PRIVILEGE

QSN 2 (a) JUNE 2009

Describe the principle of professional privilege. Are there any circumstances in which
communications between lawyers and clients may be disclosed to the court?
[5 marks]

Professional privilege protects from disclosure communications between a legal adviser

and his client which are made in confidence for the purpose of enabling the client to
obtain legal advice. It applies to both civil and criminal proceedings. The privilege exists
in order to promote the utmost freedom of disclosure by persons who need to obtain legal
advice. In S v Safatsa the court held that the privilege extends beyond communications
made for the purpose of litigation to all communications made for the purpose of giving
or receiving advice.
The requirements for the existence of the privilege are;
- The adviser should have been acting in a professional capacity.
- The communication must be made in confidence.
- The communication must be made for the purpose of obtaining legal advice or for
the purpose of pending litigation (and not to further a criminal purpose).
- The client must claim the privilege.
*Section 8 of the Civil Evidence Act and section 294 of the Criminal Procedure and
Evidence Actgovern professional privilege.

Communications between lawyers and clients may be disclosed in the following

instances;
- If the communication is sought to further a criminal purpose, see proviso to s 294
of the CPEA / s 8 (5) (a) of CEA
- If the client consents to disclosure or waives the privilege- s 8 (5) (b) of CEA
- If after the death of the client, if the disclosure is relevant to any question
concerning the intention of the client or his legal competence – s 8 (5) (c) of CEA

QSN 4 NOV 2014

Yup Limited("Yup") was the subject of a tax audit by the Zimbabwe Revenue Authority
(ZIMRA). In the course of the audit ZIMRA officials requested copies of certain invoices in
respect of which substantial payments had been made to Yup's lawyers. Yup gave ZIMRA
copies of the invoices but had redacted portions of the invoices claiming that these portions
were subject to legal professional privilege. Their internal legal advisor argued that certain
of the contents of the disputed invoices were privileged to the extent that they set out the
nature of the advice sought by Yup from their lawyers and/or the advice given by those
attorneys and identified documents on the basis of which one could infer the advice sought
from and given by the lawyers. ZIMRA insisted on copies that were not redacted and argued
that invoices were not issued for purposes of obtaining legal advice but to state the services
rendered and the amount charged for such services. ZIMRA further argued that the mere
identification in the invoice of the work done and the documents looked by the lawyers in
the invoices would not by itself convey the nature or substance of any advice that might have
been sought or received. ZIMRA argued therefore that the redacted portions of the invoices
were not subject to legal professional advice.

Yup has now approached you for advice on whether the ambit of the legal professional
privilege extend to the redacted parts of an otherwise unprivileged document. Yup does not
want ZIMRA to know the information that it blacked out on the invoices and is prepared to
go to court for this.

With reference to case law and/or relevant statutory provisions, outline the requirements
for legal profession privilege and advise Yup Limited on whether they their argument based
on legal professional privilege is sustainable. [20]

Before legal professional privilege can be claimed the communication in question must
have been made to a legal adviser acting in a professional capacity, in confidence, for the
purpose of pending litigation or for the purpose of obtaining professional advice. The four
requirements for the existence of legal professional privilege will now be discussed in
detail.

Acting in professional capacity – Whether an adviser is acting in her professional

capacity will be a question of fact in each case. Where a fee has been paid a strong
inference that the adviser was acting in professional capacity will be drawn, absence of
payment does not necessarily mean that this requirement has not been fulfilled. No
distinction is drawn between a salaried legal officer and an attorney in private practice,
for the purposes of the legal professional privilege. This requirement was emphasised in
Van der Heever v Die Meester.

The communication must be made in confidence –whether a communication was made

in confidence is a matter of fact. Confidentiality is inferred where it is proved that a legal
adviser was consulted in a professional capacity for the purpose of obtaining legal advise.
The inference of confidentiality will always be rebuttable, where it is clear from the
nature of the communication that it was intended to be communicated to the other party
as held in Giovagnoli v Di Meoand Kelly v Pickering.

For the purpose of obtaining legal advice – if a communication is made in confidence,

but not for the purpose of obtaining legal advice, it will not be privileged see section 8 (2)
of the CEA. In S v Kearney it was held that a witness statement made to an attorney was
not a statement made for the purpose of seeking legal advice. Legal professional privilege
will not be upheld if the advice is sought so as to further a criminal purpose, see Rv Smith;
s 8 (5) (b) of CEA.
The client must claim privilege – Legal professional privilege attaches to the client and
it must be claimed by the client as held in S v Nkata. The court will not uphold privilege
in the absence of a claim of privilege. A legal representative is obliged to claim privilege
on behalf of his client. If the client waives the privilege the legal representative will be
bound by the waiver.

ADVISE TO YUP – Yup’s argument based on legal professional privilege is not sustainable,
for the following reasons; the communication was not made for the purposes of obtaining
legal advice but rather to state the services rendered and the amount charged for such
services. Thus the requirements for the existence of legal professional privilege are not
met.

EXAMINATION OF WITNESS - REFRESHMENT OF MEMORY

QSN 2 (b) JUNE 2009

John is a witness called by the prosecution in a criminal trial. He has been called to give
evidence about a road traffic accident that he saw one evening when he was driving home
from work. When he got home from work he discussed the incident with his wife and,
because he was shaken by what he saw, she wrote down what he told her. He now wishes to
refer to his wife’s notes while he gives evidence. What advice would you give the magistrate
who is trying the case? Would your answer differ if he had only wanted to look at the notes
before coming into court?
[15 marks]

Refreshing the memory of a witness with the aid of his earlier recorded statement is a
necessary exception to the general rule that witnesses must testify on the basis of an
independent recollection of the relevant facts. Refreshment of memory is necessary
because; human memory is fallible in cases where considerable time has lapsed between
the actual event and the witness’s narration in court; the complexity of some issues may
make it difficult for a witness to testify without the aid of his earlier record. Record may
include an ordinary written statement, a tape recording, a policeman’s notebook, hospital
records, a ship’s logbook and entries in a family Bible.

Refreshing the memory of a witness in the course of his testimony and whilst he is in the
witness box, may take place only if certain conditions have been met, these are
authenticity, contemporaneity, use of original document and production of the document.

Authenticity – the witness must have made the recording. But it is also accepted that in
at least two instances a witness may use the record of somebody else, namely, where the
recording took place upon the instructions of the witness or where the witness read the
record and accepted its accuracy. It must be shown that the facts were fresh in the mind
of the witness when he made the recording or gave the instructions or read and verified
the recording. R v Kelsey it was held that it is sufficient if it can be shown that the witness
verified the record by hearing it, as opposed to reading it.R v O’ Linnin this case a traffic
officer testifying in a road traffic accidence was allowed to refer to and refresh his
memory from a note which another officer had made at his specific say-so, although there
was no evidence that he had afterwards verified the writing.
Contemporanity (fresh in the memory)- Contemporaneity looks at the amount of time
that has lapsed between the occurring of the event and the recording. The event must
have been recorded within a reasonable time from the happening of the event.
Reasonableness in any given circumstance depends on the facts of the case. The test is
whether the writing came into being, or was checked and verified, at a time when the
facts were still fresh in the memory of the witness. In Anderson v Whaley- The captain
of a ship was allowed to use the ship’s log book to refresh his memory concerning a
navigation accident. This was allowed, despite the fact that the log book had been kept by
the ships mate. The crucial point was that within a week of the accident taking place when
the event was still fresh in his mind the mate was also allowed to refresh his memory
form the log book.InJones v StroutIt was held that a witness could not refresh his
memory from a recording thatwas made six months after the happening of the events
because it was toodistant.
Use of the original document - The original must satisfy the requirements of authenticity
and contemporaneity. The original document must be usedwhere the witness has no
independent recollection as held in S v Bergh. The need for an original can be done away
with where the opponent fails to object or where it can be shown that the original has
been lost or destroyed. Where the original is not used the accuracy of the copy or extract
must be proved.
Production of the document – a document used to refresh memory whilst the witness is
in the witness-box must be made available to the court and the opponent in order to
enable them to inspect it as held in R v Elijah. A witness is thus precluded from using a
document which he refuses to produce. The opposing party may waive his right of access
to a document used by a witness. A court has a discretion to restrict cross-examination,
relating to the produced document, to those parts which were used by the witness.
• In casu,///////////////////////

Refreshing memory b4 coming to court- No general rule exists which prevents a witness
from reading his or her statement b4 entering the witness box or b4 coming to court.They
are several reasons why a witness should be allowed to refresh his memory before
testifying;

- The common law approach that witnesses should as a rule testify from memory
indirectly encourages parties and their witnesses to refresh their memories out of
court.
- A rule prohibiting pre-trial refreshment of memory can create serious problems
for the honest witness and will have little or no effect on the dishonest witness.
 - Pre-trial refreshment of memory is a procedural right based on the rule that a
party should be given an adequate opportunity to prepare for trial.
- Testimony in the witness box will become a test of memory (rather than
truthfulness) if witnesses and parties were denied the opportunity to refresh their
memories prior to trial

Thus courts are of the view that a witness may refresh his memory b4 entering the
witness box. A document use for pre-trial refreshing of memory need not be made
available to the court and the opposing party.

• In casu.//////////////////////////////////////

EXAMINATION OF WITNESS – HOSTILE WITNESS

QSN 1 JUNE 2010

The following is stated in the head note to S v. Mazhambe&Ors 1997 (2) ZLR 587 (H) –

“If a witness for the prosecution at a criminal trial gives evidence that is inconsistent with
his previous statement to the police, and the inconsistency is such as to damage the State
case, the prosecutor must act in order to discredit the damaging testimony. There are two
methods of so acting.”

Describe these two methods and for each of them explain its purpose in relation to the
evidential value to the prosecution case.
[20 marks]

The two methods that may be used by the prosecutor to discredit damaging testimony
by a state witness are confronting the witness with his previous inconsistent
statement and declaring a witness to be a hostile witness. These two methods are
codified in section 316 of the Criminal Procedure and Evidence Act.

Confronting the witness with his previous inconsistent statement

The witness may be confronted with his previous inconsistent statement and this is
outlined in the CPEA. Previously, impeachment included not only cross-examination but
also being confronted with a prior inconsistent statement. The present wording of the
proviso to s 316 of the local enactment however, permits such a confrontation without
the need to have the witness declared hostile.The judicial officer must be informed of the
departureand he must ask the witness whether he made a previous inconsistent
statement. Sufficient particulars must be put to the witness to designate the occasion
when the statement is alleged to have been made. Thereafter, if the witness denies
making the statement, the prosecutor may prove that it was made. This he may do by
calling the person who recorded it and, where necessary, the person who interpreted it.
The witness must then be asked which statement is true and to explain why the previous
statement was made.
The purpose of proving a prior inconsistent statement is to neutralize the effect of the
unexpectedly adverse testimony. Proving a previous inconsistent statement does not
make evidence out of the statement. If the witness admits the truth of it, the court may
act on the oral evidence, but not on the statement itself. Conversely, the fact that the
witness has had his evidence impeached by the production of a previous inconsistent
statement does not necessarily mean that his adverse evidence must be rejected. The
court must examine the evidence and decide whether or not to accept it.

Declaring a witness to be a hostile witness

Declaring a witness to be hostile is a further or alternative step, which allows the witness
to be cross-examined by the party who called him. The word “adverse” in section 316
does not merely mean “unfavourable”. It means hostileA witness may not be cross-
examined unless the judicial officer is of the opinion that he is hostile. The mere fact that
the witness has given evidence which is unexpected does not make him “hostile”, nor does
the fact that he has previously made an inconsistent statement. A witness may be
declared to be hostile if he is shown to bear a hostile animus towards the party who calls
him and shows unwillingness to speak the truth at the behest of the party who called him
and an intention to damage that party’s case. A witness who refuses to testify may be
treated as hostile.The discretion of the judge to grant or refuse leave to cross-examine is
absolute.The effect of declaring the witness hostile is that his adverse evidence is
effectively neutralised as evidence led by the party against itself; but it is not ipso facto to
be disregarded. The evidence given, both under cross-examination by the party calling
him and otherwise, may be considered and accepted or rejected on whole or in part,
depending on the weight to be attached to it.

QSN 4 (b) NOV 2012

After a few minutes of examination-in-chief the prosecutor notifies the court that his witness
is deliberately not co-operating with him in the sense that he is now materially departing
from the earlier written statement he gave to the police. He applies to the court to declare
the witness hostile.
Explain the purpose and object of getting a witness to be declared hostile by the court.
[5 marks]

Declaring a witness to be hostile allows the witness to be cross-examined by the party

who called him, in this case the prosecutor. A witness may not be cross-examined unless
the judicial officer is of the opinion that he is hostile. The effect of declaring the witness
hostile is that his adverse evidence is effectively neutralised as evidence led by the party
against itself; but it is not ipso facto to be disregarded. The evidence given by that witness,
both under cross-examination by the party calling him and otherwise, may be considered
and accepted or rejected in whole or in part depending upon the weight to be attached to
it. See S v Mazhambe.
QSN 2 NOVEMBER 2014

Outline and explain the methods which the prosecution can employ to discredit the
damaging testimony of a witness for the prosecution who gives evidence that is inconsistent
with his previous statement to the police. [20]

ANS; SEE QUESTION 1 JUNE 2010.

EXAMINATION OF WITNESS – PREVIOUS CONSISTENT STATEMENTS

QSN 2 (b) JUNE 2010

The purpose of the so-called rule against self-corroboration or the rule against the
admissibility of previous consistent statements is designed to prevent a witness from seeking
to confirm or strengthen his evidence by saying in the witness-box that he had made a
similar statement on a previous occasion or, if the statement is in writing, from referring to
it. There are however, some exceptions to this general rule.

State five exceptions where adduction of previous consistent statements are legally
admissible? [15 marks]

Torebut a suggestion of recent fabrication - Where a witness is giving evidence in court

and he or she is accused of recent fabrication, the witness may support his evidence using
evidenceof earlier statements to show that there is no fabrication. The PCS is admitted
because of its relevance.It has the potential to rebut the attack upon the credibility of the
witness. The contents of the statement may not, however be used as evidence of the truth
of what the witness has said. Nor can it serve as corroboration of the witness’s evidence.
The general rule against self-corroboration prohibits such an approach. The true
evidential value of the statement is to show that the story of the witness was not
concocted at a later date, thus consistency is proved to refute recent fabrication- S v
Winnaar. A pcs was admitted in Flanagan v Faly to show that the witness’s account
concerning forgery of a will had been there b4 enmity arose.

