FACULTY OF LAW

_______________________________

MODULE TITLE: LAW OF EVIDENCE (LB208)

PROGRAMME: Bachelor Law (Hons)

LECTURER: ARTHUR MARARA

INTRODUCTION:
The evidence of a fact is that which tends to prove it – something which may satisfy an enquirer
of the fact’s existence. Courts of law usually have to find that certain facts exist before giving
judgment. The law of evidence is also known as the rules of evidence.1

The Law of Evidence refers to a set of rules and principles that govern the admissibility,
presentation, and evaluation of evidence in legal proceedings. It establishes the framework for
how evidence can be introduced, challenged, and considered in courts or other legal forums. The
primary objective of the Law of Evidence is to ensure fairness, reliability, and the pursuit of truth
in the judicial process.

These rules and principles guide the way parties present their case, the types of evidence they
can introduce, the standards of proof required, and the methods for examining and cross-
examining witnesses. The Law of Evidence helps establish guidelines to determine what evidence
is relevant, reliable, and trustworthy, while also setting boundaries on what evidence is
inadmissible due to various considerations, such as privilege, hearsay, or unlawfully obtained
evidence.

The Law of Evidence covers a wide range of topics, including witness testimony, expert opinions,
documentary evidence, demonstrative evidence, electronic evidence, hearsay, authentication,
chain of custody, burden of proof, presumptions, when confessions or admissions may be
admissible and the roles and responsibilities of judges in evaluating evidence.

By providing a framework for the rules and procedures relating to evidence, the Law of Evidence
aims to foster a fair and just adjudication process, where evidentiary decisions are based on
reliable and trustworthy information, ensuring that justice is served and the truth is revealed.

Law of evidence is part of adjectival/ procedural law because it is closely linked to criminal and
civil procedure. It (law of evidence) overlaps with other branches of procedural and substantive
law. Evidence has to be distinguished from substantive laws on the one hand and practice and
procedure on the other.2 The rules of evidence are concerned with what may be introduced in

1
Sir R Cross: Evidence – 5th Edition, Butterworths
2
L.H.Hoffman and D Zeffert’s South African Law of Evidence, 4th Edition, Butterworths at p.6

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 1 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
evidence. It is not vital to decide in which branch a particular rule of evidence falls (for the time
being) but later when one considers the impact of English law on the Zimbabwean system.

All types of legal procedure derive guidance from the law of evidence to determine which facts
they may receive, and how: so are civil and criminal trials, inquests, extraditions, commissions of
inquiry, etc. Sound knowledge of the rules of evidence, how they apply/ applied is one of the many
important competencies required of a practising practitioner etc.

Sources of Zimbabwean Law of Evidence

The sources of the Law of Evidence vary depending on the legal system and jurisdiction.
However, in Zimbabwe the sources of the Law of Evidence include:

Constitutional Law:
Constitutional provisions and protections may have an impact on the Law of Evidence. The
Constitution outlines fundamental rights and safeguards related to the collection, use, and
presentation of evidence, including protections against unreasonable searches and seizures, self-
incrimination, and the right to confront witnesses.

Common Law
Under Zimbabwean and South African law, the common law consists of two key components of
non-statutory law. These components include:

• Judicial Precedents: The first component encompasses the collection of rules and
principles developed by judges in previous cases. These rulings establish legal principles
and interpretations that serve as binding or persuasive precedents for future cases. They
are derived from the decisions of higher courts and form an integral part of the common
law.

• Roman Dutch Law: The second component relates to the body of law known as "Roman
Dutch law." This legal system comprises rules and principles that are not explicitly derived
from previous court decisions but are embedded within the broader framework of Roman
Dutch law. Roman Dutch law encompasses legal doctrines and principles derived from
historical Roman law and the legal traditions of the Netherlands. These principles, not

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 2 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
 necessarily reliant on prior court decisions, contribute to the development of the common
law. Roman-Dutch law applicable in Zimbabwe is as contained in judicial decisions and
published treaties on law written by Dutch jurists. Roman-Dutch Law as blended with
English law influenced some legal aspects of our law of evidence. Law applicable in
Zimbabwe is a hybrid law i.e. Roman-Dutch-English Law.

By comprehending the nature of Roman Dutch law, a clear understanding of the term "common
law" as it pertains to our legal system is achieved. The common law, therefore, encompasses the
combined influence of judicial precedents and the principles embedded within Roman Dutch law,
collectively shaping the non-statutory legal framework in Zimbabwe and South Africa.

Statutory Law.
Parliaments enact statutes or codes that govern the Law of Evidence. Legislation/statute in
Zimbabwe include the Civil Evidence [Chapter 8:01], Criminal Procedure and Evidence Act
[Chapter 9:07]. The Civil Evidence [Chapter 8:01] governs Civil proceedings. On the hand the
Criminal Procedure and Evidence Act [Chapter 9:07] governs Criminal proceedings. Not all
statutes govern law of evidence but a few including certain sections in the Criminal Procedure
and Evidence Act; Civil Evidence Act, the Constitution etc. feature prominently. These statutes
outline the rules and procedures related to the admissibility, presentation, and evaluation of
evidence. They may define different types of evidence, establish standards of proof, outline
exceptions and privileges, and govern specific aspects of evidence, such as hearsay or expert
testimony.

Case law:
Judicial decisions and precedents play a crucial role in shaping the Law of Evidence. Courts
interpret and apply statutes, establish legal principles, and develop rules and standards through
their rulings on evidence-related matters. Higher courts' decisions, especially those from appellate
courts or supreme court, often carry significant weight and serve as binding precedents or
persuasive authorities for future cases.

Rules of Court:
Many legal systems have specific rules of court that govern the procedural aspects of presenting
and admitting evidence. These rules provide guidance on matters such as the format of evidence,

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 3 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
presentation methods, objections, expert witness qualifications, discovery procedures, and the
conduct of examinations and cross-examinations. These rules are typically established by the
court system itself and are designed to ensure orderly, fair, and efficient proceedings.

Legal Treatises and Scholarly Works:

Legal scholars, experts, and practitioners contribute to the development and understanding of the
Law of Evidence through in-depth analyses, commentaries, and scholarly works. These resources
provide interpretations of statutes, discuss case law, analyze emerging legal trends, and offer
guidance on evidentiary issues.

