HEARSAY

Outcomes
 After completion of this study unity you should be able to:
▪ Describe and illustrate hearsay evidence,
▪ Identify hearsay evidence in factual setting,
▪ Indicate what the golden rule is regarding the admissibility of hearsay
evidence and what is the rationale for the rule,
▪ Illustrate the working of the rule by means of examples and case law,
▪ Apply the rule in factual situations,
▪ Indicate by means of examples and jurisprudence what you understand
by hearsay by implication; you must also be able to indicate whether or
not hear say by implication is prohibited by the hearsay rule, and
▪ Indicate by means of examples and jurisprudence under what
circumstances hearsay evidence will be admissible (exceptions) and
what the rationale for such admissibility is: You should also be able to
indicate what the requirements for admissibility are (if applicable).

Introduction
S253 – 255 of CPEA provides for hearsay evidence.
 By definition, hearsay evidence may be defined as:
▪ written or oral evidence of which the probative value depends upon the
credibility of someone other than the person giving such evidence.
▪ is testimony not of what the witness himself saw, heard or otherwise observed,
but what he heard others say about the matter under investigation.
▪ In Estate De Wet v De Wet, hearsay evidence was defined as evidence of a
statement made by a person not called as witness which is tendered for the
purposes of proving the truth of what is contained in the statement.

 Eg: A goes to B says, ‘I saw C stabbing D with a cane knife and killing him on
the spot.’
▪ A is the eye witness,
▪ B is the hearsay witness, i.e., (first hearsay witness)
▪ C is the accused,

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 ▪ D is the victim – the deceased.

 Now B is before the court and wants to give evidence to the effect that: A told
her that he saw C stabbing D.

 NB: Statements made by individuals who are not giving evidence are generally
excluded if the purpose of such statements is to prove their contents as the
truth.

The General rule

▪ The general rule is that hearsay evidence is inadmissible because the person
against who the evidence is used cannot cross-examine the person who made
the statement, and the court is not able to judge the reliability of the evidence.
▪ This is the rationale for the exclusion of hearsay evidence.

Why Exclude Hearsay

1. There is a huge potential for fabrication on account of repeating statements so
many times.
2. There is an absence of cross-examination of the person who made the statement.
3. The oath has not been taken. The out-of-court maker of the statement is not under
oath and so can lie.
4. There is a possibility that the out-of-court maker of the statement was speaking in
jest or wanted to mislead. In 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:

[T]he 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

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 establish by the evidence in question, not the truth of a statement but the fact
that it was said.

In International Tobacco Co v United Tobacco Co 1953 (3) SA 343 the plaintiff

company sued the defendant for damages arising out of malicious false statemen ts
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. In 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.

Exception to the General Rule

 Hearsay evidence will, however, be admissible under certain circumstances.
▪ There are statutory and common law exceptions to the rule on hearsay.

 The exceptions include;

(i) statements made in the course of duty, (is provided in s253 of CPEA),
The provision applies where the person who made the statement is
dead or unfit to give evidence due to bodily injury or mental condition
or he cannot, with reasonable diligence, be identified or found or
brought to court and the person made the statement in the ordinary
course of duty, contemporaneously with the facts stated and without
motive to misrepresent.
(ii) (ii) dying declarations and
(iii) (iii) statements made in the presence of accused.

In dealing with material of a hearsay nature a three-legged inquiry is needed:

(i) Establish whether the material being laid falls within hearsay.
(ii) If it is hearsay is it rendered admissible by some common law exception,
and if so, what are the requirements?
(iii) If it is not rendered admissible by common law exceptions is it rendered
admissible by statutory law exceptions, and if so, what are the
requirements?
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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; for example, spontaneous
exclamations uttered in the heat of the moment in response to an exciting event
where there is no premeditation.

 Common Law Exceptions

▪ These take the generic form of declarations by deceased persons. There are
a number of possibilities when they may be made:
(i) Declarations as to public or general rights.
(ii) Declarations against interest.
(iii) Declarations in the course of duty.
(iv) Dyin g d e cla ra t io n s.
(v) Declarations pertaining to pedigree
(vi) Declarations concerning one's will.

i. Declaration as to Public or General Rights

 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 for example,
grazing rights, whereas public rights affect the public as a whole for
example, the use of a public road:
(a) It is admissible if made before the dispute arose.
(b) The declarant must have been competent to make a declaration.
(c) The declarant must be dead.
(d) The declaration itself must relate to a dispute over the existence or non-
existence of a public right.

 In Du Tait v Lindernburg 1909 TS 527

▪ the boundary of town lands was proved for by evidence that a deceased
resident who had known the beacons that signified the boundaries for
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 at least half a century had pointed them out to his son and this evidence
was held to be admissible.

(ii) Declarations Against Interest

▪ This must be contrary to 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 rid receiving money:
(i) the declarant must be dead.
(ii) the declarant must have known at the time he made his
statement that it was against his interest.
(iii) the declarant must be a competent witness.

▪ In Williams v Eaglestine 1961 (2) SA 631 the court admitted the statement of a
passenger who had fallen off a bus and died in which he blamed the fault on
himself and completely exonerated the driver.

▪ In Word v Pitt (1913) 2 KB 130

▪ the 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 her 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

▪ This case involved a claim for workman's compensation brought by the
dependent of a workman who was dying of blood poisoning because of injury
to his thumb.

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 ▪ 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.