Prior identification– identification in court (dock identification) is of little probative

value. Prior identification obviously carries more weightand its purpose is to show
consistency. In R v Rassol it was said that “therefore it seems that the evidence of
previous identification should be regarded as relevant for the purpose of showing from
the very start that the person who is giving evidence in court identifying the prisoner in
the dock is not identifying the prisoner for the 1st time but has identified him on some
previous occasion in circumstsnces such as to give real weight to his identification.” In R
v Christie the court admitted evidence of prior identification in a case involving a boy
who had been indecently assaulted. The evidence of identification must not go further
than mere identification, but identifying words accompanying any physical identification
may be received as happened in the Christie case above.

Complaints in sexual offences (confirmed in S v Banana) - Evidence that the

complainant in a sexual case made a complaint soon after the alleged offence, and the
terms of that complaint, are admissible to show the consistency of the complainant’s
evidence and the absence of consent. Allowing previous consistent statements of
witnesses in sexual offences such as rape, indecent assault, sodomy and sexual
harassment has its origins in English Law. The common law requirements governing the
admissibility of the complaint (the previous consistent statement) are the following; the
complaint must have been a voluntary one; the complainant must testify; the complaint
must have been made at the first reasonable opportunity; the complainant must have
been a victim of a sexual offence and the complaint can only be admitted for the limited
purpose of proving consistency.

Statements made on being confronted with incriminating facts –these are statements
made at arrest or on discovery of incriminating articles these may be used to prove
consistency. In English law a statement, favourable to the accused, that has been made by
him to police when taxed with incriminating facts, is admissible because of its relevance
in showing his reaction. Again what an accused says in explanation of having been found
in possession of stolen property, may be relevant to show consistency if he tells the court
the same story.

Statements that are part of theres gestae - A statement is said to be part of the res gestae
when it forms “a part of the story”.A statement may be part of the story when it is so
closely associated with a fact in issue or a fact relevant to a fact in issue in time and
circumstances. A pcs may also be received if it forms part of the res gestae and this was
confirmed in S v Moolman. The statement however cannot corroborate the witness.

QSN 5 JUNE 2014

The rule against admissibility of previous consistent statements is designed to prevent

witnesses from seeking to strengthen their evidence in court by relying on the fact of having
made on a prior occasion a similar statement consistent with the evidence in court. The
courts in Zimbabwe do allow, however, such previous consistent statements in certain
exceptional cases.
State and explain five (5) instances in which previous consistent statements are allowed [15]

ANS : SEE QSN IMMEDIATELY ABOVE ie QSN 2 (b) JUNE 2010.

EXAMINATION OF WITNESS- CHARACTER EVIDENCE

QSN 1 JUNE 2009

Benjamin is on trial for an offence of dishonesty. He tells the court that he is an honest man
and he can call witnesses to prove that he is not the sort of person who would steal. What
advice would you give the court as to whether, firstly he may give evidence about his honesty
and secondly whether he may call other witnesses to do the same.
[15 marks]

In terms of section 260 of the CPEAexcept as provided by section 290 no evidence of the
character of the accused shall be admissible or inadmissible if such evidence
would be inadmissible or admissible in any similar case depending in the Supreme Court
of Judicature of England.The general rule is that the accused may adduce evidence of his
own good character (Rv Bellis), but the prosecution is prohibited from adducing
evidence of his bad character, subject to specified exceptions.

The reason for permitting evidence of the accused’s good character was laid down in R v
Rowton, were it was held that “such evidence is admissible because it renders it less
probable that what the prosecution has averred is true. It is strictly relevant to the issue.”
Evidence of the accused bad character is excluded in English law because it is prejudicial
and is generally considered to be irrelevant.

There are a number of ways in which an accused may try and establish her good character
by: the accused giving evidence himself, by calling witnesses to testify on his behalf or by
cross-examining prosecution witnesses. However, once the accused himself, or through
calling witnesses, adduces evidence as to his good character the prosecution can respond
by introducing evidence of bad character. The accused may also render himself liable to
cross examination as to bad character in terms of section 290 of the CPEA.

Evidence by the accused – an accused gives evidence of his good character when “…..he
asserts, or elicits, that he is of good character independently of his giving an account of
what had happened: he must endeavour (by means of questions or his evidence) to refer
to his good character in order to have it taken into account as something in his favour: a
mere canvassing of the relevant facts is insufficient to penalize the accused if the facts
may incidentally show his character in a good light.”

*It is a question of judgment and ultimately of discretion for the judicial officer to say
what evidence amounts to the establishment of good character - R v Malindi 1966 4 SA
123 (PC)

Evidence by a witness as to good character – if a witness is called to testify as to the

accused’s character, she may be cross-examined so as to test the accuracy of her
testimony.

QSN 4 JUNE 2010; QSN 5 NOV 2012

In accordance with the doctrine of precedent, the Supreme Court is not bound by its previous
decisions. This principle is well illustrated in the case of S v. Banana 2000 (1) ZLR 607 S,
where the court revisited the accepted longstanding approach of the Zimbabwean courts
toward a number of evidentiary issues raised in that case.
In light of the pronouncements in the Banana case explain and critically discuss the
approach of our courts in relation to the following important evidentiary matters –
(a) Admissibility of similar fact evidence

(b) The approach to the evidence of a complainant in sexual assault cases

[20 marks]

The approach to the evidence of a complainant in sexual assault cases

GUBBAY CJ noted the following - There is a well-established rule in Roman-Dutch

jurisdictions that judicial officers are required to warn themselves of the danger of
convicting on the uncorroborated evidence of certain categories of witnesses who are
potentially suspect. One such category concerns complainants in sexual cases.

In a long line of cases in this country, of which S v Mupfudza 1982 (1) ZLR 271 (S) is the
landmark, the so-called two-stage test has been applied. The first question to be asked by
the court is: “Is the complainant credible?” If the answer is in the affirmative, the next
question is: “Is there corroboration of or support for the evidence of the complainant?”
In other words, the court must not only believe the complainant, it must in addition be
satisfied, by an application of the cautionary rule, whether it might still not have been
deceived by a plausible witness. It therefore must seek corroboration or evidence tending
to exclude the danger of false incrimination. See also S v Chitiyo 1989 (2) ZLR 144 (S)
at 145E-F; S v Chigova 1992 (2) ZLR 206 (S) at 219D-F and 220C-E; S v Makanyanga
1996 (2) ZLR 231 (H) at 241A-C; S v Zaranyika 1997 (1) ZLR 539 (H) at 555B-C.

However the South African Supreme Court of Appeal in S v Jackson 1998 (1) SACR 470
(SCA) approving S v D & Anor 1992 (1) SA 513 (Nm) took the opportunity to re-
examine the need for the rule in sexual cases. The court came to the conclusion that the
cautionary rule in such cases has no rational basis for its existence. The court in Jackson
held that “In my view, the cautionary rule in sexual assault cases is based on an irrational
and out-dated perception. It unjustly stereotypes complainants in sexual assault cases
(overwhelmingly women) as particularly unreliable. In our system of law, the burden is
on the State to prove the guilt of an accused beyond reasonable doubt — no more and no
less. The evidence in a particular case may call for a cautionary approach, but that is a far
cry from the application of a general cautionary rule.”

Prior to the decision in the Jackson case supra, it had long been accepted that criminal
cases of a sexual nature fell into a special category. It was said that there was an “inherent
danger” in relying on the unconfirmed testimony of a complainant in such a case. This
belief resulted in the courts adopting a fixed cautionary rule of practice.

In S v M 1999 (2) SACR 548 (SCA), the Supreme Court of Appeal reiterated that the
application of the cautionary rule to sexual cases was based on irrational and outdated
perceptions. It again pointed out that although the evidence in such cases might call for a
cautionary approach, this was not a general rule. The State was simply obliged to prove
the accused’s guilt beyond a reasonable doubt. And this approach applied to all cases in
which an act of a sexual nature was an element.

In S v K 2000 (4) BCLR 405 (NmS), the Supreme Court of Namibia followed the decision
in S v Jackson supra. It held that the cautionary rule had outlived its usefulness. There
were no convincing reasons for its continued application. It exemplified a rule of practice
that placed an additional burden on victims in sexual cases which could lead to grave
injustice to the victims involved.

It is my opinion that the time has now come for our courts to move away from the
application of the two-pronged test in sexual cases and proceed in conformity with the
approach advocated in South Africa. In so holding, I have not overlooked the well-
researched judgment of Gillespie J in S v Magaya 1997 (2) ZLR 139 (H). But having
regard to the abrogation of the obligatory nature of the rule in such countries as Canada,
the United Kingdom, New Zealand and Australia, as well as by the State of California, I
respectfully endorse the view that in sexual cases the cautionary rule of practice is not
warranted. Yet I would emphasise that this does not mean that the nature and
circumstances of the alleged sexual offence need not be considered carefully.

*thus in terms of this case the cautionary rule in sexual cases was abolished.

Complaints made in sexual cases

Evidence that a complainant in an alleged sexual offence made a complaint soon after its
occurrence, and the terms of that complaint, are admissible to show the consistency of
the complainant’s evidence and the absence of consent. The complaint serves to rebut
any suspicion that the complainant has fabricated the allegation.
The requirements for admissibility of a complaint are:
1. It must have been made voluntarily and not as a result of questions of a leading
and inducing or intimidating nature. See R v Petros 1967 RLR 35 (G) at 39G-H.
2. It must have been made without undue delay and at the earliest opportunity, in all
the circumstances, to the first person to whom the complainant could reasonably be
expected to make it. See R v C 1955 (4) SA 40 (N) at 40G-H; S v Makanyanga supra at
242G-243C.

Admissibility of similar fact evidence

The general rule applicable to the admission of similar fact evidence test that has always
been applied in this jurisdiction, is that formulated in Boardman v Director of Public
Prosecutions [1974] 3 All ER 857 (HL) at 897g-h, namely, that the similar facts must
be of such an unusual nature or striking similarity that it would be an affront to
commonsense to assume that the similarity to the offence charged was explicable on the
basis of coincidence. See S v Meager 1977 (2) RLR 327 (A) at 332F-G; S v Ngara 1987
(1) ZLR 91 (S) at 100D; S v Mupah 1989 (1) ZLR 279 (S) at 284B; S v Mutsinziri 1997
(1) ZLR 6 (H) at 23F-G.

In R v P [1991] 3 All ER 337 (HL) Lord Mackay of Clashfern LC explained that the law
did not require “striking similarity” as an indispensable element of admissibility and that
it was unwarranted to restrict the admissibility principle in a manner which gives
decisive effect to one particular way of describing probative significance. Thus the test in
every case must be not whether the events sought to be proved by the prosecution are
strikingly similar to the offence charged, but whether their probative contribution is such
as to outweigh the prejudice to the accused.

The significance of this re-statement of the principle is that it focuses attention on the
concept that admissibility turns on probative weight which, like the question of
corroboration, is a matter of logic and commonsense, and not of legal doctrine. Whether,
of course, the evidence has sufficient probative value to outweigh its prejudicial effect
depends on the facts of each case and is necessarily a matter of degree and value
judgment.

By emphasizing that “striking similarity” was not to be regarded as a prerequisite to the

admissibility of similar fact evidence, the House of Lords appears to have eased the task
of the prosecution in cases where the accused’s alleged behaviour on the different
occasions in question bears significant points of relationship, yet does not possess the
virtually identical features which the rule in the Boardman case required. See also R v H
[1995] 2 All ER 865 (HL) at 869e-870e; R v Christov [1996] 2 All ER 927 (HL)
at 931f-932g.
The time has now come for this court to follow the lead taken by that august body, the
House of Lords. That is the course I propose to adopt in this appeal.

*Gubbay J approving the approach of Lord Mackay in R v P held that in determining the
admissibility of similar fact evidence undue emphasis should not be placed on the
requirement of striking similarity . This is in marked contrast to the satisfactorily
establish similar facts as held in Laubscher v National Food Ltd.

QSN 4 (a) NOV 2012

During the State case an accused in a rape trial attacked the credibility of the complainant
alleging that she was a thief and had escaped being prosecuted for her crimes by bribing
prosecutors and police officers. Allegations which had no bearing whatsoever on either the
charge nor his defence. During the defence case the prosecution in cross-examining the
accused asked him whether or not he was in the past not convicted of theft on two occasions?
The accused objects to this question as being impermissible at law.
Comment on the permissibility or otherwise of this line of cross-examination in the
particular circumstances of these facts.
[20 marks]

The general rule is that the prosecution is prohibited from adducing evidence of the
accused’s bad character. The rationale is that evidence of the accused bad character is
prejudicial and generally irrelevant. Section 290 of the CPEA protects the accused against
cross-examination that is directed at showing bad character or his previous criminal
record. However the accused will lose this protection or shield by :adducing evidence as
to his own good character1; attacking the character of a prosecution witness2 (as
happened in casu) or by testifying against any other person charged with the same
offence.3
In terms of section 290 (a) of the CPEA the accused will expose himself to cross-
examination as to character if “the nature or conduct of the defence is such as to involve
imputation of the character of the prosecutor or the witnesses for the prosecution.”

There are two ways in which the nature and conduct of the defence may be revealed; (1)
by the accused’s testimony; and (2) through cross-examination of the prosecution
witness by the accused’s legal representative or in the case of the unrepresented accused,
by himself.
Where the imputations as to the character of the prosecution witness are a necessary part
of the accused’s defence, cross examination as to character will not be allowed. There is
authority for the view that where the evidence sought to be elicited forms an essential
portion of the accused’s defence section 290 (a) should not be invoked, even if that
evidence involves an imputation as to the character of a prosecution witness - See R v
Hendrickz; S v V; Jesse v Pratt NO 2001 8 BCLR 814 (Z) 814A-B. In casu,however the
imputation as to the character of the prosecution witness is not a necessary part of the
accused’s defence. Thus it is permissible for the prosecution to cross- examine on
whether or not he has previous convictions.

