Discuss why hearsay evidence is generally inadmissible in court.

Give examples where

hearsay evidence can be admissible in court.

Hearsay 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, for example A
may testify that B told him that C killed D. The general rule is that hearsay evidence is not
admissible to prove the truth of the matters stated. The rationale for excluding hearsay
evidence relates to the following suspected dangers:

To begin, hearsay is inadmissible because the best evidence at trial comes from the original
witness, who can explain not only what they saw or heard, but also answer any questions
posed to them about it. This is because listening to evidence that the witness did not hear or
perceive personally will result in fabrication due to the repetition of remarks, which is likely
to mislead the court. In the case of Regina v Myers, Lord Bridge cited a comment made by
Lord Normand in the English decision of Tepper v The Queen, in which he claimed that:

“The rule against the admission of hearsay evidence is fundamental. It is not the best
evidence, and it is not delivered on oath. The truthfulness and accuracy of the person
whose words are spoken to by another witness cannot be tested by cross-examination,
and the light which his demeanour would throw on his testimony is lost”.

Hence given such a standpoint it is clearly to note that hearsay evidence is inherently
untrustworthy and it is potentially associated with possibilities of deception, in exactitude and
incorrectness therefore inadmissible (Marara).

Hearsay evidence is excluded since the statement was not made under oath by the individual
who made the assertion. In our legal system, the courts place a high value on oaths, which
means that anytime a witness is called to testify, he or she must swear that what they are
about to say is the truth and nothing but the truth, and this has a strong religious component.
It is possible that the original originator of the phrase was kidding, lying, or making up
stories.

Additionally, hearsay evidence is rejected because the individual who made the remark was
not cross-examined. This means that a witness presenting evidence in court may provide
biased information. The issue of cross-examination is critical. The goal is to demonstrate
inconsistency in the evidence so that little weight may be ascribed. This undermines the
cogency of the evidence.

1
A notable example is Subramaniam v PP64, in which the accused was prosecuted with
unlawful possession of weapons of war under Malaysian law during the British rule. His
explanation was that he acted under duress from terrorists who had apprehended him in the
Malaysian bush. The trial court determined that evidence of his conversations with the
terrorist was inadmissible unless the terrorists themselves testified. This means that the court
cannot admit evidence if there is no cross-examination of the person who made the statement.
This is backed by Wigmore, who defined cross-examination as the best legal tool ever
devised for discovering truth.

Inherently, hearsay is second-hand evidence which, by definition, contravenes the now

withering best evidence rule. If the hearsay is a narration of past facts, as opposed to a
spontaneous statement, it admits of possible fabrication. In a criminal or even a civil action,
parties have the general right to confront the declarant of potentially adverse evidence.

However it is prudent to note that there are exceptions where hearsay can be admitted. There
are statutory and common law exceptions for hearsay evidence. This is because sometimes it
is necessary for the courts to admit such evidence and rejecting it would be a loss to the court
and again there are classes of hearsay whereby there is a high degree of reliability and the
possibility of fabrication is very slim. Hearsay evidence can be admitted if it is rendered
admissible by some common law exceptions, which include:

 dying declarations
 declarations as to public or general rights,
 declarations against interest,
 declarations in the course of duty ,
 declarations pertaining to pedigree and
 declarations concerning one‘s will.

Dying Declarations

This is described as a statement made by a declarant while believing that his death was
imminent, regarding the cause or circumstances of his approaching death. The "dying
declaration" exception to the hearsay rule is founded on the notion that when someone
believe they are about to die, they have no reason to utter a lie. McCormick argues that there
is a widespread idea that when a person is faced with imminent death, they are more likely to

2
tell the truth, ensuring the required trustworthiness. These declarations are admissible if the
following conditions are met.

 The declaration refers to the deceased’s death.

 At the time the declaration was made, the deceased was under a settled, hopeless and
definite expectation of death.
 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. As in the case of Waugh v. R 1950 AC 203: the 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. It was held, that the statement was
incomplete and therefore inadmissible.
 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. In the case of R v. Woodcock, 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.

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 such as grazing rights whereas
public rights affect the public as a whole for example 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.

3
In the case if 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.

There are many exceptions to the rule against hearsay and the relevant textbooks should be
consulted if there is a dispute as to whether the case falls within a particular exception. The
rule against hearsay will also not apply to statements which amount to a confession or
admission. Accordingly, if Rutendo confessed her guilt to Cosmus, he would be able to give
evidence of this confession, even though he did not see her do the hit and run.

However, in spite of its potential problems, hearsay evidence is permissible under certain
circumstances. Hearsay is necessary since it is sometimes difficult to obtain direct evidence
about a certain fact. If hearsay did not exist, it would therefore, be difficult to prove facts and
there would be serious miscarriage of justice. Hearsay evidence can, therefore, not be
discarded completely because there is always some “grain of truth” present in it.

Furthermore, note should be taken that hearsay rule applies not only to verbal statements, but
also the contents of documents and non-verbal communication. There are also several
exceptions to the general rule. A statement, for example, which is made at the same time as
the central event, will not be subject to the rule. For example if Rudo had heard the victim
yell ‘no Tino, please don’t kill me’ while they were being stabbed, Rumbi would be able to
give evidence of this fact.

From a labour perspective, in SA Catering and Allied Workers’ Union v OK Bazaars Ltd
(1992), Arbitrator Cameron decided that hearsay evidence could be a means by which proper
exploration of potential sources of industrial conflict could be achieved.

While the laws governing hearsay are quite severe in conventional courts of law, they do not
apply in the Labour Court, arbitration proceedings, or business disciplinary hearings. Section
90A (1) of the Labour Act [Chapter 28:01] states that "the Labour Court shall not be bound
by the strict rules of evidence, and the court may ascertain any relevant fact by any means
which the presiding officer thinks fit, and which is not unfair or unjust to either party".

Part III of Statutory Instrument 59 of 2006 (the Labour Court Rules), Rule 12 (2) on
informality of proceedings states that "the court shall, so far as appears to be appropriate,
avoid formality in its proceedings and may, where circumstances warrant it, depart from any

4
enactment or rule of law relating to the admissibility of evidence in proceedings before courts
of law generally." Rule 26 of the same instrument allows a Labour Court President to deviate
from the regulations for the sake of justice, fairness, expediency, and equity.

Zimbabwe's Labour Court has handled instances involving hearsay evidence. In the 2008
case of Ephraim Mtake v Zimbabwe Revenue Authority, presided over by President L Hove,
hearsay evidence was permitted into the hearings. In her decision, she alluded to the case of
Chataira v Zesa (2000), which also involved hearsay evidence.

The Civil Evidence Act provides exceptions to the rule against hearsay, including public
documents. They are typically recognized as an exception to the hearsay rule because to their
dependability and other safeguards, such as sanctions and disciplinary proceedings for maps
and birth certificates. (See Sections 12, 13, and 14 of the Civil Evidence Act). In the case of
R v. Corns 1931 TPD 47, the court stated that a baptism certificate is not admissible to verify
the date of birth that it records because it is a document issued by a private organization.
Conditions for acceptance of public documents are:

 Documents must have been made by a public official or officer

 The document must be preserved for public use in a public way.
 Must be open to public inspection.
 To ensure reliability in courts, entry must be made promptly after the event it purports
to record.
 Entry must be made by a person with the duty to record and to satisfy himself as to
the truth of recorded facts.
 There must be sanctions or disciplinary measures in the event of erroneous
recordings.

Reference

5
IPMZ Module Law of Evidence

IPMZ Module Conciliation and Arbitrations