beddingfield 1879
Accused was charged with the murder of a woman by cutting her
throat. His defence was that she had committed suicide. Apparently
the deceased had emerged by the room in which Beddingfield had
found her with her throat cut and had immediately cried, “Look at
what Beddingfield has done to me”. The question was whether or
not this was part of res gestae. (It was res gestae).

Statements which accompany and explain a relevant fact

Related to but not necessarily res gestae. Statements made by
someone during an act relevant to the issue are admissible to explain
the act even though the speaker does not give evidence and therefore
technically hearsay.
Lensen v. R 1906 TS 154
The accused was charged with keeping a gaming house. Police
witnesses who kept watch upon the house were allowed to give
evidence of what they heard people say as they entered or left the
premises. These statements were taken as part of the res gestae in
that they related to the goings on in the house so they were
statements which accompanied and explained a relevant act.
Statement must be made by the actor and more or less
contemporaneous with the act.
Teper v. R 1952 AC 480
The accused was charged with arson of a shop belonging to his wife.
To identify the accused as the arsonist evidence was given by a police
constable that he heard an unidentified woman shouting, “Your place
is burning and you are leaving?” and that he then saw a few metres
away a car in which there was a man resembling the accused. This
was half an hour after the event. Declining to treat the evidence as res
gestae the court said that to be admissible it is essential that the
words sort to be proved by hearsay evidence should, if not absolutely
contemporaneous with the action or event, at least so clearly
associated with it in time, place and circumstance that they are part
of the thing being done.
Statutory Exceptions
Section 27 of the Civil Evidence Act [8:01]

(1) Subject to this section evidence of a statement made by any

person, whether orally or in writing or otherwise, shall be admissible
in civil proceedings as evidence of any fact mentioned or disclosed in
the statement, if direct oral evidence by that person of that fact would
be admissible in those proceedings.
(2) Evidence of a statement referred to in subsection (1) shall be
admissible even where the person who made the statement is called as
a witness in the proceedings concerned.
(3) If a statement referred to in subsection (1)—
(a) Is not contained in a document, no evidence of the statement shall
be admissible unless it is given by a person, who saw, heard or
otherwise perceived the statement being made;
(b) Is contained in a document, no evidence of the statement shall be
admissible except the document itself, or a copy of the document if
such copy is admissible in terms of this Act or any other law.
(4) In estimating the weight, if any, to be given to evidence of a
statement that has been admitted in terms of subsection (1), the court
shall have regard to all the circumstances affecting its accuracy or
otherwise and, in particular, to—
(a) Whether or not the statement was made at a time when the facts
contained in it were or may reasonably be supposed to have been
fresh in the mind of the person who made the statement; and
(b) Whether or not the person who made the statement had any
incentive, or might have been affected by the circumstances, to
conceal or misrepresent any fact.
(5) This section shall not be construed as limiting any provision of
this Act or any other law providing for the admissibility of statements
made by persons who are not called as witnesses to testify to such
statements.

Section 253 of the Criminal Procedure and Evidence Act [9:07]

(1) No evidence which is of the nature of hearsay evidence shall be

admissible in any case in which such evidence would be inadmissible
in any similar case depending in the Supreme Court of Judicature in
England.
(2) When evidence of a statement, oral or written, made in the
ordinary course of duty, contemporaneously with the facts stated and
without motive to misrepresent, would be admissible in the Supreme
Court of Judicature in England if the person who made the statement
were dead, such evidence shall be admissible in any criminal
proceedings if the person who made the statement is dead or unfit by
reason of his bodily or mental condition to attend as a witness or
cannot with reasonable diligence be identified or found or brought
before the court.
[Subsection amended by section 28 of Act 9 of 2006.]
(3) The court may, in deciding whether or not the person in question
—
(a) is unfit to attend as a witness, act on a certificate purporting to be
a certificate of a medical practitioner;
(b) is dead or cannot with reasonable diligence be identified or found
or brought before the court, act on evidence submitted by way of
affidavit.