EXAMINATION OF WITNESS – CHARACTER EVIDENCE

1
Section 290 (a) of the CPEA
2
Section 290 (a) of the CPEA
3
Section 290 (b) of the CPEA
QSN 4 JUNE 2013
With reference to case law outline and explain the circumstances in which character
evidence is admissible in evidence in Zimbabwe.
[20]
SEE QSN Below

QSN 5 NOV 2014

Using case law and/or relevant statutory provisions, outline and explain the circumstances
in which character evidence is admissible in evidence in courts in Zimbabwe.
[20]

Character evidence in Criminal Cases

Character of the accused

The general rule is that the accused may adduce evidence of his own good character (Rv
Bellis), but the prosecution is prohibited from adducing evidence of his bad character,
subject to specified exceptions.In terms of section 260 of the CPEA except as provided
by section 290 no evidence of the character of the accused shall be admissible or
inadmissible if such evidencewould be inadmissible or admissible in any similar case
depending in the Supreme Court of Judicature of England.

The reason for permitting evidence of the accused’s good character was laid down in R v
Rowton, were it was held that “such evidence is admissible because it renders it less
probable that what the prosecution has averred is true. It is strictly relevant to the issue.”
Evidence of the accused bad character is excluded in English law because it is prejudicial
and is generally considered to be irrelevant.

There are a number of ways in which an accused may try and establish her good character
by: the accused giving evidence himself, by calling witnesses to testify on his behalf or by
cross-examining prosecution witnesses. However, once the accused himself, or through
calling witnesses, adduces evidence as to his good character the prosecution can respond
by introducing evidence of bad character. The accused may also render himself liable to
cross examination as to bad character in terms of section 290 of the CPEA.

Evidence by the accused – an accused gives evidence of his good character when “…..he
asserts, or elicits, that he is of good character independently of his giving an account of
what had happened: he must endeavour (by means of questions or his evidence) to refer
to his good character in order to have it taken into account as something in his favour: a
mere canvassing of the relevant facts is insufficient to penalize the accused if the facts
may incidentally show his character in a good light.”
*It is a question of judgment and ultimately of discretion for the judicial officer to say
what evidence amounts to the establishment of good character - R v Malindi 1966 4 SA
123 (PC)

Evidence by a witness as to good character – if a witness is called to testify as to the

accused’s character, she may be cross-examined so as to test the accuracy of her
testimony.

Character of the complainant

Evidence which is solely directed at establishing that the complainant has a bad character
is prohibited, as is evidence of good character – R v Wood. However in cases of rape or
indecent assault and crimeniniuriathe complainant’s character is viewed as relevant.

There is a common-law rule that in a case involving a charge of rape or indecent assault
the accused may adduce evidence as to the complainant’s bad reputation or lack of
chastity. Section 260 of the CPEA provides that in sexual cases, the admissibility of
evidence as to “ the character of any woman on whose person any rape or assault with
intent to commit a rape or indecent assault is alleged to have been committed shall, in
any such case, be admissible or inadmissible if such evidence would be inadmissible or
admissible in any similar case depending in the Supreme Court of Judicature of England.”
In terms of English law the defence may question the complainant as to her previous
sexual relations with the accused, this evidence was considered relevant to the issue,
particularly relevant to credibility. The accused is prohibited from leading evidence of the
complainant’s sexual relations with other men – R v Adamstein. Evidence to
contradictanydenias may be led only if such evidence is relevant to consent as held in R
v Cargill.

In order to obtain a conviction on a charge of crimeniniuria the prosecution must prove

insult to the complainant’s dignity. Evidence that goes to establish that the complainant
was not the type of person who would have been insulted in the circumstances, will be
regarded as relevant – R v Van Tonder 1932 TPD.

Character evidence in Civil Cases

In civil cases the characters of the parties are generally considered irrelevant and
therefore inadmissible. However in certain specific cases specified in section 33 (a)- (e)
of the Civil Evidence Act, evidence pertaining to the character of a party will be
regarded as relevant. The section provides as follows;
“No evidence as to the character or reputation of any party to civil proceedings shall be
admissible except—
(a) in any claim for damages where the character or reputation of the party is relevant to
any fact in issue orthe amount of damages; or
(b) in the determination of the paternity of a person, where the character or reputation
of the father or mother is relevant to any fact in issue; or
(c) where the credibility of the party as a witness is impugned or put in issue; or
(d) in any case where the award or order is dependent on the good behaviour of any
person; or
(e) in any case where it is relevant to show a course of conduct.”

EXAMINATION OF WITNESS – HEARSAY EVIDENCE

QSN 5 JUNE 2010

During the course of his duty, at his workplace, Mr. X fell into an acid bath, an essential part
of the company's chrome plating process. His wife is now claiming against the company for
loss of support of her husband. At the time of the accident Mr. X had not been wearing any
protective apparel which was provided by the company and was readily available to their
employees engaged in the type of work Mr. X was doing. The defendant company, states in
its defence to the claim, that they are not guilty of any negligence since they provided all the
required safety clothing. In addition the defendant company also says that Mr. X, a foreman
in the plating department was responsible for the unfortunate accident that befell him in
that he had neglected to wear the appropriate clothing, as is company regulation, and
therefore failed to take proper steps for his safety.
A few days after the accident Mr. X died from the acid burns received. Nobody actually
witnessed the accident and therefore the company wishes to adduce evidence of what Mr. X
said to his work-mates who had come to his assistance within a period of between 2 - 5
minutes of accident. This evidence is to the following effect –

"I should have known better as a supervisor not to walk on the gang-rail without securing
myself with safety belts ….. I should not have tried to do it ….. At the least I was supposed to
wear the protective clothing provided ….."

Using relevant case authority comment on the admissibility of the statement purportedly
made by Mr. X
[20 marks]

At common law hearsay evidence was defined as any statement other than one made by
a person while giving oral evidence in the proceedings, and presented as evidence of any
fact or opinion stated. Hearsay is oral or written evidence that is being offered as an
assertion to show the veracity (truthfulness) of matters stated therein. 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. In Subramium v Public Prosecutorit
was held that “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 when the object
of the evidence is to establish the truth of what is contained in the statement. It is not
hearsay and is admissible when it is proposed to establish by evidence, not the truth of the
statement, but the fact thatit was made.” In casu the purpose of the evidence to be adduced
by the company is to establish the truth of the statement made by Mr X thus amounting
to hearsay evidence. Hearsay evidence is generally inadmissible.
Hearsay evidence is excluded for the following reasons; There is an absence of cross-
examination of the person who made the statement; it has less probative value or it is
accorded less weight by the courts; there is a huge potential for fabrication on account of
repeating statements so many times; the oath has not been taken. The out-of-court maker
of the statement is not under oath and so can lie; there is a possibility that the out-of-
court maker of the statement was speaking in jest or wanted to mislead.
There are statutory and common law exceptions to the rule on hearsay. 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, and 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, and if so, what are the requirements?
Various reasons for Exceptions have been proferred these are; Necessity (relevant
hearsay would be a loss to the court if rejected altogether, sometimes hearsay evidence
is the best evidence available; 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.
In casu, the declaration made by the deceased Mr X falls under one of the common law
exceptions to the hearsay rule (which have the generic name declarations by deceased
persons.) The applicable exception is Declarations Against Interest.
Declaration against interest is a declaration 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, for example, admitting paternity, acknowledging a debt and
receiving money. The requirements for declarations against interest are;
1. The declarant must be dead. (Its clear Mr X died)
2. The declarant must have known at the time he made his statement that it was
against his interest. ( Clearly Mr X was blaming himself for the cause of injury)
3. The declarant must be a competent witness. ( Mr X was a competent witness, he
was not drunk or mentally retarded.)
In Williams v Eaglestine1961 (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. (Facts are somethat similar to the facts in casu)
In Ward 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 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. 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.

*First hand hearsay evidence is also admission in terms of section 27 of the CPEA. Thus it
can be said that the hearsay statements by Mr X are admissible both under the common
law and statute law.

QSN 3 NOV 2014

Mr Mabwe ("the Plaintiff") instituted court proceedings against Mr Mopo ("the Defendant")
in the High Court seeking an order reversing the transfer of a certain property to the
Defendant on the basis that the Defendant, at the time he bought and took transfer of the
property was aware of the Plaintiff's interest in the property and the existence of litigation
in the High Court between the Plaintiff and the previous owner of the property. Such
litigation had been decided in the Plaintiff's favour. The property had in the meantime been
sold and transferred to the Defendant who was now staying in the property. The court
proceedings against the Defendant had previously been commenced by way of a court
application. This court application had been dismissed on the basis that there were
numerous disputes of facts which the Plaintiff should have foreseen. Plaintiff then
commenced afresh and issued summons seeking the same relief. After all the pleadings had
been filed and while the parties were waiting for the trial date, the Plaintiff passed on. His
widow was appointed the executrix of his estate and was substituted as the Plaintiff in her
capacity as the executrix of the estate. She continued with the litigation. She was, however,
not directly involved in the dealings between the deceased and the Defendant concerning
the property. Much of what she knew was information she got from her late husband. At the
trial she testified that her late husband had told her that he (the deceased) had advised the
Defendant of the pending litigation with the previous owner and that he should not involve
himself in the property. These allegations were also contained in the affidavits filed in the
court application between the deceased and the Defendant which had been dismissed as
stated above.The Defendant through his lawyer objected to the testimony of the deceased's
widow as hearsay evidence. He also objected to the admission of the affidavits filed by the
deceased in the previous legal proceedings as constituting inadmissible hearsay evidence.
This evidence is crucial and if it is thrown out, the Plaintiff’s case is dead.

(a) Explain and briefly discuss the approach of the courts to hearsay evidence? [15]
(b) On the basis of the facts of the matter set out above, advise the trial judge whether there
is merit in the objection by the Defendant's lawyer? Is the evidence being objected to
admissible? [10 ]

Courts approach to hearsay evidence.

At common law hearsay evidence was defined as nay statement other than one made by
a person while giving oral evidence in the proceedings, and presented as evidence of any
fact or opinion stated. Hearsay is oral or written evidence that is being offered as an
assertion to show the veracity (truthfulness) of matters stated therein. 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. In Subramium v Public Prosecutor it
was held that “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 when the
object of the evidence is to establish the truth of what is contained in the statement. It is
not hearsay and is admissible when it is proposed to establish by evidence, not the truth
of the statement, but the fact thatit was made.” In casu the purpose of the evidence to be
adduced by the company is to establish the truth of the statement made by Mr X thus
amounting to hearsay evidence. Hearsay evidence is generally inadmissible.
Hearsay evidence is excluded for the following reasons; There is an absence of cross-
examination of the person who made the statement; it has less probative value or it is
accorded less weight by the courts; there is a huge potential for fabrication on account of
repeating statements so many times; the oath has not been taken. The out-of-court maker
of the statement is not under oath and so can lie; there is a possibility that the out-of-
court maker of the statement was speaking in jest or wanted to mislead.
There are statutory and common law exceptions to the rule on hearsay. 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, and 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, and if so, what are the requirements?
Various reasons for Exceptions have been proferred these are; Necessity (relevant hearsay
would be a loss to the court if rejected altogether, sometimes hearsay evidence is the best
evidence available; 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.
These take the generic form of declarations by deceased persons. There are a number of
possibilities when they may be made:
1. Declarations as to public or general rights.
2. Declarations against interest.
3. Declarations in the course of duty.
4. Dying declarations.
5. Declarations pertaining to pedigree.
6. Declarations concerning one‘s will.

Statutory exceptions to the rule against hearsay evidence are contained in section 27 of
the Civil Evidence Act and section 253 of the Criminal Procedure and Evidence Act.

Is there merit to the argument that the testimony by the deceased’s widow and
affidavits signed by the deceased are hearsay evidence therefore inadmissible ?

Evidence is hearsay when its purpose is to establish the truth of what is contained in the
statement. That seems to be the purpose by the late Mr Mabwe’swife, she wants to
establish that the defendant was told of the plaintiff’s interest in the property. It is clear
that the hearsay evidence cannot be rendered admissible by a common law exception to
the rule against hearsay evidence. It is therefore suffices at look at whether the hearsay
evidence can be rendered admissible by a statutory requirement. Since this is a civil
matter, one has to look at the provisions of the Civil Evidence Act. The testimony of the
deceased’s widow is admissible in terms of section 27 (3) since it amounts to first hand
hearsay evidence and the affidavit signed by the deceased is admissible in terms of
section 28 of the Act since it is permissible to adduce evidence in previous legal
proceedings.

Is the evidence being objected to admissible ? Yes it is admissible.

QSN 4 NOV 2013

A defendant who had been sued for a civil debt filed a special plea in abatement alleging
prescription. The Plaintiff argued that prescription had been interrupted by an
acknowledgment of the indebtedness made by the Defendant’s Counsel before the expiry of
the prescription period. The question for decision by the court was whether the
acknowledgment of indebtedness had been done before or after the expiration of the
prescription period. In support of the Plaintiff’s position that prescription had been
interrupted before the expiry of the prescription period a file note from the Plaintiff’s
attorney was tendered at the trial. The file note recorded details of a conversation between
the Plaintiff’s attorney and the Plaintiff’s Counsel on a date before the expiration of the
prescription period. It was recorded in the note that the Defendant, through his Counsel, had
admitted the indebtedness. At the trial the Defendant’s Counsel objected to the production
of the file note. His objection was overruled by the trial Magistrate. The Plaintiff’s attorney
who had recorded the file note was not called to testify at the trial. Based on the file note,
the Defendant’s special plea in abatement was dismissed.
The Defendant is unhappy with the outcome and has approached you for advice on the
correctness of the decision of the Magistrate to allow the admission of the file note into
evidence and resolving the issue in dispute solely on the file note. With detailed reasons for
your answer, kindly advice the Defendant on the correctness of the trial court’s decision on
the issues of evidence arising in the matter and his chances of success on appeal.
[20]

The issue here is about the admissibility of hearsay evidence. The rule against the
admissibility of hearsay evidence has been relaxed by section 27 of the CEA which makes
first hand hearsay admissible on conditions. In the matter of Hiltunen v
HiltunenMakarau JP held as follows; “For first hand hearsay to be admissible under the
Act, the evidence must be about a statement made orally or in writing by another person.
The person who made the statement must be identified and must appear from the nature
of the evidence that the contents of the statement would have been admissible from the
mouth of that person were he or she present and testifying. Thus, if the statement was on
an opinion held by that other person, because opinion evidence is inadmissible from the
mouth of any witness other than expert witness, the evidence would remain inadmissible
notwithstanding the amendment to the law. Similarly, second and third hand hearsay
remains inadmissible as the amendment to the law only provides for first hand
hearsay…………….Hearsay evidence is not admissible in affidavits filed with court
applications unless it is evidence of a statement made by a person, where such statement
would have been admissible had it been adduced as direct evidence by the maker of the
statement……………………the provisions of section 27 (1) merely provide for the
admissibility of statements made by other persons where such statements would have
been admissible had they been adduced as direct evidence by the makers of the
statements as detailed above. It does not provide for the wholesale admissibility of
hearsay evidence.