International Treaties and Conventions:

In some situations, international treaties or conventions may impact the Law of Evidence,
particularly in areas involving cross-border cooperation, extradition, mutual legal assistance, or
the recognition and enforcement of foreign judgments. These agreements can establish rules and
procedures for the exchange and use of evidence between different jurisdictions.

It's important to note that the specific sources of the Law of Evidence can vary significantly across
jurisdictions, as legal systems differ in their organization and hierarchy of laws. Therefore, the
predominant sources may depend on the applicable legal system and jurisdiction in question.

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 4 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
 PART ONE:
RELEVANCE AND ADMISSIBILITY

a) Relevance and the Best Evidence

b) Exclusionary rule

Introduction
In the law of evidence, relevance and admissibility are important concepts that determine whether
evidence can be presented in court or in any other legal setting. Relevance refers to the degree
to which evidence is related to the issues of a case and is capable of proving or disproving a fact.
Admissibility, on the other hand, pertains to whether the evidence is permissible under the rules
of procedure and evidence in a particular jurisdiction.

In court proceedings, evidence that is irrelevant or of little probative value may be excluded as it
would not contribute to the resolution of the case. Admissible evidence, on the other hand, is
evidence that meets the criteria set forth by relevant laws, rules, and regulations. It's important for
attorneys and judges to understand the principles of relevance and admissibility to ensure a fair
and efficient legal process. They evaluate the materiality and potential impact of evidence before
deciding whether it should be admitted or excluded.

Additionally, certain types of evidence may be excluded based on factors such as hearsay,
privilege, authenticity, unlawfully obtained evidence, or violation of constitutional rights.
Admissibility rules vary across jurisdictions, and legal professionals consider these rules to ensure
a just and fair trial.

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 5 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
To determine relevance and admissibility, legal professionals consider the rules of evidence, case
law, and legal arguments presented by both parties. They aim to balance the presentation of
relevant evidence with the need to exclude irrelevant or prejudicial information.

Overall, relevance and admissibility play crucial roles in shaping the evidentiary process and
ensuring the fairness and validity of legal proceedings. Relevance and the Best Evidence Rule
are two important concepts in the law of evidence that determine the admissibility and
presentation of evidence in court proceedings. Let's explore each concept in more detail:

RELEVANCE AND BEST EVIDENCE RULE

1. Relevance:
There is one primary yardstick in determining admissibility and that is “relevance”.
Anything relevant is admissible unless the law excludes it. [Section 252 of the Criminal
Procedure and Evidence Act [Chapter 9:07]] Relevance facilitates in the resolution of
disputes e.g. X Murdering Y. History of enmity – love triangle. The question of relevance
at the end of the day is factual determination whereas admissibility is a legal issue. The
question of weight relates to persuasiveness. This is done after admitting evidence. The
witnesses must be credible – believable item of evidence or plausible evidence – you can
give it due weight. No weight if witness deliberately lied, has motive to lie, history of
antipathy towards the accused.

The principle of relevance governs whether evidence is admissible in court. The basic yardstick
by which the courts are guided relates to relevance. Evidence is relevant if it facilitates directly
and without introducing unnecessary collateral issues in the resolution of the facts in issue. A fact
in issue concerns the dispute which the court has to adjudicate upon e.g. in a paternity case the
identity of the father is a fact in issue. On the other hand, his access to the mother is a fact
relevant to the fact in issue. If there is no fact in issue then there is no reason to convene the
court in the first place.

A fact in issue is the fact that the plaintiff in a civil action or the prosecutor in criminal proceedings,
must prove in order to succeed, together with any further fact that the defendant or accused must

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 6 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
prove in order to establish a defence. These can only be ascertained by reference to the
substantive law and pleadings.3 The primary approach is that all relevant information/evidence is
admissible unless there is another rule of law that excludes it. The main function of the rules of
evidence is to regulate the question of receivability or admissibility of evidence through the
exclusionary rules, see section 252 of the Criminal Procedure and Evidence Act [Chapter 9:07]

Evidence is considered relevant if it has a tendency to make a fact of consequence more or less
probable than it would be without that evidence. In other words, the evidence must have some
logical connection to an issue in dispute and be capable of assisting the trier of fact in reaching a
decision. Relevance is today regarded as the basic criterion of admissibility. Relevant evidence
is evidence having a tendency in reason to prove any material matter.4 It is determined by
common sense,5 according to everyday standards of reason prevailing at the time of a particular
case6 and that much depends on the experience of the judicial officer.7 (See section 26 of the
Civil Evidence Act [Chapter 8:01] and section 252 of the Criminal Procedure and Evidence Act
[Chapter 9:07].

The word “relevance” means that any two facts to which it is applied are so related to each other
that according to the common course of events one, either taken by itself, or in connection with
other facts, proves or renders probable the past, present and future existence or non-existence
of the other”.8 All relevant evidence is generally admissible, unless there's a legal principle that
excludes it. For example, evidence can be relevant but privileged, like in the case of attorney-
client communications in a matrimonial context.

In the case of R v Trupedo, a trained dog was used to identify a housebreaker. The dog followed
a scent into a room where eight people were sleeping, and one of them was the accused. The
dog sniffed all the individuals but ultimately barked uncontrollably at Mr. Trupedo. The court at
first instance admitted the evidence of the dog's actions, but the appellate court (Innes CJ)
overturned the conviction, deeming the evidence irrelevant.

3
Sir R Cross Evidence – 5th Edition, Butterworths p. 4
4
Hoffman and D Zeffertt’s The South African Law of Evidence – 4th Edition p. 21
5
R v Mathews 1960 (1) SA 752 (A) at 758
6
DPP v Boardman [1975] AC 421 (HL) or [1974] 3 All ER 504
7
DPP v Boardman, 444, 898 respectively.
8
Digest of the Law of Evidence 11 ed (1930) Article 1. CWH Schmidt Bewystreg 2nd (1982) 352 n 1 draws
attention to a logician’s adverse view of Stephen’s definition.

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 7 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
The appellate court concluded that the behavior of dogs in attempting to identify a person is
inherently untrustworthy and therefore irrelevant and inadmissible. He said

“That the general rule is that all facts relevant to an issue in legal proceedings may be
admitted. Much of the law of evidence concerns exceptions to the operation of this rule
e.g. exclusion of testimony on the basis of hearsay and a fact is relevant when inferences
can be properly drawn from it as to the existence of a fact in issue. It must be sufficiently
relevant for it to be admitted - remoteness”

Relevant evidence is generally admissible, while irrelevant evidence is excluded. The court's role
is to ensure that only evidence that is probative and helpful in determining the truth is presented
to the trier of fact, whether it's a judge or a jury. However, even if evidence is relevant, there may
be other exclusionary rules or privileges that could prevent its admission.