(iii) Declaration in the Course of Duty

▪ This declaration 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, for example, a nurse who completes a patient's chart:
(i) The declarant must be dead.
(ii) The declaration must be a duty by the declarant to
record or report.
(iii) The duty must have related to acts by the declarant in his
official capacity, for example, as an employee.
(iv) The recording must have been done contemporaneously
with the act itself for accuracy to be ensured.
(v) There must be a threat of sanctions that if the recording
was done inaccurately the declarant would have been
subject to some disciplinary action, for example,
dismissal or demotion. In Price v Earl of Torrington
(1703) Holt KB 300, 2 Ld Raym 873, 1 Salk 285 entries
made by a deceased delivery man in certain records were
held inadmissible to prove a beer delivery that was the
subject of action.

In Norlan v Bernaar 1908 TS 114

▪ The 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.

(iv) 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:
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 (a) The declarant is dead.
(b) The declaration refers to the deceased's death.
(c) At the time the declaration was made, the deceased
was under a settled, hopeless and definite expectation
of death.
(d) 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.

▪ In Waugh v R (1950) AC 203, the deceased when 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.

 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.
▪ In R v Woodcock (1789) 1 Leach 500, 186 ER 352 the court 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.

▪ In 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, 1 want her to go
to the black waters'.
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 ▪ The statement was received in evidence because the declarant knew she
was going to die. The court held:
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

▪ summarized the requirements of dying declarations:
(i) It is not necessary that the person died immediately
(ii) One must have lost all hope of living

In R v Nzobi 1932 WLD 98

▪ the deceased said, ‘feel so weak that I don't think succeed in getting well'. The court
held that although all the words were pessimistic, they did not exclude all hope of
living.

▪ Dying declarations are admissible whether favourable or unfavourable.

▪ In R v Pike (1829) 3 C & P 598, 172 ER 562; it was held that the dying declarations
of a child aged 4 years was inadmissible because the child could not properly
appreciate the nature of an oath.

(v) Declaration Pertaining Pedigree

▪ Declaration concerning pedigree refers to a declaration made by a person
who has subsequently died, or to be inferred from family conduct
concerning a disputed pedigree of a blood relation or the spouse of a blood
relation. The declaration pertains to a disputed pedigree of a blood relation
or the spouse of a blood relation.
▪ the declaration must have been made before the dispute in which it is
offered as evidence had arisen.
▪ Such a declaration (concerning pedigree) has traditionally been admissible
at common law as an exception to the hearsay rule.

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 ❖ Pedigree - the word "pedigree" includes relationship, family genealogy, birth,
marriage, death, the dates when and the places where these facts occurred, the
names of the relatives and facts of family history intimately connected with
pedigree.

▪ The declarations pertaining pedigree are admissible both in civil and criminal cases
if the issue relates to somebody's family tree.
▪ The statement may be written or oral, and;
(i) Must relate to the pedigree of the person under discussion.
(ii) The declarant must be a blood relation or the spouse of a blood relation to
the person whose ancestral pedigree is under question, for example,
found in family literature, inscriptions on tombstones or even condolence
messages.

 5 Requisites for applicability of this declaration:

i) Declarant is dead or unable to testify;
ii) Necessity that pedigree be in issue;
iii) Declarant must be a relative of the person whose pedigree is in question;
iv) Declaration must be made before the controversy occurred; and
vi) The relationship between the declarant and the person whose pedigree is in
question must be shown by evidence other than such act or declaration

In 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:
o According to the law of evidence unless the matter of pedigree is on
debate, the entry in the family Bible is not admissible.
o In this case no question of decency or legitimacy had been raised.
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(vi) Declarations by Testator Concerning Their Will
 This is part of res gestae, that is, part of the story.
▪ While 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 criticized for lack of specificity.
▪ The safeguards are spontaneity and contemporaneity.
▪ 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 that
the event to which it relates is an excited one in that the utterance is natural
reaction evoked by intense participation and nervous reaction which it is
unlikely to be false.

In R v Tuge 1966 (4) SA 565

▪ The court held: there must be an occurrence that could produce nervous excitement
or stress and the statement must be made while the stress was still operative upon
the speaker such that his reflective powers must be assumed to have been in
suspension.
▪ The statement must not amount to a reconstruction of past events.
▪ The event must be unusual or so starkly extraordinary or dramatic as to dominate
the mind of the victim.

In R v Rutter (1971) 3 ALL ER 801

▪ the accused's wife telephoned the operator and said in a hysterical voice, 'Get me the
police please'.
▪ Moments later she was shot dead.
▪ The 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.

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In R v Bedingfield (1879) 14 Cox CC 341
▪ the 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 from the room with her throat cut and had
immediately cried, 'Look at what Bedingfield 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

▪ This is 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.

In 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
state of affairs at the house, and so were the statements which accompanied
and explained a relevant act.
▪ Held that the statement must be made by the actor and must be more or less
contemporaneous with the act.

In 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 held: that to be
admissible, it is essential that the words sought to be proved by hearsay
evidence should, if not absolutely contemporaneous with the action or event, at

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 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] provides that:
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):
(i) 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.
(ii) 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:
(i) 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.
(ii) 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. In s253 of the Criminal Procedure and
Evidence Act 19:071:

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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 s28 of Act 9 of 2006.)
3. The court may, in deciding whether or not the person in question:
(i) is unfit to attend as a witness, act on a certificate purporting to be a
certificate of a medical practitioner.
(ii) 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
▪ These are normally admitted as an exception to the hearsay rule because
of their reliability and other safeguards, like sanctions and disciplinary
measures, for example, maps and birth certificates, (See s12, s13 and s14 of
the Civil Evidence Act):
1. The document 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.
o In R v Corns 1931 TPD 47
o the court noted that a baptism certificate is not admissible to
prove the date of birth that it records because it is a
document issued by a private organization.
2. The document must be preserved for public use in a public way.
3. The document must be open to public inspection.
4. To ensure reliability in courts, the entry must be made promptly after the
event it purports to record.

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5. The 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.

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