The chances of the defendant’s success on appeal are slim as the evidence was admitted
in terms of section 27 as first hand hearsay.

EXAMINATION OF WITNESSES – OPINION EVIDENCE

QSN 3 NOV 2013

Explain and outline the circumstances in which the courts in Zimbabwe are prepared to
admit into evidence:
a) Non-expert opinion evidence; and
b) Expert opinion evidence.
[20]

Circumstances in which of non- expert opinion evidence is admitted in Zimbabwe

Opinion evidence involves the opinion, inference, conclusion, impression or belief of a
witness (expert or lay) derived from observed facts. Non –expert opinion is admissible
is if it relevant, relevance is the test for admissibility – R v David. Thus if the opinion
relates to an issue which the court can decide without the aid of opinion evidence of the
non- expert opinion, the opinion is irrelevant and therefore inadmissible – S v Nel.
However if the issue is of such a nature that the witness is in a better position than the
court to form an opinion, the opinion is admissible on the basis of its relevance. Such an
opinion has probative force.
Thus there is the rule that opinion evidence must be excluded where it cannot assist the
court, but admitted where it can. Thus a non-expert witness may express an opinion on
the approximate age of a person, the state of sobriety of a person, the general condition
of a thing and the approximate speed at which a vehicle was travelling.
Inability by a non-expert witness to provide reasons for the opinion should affect the
weight and not the admissibility of the opinion.
The admission of opinion is governed by statute. Section 22 (2) (a) and (b) of the Civil
Evidence Act [8:01] says that; The opinion of a person who is not an expert shall be
admissible to prove any fact relevant to an issue in civil proceedings if:
1. His opinion is based on what he saw, heard or otherwise perceived.
2. His opinion is helpful to a clear understanding of his evidence or to the determination
of that issue.

Circumstances in which of expert opinion evidence is admitted in Zimbabwe

The distinction between expert and non-expert opinion does not govern admissibility,
but the question is whether the opinion of the particular witness in the particular
circumstances of the case can assist the court in determining the issues. The function of
the expert is to assist the court to reach a conclusion on matters on which the court itself
does not have the necessary knowledge to decide. In civil cases parties should give notice
of their intention to rely on expert opinion evidence; in criminal matters the prosecution
is required to disclose expert opinion evidence to the accused prior to the
commencement of the trial.
There are issues which simply cannot be decided without expert guidance, these are
issues relating to; ballistics,engineering, chemistry,medicine, accounting and psychiatry.
In Gentiruco AG v Firestone SA (Pty) Ltd it was held that : “The true and practical test
of the admissibility of the opinion of a skilled witness is whether or not the court can receive
‘appreciable help’ from that witness on the particular issue.”
In S v Melrose the high court pointed out that the viva voce evidence of medical
practitioners in cases involving, for example, homicide, rape and serious assaults is very
relevant indeed.

The party seeking to adduce the opinion of a witness as an expert must satisfy the court
that the opinion is not supererogatory (ie irrelevant). The court must be satisfied ;
(1) that the witness not only has specialist knowledge, training, skill or experience
but furthermore, on account of these attributes or qualities, assist the court in
deciding the issues;
 (2) that the witness is indeed an expert for the purpose for which he is called upon to
express an opinion; and
(3) that the witness does not or will not express an opinion on hypothetical facts, that
have no bearing on the case or which cannot be reconciled with all the other
evidence in the case.
Experts are required to support their opinions with valid reasons inorder to strengthen
the probative value of the opinion – S v Kotze.
The expert of an expert must be ignored and be considered inadmissible if it is based on
some hypothetical situation which has no relation to the facts in issue or which is entirely
inconsistent with the facts found proved – S v Malinga; Levy v Tune –O- Mizer Centre
(Pvt) Ltd.
Experts should remain objective despite the fact that they are called by a party to testify
in support of the latter’s case – Stock v Stock, if they are partisan the opinion will be of
little value. Experts may also refer to textbooks and this amounts to making use of
hearsay.
In both civil and criminal matters they are provisions which permit expert evidence by
way of affidavit or certificate.
• Section 22 (1) of the CPEA also govern the admissibility of opinion evidence.

QSN 3 JUNE 2014

In a civil suit before the High Court in Bulawayo, the Plaintiff claimed damages for breach
of contract. The contract involved a highly complex financial transaction between the
parties. The Defendant disputed the Plaintiff’s interpretation of the contract. At the trial of
the matter, each party called its own experts to deal with the question of the proper
interpretation of the contract. The evidence led in court by the parties dealt in the main with
the correct interpretation of the contract between the parties. The judge is confronted with
conflicting evidence of the parties’ expert witnesses on the correct interpretation of the
contract. As the judge’s research assistant, you have been asked to assist in dealing with this
issue.
a) With reference to case law and/or statute law explain the extent to which, if any, the
courts in Zimbabwe can rely an expert witness’ evidence. [15]

b) On the facts set out above, to what extent can the court rely on the expert witnesses’
evidence in interpreting the contract? [10]

The extent to which courts in Zimbabwe can rely on expert witness’ evidence.

The courts to a greater extent depend on experts to reach a conclusion on matters which
the court itself does not have the necessary knowledge to decide, these include ballistics,
engineering, chemistry, medicine, accounting and psychiatry. Thus when a court can
receive appreciable help from the expert witness on the particular issue the expert
opinion evidence is admissible. Section 22 (1) of the CPEA also strengthens the view that
opinion evidence is admissible when it is relevant, and opinion evidence is relevant if it
can prove a fact in issue. {PLEASE READ QSN IMMEDIATELY ABOVE}

In S v Motsi held that expert evidence must be considered in conjuction with rest of
evidence, it must not be considered in isolation and it is admissible where relevant.
In R v Nyamayaro and R v Sibanda it was emphasised that a court should not allow an
expert merely to present their conclusion without also presenting the analytical process
by which they reached that conclusion.

To what extent can the court rely on the expert witnesses’ evidence in interpreting
the contract ?

It is generally accepted that a witness should not be permitted to express an opinion

which entails a conclusion of law, or which requires the application of a standard of the
law to the facts or which relates to the meaning of words appearing in a statute. The
governing test therefore is the exclusion of unnecessary/ superfluous/supererogatory
evidence.

In International Business Machines SA (Pty) Ltd v Commissioner for Customs and

Excise 1985 4 SA 852 (A) 874A-B it was said; “Under our system, questions of
interpretation of…documents are matters of law, and belong exclusively to the Court. On
such questions the opinion of witnesses however eminent or highly qualified, are (except
in regard to words which have a special or technical meaning) inadmissible.”

In the matter of Registrar General & Anor v Todd 2002 (2) 680 (S) it was held that the
court can interpret a foreign statute without the assistance of an expert.

Thus to a lesser extent a court can rely on the expert witness’e evidence in interpreting a
contract. This because the court is better position than the witness to express an opinion.
However if the words to be interpreted have a technical meaning the court will attach
greater probative value to the interpretation, however it is not bound by the expert
opinion as provided by section 22 (3) of the CPEA.

QSN 2 JUNE 2015

Explain how the courts in Zimbabwe deal with conflicting testimony of experts called in
court by the opposing parties.
[10]/////////////////////////////////////////////////////////////////////////////
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EXAMINATION OF WITNESSES – Definitions

QSN 1 NOV 2014

Explain and discuss the basic evidential rules that apply to each of the following;
(a) Examination -in-chief;
(b) Cross-examination; and
(c) Re-examination.
[15]

Examination in chief
The purpose of examination in chief is to present evidence favourable to the version of
the party calling the witness. The method most frequently adopted is the question- and –
answer technique. This method is used to control the witness so that he does not speak
of inadmissible or irrelevant matters.
Leading questions are prohibited during examination in chief, a leading question is one
which either suggests the answer or assumes the existence of certain facts which might
be in issue. The reason for the prohibition on leading questions is that the witness might
be favourably disposed to the person calling him and readily adopt the suggested answer.
Further they promote human laziness, it is easy to say yes or no when asked something.
Leading questions are however allowed with regard to introductory or uncontested
matters, for example, Are u Joe Soap ? or Do u live at 12 Smit Road ?
During examination in chief a party may impeach its own witness when he or she has
been declared a hostile witness by the court. There is limited use of witness’s previous
consistent statement during examination in chief.

Cross- examination
Cross examination is a name given to the questioning of an opponent’s witness. It
succeeds examination in chief. The purpose of cross-examination is to elicit facts
favourable to the cross-examiner’s case and to challenge the truth or accuracy of the
witness’s version of the disputed events. The cross- examiner is not restricted to matters
covered by the witness in his evidence in chief. A witness may be asked the same question
more than once in order to test the credibility of the witness. Leading questions may as a
rule be asked in cross examination. A court however attached less weight to answers
given to leading questions put by a cross-examiner to a favourable witness.
The right to cross-examine arises as soon as any witness of an opponent has been sworn
or admonished or has made an affirmation. This right may be exercised even if the
witness does not give evidence in chief.
A party may as a rule not cross-examine his own witness, unless the witness has been
declared a hostile witness by the court.
A party has a duty to cross-examine on aspects which he disputes. Failure to cross
examine may in appropriate cases have evidential consequences in that an adverse
inference may be drawn against him. Generally the failure of the prosecutor to cross
examine an accused may be decisive.
However there are limits of cross examination; abusive and discourteous questions are
disallowed; misleading or vague statements should not be put to a witness; inadmissible
evidence may not be put to nor elicited from a witness; in terms of section 290 of the
CPEA it is generally not permissible to ask questions of previous convictions and bad
character; cross examination as to credibility –answers to questions of credibility must
be accepted as final.

Re- examination
Re- examination follows cross-examination and is conducted by the party who initially
called the witness. A party has a right to re-examine. It is an important mechanism of
presenting a full picture and thus of arriving at the truth.
The purpose of re examination is to clear up any point or misunderstanding which might
have occurred during cross examination; to correct wrong impressions or false
perceptions which might have been created in the course of cross examination; to give
the witness a fair opportunity to explain answers given by him under cross examination
which, if unexplained, may create a wrong impression; to put before the court the full
picture and context of facts elicited during cross examination; or correct patent mistakes
made under cross examination.
It is not restricted to matters raised for the first time during cross examination. New
matters ( not introduced in evidence in chief) may only be canvassed with leave of the
court.
Leading questions are not permitted during re-examination.

COMPETENCE AND COMPELLABILITY OF WITNESSES; CORROBORATION

QSN 3 JUNE 2009

Peter marries Mary who has a 14-year-old daughter from her first marriage. A few months
after the marriage the daughter alleges that Peter raped her and he is prosecuted. The
prosecution wish to call Mary but Peter objects saying that his wife cannot give evidence
against him. What advice would you give the magistrate? Will corroboration of the
daughter’s evidence be required? [20 marks]

Is Mary a competent and compellable witness against her husband Peter?

The general rule is that everyone is presumed to be a competent and compellable witness.
(s 244 of theCPEA). In terms of section 245 of the CPEA the court determines questions
of competency and compellability of any witness. In terms of section 246 of the CPEA
mentally disordered and intoxicated persons are not competent witnesses.
The spouse of an accused is a competent witness for the prosecution, but as a rule she
cannot be compelled to testify as a witness for the prosecution as set out in section 247
(3) of the CPEA. However she is both a competent and compellable witness for the
prosecution where the accused is charged with a crime against the person of either of
them or any of the children of either of them, or an offence falling within the categories
specified in section 247 (2) (a)- (g).
The rule against non-compellability of a spouse is based on the consideration that the
marital relationship between the accused and his spouse should be protected. However
in the case of crimes mentioned above this consideration loses its validity since these
crimes are directed against the person of the spouse, or one of their children, or they
affect the marriage in some way.

In casu, the daughter is a child of Mary thus the requirement that the accused must be
prosecuted for an offence against any of the children of them is met. Moreso Peter is
prosecuted for rape. Thus in light of these two offences Mary is a competent and
compellable witness for the prosecution and the magistrate can make such a
determination.

Is corroboration of a child witness evidence required in sexual cases ?

Corroboration is independent evidence which confirms the testimony of a witness. Can

also be defined as evidence which confirms or supports a fact of which other evidence is
govern – S v B. Whenever corroboration is present it is easier to conclude that the
required standard of proof has been satisfied.
Corroboration in the law of evidence is required by law/through practice.
If it is required as a matter of law it means there are statutory requirements and the court
is obliged to follow legislation e.g. on the matter relating to perjury/treason (s 269 of the
CPEA) and accomplice evidence. When courts are using the cautionary approach to
guard evidence which is admitted, they are using practice - with certain kinds of evidence
it is wise to use the cautionary rules and not accept certain witnesses’ evidence without
examining it.
There are some occasions on which it is unsafe to convict a person based on the evidence
of a single witness. Thus caution is taken when the court is receiving evidence of certain
single witnesses such as complainants in sexual cases and children.

Courts emphasise that the evidence of children should be treated with caution. The
danger is not only that children are highly imaginative but also thattheir story may be the
product of suggestion by others. There is no requirement in law that the evidence of the
child should be corroborated – S v Sibanda. The degree of danger with the evidence of
the child will depend on varying factors such as age. Thus caution has to be had depending
on the circumstances of each case.S v Ponder 1989 (1) ZLR 235 (S) “There is no rigid
requirement in ourlaw that a child’s evidence must be corroborated. Where the
courtbelieves the child and applies its mind to the dangers inherent infinding a conviction
upon the child’s uncorroborated evidence, thecourt may nonetheless convict.”

There used to be a cautionary rule in sexual offences to avoid the danger of convicting on
the uncorroborated evidence of a single witness in sexual cases. The leading case was S v
Mupfudza. Following S v Jackson in the matter of S v Banana it was held that in sexual
cases the cautionary rule of practice is not warranted because it views women as
particularly unreliable.
It is also possible in terms of section 269 of the CPEA to convict an accused on the
evidence of a single competent and credible witness. In S v Banana it was held that the
court can convict on the evidence of a single witness and corroboration is not essential.
In light of the above it can be said that corroboration of the daughter’s evidence is not
required.