2. Best Evidence Rule:

The Best Evidence Rule, also known as the Original Document Rule, is a principle that governs
the admissibility of evidence when it involves the contents of a writing, recording, photograph, or
other documentary evidence. The rule states that if the contents of a document need to be proved,
the original document should generally be presented, rather than a copy or testimony about its
contents.

The Best Evidence Rule aims to ensure the accuracy and reliability of evidence by requiring the
presentation of the original or the best available evidence. This rule helps prevent errors or
distortions that may occur when relying on secondary evidence, such as copies, summaries, or
oral descriptions of the original document. However, there are exceptions to the Best Evidence
Rule, allowing for the introduction of duplicates, testimony, or other forms of evidence under
certain circumstances.

It's important to note that the Best Evidence Rule primarily applies to written or recorded evidence
and may not be applicable in cases where the evidence in question does not fall within its scope.

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 8 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
Both relevance and the Best Evidence Rule contribute to the integrity of the evidentiary process
by ensuring that only reliable, probative, and accurate evidence is presented in court. These
principles help maintain fairness, promote the search for truth, and assist the trier of fact in making
well-informed decisions.

EXCLUSIONARY RULES
Exclusionary rules in the law of evidence are a set of legal principles and rules that govern the
admissibility or exclusion of certain types of evidence in court proceedings. These rules aim to
ensure the fairness and reliability of the evidentiary process by preventing the admission of
evidence that may be unreliable, unfairly prejudicial, or obtained through improper means. The
exclusionary rules vary across different jurisdictions, but we will provide an overview of some
common examples.

1. Hearsay Rule: The hearsay rule generally excludes out-of-court statements offered for the
truth of the matter asserted, as they are often considered unreliable. Hearsay is an assertion
made by someone other than the witness testifying in court, and it is offered to prove the
truth of the matter stated. There are exceptions to the hearsay rule, such as statements
made by an unavailable witness against their own interest.

2. Exclusionary Rule for Illegally Obtained Evidence: This rule excludes evidence that has
been obtained in violation of a defendant's constitutional rights, particularly in cases where
law enforcement or government officials acted unlawfully. The exclusionary rule is a
safeguard against illegal searches and seizures and is primarily associated with the
Constitution of Zimbabwe.

3. Best Evidence Rule: Historically speaking the yardstick that used to be used/or obtain in
the terms of the admissibility of evidence was the Best Evidence Rule. Under this regime
it was easier than it is now to admit all kinds or any manner of evidence some of which
under today’s most strenuous procedures will not have been admitted e.g. hearsay
evidence. Today what is important from common and statutory law is that relevant evidence
is admissible unless excluded by law.

4. The best evidence rule requires that the original or primary evidence be presented in court,
rather than secondary evidence like copies or oral descriptions. This rule is designed to

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 9 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
 ensure accuracy and reliability by preventing the use of potentially inaccurate or altered
versions of the original evidence.

5. Opinion Rule: This rule generally excludes opinions or conclusions of witnesses unless
they are qualified as experts in a particular field. Witnesses are expected to provide factual
observations rather than personal opinions regarding guilt, innocence, or other matters to
be determined by the court.

6. Privilege Rule: Privilege rules protect certain confidential communications between

individuals from being disclosed in court. Common examples include attorney-client
privilege, and spousal privilege. These rules promote trust and encourage open discussions
by ensuring the confidentiality of these relationships.

Admissibility
If it can properly be introduced before the courts e.g. your client has been beaten up, denied food,
denied access to his lawyers, any confession emanating from the confession is not admissible.
The evidence will be tainted. S v Nkomo9 The question of admissibility is purely a question of
law, what the law says. However, when you overcame the first question of admissibility you go
to the next/second hurdle. How much weight must be given to the evidence. The question of
weight is a factual inquiry-fact. The weight of evidence, depends on depth, persuasiveness and
cogent. Evidence might be admissible because the law allows it but nonetheless it might not be
persuasive e.g. witness might be a liar, evasiveness to him, lies comes out naturally like breathing.
Judicial evidence includes the testimony, hearsay statements, documents, things and facts which
the court will accept as evidence of the facts in issue in a given case.

Evidence relating to a robbery, eye sight, the court cannot rely on because the weather conditions
were bad, witness has bad eyesight, distance etc. We are not questioning the bona fide of the
witness – but weight of the evidence.

9
(1989) (3) ZLR 1117(SC) p. 124-125

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 10 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
 PART TWO:
THE BURDEN AND QUANTUM PROOF

a) Evidentiary burden
b) Legal burden
c) Proof beyond reasonable doubt and on a balance of probabilities
d) Presumption

Mandatory reading
S v Makanyanga 1996 (2) ZLR 231
Munyanga v The State HH79/13
State v Mike Moyo HB 139-15
Isolano 1985 (1) ZLR 62 (S) ZLR 62
Abraham Mbovora v The State SC75/14
Mupatsi 2010 (1) ZLR 529 (H)
Astra Industries v Chamburuka
City of Gweru v Mbaluka HH-93-14
DPP v Morgan [17975] 2 ALL ER 347
R v Lobell [1957] QB 547 CCA
Hoffman & Zeffertt: South African Law of Evidence
Cross on Evidence

Burden of Proof
The person who desires the court to take action must prove his case to its satisfaction. See
Dickinson v Minister of Pensions10. This means that, as a matter of common sense, the legal
burden of proving all facts essential to their claims normally rests upon the plaintiff in a civil suit
or the prosecutor in criminal proceedings.

10
[1953] 1 QB 228 at 232

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 11 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
Thus, a plaintiff claiming damages for injuries in a motor accident must prove that the defendant
was negligent. A landlord whose premises have been damaged by fire will succeed in an action
against his tenant unless the tenant proves that he was not negligent.

Evidentiary burden – a duty to adduce evidence to combat a prima facie case made by one’s
opponent or the duty cast upon a litigant who has to begin, of adducing evidence in order to
escape certain procedural consequences. In civil proceedings the burden of proof is determined
by pleadings – issues of trial. In criminal cases it is determined by the plea to the charge. The
party who bears the burden of establishing his claims or his defence must satisfy the court for him
to succeed on the claim or defence.