Public Documents
They are normally admitted as an exception to the hearsay rule
because of their reliability and other safeguards, like sanctions and
disciplinary measures e.g. maps and birth certificates. (Sections 12, 13
and14 of the Civil Evidence Act).
1. Documents must have been made by a public official or officer
so a register or document made or kept by a private individual
does not qualify.
R v. Corns 1931 TPD 47
The court noted that a baptism certificate is not admissible to
prove the date of birth which it records because it is a
document issued by a private organisation.
2. The document must be preserved for public use in a public way.
3. Must be open to public inspection.
4. To ensure reliability in courts, entry must be made promptly
after the event it purports to record.
5. Entry must be made by a person with the duty to record and to
satisfy himself as to the truth of recorded facts.
6. There must be sanctions or disciplinary measures in the event of
erroneous recordings.
See also the similar case of R v Orrifice ndeye baptism setifiket futi
ADMISSIONS AND CONFESSIONS
It’s a standalone topic that is related to hearsay

 Admissions – prejudicial statement made by a party to a civil

suit.

 Confessions – The equivalent of an admission in a criminal

action. In a criminal court a confession would amount to an
unequivocal plea that one is guilty.

Admissions
There are formal and informal admissions

 Formal – These are statements made expressly for purposes of a

trial in pleadings in order to save on time. These are non-
contentious issues.

 Informal – These are out of court admissions and these cannot

be admitted in court.
A statement can be an admission no matter how, when and to whom it
was made.

Rumping v. DPP 1964 AC 144

A seaman wrote a letter to his wife confessing to the murder of a
colleague. This letter was intercepted and brought to the attention of
the police and it was held to be a confession.
An admission can also be made by conduct.
Van der Berg v. Elizabeth 1884 (3) SC 336
An attempt by a defendant in a seduction case to bribe a police officer
to persuade the girl’s father to withdraw the action was received as
an admission of liability on the part of the defendant because it
tended to show consciousness on his part of the unsoundness of his
case.
R v. C 1949 (2) SA 438
An accused on a sodomy charge had attempted to commit suicide
before trial and also ran away at the approach of the police. This
was deemed to be an admission.
Usually silence does not amount to an admission except in an
exceptional and extra-ordinary situation.
Jacobs v. Henning 1927 TPD 324
This was an action for seduction damages. Plaintiff’s father
confronted the defendant and accused him of having ravished and
mounted his daughter resulting in a pregnancy at a certain party. The
defendant made no reply and merely lowered his head presumably in
shame. The court said, “In my view, an innocent man, however
unassertive or meek or mild mannered he may be will deny the charge
as soon as the plaintiff’s father made it.” It was therefore held to be
an admission.

 Vicarious admissions – the admissions of one person may be

binding on another because there is privity of interest between
the two e.g. the employer – employee relationship, husband –
wife and partnerships.
S v. Goncalves 1972 (1) SA 243
The appellant had been charged with and convicted of negligent
driving. From the complainant’s evidence it appeared that as he
approached a robot controlled intersection from north to south
the light was green. When he was half way across the intersection
he saw the appellant’s car coming from east to west straight at
him. A collision occurred and after the collision the complainant
spoke to the appellant. As the appellant was a foreigner his
 daughter acted as an interpreter. According to the complainant
the appellant had admitted to him that he had gone through the
robot red. He had also made the same admission to a constable
who had arrived at the scene and to one P who had not been
called by the state. On appeal it was held that, as the appellant
had authorised his daughter to act as interpreter on his behalf
that she was his agent and any admissions made by her whilst
interpreting were admissible against him. It was also held,
however, that the state had not proved that the admission alleged
had been made. The appeal was accordingly allowed and
conviction and sentence were set aside.