QSN 3 JUNE 2010

The prosecution are unable to locate their key witness and no realistic chances exist of
locating him. Apart from the evidence of this witness the prosecutor notices that the police
crime docket contains statements with evidence that directly implicates the accused given
by–
(a) his legal wife
(b) his erstwhile lawyer
(c) his now convicted accomplice

Advise the prosecutor on the admissibility of the evidence of each of these witnesses .
[20 marks]

Admissibility of evidence by the accused’s legal wife.

The general rule is that everyone is presumed to be a competent and compellable witness.
(s 244 of theCPEA). In terms of section 245 of the CPEA the court determines questions
of competency and compellability of any witness. In terms of section 246 of the CPEA
mentally disordered and intoxicated persons are not competent witnesses.
The spouse of an accused is a competent witness for the prosecution, but as a rule she
cannot be compelled to testify as a witness for the prosecution as set out in section 247
(3) of the CPEA. However she is both a competent and compellable witness for the
prosecution where the accused is charged with a crime against the person of either of
them or any of the children of either of them, or an offence falling within the categories
specified in section 247 (2) (a)- (g).
The rule against non-compellability of a spouse is based on the consideration that the
marital relationship between the accused and his spouse should be protected. However
in the case of crimes mentioned above this consideration loses its validity since these
crimes are directed against the person of the spouse, or one of their children, or they
affect the marriage in some way.
It can therefore be said that the evidence by the accused’s legal wife is inadmissible.

Admissibility of evidence by the accused’s erstwhile lawyer

Communications between a lawyer and client may not be disclosed without the client’s
consent. Professional privilege protects from disclosure communications between a legal
adviser and his client which are made in confidence for the purpose of enabling the client
to obtain legal advice. If the advice is required in connection with some contemplated
litigation, the privilege will also extend to statements which the client or adviser has
obtained from third parties for the same purpose. The privilege exists in order to promote
the utmost freedom ofdisclosure by persons who need to obtain legal advice. The
requirements for the existence of the privilege are that the communication in question
must have been made to a legal adviser acting in a professional capacity, in confidence,
for the purpose of pending litigation or for the purpose of obtaining professional advice
and the client must claim the privilege. Section 294 of the CPEArefers to the
incompetence of the legal adviser to divulge privileged information without the consent
of the client. In terms of the proviso to the section the legal practitioner is competent and
compellable to disclose information that came to his knowledge before he was consulted.
In the absence of waiver of the privilege by the client or the info police docket having
come to the attention of the lawyer before he acted in a professional capacity, the
evidence by the erstwhile legal practitioner is inadmissible.

Admissibility of evidence by the accused’s now convicted accomplice.

Anow convicted accomplice can be viewed as a former co-accused. A co-accused is a

competent witness for the defence. However, a co-accused is not a competent witness for
the prosecutionagainst his co-accused. The only way in which a person jointly indicted
can be made a competent witness against his co-accused is by putting an end to his status
as anaccused person in the same proceedings. Since the co-accused status as a co-accused
was terminated by his being tried and convicted he is now an accomplice and he is a
compellable witness for the prosecution and his evidence is admissible.
However as an accomplice his evidence is subject to the cautionary rule. In terms of
section 270 of the CPEA, the court cannot convict on the single evidence of an
accomplice unless other evidence to the satisfaction of the court is led showing that the
offence has been committed. In S v Lawrence in discussing the requirement for evidence
aliunde in the case of single accomplice evidence, held that “The court must first satisfy
itself that theoffence with which the accused is charged has been committed.Secondly, it
must look for corroboration.”
Before the court can convict a person upon the single evidence of an accomplice, the court
should find some circumstance which can properly be regarded as reducing the danger
that it might convict the wrong person. These are the ways in which the evidence of an
accomplice can be concluded to be trustworthy by a court: 1) by corroboration; 2) if the
accused chooses not todeny the accomplice’s evidence under oath; 3) Where the
accomplice is proved to be a convincing or satisfactorywitness beyond question, while
the accused is the opposite, thenthe evidence of the accomplice can be considered to be
that whichthe court can rely on.
QSN 1 JUNE 2013

Paul and John are jointly charged with robbery. Paul is admitting to having committed the
offence and is prepared to plead guilty when his trial commences. John who is legally
represented denies the charge and through his lawyer has indicated that he will plead not
guilty to the charge. The Prosecutor is worried that his case against John may not be strong
unless he uses Paul as a witness against John. Paul has indicated his willingness to give
evidence on behalf of the prosecution. The Prosecutor wants to ensure that both John and
Paul are convicted and punished for the offence. John's lawyer has become aware of the fact
that the Prosecutor may use Paul as a witness and has indicated that he will object to Paul
giving evidence against John as he is an accomplice.
Comment on the admissibility of accomplice evidence in criminal trials and advise the
Prosecutor on the options available to him in order that he may use Paul as a witness against
John and still secure the conviction of Paul.
[20]

A co-accused is a competent witness for the defence. However, a co-accused is not a

competent and compellable witness for the prosecution against his co-accused. The only
way in which a person jointly charged can be made a competent witness for the
prosecution against his co-accused is by putting an end to his status as an accused person
in the same proceedings as the co-accused. The change of status can be achieved in any
of four (4) the following ways;

- If the charged against Paul is withdrawn. (This does not amount to an acquittal
and Paul can be prosecuted again.)
- If Paul is found not guilty and discharged.(although this is less likely in the
circumstances)
- If Paul pleads guilty (as he plans to do) and the trials of Paul and John are
separated. In this case its desirable to convict Paul and sentence him b4 calling
him as a state witness.
- If the trials of the Paul and John are separated for another valid reason (such as
when accused no1 wants to call accused no 2 to testify on his behalf, and the latter
elects to remain silent). It is desirable that Paul should be convicted and sentenced
before being called to testify for the prosecution.

Since Paul however is an accomplice, his evidence is admissible but approached with
caution or is subject to the cautionary rule. In terms of section 270 of the CPEA, the court
cannot convict on the single evidence of an accomplice unless other evidence to the
satisfaction of the court is led showing that the offence has been committed. In S v
Lawrence in discussing the requirement for evidence aliunde in the case of single
accomplice evidence, held that “The court must first satisfy itself that theoffence with
which the accused is charged has been committed. Secondly, it must look for
corroboration.” Thus Before the court can convict a person upon the single evidence of
an accomplice, the court should find some circumstance which can properly be regarded
as reducing the danger that it might convict the wrong person.

COMPETENCE AND COMPELLABILITY OF WITNESS; PRIVILEGE

QSN 5 (a) JUNE 2013

Joseph met his childhood friend Peter who is a lawyer practising in Bulawayo. This was their
first meeting since they finished High School. In the course of their conversation Joseph
disclosed to Peter that he had recently stolen US$5000-00 from his employer in order to pay
off his wife's relatives after it was discovered that he had had sexual relations with the wife's
13 year old niece. He sought advice from his friend as to the likelihood of getting a custodial
sentence in the event that it was discovered that he had stolen money and what he could do
in the meantime to properly cover his tracks should he be questioned on the missing money.
He also sought advice from his friend on the possibility of him being prosecuted if the matter
was reported to the police as some neighbours had become aware of it and could
anonymously report it to the police. He was given advice on all these matters including what
he could do to hide some of the evidence against him. As fate would have it, Joseph was
shortly thereafter arrested and charged with fraud and having had sexual relations with a
young person.

The prosecution intends to call, among other witnesses, Joseph's friend Peter and Joseph's
wife. Joseph is worried that he will be convicted if the two witnesses testify against him. His
friend Peter indicated that he was unable to represent him as he had given a statement to
the police.

Outline and explain with reasons;

i) whether the State can compel his wife and his childhood friend to testify against him at
the trial.
ii) whether Joseph has any legal basis to stop his friend and his wife from testifying at his
trial against him if they want on their own to testify against him.
[10]

Whether the state can compel the accused’s spouse and legal practitioner from
testifying against him.

The spouse of an accused is a competent witness for the prosecution, but as a rule she
cannot be compelled to testify as a witness for the prosecution as set out in section 247
(3) of the CPEA.

Communications between a lawyer and client may not be disclosed without the client’s
consent. Section 294 of the CPEArefers to the incompetence of the legal adviser to
divulge privileged information without the consent of the client. Thus Joseph’s lawyer is
both not competent and compellable to testifying against him unless the information
about the crimes came to his attention before he was employed or consulted by Joseph.

Whether Joseph has a basis for stopping his wife and lawyer from testifying at his
trial.

However accused’s wife is both a competent and compellable witness for the prosecution
where the accused is charged with a crime against the person of either of them or any of
the children of either of them, or an offence falling within the categories specified in
section 247 (2) (a)- (g). Since Joseph is being charged with rape a specified offence in
terms of section 247 (2), his wife can testify against him thus he has no basis for stopping
her from testifying even without his consent.

Professional privilege protects from disclosure communications between a legal adviser

and his client which are made in confidence for the purpose of enabling the client to
obtain legal advice. The requirements for the existence of the privilege are that the
communication in question must have been made to a legal adviser acting in a
professional capacity, in confidence, for the purpose of pending litigation or for the
purpose of obtaining professional advice and the client must claim the privilege. Joseph
can claim legal professional privilege against Peter. Once he claims the privilege Peter
will not testify against him without his consent.

HEARSAY EVIDENCE; DIRECT EVIDENCE

QSN 4 JUNE 2009

Farai is in his house and hears a disturbance outside. He goes to the window and hears a
voice shout “Look out Tendai has a knife”. He telephones the police and tells the officer what
he heard. He then goes outside and finds a man injured and dying at the side of the road.
The man says “It was Tendai”. Tendai is subsequently arrested and prosecuted. Can Farai
give evidence of what he saw and heard? Can the police officer give evidence of the telephone
call?
[20 marks]

The general rule in the law of evidence is that relevant evidence is admissible and
irrelevant evidence is inadmissible. Section 252 of the CPEA is statutory confirmation of
this general rule. Since relevance is the test for admissibility it can be said that if Farai’s
evidence and the police officer’s evidence is relevant it will be admissible.

Relevance is not decided in vacuum but one has to look at the issues to determine
whether evidence is relevant S v Zuma. In casu the issue is whether Tendai stabbed the
man with a knife. It is clear that Farai never saw Tendai stabbing the man, but rather he
had someone shouting this however is hearsay evidence. However Tendai saw the
injured man and heard him say it was Tendai this is circumstantial evidence because it
is not directly proved that Tendai stabbed the man. The fact that the man was injured and
identified tendai as the stabber is a fact relevant to the issue hence admissible.

With regard to hearsay evidence it can be said that it is generally inadmissible and this is
confirmed by section 253 (1) of the CPEA.At common law hearsay evidence was defined
as any statement other than one made by a person while giving oral evidence in the
proceedings, and presented as evidence of any fact or opinion stated. Hearsay is oral or
written evidence that is being offered as an assertion to show the veracity (truthfulness)
of matters stated therein. 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 as held in Subramium v Public Prosecutor.

However they are common law and statutory exceptions to the rule against the
admissibility of hearsay evidence. One of the common law exceptions are spontaneous
statements. The reasoning behind the admission of spontaneous statements was that
despite their hearsay nature, they are the product of an instinctive response and
therefore less likely to be an invention or deliberate invention.In order for the statement
to be regarded as spontaneous it must be so closely linked to the event that gave rise to
it. In casu the words “Look out Tendai has a knife” are so closely linked to the disturbances
Farai heard outside. In S v Tuge the court held that the following conditions have to exist
before a spontaneous statement such as the one above can be admitted into evidence;

- The original speaker must be shown to be shown to be unavailable as a witness

- There must have been an occurrence which produced a stress of nervous
excitement
- The statement must have been made whilst the stress was still so operative on the
speaker that his reflective powers may be assumed to have been in abeyenace
- The statement must not amount to a reconstruction of a past event

Thus it can be said that the words “Look Tendai has a knife” can be admitted on the
exception of spontaneous statements.

The words “It was Tendai” can be admitted on the expetion of dying declaration which is
both a common law and statute law exception to the rule against hearsay evidence. 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:
- The declarant is dead.
- 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.
- The declarant was a competent witness.
The rationale for the exception of dying declarations is necessity (relevant evidence will
be lost) and reliability. In casu, it is clear the man was injured and dying when he said “It
was Tendai” thus the requirements for this exception have been met.

In casu hearsay evidence by Farai is admissible on the basis of the two exceptions;
namely; spontaneous statements and dying declarations.

The police officer can give evidence of the telephone call as it will corroborate Farai’s
testimony and it doesn’t not amount to hearsay evidence since will confirm the call.

SIMILAR FACT EVIDENCE

QSN 5 JUNE 2009

Pengapenga is charged with the armed robbery of a petrol station. The prosecution
introduce evidence showing that the robbery was committed by a man wearing a mask
similar to those worn by Makishi traditional dancers. The petrol attendant, earlier in the
trial, positively identified a mask found in Pengapenga's possession as the mask worn by the
robber. The prosecution, now wish to offer the testimony of three other petrol station owners
to the effect that their stations were held up by a man wearing a Makishi dancers traditional
mask. All three of the alleged robberies took place inside a single week and two weeks of the
robbery that is the subject matter of the present prosecution. Two of the owners cannot
identify Pengapenga as the man who robbed their stations. The third will testify that the
man who robbed him, had at one time during the robbery, raised the mask, thereby briefly
exposing his face. That as a result he is able to positively identify Pengapenga as the robber.
The defence is objecting to the reception of the testimony of all three petrol station owners,
on the basis that it is both irrelevant and inadmissible as their client is not being charged
with any of these alleged robberies.
What attitude should the court take in regard the defence objection and why?
[25 marks]

Similar fact evidence was defined in S v M as evidence which refers to the peculiar
immoral or illegal conduct of a party on an occasion or occasions other than the incident
or occurrence in contention, but which is also of a character that is pertinent to or in
essentials similar to the conduct on the occasion which forms the issue or subject matter
of the discipline. The similar facts are facts that are directed at showing that a party to the
proceedings (accused) has behaved on other occasions in the same way as he is alleged
to have behaved in the circumstances presently being considered by the court.