Charge of murder – overall onus rests on the state – accused – self defence – if it establishes a
prima facie case – an evidentiary burden – duty to adduce evience to combat the prima facie case
made by the opponent will have to come into existence, that is, it will have shifted or transferred
to the accused. A risk of failure will be cast upon himself or herself.

Who has to begin?

In criminal trials the prosecution always has the right or duty to begin. The position in civil trial is
governed by rules of court. Normally plaintiff will first have to call his evidence on any issues in
respect of which the onus is on him. If the duty to adduce evidence is on the defendant he has
to begin.

Circumstances under which the defendant may begin

(i) Where an admission on the pleadings creates a prima facie case that places an
evidentiary burden on the defendant – in which event he will have the duty to begin – shifting
evidentiary burden on the defendant – See Smith’s Trustee v Smith11.

11
1927 AD 482

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 12 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
(ii) Where the considerations of fairness and convenience may sometimes require the
defendant to begin although the plaintiff bears the onus. See Stocks and Stocks (Pty) Ltd v T
J Daly & Sons (Pvt) Ltd12 .

The Quantum of Proof

The is the degree of conviction which the court must feel before it can make findings for the who
bears the onus. There is the criminal standard and the civil standard. Business lies on the
prosecution – criminal.

It is traditionally expressed as proof beyond reasonable doubt. See S v Masawi & Anor13. Civil
standard – proof upon the preponderance of probabilities – n a balance of propabilities.

Criminal Standard – in R v Difford14 “no onus rests on the accused to convince the court of the
truth of any explanation which he gives. If he gives an explanation, even if that explanation is
improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation
is improbable, but beyond any reasonable doubt it is false. If there is any reasonable possibility
of his explanation being true, then he is entitled to his acquittal”. See also R v M15 where it was
stated that “… the court does not have to believe the defence story, still less does it have to
believe it in all it details, it is sufficient if it thinks that there is a reasonable possibility that it may
be substantially true” – It must carry a high degree of probability. The standard is applied
uniformly in all cases. It does not differ accordingly to the seriousness of the offence. The only
difference is that some cases require a higher quantum of evidence to attain a given standard
than others but this does not involve any variation in the standard itself. See Islano 1985 (1) ZLR
62 (S).

The civil standard

The degree of proof required is easier to express in words than the criminal standard. It involves
a comparative rather than a quantitative test. It is not difficult to say one thing is more probable

12
SA 754 at 756-6
13
1996 (2) ZLR 472 (S) 526-D
14
1937 AD 370 at 373
15
1946 AD 1023 at 1027

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 13 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
than another, although it may be impossible to say how much more probable. It was formulated
16
by Lord Denning as follows: Muller v Minister of Pensions - It must carry a reasonable of
probability but not so high as is required in a criminal case. If the evidence is such that the tribunal
can say “we think it more probable than not” the burden is discharged, but if the probabilities are
equal it is not.”

What is weighed is the “balance” in the probabilities arising from that evidence and all the
circumstances of the case and not the quantities of evidence.

Finally, there are two kinds of issues decided according to civil standard of proof which require
special mention.

(a) Allegations of crime or immorality – no exception to the rule. See Gates v Gates17-
adultery in divorce proceedings could be proved by the civil standard but this does not mean that
adultery or criminality or other dishonest conduct, will be lightly inferred. The standard remain the
same but more evidence may be necessary to achieve that standard if the inherent improbability
of the act has to be overcome.

(b) Onus on the accused in criminal cases – it is now settled that in the absence of express
words to the contrary, the civil standard applies to all issues on which the burden is placed upon
the accused by statute – Ex parte Minister of Justice: In re R v Bolon.18 The same is true in
cases where the accused has the burden of proof at common law – defence of insanity – See R
v Kaukakani.19

16
1947 2 All ER 372 at 374
17
1939 AD 150
18
1941 AD 345
19
1947 (2) SA 807 (A)

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 14 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
 PART THREE:
TYPES OF EVIDENCE

a) Direct evidence
b) Indirect evidence

Mandatory reading
R v Bloom 1936 AD 188
S v Chimanga S-125-98
AG v Benett 2011 (1) ZLR 396 (S)

There is a difference between direct and indirect evidence. Let's explore each type of evidence
in detail:

1. Direct Evidence:
Direct evidence, also known as positive evidence or prima facie evidence, is information or
material that directly proves a fact without any need for further inference or presumption. It
provides direct proof of a particular fact or event and is often considered strong and conclusive.
Direct evidence typically includes firsthand observations, testimony, or tangible objects that can
be directly linked to the issue or crime being investigated.

Examples of direct evidence:

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 15 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
- Eyewitness testimony that directly identifies a suspect in a crime e.g. murder case- out of
altercation – “I saw him using the knife to stab the deceased” eye witness account if it is visual
account.
- Security camera footage capturing the actual commission of a crime.
- Forensic evidence such as DNA, fingerprints, or ballistics matching a suspect to the crime scene.

Direct evidence directly establishes the existence of a fact or proves an assertion, leaving little
room for doubt or interpretation. Its strength lies in the immediacy and clear connection to the
issue at hand.
2. Indirect Evidence:
Indirect evidence, also referred to as circumstantial evidence or inferential evidence, does not
directly prove a fact or establish the truth of an assertion. Instead, it relies on inferences or logical
deductions drawn from the presented evidence, leading to a logical conclusion or the exclusion
of unreasonable possibilities.

Unlike direct evidence, indirect evidence does not directly address the issue but provides
reasoning from which the desired conclusion can be drawn. It relies on chains of circumstances
and requires logical inferences to connect the dots and form a coherent picture.

Examples of indirect evidence:

- Motive: Providing evidence of a person's motive to commit a crime without directly proving their
involvement.

- Fingerprints found on a murder weapon: Although the fingerprints themselves may not prove
guilt, they indirectly suggest the person's proximity or contact with the weapon.

- Inconsistent alibi: If a suspect's alibi does not align with established facts or timelines, it may
indirectly suggest their involvement in a crime.

Indirect evidence requires careful analysis and reasoning to establish a connection between the
presented facts and the desired conclusion. It is often subjected to scrutiny and evaluation, as
alternative explanations or interpretations may exist.