Confessions
This is dealt with in sections 112 and 113 of the Criminal Procedure
and Evidence Act.
A confession is only admissible if made freely and voluntarily
without undue pressure on the confessor. The rationale is to reduce
the risk of prejudice against the accused. It makes sure the police do
not use improper tactics to secure a confession. This policy
consideration creates a fundamental principle in our law.
S v. Slater & Ors 1983 (2) ZLR 144
In July 1882 saboteurs destroyed or damaged a number of aircraft,
buildings and other equipment. The saboteurs were never arrested
and their identities were never established. The 6 accused were at
the time serving members of the air force, Slater being Air Vice-
Marshal. They were all arrested after the sabotage and charged
under section 50 of the Law and Order (Maintenance) Act, the
allegations being that they aided, abetted, incited or procured the
sabotage that took place. There was no evidence at all that
implicated any of the accused and the evidence which was led could
no more than supply corroboration to certain aspects of warned and
cautioned statements made by the accused. The state case stood or
fell on the statements. The statements which had been confirmed by
magistrates in various centres around Zimbabwe were produced by
the prosecutor. The defence attacked the statements on two bases,
firstly, that the confirmation proceedings were themselves invalid
because the accused had all been denied access to their lawyers, in
contravention of both the Criminal Procedure and Evidence Act and
the Constitution; and secondly that the statements were in any event
inadmissible because of undue influence that had induced the
accused to make them. It was found that the accused sought access
to their lawyers and were denied such access whilst their lawyers’
efforts to access them were frustrated by the police who moved the
accused from place to place. During confirmation proceedings two
of the accused said they had been made to understand that they
would be released if they made the statements. In respect to all the
accused there was maltreatment.
It was held that, as far as confirmation proceedings were concerned,
sections 101 and 105C of the Criminal Procedure and Evidence Act
made clear the right to access to an accused person at a
confirmation proceeding by his legal practitioner.
Held further, that denial of access prior to and during confirmation
proceedings is unconstitutional and affects the individual rights of
the accused. To hold that an accused person should himself ask the
presiding magistrate for access would be to hold that an accused
person, unaware of his constitutional right, is deprived of that right
because he is unaware of it.
Held further, that in respect of the accused whose answers to the
magistrate implied that they had been offered an inducement to
confess, the magistrate should have questioned the accused to
clarify what the accused had said and whether they had in fact been
improperly induced. Failure to do so made the confirmation
improper and invalid.
Held further, that once the confirmation proceedings were ruled to
be invalid, the onus with regard to the admissibility of the
statements shifted to the prosecution which had to establish their
admissibility beyond reasonable doubt.
Held further, that the obtaining of confessions from suspects is a
necessary step in judicial process and not all inquiries made of the
suspect by the police are improper. Since effectively criminal justice
begins at the point when the police interrogate a person in their
custody attempts by the police to obtain confessions must be within
the limits laid down by the law.
Held further, that in any event maltreatment was such treatment
which would make the statement inadmissible.
Held further, that even if the confirmation proceedings had been
valid, and the onus had been on the accused to show that the
statements were not freely made and voluntary, they had discharged
that onus.
All the accused were found not guilty and acquitted.
The Miranda Principles
English judges made the following rules
1. That police should not question suspects without cautioning
them that they were not obliged to answer.
2. They should not question suspects in custody at all.
R v. Murambiwa 1951 SR 271
The accused was suspected of murdering his daughter. He was kept in
custody for 2 days, he was persistently questioned and after the final
round of interrogation which lasted 3 hours, he made statement to the
police which amounted to a confession. The court refused to confirm
the statement.
R v. Michael & Martin 1962 R&N 374
The accused was convicted by a magistrate’s court of theft of a large
quantity of goods belonging to his employer. The conviction depended
in large on a confession by the accused made to his manager.
According to evidence, the accused had been promised reinstatement
after serving in prison and that while he was in prison his family
would be taken care of. The court held that this was improper
inducement.
NB: One anomalous evidential situation in Zimbabwe pertains to real
evidence that has been discovered as a result of an inadmissible
confession. Such evidence is admissible in our law. (Section 258
Criminal Procedure and Evidence Act)