Similar fact evidence is generally inadmissible because it is irrelevant. The irrelevancy

springs from the fact that its prejudicial effect outweighs its probative value. The
prejudice is that a court may decide that the accused is of such a bad character that he has
probably committed many other crimes without having been detected. Similar fact
evidence may also prejudice the accused in that he has to defend himself in respect of
both the offence charged and also to defend himself against past charges of misconduct.
Similar fact evidence also results in procedural inconvenience and an investigation into
collateral issues.

In the case of Makin v Attorney- General for New South Wales the court formulated
the rule that if the purpose of leading similar fact evidence is to show propensity or that
the accused person is a person likely from his conduct or character to have committed
the offence for which he is tried similar fact evidence is inadmissible. However if the
purpose of the similar fact evidence is relevant to an issue before the court such such as
to show that the crime was designed and not accidental or to rebut a defence that might
be open to the accused.

Thus similar fact evidence will be admissible when it is both logically and legal relevant
as was held in Laubscher v National Foods Ltd. Section 290 (d) of the CPEA also
confirms the similar fact rule. In the case of DPP v Boardman it was held that there had
to be striking similarity before similar fact evidence could be admitted, however in S v
Banana the supreme court observed that the requirement of striking similarity should
not be overemphasised.

The courts have laid down categories in which similar fact evidence is relevant.

1. For the Purpose of Rebutting the Defence of Accident or Coincidence

In R v Bond (1906) 2 KB 389 the accused person was convicted of using instruments
with the intent to commit abortion on a woman who used to be his domestic worker.
The court allowed evidence to be admitted to the effect that the accused had
performed a similar operation on another woman 9 months earlier. Both were
servants of the accused and had become pregnant by him. The accused was a medical
doctor. His argument was that he was using the instruments to examine both girls for
venereal diseases. The court nonetheless allowed the evidence and proceeded to
convict him on the basis of the evidence. The court held that the similar facts evidence
was highly relevant in that there were striking similarities in that that the same
evidence should repeatedly occur to the same person is unusual, especially if it
confers a benefit on him. The court admitted the evidence because it made the defence
of accident implausible when raised by a man with apparent expertise in abortion.

In R v Smith 1915 CAR 229 the accused was charged with the murder of one B, his
wife. Prior evidence of the death of two other women to whom the accused was
married was held to have been rightly admitted. In each of the cases, the deceased
was found drowned in a bath-tub and in each case the door of the bathroom would
not lock and also in each case the accused had told medical practitioners that the
women suffered from epileptic seizures; a defence he also raised in court. Finally, in
each of the cases the women were insured. S was convicted but appealed. On appeal
the court said ‘to lose one wife under such circumstances is unfortunate, to lose a
second one is carelessness, but to lose a third is definitely murder’. Thus the court
noted that the occurrence of so many accidents which benefitted the accused could
not reasonably be explained on the basis of coincidence.

2. To Rebut the Evidence of Innocent Association or Innocent Explanation

In R v Ball (1911) AC 47 The co-accused were brother and sister. They were indicted
under the Punishment of Incest Act of 1908. They were accused of having a sexual
liaison within the period of 1910. Prior to 1908 incest was not a crime. Evidence was
then given on behalf of the prosecution to the effect that the times specified in the
indictment the two lived together in the same house. The house apparently had one
furnished bedroom which had a double bed which bore unmistakable signs of having
been occupied by two persons. The prosecution then tendered evidence of prior
sexual relations between the two accused persons. Evidence was introduced that in
November 1907, the male accused had rented a house to which he brought the female
accused and in that house they had lived as husband and wife for more than a year.
Further, that at the end of March 1908, the female Ball gave birth to a child and upon
registration she described herself as the mother and the male Ball as the father. The
Balls were convicted and they appealed on the basis that similar facts evidence had
been improperly admitted. The House of Lords held that evidence of prior sexual
liaison between the two was clearly admissible in showing a sexual passion for each
other and that the occasion could not have been innocent.

3. Similar Facts Evidence Has Also Been Used As Part of the Story (Res Gestae)

In O’Leary v The King 73 CLR 566 the accused and deceased were both employees
at an isolated timber camp in Australia. Together with fellow employees they took
part in a drunken orgy that commenced from Saturday morning till Sunday morning.
At about Saturday midnight the deceased retreated to his cubicle a short distance
from the accused’s own cubicle. On Sunday morning the deceased was found in his
cubicle in a dying state, badly injured. He had been struck on the head about eight or
nine times, after which paraffin had been poured over him and he was set alight.
Nobody witnessed the events taking place so the question of the identity of the
accused became critical. The prosecution was allowed to lead evidence that at various
times during the orgy the accused had punched one H on the head and knocked him
down and continued to punch him while he was still prostate on the ground. He had
also grabbed one T by the throat and threatened ‘to do him’. He had knocked out one
K and kicked him all over the body. He had also threatened to assault and shoot three
other people. All the events occurred prior to the incident relating to the deceased’s
injuries and subsequent death. Using this evidence, the accused was convicted of
murder on the basis of the res gestae doctrine. The court reasoned that right at the
beginning of the orgy until the death of the deceased a series of connected events of a
violent nature took place and on the basis of the admissibility of the evidence.

4. To identify people
 In Thomson v R it was held that similar fact evidence is admissible to prove
identity.

In light of the foregoing the attitude of the court is to admit similar fact evidence to be
adduced by the three petrol stations owners because the evidence is relevant to prove
identity.

QSN 2 JUNE 2013

Mr Mayo, a farmer in Mrewa sued a stock feed manufacturer for damages in respect of the
deaths and loss of profits he sustained in his pig farming operations through feeding his
animals with what he alleged to be contaminated foodstuffs that he had purchased from the
defendant company. At the commencement of the trial, his lawyer stated his intention to
lead evidence from other pig farmers who had sustained similar losses after using the
defendant company's stock feeds. The Defendant company's lawyer objected to the
admissibility of such evidence as being irrelevant and prejudicial to the Defendant.
Comment and explain in detail on the nature and admissibility of the evidence that is being
sought to be led on behalf of the Plaintiff and the approach of the courts to such evidence.
[20]

* Facts taken from Laubscher v National Food Ltd 1986 1 SA 553 (ZS)*

Similar fact evidence was defined in S v M as evidence which refers to the peculiar
immoral or illegal conduct of a party on an occasion or occasions other than the incident
or occurrence in contention, but which is also of a character that is pertinent to or in
essentials similar to the conduct on the occasion which forms the issue or subject matter
of the discipline. The similar facts are facts that are directed at showing that a party to the
proceedings (accused) has behaved on other occasions in the same way as he is alleged
to have behaved in the circumstances presently being considered by the court.

Similar fact evidence is generally inadmissible because it is irrelevant. The irrelevancy

springs from the fact that its prejudicial effect outweighs its probative value. The
prejudice is that a court may decide that the accused is of such a bad character that he has
probably committed many other crimes without having been detected. Similar fact
evidence may also prejudice the accused in that he has to defend himself in respect of
both the offence charged and also to defend himself against past charges of misconduct.
Similar fact evidence also results in procedural inconvenience and an investigation into
collateral issues.

In the case of Makin v Attorney- General for New South Wales the court formulated
the rule that if the purpose of leading similar fact evidence is to show propensity or that
the accused person is a person likely from his conduct or character to have committed
the offence for which he is tried similar fact evidence is inadmissible. However if the
purpose of the similar fact evidence is relevant to an issue before the court such such as
to show that the crime was designed and not accidental or to rebut a defence that might
be open to the accused.

Thus similar fact evidence will be admissible when it is both logically and legal relevant
as was held in Laubscher v National Foods Ltd. Section 290 (d) of the CPEA also
confirms the similar fact rule. In the case of DPP v Boardman it was held that there had
to be striking similarity before similar fact evidence could be admitted, however in S v
Banana the supreme court observed that the requirement of striking similarity should
not be overemphasised it thus held as follows; “the courts have moved away from the
striking similarity test. Striking similarity is not a pre-requisite to admissibility. What has
to be assessed is the probative force of the evidence in question; there is no single manner
in which this can be achieved.”

It has been held that the probative value of similar fact evidence will to a large extent be
determined by the degree of similarity between a person’s conduct on other occasions
and on the occasion which is the subject of the court’s inquiry. In Laubscher v National
Food Ltd 1986 1 SA 553 (ZH)the court in objecting the admissibility of similar fact
evidence from other pig-farmers who had suffered similar losses after using the
defendants food stuff, per Reynolds J held that “before such similar fact evidence could
be admitted, the similarity of conditions applicable in each case has to be satisfactorily
established.There has not been evidence to suggest that the foodstuffs had been
purchased at approximately the same time, or that the animals became affected within a
similar period of time after consuming the food, or that any other pig-farmers purchasing
the defendant’s feed at the same time suffered a similar fate, or that the animal husbandry
practices adopted by the plaintiff were similar to those at other farms, or that any of the
conditions on the other farmer’s farms were similar to those on the plaintiff’s farm ” The
evidence was also held inadmissible because it would lead to collateral issues which
would have no bearing on the present issue.

In casu the similar fact evidence is inadmissible because apart from the other buying from
the defendant similar conditions have not been established. Even if they are to be
established this will result in collateral issues and this will result in a protracted trial
resulting from the calling of further witnesses by both parties. Hence evidence
inadmissible because its prejudicial effect outweighs its probative force.

INTRODUCTION – JUDICIAL NOTICE

QSN 2 (a) JUNE 2010; QSN 2 NOV 2012

Briefly explain what categories of facts a court can legally take judicial notice of? [5 marks]
Judicial notice is whereby a judicial officer accepts the truth of certain facts which are
known to him even though no evidence has been led to prove the facts. Courts can only
take judicial notice of notorious facts (facts either well known to all reasonable persons
or to a reasonable court in a specific locality) and facts which are readily ascertainable.
Evidence to prove these facts would be completely unnecessary and even absurd.
Notorious facts (general knowledge) would include the fact that they are 7 days in a week.
Facts of local notoriety are facts that are notorious among all reasonably well-informed
people in the area where the court sits, this would include the distance between two well-
known local places and that a specific local road is a public road within the local town.
Facts easily ascertainable facts which are not generally known but which are readily and
easily ascertainable should be judicially noticed. However they should be easily
ascertainable from sources of indisputable authority, for example, maps and surveys
issued under government authority.

Examples:
1. Animals- the fact that rhinoceros are rarer than elephants was judicially noticed
in S v Mazweinzini 1964 4 SA 201 (SR).
2. Political and constitutional matters- the sovereignty of foreign states and the
existence of war may be judicially noticed.
3. Matters of science and scientific instruments- judicial notice has been taken of the
fact that no two fingerprints are exactly the same.
4. Financial matters and commercial practices- judicial notice has been taken of the
fact that the value of money has declined over the years, that most companies are
incorporated for the purpose of making a profit from income.. In Crone v Crone
2000 (1) ZLR 367 (S) the court took judicial notice of the consumer price index
published by the Government regarding cost of living.
5. Historical facts, words and phrases.
6. Crime- courts have taken judicial notice of a number of matters relating to crime.
In S v Zitha the court took judicial notice of the high crime rate in SA.
7. Social conditions – courts have taken judicial notice of problems in the legal aid
system and the poor road condition in some parts of the country. In Delta
Beverages (Pvt) v Murandu S 38-15 the court took judicial notice of the
economic state of the country
8. Law- judicial notice must be taken of Zimbabwean law and this includes statute
and common law.

• SECTION 24 OF THE CIVIL EVIDENCE AT SPECIFIES MATTERS THAT A COURT

CAN TAKE JUDICIAL NOTICE OF.

INTRODUCTION – Definitions of various concepts

QSN 1 NOV 2012& JUNE 2015

Write brief explanatory notes and distinguish between each of the following –
(a) Direct evidence and circumstantial evidence
(b) Formal admissions and informal admissions
(c) Admissibility of evidence and the weight of evidence
(d) Presumptions of fact and presumptions of law

[20 marks]

Direct evidence is evidence used to prove directly a fact in issue, for example where
witness C testifies that he saw A stabbing B. Circumstantial evidence however is evidence
that furnishes indirect proof, in a murder trial for example, evidence may be given that A
had a motive to kill B and was seen running from B’s home with a bloodstained
knife.Unlike direct evidence when admitting circumstantial evidence a court is required
to draw inferences which are logical.

An admission is a statement made by a party, in civil or criminal proceedings, which is

adverse to that party’s case. For the purposes of trial a party may formally admit one or
more facts. Those facts then no longer need be proved by the party’s adversary.
Formal admissions- aremade in the pleadings or in court.They are binding on the maker,
they are considered to be conclusive proof of the fact admitted and are generally made to
reduce the number of issues before the court.
Informal admissions- are made out of court and merely constitute an item of evidence
which can be contradicted or explained away.Whereas formal admissions narrow down
issues, informal admissions give rise to additional issues, for example, whether it was
made freely and voluntarily.

Admissibility of evidence depends on relevance, the rule is that relevant evidence is

admissible while irrelevant evidence is inadmissible.There are no degrees of
admissibility,evidence is either admissible or inadmissible.
Weight of evidence refers to the persuasiveness of evidence to determine whether the
required proof has been attained. It is only after evidence has been admitted and at the
end of the trial that the court would have to assess the final weight of evidence. Thus its
one thing to say evidence is admissible and another thing to say it is cogent or persuasive.

Presumption is a conclusion which may or must be drawn in the absence of contrary

evidence. Presumptions are useful for the following reasons;assists the courts in reaching
a valid and effective affirmative finding; allocate burdens of proof; save time by not
requiring a party to prove something which is probably true.The are three types of
presumptions namely presumption of fact, irrebuttable presumptions of law and
rebuttable presumptions of law.
Presumption of fact- is a mereinference of probability which a court may draw if on all
the evidence it appears to be appropriate. A court is not obliged to draw the inference
dictated by the presumption if such an inference does not accord with common sense. For
example, it can be presumed that a person found in possession of recently stolen goods
stole them or received them knowing that they were stolen.

Rebuttable presumptions of law- are rules of law (within the law of evidence)
compelling provisional assumption of a fact. They are provisional in the sense that they
will stand unless destroyed by countervailing evidence.
Irrebuttable presumption of law - furnish conclusive proof of the fact presumed and
cannot be rebutted by evidence to the contrary. An example of an irrebuttable
presumption of law is the presumption that a child under the age of seven cannot discern
between good and wrong and thus cannot be held criminally liable.