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 16 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
Both direct and indirect evidence play significant roles in legal and forensic investigations. While
direct evidence offers clear and immediate proof of a fact, indirect evidence can provide valuable
insights and help build a compelling case when direct evidence is unavailable or insufficient. In
many cases, a combination of direct and indirect evidence is used to establish the truth and reach
a just conclusion.

Circumstantial Evidence: - indirect evidence but there must only be one reasonable inference,
see Marange and Others20. It can involve a number of things – motive, bad blood between the
two parties, the accused was seen within the vicinity of the site21.

Exhibits or Real Evidence – tangible items which are used to prove the accused’s guilty or the
defendant’s liability e.g knife used to murder, soiled underwear in a rape case or the appearance
or features of a person e.g extraordinarily large lips22

Inadmissible – (permissible) it may not be introduced, its exclusionary for a number of reasons
e.g relevant.

20
1996 (1) ZLR 244 (s)
21
See also Edwards 1949 SR 30.
22
– see Cain Nkala case – Mungura’s judgement - comments – tape recordings, documents.

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 17 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
 PART FOUR:
PREVIOUS CONSISTENT STATEMENTS

a) Previous Consistent Statements

b) Exceptions to the Rule
c) Refreshment of Memory

Exclusionary Rule No. 1

Previous Consistent Statements

Exclusionary rules – primary rules in natural practice which encounter, e.g. opinion evidence,
hearsay evidence, previous consistent statements.

The rule against the narrative or commonly known as previous consistent statements. In our
law a witness by and large is not allowed to testify that on a previous occasion he made a
statement which corresponds or substantially correspond to the evidence that he is giving in court.
He made a statement prior to coming to court which statement is in the main consistent with the
evidence that he is giving. That rule is known as the rule against the narrative. It is also known
as the rule against what is called self-corroboration. Self-corroboration is confirmatory
evidence given by the same witness. Evidence that tends to confirm another item of evidence.
In terms of the rule against the narrative, the testimony of a witness given under oath in the
witness box cannot ordinarily be supported by evidence that earlier on or elsewhere before the
coming to court he had said the same thing. This is because: -

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 18 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
(i) the evidence in the main is irrelevant. What you said before is irrelevant, the court is
concerned with what you said under oath. The extracurial (outside) statement is irrelevant –
neither here nor there.

(ii) There is also a real danger of fabrication, embellishment, concocted and at any rate the
admission of previous consistent statement in an unregulated (free for all) manner would be time
consuming and would open a can of worms or a Pandoras box in terms of collateral issues –
issues that have nothing to do with the fact in issue.

In the celebrated case of Corke v Corke and Cook23, a wife who had left her husband because
of his misconduct and philandering habits and in order to support herself and the children let
rooms in the house to lodgers one of whom was Mr. Cook. The husband then accused her of
committing a series of acts of adultery with Mr. Cook. On one occasion immediately after the
allegation was revealed though it was after midnight she telephoned her doctor requesting him to
come at once and examine both herself and Mr. Cook with a view to establish that nothing
untoward had happened. The doctor did not come being of the opinion that such an examination
would be inconclusive and therefore that such examination could not establish sexual intercourse
or not. At the hearing of the husband’s divorce petition the question that arose for determination
was whether or not the evidence of the wife’s conversation with the doctor could be properly
admitted. On appeal, it was decided that no evidence of the telephonic conversation between the
housewife and her doctor should not have been admitted because to do so amounted to no more
than a prior statement consistent with innocence. The court observed that the rule is justified in
order to avoid fabrication by a resourceful of scheming witness who may be faced with a difficulty.

Another case is that of R v Roberts24 in which case the accused was charged with the murder of
a former girlfriend as she was letting him into her room. The prosecution case was that the gun
had activated accidentally. At worst he was admitting to culpable homicide. He was not allowed
by the court to testify to the effect that two days after the shooting he had told his father what his
defence would be. The court reaffirmed the long standing legal position excluding evidence of the
narrative or previous consistent statement and that this rule applies to both criminal and civil
cases. The narration to the accused’s father was inadmissible on the basis of irrelevance.

23
[1958] (1) All ER 224
24
[1942] )1) All ER 187

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 19 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
 Exceptions to the general rule
The next question is, when is evidence of a previous consistent statement admissible? The rule
against narrative statement is not cast in concrete or stone. The law makes exception or an
allowance for admissibility where justice so requires, where there are compelling legal imperatives
or legal grounds e.g. it is now a time honoured practice, deeply embedded in our law to allow for
the introduction of evidence of previous consistent statements in the following situations
(Exceptions) – (6).

(i) cases of identification

(ii) cases in which an allegation is made against a witness under cross examination that his
story is a recent invention or fabrication
(iii) and more importantly traditional evidence related to sexual flavor has always been
admitted to show consistency25
(iv) statements forming part of the res gestae – (part of the story)
(v) statements by an accused on being taxed with incriminating facts – to show his reaction
– they simply prove consistence
(vi) signed statements when refreshing memory.

Identification – Using previous identification of a person to show consistence in the

identification.26

Exception No. 1 – previous consistent statements – previous identification at a properly

constituted identification parade is always admissible subject to the usual safeguards. Basic
requirements for a fair parade to eliminate errors must be satisfied.27

Exception No. 1 – to rebut the allegation of recent invention or fabrication – where the witness’
credibility is attacked and it is put to him that the story which he is narrating or reciting in court is
a recent invention or recent fabrication that is meant to prejudice or tarnish the image of the
accused or defendant in the matter under investigation, to rebut the allegation the witness can

25
Prof. G Feltoe: Judge’s Handbook for Criminal Cases: Legal Resources Foundation, 1st Edition, 2009.
26
Ibid
27
See Masawi & Anor HH-111-94 and Gomo HH-21-93. See

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 20 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
have recourse to previous consistent statements of consistent nature which nullify or negate the
allegation of recent fabrication or which refutes e.g. in the ancient case of Flanagang v Fahy28,
a witness who had testified to the alleged forging of a will by the accused was cross-examined
to the effect that he had concocted or invented his story because of bad blood between him and
the accused or beneficiary under the will. The witness was allowed to introduce corroboratory or
confirmatory evidence showing that before the cause of antipathy/enmity had arisen he had told
a third party the story he was not telling the court. This approach is only used where the credibility
is under attack and as a defensive shield to unwarranted attack upon his credibility. By far the
most celebrated exception is to the rule against cases of sexual nature without doubt the most
important exception.