QSN 1 NOV 2013& JUNE 2015

Write brief explanatory notes and distinguish between each of the following:-
a) Facts in issue and facts relevant to the facts in issue.
b) Evidence and argument.
c) Evidence and proof.
d) Admissibility of evidence and weight of evidence.
e) Compellability and privilege.
[20]

Facts in issue (factaprobanda) - are those facts a party must prove in order to succeed.
Facts relevant to the facts in issue (factaprobantia) - are those facts which tend to
prove or disprove the facts in issue. For example, in a paternity case the identity of the
father is the fact in issue while sexual intercourse with the alleged father will be a fact
relevant to the fact in issue.

Evidence – consists of oral statements made in court under oath or affirmation or

warning (oral evidence).It also includes documents (documentary evidence) and objects
(real evidence) produced and received in court.Thus evidence is means of furnishing
proof.
Argument- is not presented through evidence but is merely persuasive comment made
by the parties or their legal representatives with regard to questions of fact or law. Thus
argument on for example the weighty of evidence does not amount to evidence.
Proof- means that the court has received probative material with regard to a fact and has
accepted such fact as being the truth for the purposes of the specific case. Proof involves
a process of evaluation by the court after evidence has been presented. The court will
only act upon facts found proved in accordance with certain standards.
Probative material- refers to oral, documentary and real evidence and also includes
formal admissions, judicial notice, presumptions of fact and law. Thus probative material
refers to more than just evidence.

Compellability– a compellable witness is a person whom the law allows a party to to

compel to give evidence. Thus a compellable witness is obliged to give evidence.
Privilege- refers to a personal right or duty of a witness, including a party to lawfully
withhold relevant evidence from a court of law. A distinction is drawn between private
privilege and state or public privilege. Where evidence is excluded because to disclose or
admit it would be detrimental to state interests, state privilege is claimed. Private
privilege is directed at protecting the interests of individuals.
*There are certain questions which a witness may refuse to answer if he so wishes, he is
said to be privileged in respect of those questions.
*Compellability is concerned with whether a witness can be forced by a party to give
evidence at all.
*Privilege is concerned with whether a witness who is already in the witness box is
obliged to answer a particular question.

INTRODUCTION- Parole Evidence Rule

QSN 3 JUNE 2013

With reference to case law outline and explain the parole evidence rule and fully set out any
exceptions to its application in Zimbabwe. [20]

It has generally been accepted that when a contract is reduced into writing the courts
must rely on the provisions of the written contract (not extrinsic evidence) to deal with
any dispute arising therefrom. This is referred to as the Parole Evidence Rule and was
underscored in the case of Johnson v Lean 1980(3) SA 927 at 937.The is debate
however as to whether the rule is one of evidence or one of substantive law. The rule not
only applies to contracts but it is also applicable to other written jural acts such as wills,
negotiable instruments and court orders.Thus the rule applies to transactions reduced to
writing.In the case of Nhundu v Chiota SC 28/07 it was held that the rule prevents a
party from altering the terms of a contract in order to rely on the contact as altered.
The rational for this is that if parties to a written contract are permitted to give you
extrinsic/external evidence written contracts will lose much of their value. Necessary as
such a rule obviously is, to exclude evidence of prior negotiations as held in Thomson
(Pvt) Ltd v Bennett 1962 R & N 689)

The Supreme Court in Nhundu v Chiota& Anor SC28/07 on page 4 quoted with
approvalthe definition ofparol evidence rule as stated by WATERMEYER JA in Union
Government v Vianini Ferro-Concrete Pipes (Pvt) Ltd 1941 AD 43 at P 47, where he
said;
“Now this Court has accepted the rule that when a contract has been reduced to writing, the
writing is, in general, regarded as the exclusive memorial of the transaction and in a suit
between the parties no evidence to prove its terms may be given save the document or
secondary evidence of its contents, nor may the contents of such document be contradicted,
altered, added to or varied by parole evidence.”

In Dube v Muchetwa& Anor HH 19-2009 it was held that the parole evidence rule has
been part of our law for decades.

The parole evidence rule is not rigid but rather it is a general rule that is subject to
exceptions. The followings are the exceptions;

- Where a written contract is not intended to cover the terms of the transaction all-
inclusively, evidence of further oral terms is not precluded as held in Johnston v
Leal.
- Extrinsic evidence is admissible to determine the validity of a transaction, it may
be shown by oral evidence that a contract is void for fraud, mistake, illegality,
impossibility or lack of consensus as held in Kok v Osborne.
- Suspensive conditions (or conditions precedent) which suspend the operation of
a contract may be proved by parole evidence as held in Stiglingh v Theron.
Provided the condition does not form part of an integral part of the contract.

QSN 5 NOV 2013

It is generally accepted that where a formal admission is made by one of the parties before
the court or where the court takes judicial notice of a fact or where a presumption of law
applies the rule that all relevant facts must be proved on the basis of evidence presented by
the parties does not apply. Briefly explain each of these concepts and set out the
circumstances in which each of these apply in Zimbabwe.
[15]

Formal admission-refers to an admission (statement adverse to a party’s case) made in

the pleadings or in court. They are binding on the maker, they are considered to be
conclusive proof of the fact admitted and are generally made to reduce the number of
issues before the court. In S v Mandwe the Supreme court held that the words “ the cyclist
died as a result of this accident” constituted a formal admission as to the cause of death
and there was no onus on the state to prove the cause of death. Thus a formal admission
is conclusive proof of the fact admitted.There is a requirement in both civil and criminal
proceedings that the maker of a formal admission must intend the admission to be an
admission of a fact which he or she does not wish to dispute. The is also the rule that what
is not denied in affidavits must be taken to be admitted. Section 36 of the Civil Evidence
Act governs the admissibility of admissions in civil cases while section 314 of the CPEA
provides for the admissibility of formal admissions by the accused, his representative or
the prosecutor.
Judicial Notice- has been discussed above.Section 24 of the Civil Evidence Act
provides for matters with regard to which a court may take judicial notice of, it thus
provides as follows;
(1) A court shall take judicial notice of the following—
(a) the law of Zimbabwe; and
(b) decisions of the High Court or the Supreme Court, if reported or recorded in citable
form; and
(c) any enactment published in or as a supplement to the Gazette; and
(d) any other matter whatsoever which, in terms of rules of court or any other enactment,
the court is required to accept as correct or of which it is required to take judicial notice.
(2) Subsection (1) shall apply without prejudice to Part VII of the Interpretation Act
[Chapter 1:01].
(3) A court may and, if the necessary information is supplied, shall take judicial notice of
any fact which is not subject to reasonable dispute in that it is—
(a) generally known among reasonably informed people in Zimbabwe or within the area
of jurisdiction of the court; or
(b) capable of accurate and ready determination by resort to sources whose accuracy can
not reasonably be questioned.

Presumption of law– these can be categorised into rebuttable presumptions of law and
irrebuttable presumption of law. However rebuttable presumption of law is regarded as
a genuine presumption while the latter is regarded as a rule of substantive law and
applies due to public policy considerations. Rebuttable presumption of law apply in
Zimbabwe in cases that involve burden of proof, for example, the presumption of
innocence requires the state to prove the guilt of an accused beyond a reasonable doubt.
In MB Ziko (Pvt) Ltd v CestaronInvstms (Pvt) Ltd 2008 (2) ZLR (S)- presumption that
document was executed on dated stated in document.

QSN 1(a) JUNE 2014

Write brief explanatory notes and distinguish between each of the following:-
i) Circumstantial and direct evidence.
ii) Competence and compellability.
iii) Formal and informal admissions.
iv) Primary and secondary evidence.
v) Prima facie proof and conclusive proof.
[15]

Competence – a witness is competent if he or she may lawfully give evidence. Persons

under a mental disorder or intoxicated persons are not competent to give evidence in
both civil and criminal proceedings.
Compellability- a witness is compellable if he or she is obliged to give evidence by a party
to proceedings. An accused for example is competent but not compellable for the state or
co-accused. In civil proceedings spouses are competent and compellable witnesses for or
against the party concerned.A spouse if not a compellable witness for the prosecution.

*The general rule is that every person is presumed to be a competent and compellable
witness in both civil and criminal proceedings – section 244 of the CPEA and section 4 of
the Civil Evidence Act.

Primary evidence – is that which does not, by its very nature, suggest that better
evidence may be available.For example, the original of a document is primary evidence,
while a copy is secondary evidence

Secondary evidence– is that which, by its very nature, does suggest that better evidence
may be available. It must be noted that the difference between primary and secondary
evidence is important with regard to documentary evidence.

Prima facie proof – is proof that can be contradicted by proof to the contrary. In the
absence of proof to the contrary, prima facie proof will, become conclusive proof.

Conclusive proof- is proof which is taken as decisive and final. This means that rebuttal
is no longer possible.

CORROBORATION – Accomplice Evidence

QSN 3 NOV 2012

Schreiner AJA in R v Ncanana 1948 (4) SA 399 (A) said at 405 –

"The rule of practice ... is that caution in dealing with the evidence of an accomplice is still
imperative. The cautious court or jury will often properly acquit in the absence of other
evidence connecting the accused with the crime, but no rule of law or practice requires it to
do so. What is required is that the trier of fact should warn himself, or if the trier is a jury,
that it should be warned, of the special danger of convicting on the evidence of an
accomplice ….”

Explain three principle reasons why special caution must be observed by a court in
evaluating the credibility of an accomplice witness.
[15 marks]

The three reasons where laid down in the matter of InS v Hlapezula&Ors1965 (4) SA
439 (A) at 440D-H
 1. First, an accomplice is a self-confessed criminal. This implies that he is
generally not an honest individual and caution must be exercised in accepting his
evidence.
2. An accomplice is a witness with a possible motive to tell lies about an
innocent accused. For example, various considerations may lead him falsely to
implicate the accused, for example, a desire to shield a culprit or, particularly
where he has not been sentenced, the hope for clemency. Thus an accomplice has
special reasons to falsely implicate an accused.
3. Third, by reason of his inside knowledge, he has a deceptive facility for
convincing description- his only fiction being the substitution of the accused
for the culprit. Thus his very fact of being an accomplice enables him to furnish
the court with details of the crime which is apt to give the court the impression
that he is in all respects a satisfactory witness or as was described in R v Ncanana
“to convince the unwary that his lies are the truth.” Thus inside knowledge enables
an accomplice to lie

CORROBORATION - CAUTIONARY RULE

QSN2 NOV 1013

“The cautionary rule of evidence is a rule of practice and must be followed whenever the
evidence of certain witnesses is being evaluated.”

a) Confirm the correctness of the statement and outline the necessity of the rule in the
evaluation of evidence by the courts in Zimbabwe. [5]

b) With reference to case law and relevant statutory provisions set out the circumstances or
instances in which the cautionary rule is applied in evaluating evidence in the courts in
Zimbabwe and the necessity thereof.
[20]

Necessity of the cautionary rule.

The above statement is correct because the cautionary rule was developed by the courts
and not by the legislature and it applies certain specified witness and not to every
witness. The purpose of the cautionary rules is to guide the courts against readily
accepting the credibility of certain witnesses without safeguards which reduce the risk of
a wrong finding based on suspect evidence. Thus the rule is followed whenever evidence
of certain witnesses is being evaluated and it is only after evaluation that the evidence is
admitted. The rule helps the court in making the finding that the accused’s guilt has been
proved beyond a reasonable doubt. Corroboration of the suspect evidence is thus one of
the ways of reducing the risk of a wrong finding