Historical approach contrasted with Contemporary Approach.

Historically a person who was a victim of a sexual assault and usually it was a woman, were
expected to raise the “Hue and cry” where they were ravished, she was expected to tell
somebody. It would be very curious if she did not tell somebody if someone had helped
themselves to her. If she did not report timeously an adverse inference was always drawn. The
idea was to discourage false reports. Seeing that it is very easy to allege sexual molestation –
rape and extremely difficult to refute it. The rules are meant to exclude or minimize false
allegations as much as possible. The woman might want to hide the shame that she consented
or that he no longer loves the lady. Another possibility could be that the woman wants to hide
paternity in order to accuse a better person to support. Traditionally the courts have tended to
place a premium or high value when admitting complaints of sexual nature. These have been
motivated by historical experiences, that we cannot look at face value a complaint relating to
sexual assault. You can never completely exclude false allegation due to a variety of reasons.

The contemporary practice is that the court must be convinced beyond reasonable doubt that the
accused committed the offence. This is the underpinning idea of modern day legal consideration.
The guides and tools and approaches to complaints in sexual cases can never be a substitute for
the time honoured principle, viz or namely, that the guilty of the accused must be proved beyond
a reasonable doubt.

Requirements and Safeguards

28
[1918] 2 IR 361

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 21 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
In terms of historical context

Rule 1 – that the complainant must be made at the first reasonable opportunity that avails itself –
is it a timeous complaint or is it out of time. If it is not done timeously then a suspicion of fabrication
is raised. What constitutes a reasonable opportunity that avails itself or an unreasonable time or
otherwise is a factual inquiry to be determined by reference to the specific circumstance of a given
case. Pertinent or relevant factors would include: -
(i) age of the victim
(ii) her relationship to the accused
(iii) where any threats made or where any inducements given for the victim not to report
(iv) the availability of people in whom the complainant would be expected to report some
confidence.

In R v C29 the charge was one of rape and the court admitted in evidence a complaint made to
the mother. Five (5) days after the commission of the offence and the court restated the common
law position that to qualify admissibility the complaint must have been made voluntarily not as a
result of suggestive or leading questions nor intimidation. It must have been made without undue
delay but at the earliest opportunity which under all the circumstances in question could
reasonably be expected to the first person to whom the complainant could reasonably be
expected to make. The court also noted that this requirement was meant to minimize the
possibility of fabrication.

In another case R V Gannon30 the accused allegedly raped an 8-year-old girl, gave her some
money and asked her not to tell anybody. She was ignorant of the nature of the offence and after
some weeks she was found to have veneral disease and told her mother what had happened.
The previous consistent statement was admitted. The court noted that the rule in which cases of
assault upon the chastity or honour of women and children admits particulars of statements made
by complainants not in the presence of the accused, subject to certain limitations viz or namely
that the complaint must be made without undue delay and at the earliest possible opportunity

29
1955 (4) SA, 40 (N)
30
1906 TS 114 and R v Cummings [1948] 1 All ER 551

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 22 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
which avails itself under the circumstances. The relevant considerations which the court took into
account in handling this issue where the following: -

(i) age of the complainant – 8 years of age

(ii) she was ignorant of the nature of the offence
(iii) bribed not to tell her mother. All these factors worked in favour of the complainant.
Each case will depend on its facts at the end of the day.
In R v Cummings31 the complainant alleged that she had been raped by the accused. It appears
that after the incident the accused gave her a lift to her place of temporary residence which
happened to be a worker’s camp where she had been residing for a week. She did not mention
the incident to the camp authorities neither did she tell any of the three girls with whom she was
sharing the living quarters. However, the following day she decided to visit an older woman with
whom she was on very friendly terms who lived within 2 miles from the camp. She made a
complaint to this woman which resulted in the arrest of a man who had ravaged her or sexually
molested her. At trial the evidence of complainant was introduced, admitted and on appeal one
of the grounds was that the complaint was stale (not timeously made. There was an inordinate
delay. The court said that the evidence had been rightly admitted. The admissibility depends on
a number of facts e.g. relationship, identity of accused and complainant, presence of earlier
opportunities: -

“Most of the cases were complaints have been admitted despite the failure to take advantage of
the earlier opportunities turn on the identity of the recipient of the complaint. A complaint to B has
been admitted despite an earlier opportunity to complain to A because it has been thought that it
was natural for the complainant to wait so that she could see B. But where there were earlier
opportunities not availed or taken advantage of to complain to the very person to whom after a
significant person the complaint was ultimately made. I think it can only be in rare cases that the
complaint should be admitted.

R v Peters32 the complainant was a twelve-year-old girl who lived with her mother and the
accused was a spouse of the mother. The family lived in Manicaland and on 3rd October 1966
the accused went away on holiday to Mutare and on the 6th of November the mother of the

31
[1948] All ER551
32
1967 RLR 35

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 23 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
complainant discovered some money in the pocket of complainant’s jacket. The mother
demanded an explanation from her daughter whereupon she appeared afraid and upset and she
only decided to speak upon assurance and promise by her mother that she would not be beaten.
The complaint was admitted in evidence and according to the mother’s story the complainant told
her that the accused had told her to lie own and tickled her and had been told by the accused that
all girls were taught this thing by their fathers and that she should not tell the mother otherwise he
would beat her up and chase her away from the family home, cut her throat and throw her in a
deep well. The accused was convicted.

Age of complainant is a relative concept – you cannot use rule of thumb – can be ignored.

Relationship – consequences of reporting will trouble her.

Utterances or threats – made the girl to hold back

Bribery
For such complaints to be admitted they must not be elicited by leading questions – they must
be spontaneous complaints arising from the offence – not from intimidatory tactics. The mere fact
that the statement is made in response to a question does not ipso facto make it inadmissible. A
lot will depend on the nature and character of questioning e.g The questioning must not anticipate
a particular answer. It must be neutral.

In R v Osborne33 the court said that:

“if the circumstances indicate that but for the questioning there probably would be no
voluntary complaints. The answer to the question becomes inadmissible. If the questioner
on the other had merely anticipates the statement which the complainant was about to
make the evidence is not rendered inadmissible by the fact that the questioner spoke first”.

In Gittleson v R34 the court said that both the promptide and the spontaneous or voluntary nature
of the complaints are important elements in rendering such a complain admissible. On the other

33
1905 (1) KB 51 [1905] All ER Rep 54
34
1938 SRL 161

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 24 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
where any threats or inducement by the questioner of a leading or suggestive nature precedes
and procures the making of the complaint. Its voluntary nature is destroyed and the evidence of
the complaint becomes inadmissible.

In S v T35 the complainant’s mother threatened to beat up the child if she did not disclose what
the accused had done to her – the court said that a complaint procured in his way/manner was
inadmissible. The court observed that if the complaint is induced by intimidation or leading
question it would naturally throw doubt on the validity of the complaint especially if it is made by
mother asking leading questions and threatening a beating.

Genuine fears of fabrication will arise if this is allowed. Discrimination based on gender in relation
to complaints in sexual cases does not apply any more such that a male victim will be equally
protected. The Sexual Offences Act for example envisages the prospect of male complainants
being sexually molested either by other males as is usually the case or even by female accused
persons. The distinction between male and female victims “has been abolished not only under
the common law but in terms of the Sexual Offences Act. It is a piece of legislation which among
other objectives introduces in a dramatic and progressive ways changes to current thinking on
sexual matters. The common law position on marital rape is fundamentally changing. In Roman-
Dutch jurisprudence marital rape was an unknown and unacknowledged phenomenon but
nowadays it is reality and one would expect that the traditional approach of the court to treat
sexual cases with caution and circumspection would still hold. There can still be a variety of
reasons inducing false report e.g when the parties have fallen out. The bottom line is to arrive at
the truth on the basis of time honoured approach of our courts in the context of adversarial system
of justice – proof beyond reasonable doubt.

In R v Camelleri36 on the trial of an accused for committing acts of burgery or gross indecent or
sodomy with a boy aged 15 years the judge admitted evidence by the prosecution to the effect
that shortly after the assault the victim made a complaint to his parents. Counsel for the accused
objected to its admissibility on the basis that it can only be admitted only if the victim is a woman.
The court short down that argument stating that so far as this country is concerned there is no
authority which decides that he mere fact that the complainant is a male person renders the

35
1963 (1) SA 484
36
1922 (2) QB 122

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 25 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
complaint inadmissible. In fact, added the court such cases are admissible irrespective of the sex
of the complainant.

In R v Burgess37 in which the particulars of the complaint made by a boy of 14 years to a

policeman soon after his ordeal/ravished the particulars were held to be admissible. The court
emphasized the fact that no distinction no longer exist between male and female victims in as
much as the new Sexual Offences Act of 2000 places less emphasis upon whether or not the
sexual predator is male or female.

Traditionally the term victim of a sexual offence was meant to include not only rape victims but
voluntary participants to the sexual act who in law are deemed incapable of giving valid consent
e.g under the old Criminal Amendment Act, girls under 16 who because of their youthfulness or
tenderness in terms of age were deemed incapable of consenting – statutory rape. In as much
as the definition of sexual offences, extended to include indecent assault, bigamy, incest,
imbecile, certified idiot. The idea is to protect vulnerable women.

The State v S Banana38 the court took into consideration the traditional approach towards
complaints made in sexual cases. At page 8 of the judgement: -

“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 consistence of the
complainant’s evidence and the absence of consent. The complaints serve to rebut any
suspicion that the complainant has fabricated the allegation and the requirements for
admissibility of a complaint are

(i) It must be made voluntarily and not as a result of question of leading,

inducing or intimidation nature, see R v Petros.
(ii) 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”39.

37
1927 TPD 14
38
2000(1) ZLR 607(s)
39
1955 (4) SA

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 26 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
Edmore Musasa v The State SC 45/2002 sexual cases – previous consistent statements). Per
Ziyambi JA – the applicant was convicted by the regional magistrate for raping a four-year-old
girl. Sentenced 10 years with labour and noted an appeal. The Supreme restated/reaffirmed the
proposition that the traditional approach to cases of sexual nature putting on particular emphasis
on corroboration and the cautionary has largely been discarded. The bottom line at the end is
that the state “must prove its case beyond reasonable doubt”. Needless to mention that each
case depends on its facts. The cautionary rule and the rule that emphasizes timeous complaints,
undue delay can only be used as useful guides in establishing the guilty or otherwise of the
accused. When one bears in mind the new approach to sexual cases namely that the cautionary
rule in such sexual cases has no basis for its existence and while a trial court must consider the
nature and circumstances of the particular offence in the end only one test applies namely “was
the accused’s guilty proved beyond reasonable doubt and the test must be the same wither the
crime is theft or rape. In the court a quo based its decision on that there was evidene that the
hymen was ruptured and there was damage to the urethra suggesting legal penetration. There
was evidence from the doctor that the injuries were suggestive of penal penetration and the
possibility of the complainant injuring herself with other instruments was discounted and as far as
the identity of the accused was concerned there was evidence which was common cause that the
complainant was in the appellant’s room and was seen leaving the room by her mother who had
chasticed/beaten her for going to other people’s houses. Finally there was evidene even then
that the mother had not suspected that anything was wrong initially. It was only to day after being
asked by her mother why she had difficulties in walking that she told her mother that the appellant
had abused her.

Refreshment of Memory (Section 19 of the Civil Evidence Act [Chapter 8:01]

The rules that have been put in place in order to safeguard the interests of the accused particularly
when it comes to the prospect of a witness having recourse to the aid of notes, memoranda or
records that were made outside the court at the time of the occurrence of events as a way of
arising or facilitating easy memory. The idea of refreshing is to revive or resuscitate or resurrect
one’s memory in relation to an incident that would have occurred at an earlier point in time which
incident is subject to investigation by the court. Although refreshment of memory is generally
allowed subject to the usual safeguards being put in place. In terms of giving evidence in court
one cannot run away from the centrality of orality. One is expected to talk of their observation
and experience at the time the incident happened. Refreshment is meant to assist both the

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 27 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
witness and the court to arrive at proper judgment justified by the circumstances of the case.
Notwithstanding the premium or high value placed on orality in giving evidence refreshment of
memory is justified by necessity and practical judiciary considerations which are
(i) considerable time might have lapsed between trial and occurrence, may be unrealistic to
expect witnesses to remember with an unaided memory.
(ii) The complexity or intricate matter of the case itself. Consider the case of an auditor who
looks at accounts, figures as a matter of routine, consider the case of a forensic scientist who look
at documents to evaluate authenticity, police officer who attended to accident scenes as a matter
of routine – to expect him to remember each case without recourse to his memoranda would be
unrealistic.