The application of the cautionary rule in Zimbabwe

 1. Accomplice evidence
Section 270 of the CPEA provides the court cannot convict an accused on the single
evidence of an accomplice witness in the absence of evidence aliunde. Thus in terms of
our law, the court cannot convict on the single evidence of an accomplice unless other
evidence to the satisfaction of the court is led showing that the offence has been
committed. Before the court can convict a person upon the single evidence of an
accomplice, the court should find some circumstance which can properly be regarded as
reducing the danger that it might convict the wrong person. Corroboration directly
implication the accused is one of the ways in the courts exercise caution when admitting
the evidence of accomplices. If the accused does not deny the accomplice’s evidence
under oath, that is also an assurance that the evidence of an accomplice is reliable. Where
the accomplice is proved to be a convincing or satisfactory witness beyond question,
while the accused is the opposite, then the evidence of the accomplice can be considered
to be that which the court can rely on. The court in S v Lawrence held that section 270 of
the CPEA required the courtto satisfy itself that the offence with which the accused is
charged has been committed and secondly it must look for corroboration. The court then
added that “If there is no evidence aliundeof the commission of the crime, there can still be
a conviction ifthere is corroboration in a material respect which convinces the courtthat the
accomplice can be relied on. In this case, the documents produced, the motor vehicle, the TV
setand the probabilities left no room for false implication of theappellants. However, since
the is great risk of a false convictionwhere the accomplice has been promised pardon in
exchange oftestifying, the court always has to be told where the state witness hasbeen
induced by some benefit to testify against the accused.” The reason for caution in the case
of accomplice evidence is that an accomplice has a possible motive to tell lies about an
innocent accused, for example, to shield some other person or to obtain immunity for
himself. And the other reason is that with his inside knowledge he can easily lie to the
court and give a wrong impression that he is a credible witness
2. Treason and Perjury cases
Section 269 of the CPEA provides that it is competent for the court to convict an accused
on the evidence of a single competent and credible witness, except in treason and perjury
cases. In S v Nathoo Supermarket (Pvt) Ltd the Supreme court held that a court can on
the evidence of a single witness if it is convinced beyond reasonable doubt that the sole
witness had spoken the truth, thus it was admitted although unsatisfactory in some
respects. It has been held that the evidence of a single witness has to be approached with
caution when a single witness has an interest to serve against the accused. In S v Banana
the court held that corroboration of the evidence of a single witness was not essential and
there is no magic formula when approaching the evidence of a single witness In S v
Zimbowora the supreme court set aside the conviction on the basis of a single witness
on the ground that the evidence was not satisfactory in material respect and and no
evidence had been led to corroborate her assertions.
The evidence that an accused has committed treason has to be corroborated, the
conviction cannot be based on a single witness evidence. In S v Tsvangirai, it was held
that the requirement that there must be two witnesses in were designed to protect an
accused facing a charge of treason.
3. Confessions
In terms of section 273 of the CPEA any court which is trying any person on a charge of
any offence may convict him of the offence with which he is charged by reason of a
confession of that offence proved to have been committed by him, although the
confession is not confirmed by other evidence, provided that the offence has be proved
to have been actually committed by evidence other than the confession. In terms of this
section, there has to be evidence confirming that the crime that has been confessed to
was actually committed. Thus the confession has to be proved to have been true in a
material respect. In R v Blyth - the confession by the accused that she had murdered her
husband by arsenical poisoning was held to be sufficiently confirmed by the fact that his
body was found, on exhumation to contain quantities of arsenic, although this evidence
did not connect her to the offence or even prove that her husband had been murdered. In
S v Dube the Supreme Court held that “In the present case there was evidence aliunde
that the five murdersto which the appellant confessed had been committed and
theconfessions contained details which proved that they were genuine.Therefore the
appellant had properly been convicted of five counts of murder.” In S v Ndhlovu the SC
held that a confession can be accepted as genuine if it makes mention of facts accused
could only have known if he was connected to the crime.
4. Police traps and other biased witnesses
A trap has been defined as a person who, with a view of securing a conviction of another,
proposes certain criminal conduct to him, and himself ostensibly takes part therein. In
other words, he creates the occasion for someone else to commit the offence. In general,
the evidence of traps should be treated with caution when they are paid to procure
evidence for the police and therefore have a motive for favouring the prosecution. The
same caution has to be had when the court receives the evidence of
other witnesses who are not necessarily traps but are paid to obtain evidence against the
accused, such as the sympathetic cell mate who induces the accused to confide in him.
This mainly due to the fact that the witness more often than not has an interest in securing
a conviction for the prosecution. There is always a danger in the evidence of a trap, even
if the trap is a respectable person. In S v Jecheche it was held that “The evidence of a police
trap should be treated with caution because such persons may have a motive in giving
evidence which may outweigh their regard to the truth.”
5. Sexual offences
Caution was exercised in sexual cases for the following reasons;The accused is the usually
the only one who knows what happened and it is their evidence against that of the
accused. The victim may have a motive to falsely implicate the accused;There is a
difficulty in refuting a charge of sexual immorality;Financial considerations when the
victim is pregnant; The wish to protect a friend or implicate someone who is richer
than him; Hysteria which can cause a neurotic victim to imagine things which did not
happen;Wounded vanity and spite against a person who has rejected one’s advances;The
ability of a person who knows the facts to tell the story convincingly the only falsity being
the exchange of the real culprit with the accused.
However the cautionary rule that applied to the evidence of complainants in sexual cases
was abolished in Zimbabwe in the case of S v Banana, on the basis that it was based on
irrational and out-dated perceptions that complainants in sexual cases were unreliable.
6. Children
Young children are competent witnesses if the judge considers that theyare old enough
to know what it means to tell the truth, however, it hasbeen frequently emphasised that
their evidence should be scrutinised withgreat care. The reasons for the cautionary rule
when it comes to children as held in S v Sibandaare as follows;their memories are
unreliable; do not understand the duty to speak the truth; they are imaginative and they
story might be the subject of suggestion by others . However there is no statutory
requirement that the evidence of children must be corroborated as was noted by the
court in S v Ponder. The degree of danger with the evidence of the child will depend on
varying factors such as age. Thus caution has to be had depending on the
circumstances of each case. Where the child’s evidence is unquestionably true, there is no
reason why the prosecution cannot secure a conviction based on the
evidence of a single child witness, see S v Ponder.

RELEVANCE AND ADMISSIBILITY- CIRCUMSTANCIAL EVIDENCE

QSN 5 (b) JUNE 2013

Clearly outline the approach of the courts in dealing with circumstantial evidence in civil
and criminal proceedings highlighting any differences in the approach. [10]

Circumstantial evidence is evidence which furnishes indirect proof. Inferences are drawn
from circumstantial evidence. In this process certain rules of logic must be followed. The
court should always consider the cumulative effect of all the items of circumstantial
evidence. In R v De Villiers it was held by the AD that the courts should not consider each
circumstance in isolation and then give the accused the benefit of any reasonable doubt
as to the inference to be drawn from each single circumstance. And they are different
approaches taken in civil and criminal cases because of different standards of proof.

Circumstantial evidence in criminal cases

In reasoning by inference in criminal cases there are two cardinal rules of logic which
cannot be ignored as held by the AD in the leading case R v Blom. The first rule is that the
inference sought to be drawn must be consistent with all the proved facts (if it is not, the
inference cannot be drawn). The second rule is that the proved facts should be such that
they exclude every possible (or reasonable) inference from them save the one to be
drawn, (if these proved facts do not exclude all other reasonable inferences, then there
must be a doubt whether the inference sought to be drawn is correct.) The second rule
therefore takes account of the fact that the state has to prove the guilty of the accused
beyond a reasonable doubt. The rules were followed by the SC in S v Simango. In S v
Tambo the ZH held that when relying on circumstantial evidence the inference to be
drawn must be the only reasonable one that can be drawn from the facts.

Circumstantial evidence in civil cases

In civil proceedings the inference to be drawn must also be consistent with all the proved
facts, but it need not be the only reasonable inference, it is sufficient if it is the most
probable inference. The second rule that the proved facts should exclude every
reasonable inference, which applies to criminal proceedings, does not apply to civil
proceedings, because of the lesser standard of proof applicable in civil proceedings,
namely proof on a balance of probability. In Ebrahim vPittman NO it was held that a
court in a civil case may balance probabilities and select conclusion which seems most
acceptable and it is not necessary that the inference should be only reasonable one.

QSN 1 (b) JUNE 2014& QSN 5 JUNE 2015

In dealing with circumstantial evidence, the court is called upon to draw inferences from
the circumstantial evidence. Explain and distinguish the approach of the courts in dealing
with inferences to be drawn from circumstantial evidence in criminal proceedings and in
civil proceedings. [10]See Ans above

QSN 4 JUNE 2014

An Accused appeared in court facing allegations of having broken into and stolen from a
supermarket. It was alleged that he had broken into a supermarket and stolen some goods.
Some of the goods were recovered from him some two weeks later. The accused was taken
to the supermarket for indications. The complainant and the police officer accompanying
him testified in court that the Accused had shown them how he had broken into the
supermarket. The evidence of the indications made at the scene as to how he had broken
into the supermarket was accepted by the court without a formal inquiry despite the
protestation by the Accused that the indications were made under duress after being
assaulted by the police officer. The Accused was convicted with the Magistrate relying to a
large extent on the evidence of the indications given by the Accused.

Discuss the correctness of the Magistrate’s approach to the evidence used to convict the
Accused.
[20]

The admissibility of facts discovered as a consequence of an inadmissible admission or

confession is governed by section 258 of the CPEA. In terms of section 258 (2) evidence
that the accused pointed out anything may be admitted as well as evidence that any fact
or thing was discovered in consequence of information given by the accused, even though
the pointing out or information forms part of an inadmissible confession or statement.
Evidence of a pointing out will be admissible even if no concrete facts are discovered as a
result of the pointing out. A pointing out is necessary to show that the accused knew of a
fact relevant to his guilt. In R v Tebetha it was held that the mere pointing out is sufficient
to prove the accused’s knowledge of the thing pointed out or some fact connected with
it.” Thus a pointing out is admissible on the basis that it shows that the accused has
knowledge of the place or thing pointed out, or of some fact connected with it, from which
knowledge it may be possible, depending on the facts of the case concerned, to draw an
inference pointing to an accused’s guilt – S v Tsotsobe.

Section 258 (2) does not permit statements accompanying the pointing out to be
admitted into evidence and the courts have held a confession in the guise of a pointing
out will not be admissible- S v Mbeke. The basis of admitting a pointing out is that facts
discovered in consequence of an inadmissible confession, unlike the confession itself,
cannot be rejected on the basis that they are likely to be unreliable- R v Camane. In
RvSamhando it was held that evidence of a pointing out forming part of an inadmissible
statement could be admitted in accordance with the theory of confirmation by
subsequently discovered facts. In terms of this theory the reason for excluding an
admission or confession obtained by inducement is that the evidence is potentially
unreliable.

In S v Nkomo 1989 (3) ZLR 117 (S), Mc Nally JA noted that in South Aficandecions are
not a necessary guide for Zimbabwean courts after noting that inadmissibility in SA is a
procedural point while with us it is a moral point.

In R v Frank 1958 R&N (SR)Quenet J noted that indications made shortly after a
confession, which confession had been improperly obtained were inadmissible.He
regarded indications as amounting to what are called “mute statements” when he said;
“..any statement which forms part of an inadmissible confession is itself inadmissible, and
that this is so whether the statement arises as an inference from conduct or whether it be
a simple verbal statement.”

In R v Moyo 1967 RLR 317 (GD) Young J was of the view that where indications were
made under compulsion the court would have a discretion to exclude them. However in
S v Bvuure 1973 (2) RLR 171 (GD), Beck J held that indications were admissible
regardless of how they were obtained, he held however that the method by which the
evidence was obtained was a most material when the court came to consider the weight
to be given to the evidence once admitted.

In S v Nkomo (supra)after citing section 258 (2), McNally JA held that the phrase “it shall
be lawful” is permissive rather than mandatory, and it means no more than that a trial
within a trial is not a pre-requisite for the admissibility of a pointing out. And if, for
example, the accused had not been warned and cautioned before he made the indication,
that defect would not alone make the pointing out inadmissible. Since torture is outlawed
by the Constitution section 258 (2) of the CPEA must be interpreted in such a way as to
exclude the “mute confession” element of the pointing out where the allegation of torture
in relation to the pointing out is raised but not satisfactorily rebutted. This stricture
approach applies only to indications allegedly induced by torture, not to other
irregularities. It does not apply, either, to the admissibility of evidence that something
external to the accused, such as the murder weapon, the body of the deceased, the stolen
money was discovered as a result of his indication or of information given by him.

Note that a trial within a trial is necessary so that allegations of assault can be fully
investigated.

Thus in light of the Supreme Court decision pointing out made as a result of torture
(which is outlawed by the Constitution) are inadmissible. This means the act of pointing
out itself which is a mute confession is inadmissible however discovered evidence
external to the accused is admissible. A trial within a trial is not necessary for the
admissibility of a pointing out since section 258 is permissive not mandatory.

THE BURDEN AND QUANTUM OF PROOF- Absolution from the instance

QSN 2 JUNE 2014

James Moyo (“James”) sued his tenant Su Jong (“Jong”) in the High Court for payment of
US$21 000.00 in respect of arrear rentals. Jong had vacated the premises shortly after the
summons were issued. James alleged that Jong had failed to pay rent for six (6) months. Jong
defended the proceedings and admitted in the pleadings that he had not paid rent for six (6)
months but claimed that he was excused from paying by reason of his counter-claim. He
counter claimed for payment of damages in the sum of US$83 000-00. This claim was based
on profits lost as a result of him not being able to use part of the premises due to rain water
coming into the factory as a result of a leaking roof. James had delayed in having the roof
repaired after being notified by Jong. The parties agreed that the duty to begin the trial was
on Jong. Evidence was led by Jong to prove his claim for damages. James also led evidence
from witnesses whose evidence dealt solely with the damages claim by Jong. No evidence
was led by James to prove the amount owed in respect of arrear rentals. The court held that
it was satisfied that Jong had proved breach of the agreement by James but went on to hold
that he had failed to prove the damages suffered by him and accordingly granted absolution
from the instance in respect of the claim by Jong. The court also granted absolution from
the instance in respect of the main claim for arrear rentals by James on the basis that no
evidence had been led to prove the claim.

James is unhappy with the outcome of the matter and has decided to get rid of his lawyer
whom he blames for not leading evidence on the rent owed. He approaches you for advice
on the correctness of the decision to dismiss his claim and on his chances on appeal.
Advise James Moyo on the correctness of the decision of the High Court to grant absolution
from the instance in respect of James’ claim having regard to the evidentiary issues arising
in the matter.
[15]
The term “absolution from the instance” means that evidence is insufficient for a
finding to be made against the defendan.t The finding that may be made at either of two
distinct stages of the trial namely, at the close of the case and at the close of the plaintiff’s
case.

At the close of the case – when both parties have had the opportunity to present
whatever evidence they consider to be relevant, the defendant will be “absolved from the
instance” if, upon an evaluation of the evidence as a whole the plaintiff’s burden of proof
has not been discharged. It means that the plaintiff has not proved his claim against the
defendant.

At the close of the plaintiff’s case–if at the end of the plaintiff’s case there is no evidence
to support the plaintiff’s claim, or insufficient evidence upon which a court, acting
reasonably, might find for the plaintiff, the court is entitled to absolve the defendant from
the instance. In effect, the court brings the proceedings to an end at that stage because
there is no prospect that the plaintiff’s claim might succeed, and in those circumstances
the defendant should be spared the trouble and expense of continuing to mount a defence
to a hopeless claim.

In Efrolou (Pvt) Ltd v Muringani (2) HH -122-13 it was held that It is perfectly
competent for a court to refuse an application for absolution from the instance when the
application is made at the close of the plaintiff’s case but to grant it if the defendant then
promptly closes his case and renews the application without calling any evidence at all.

The court also approved the test in Supreme Service Station (1969) (Pty) Ltd v Fox
and Goodridge (Pty) Ltd 1971 4 SA 90 (RA) it was held that there was nothing
inconsistent in a court refusing absolution at the close of the plaintiff’s case but granting
it when the defendant then closes her case without leading any further evidence. This is
so because the test to be applied at the close of the plaintiff’s case is “what might a
reasonable court do” whereas the test applied at the close of the defendant’s case is “what
ought a reasonable court do”. Court noted that “the onus is higher where the application
is made at the close of the plaintiff’s case than where it is made after all the evidence has
been led.”
In Sibanda v Chikumba& Anor HH-92-14 it was held that the grant of an absolution
from the instance is not an equivalent to finding in favour of defendant and is not a bar to
re-institution by plaintiff of action and the test to be applied at the close of the plaintiff’s
case is “is there sufficient evidence upon which a reasonable man could find for the plaintiff.”
In Manyange v Mpofu&Ors HH-162-11 it was held that “the test to be applied as to
whether to grant absolution is not whether the evidence for the plaintiff establishes what
would finally be required to be established to obtain judgment. It is whether the plaintiff
has made out a prima facie case against the defendant on the basis of which the court
could or might find for the plaintiff.”
In casuthe High Court was correct to grant absolution from the instance because failed
to make out a prima facie case, I would advise him to re-institute his action rather than
seek an appeal.