Our law suggests that a witness’s memory remains unrevived, blank after having looked at the
notes or memoranda which he made at the occasion of the occurrence of event, the process is
still known as refreshment of memory. In the case of Cape Coast Exploration Co v Scholtz
and Another40 the court said it is not necessary for a witness to have an independent recollection
of the events put to him order to refresh his memory.* If an official communication is put to the
officer and he recognizes having made the communication, then the presumption is that what he
meant to communicate was what was in his mind. The conditions for this are:0
(a) authenticity
(b) contemporaneity

The two requirements work pari pasu, simultaneously.

Authenticity

(i) the witness must have made the document or recording himself or
(ii) alternatively the recording must have been made by another person at the behest,
instruction order, of the witness
(iii) it must not involve the first two but nonetheless the witness must have read the recording
and accepted its accuracy. The requirements of authenticity is subject to the requirement of
contemporaneity. The recording must have been made while the events were still fresh in the
minds of the recorder.

40
1933 AD 56

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 28 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
(c) Original
(d) Production – privilege not exempted do not refer it if privileged

R v O’Linn41, a traffic officer testifying in a road traffic case was allowed to refer and refresh his
memory from a note which another officer had made at his specific dictation although he had not
read and ratified it earlier. Another instance of authenticity is exemplified by the case of Andersen
v Walley in which the captain of a ship was allowed to use the ship’s logbook in order to refresh
his memory concerning a navigational accident. This was allowed by the court despite the fact
that the logbook had been kept by the colleague or counterpart. The crucial point however is that
he had ratified the logbook within a week of the incident when events were still fresh in his mind.

A case that summarises the law on refreshment from the point of view of Zimbabwean
jurisprudence is Mabu Estates v Pembi Chase Farm42 in which Gubbay JA as he then was had
occasion to make a judiciary pronouncement on issues or matters pertaining to refreshment of
memory. The dispute concerned two farmers, one of whom had leased or hired out a combined
harvester to the other farms for reaping wheat crop. While being delivered the lorry carrying the
harvester stopped at Mvurwi. The dispute relates to number of days. One constable had made
a recording at the roadblock and he was asked to give evidence. Gubbay JA observed that the
use of logbook by the section officer Zulu while in the witness box was not designed to allow him
to introduce inadmissible evidence but rather to refresh his memory. The requirement for
refreshment are authenticity and substantial contemporaneity.

There is no exact time limit as far as contemporaneity is concerned. At the end of the day what
is important is for the court to be convinced that the recording was done whilst the events were
still relatively fresh in the minds of the recorder. Some events are more quickly forgotten than
others. In R v Isaacs43 the court held that a witness should be allowed to refresh his memory
from notes made by him expect facto after the event if the circumstances in the opinion of the
court are such as to render it probable that the witness still had a distinct recollection of facts at
the time he made the notes. That cases alluded to or refer to another case of Jones v Stroud44

41
1960 (1) SA 545 (N)
42
SC 46/86
43
1916 (1) TPD 390
44
(1825) 2, C & P 196: Digest (Repl) 299, 2795.

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 29 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
in which a witness was disallowed to refresh his memory from a record compiled six months after
the event because it was out of time and completely stale. The recording party after satisfying
authenticity and contemporaneity must be given the record so that he can be cross-examined.
The idea is to allow the cross-examining party to be able to challenge the credibility of the
evidence so as to weaken it thus proving its admissibility. It is to discredit the party. Re-
examination allows the other party resuscitate the credibility.

Character Evidence
It is a broad species of evidence that incorporates two fundamental attributes of the accused or
defendant. The first relates to evidence of previous convictions. The other attribute or element
is similar fact evidence and the general approach of the courts is that character evidence is
inadmissible if the purpose is to establish the guilty of the accused because it is fundamentally
prejudicial to the accused or to the defendant. The risk of prejudice is rather high. There is the
tendency to give a dog a bad name and hang it.

It is acceptable in the following: -

(i) At the stage of sentencing – as an aggravating feature – guilty already established.

(ii) During trial it is admissible in exceptional cases only – e.g where the accused introduces
evidence of his good character. You can rebut that evidence in cross-examination. If in his
evidence in chief he introduces evidence of good character you can negate it by introducing
previous convictions. Or where he attacks the character of opposing witnesses while painting
himself lily white.

Similar Fact Evidence

Similar facts evidence is regarded as evidence of disposition. It shows propensity on the part of
the accused to commit crimes of a certain character – e.g. serial murderer whose victims may be
elderly people living on their own and how the offence is committed. As a general rule, similar
facts evidence is inadmissible. It is evidence which refers to peculiar, immoral or illegal conduct
of a party on occasions other than that which is in dispute but which is also of such a nature that
it is logically connected with or substantially similar to the conduct on the occasion which forms
the substance of the dispute and for such evidence to be admissible because generally it is not
admissible. The test which is now universally accepted is that its probative value must outweigh

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 30 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
its potential for prejudice. In other words, or put differently the evidence must be so relevant as to
negate its potential for prejudice. In the case of Makin which has been cited on numerous
occasions in this jurisdiction, Makin v A.G of New South Wales45 in which the accused pair
happened to be husband and wife and they were charged with the murder of a baby. Its body
was found buried in their garden and they were proved to have agreed to adopt the baby in return
for payment of a small sum by its parents.

The defence of the pair was that the child had died of natural causes and that their sole
misdemeanor or offence was to have buried the child irregularly. The prosecution’s case was
that the child had been killed by the Makins pursuant to a scheme by which they took charge of
infants in return for payments to be used for the infant’s care then kill the infant and retain and
kept the sums paid. In support of this case the prosecution laid evidence that the bodies of 12
other infants had been discovered in the grounds of premises occupied at various times by the
Makins and several of these infants had been placed in the care of the Makins in return for
payment of a small sum of money. The accused were duly convicted and they then appealed.

Murder charges (first) - history of the Makins (second) – similarities which cannot be explained
away.

(i) 12 other bodies found

(ii) at premises presently and formerly occupied by Makins
(iii) payment of small amounts of money paid by natural parents reward aspect
(iii) Deaths were not reported

N. B A pattern emerges – system – trademark emerges – this is similar fact evidence. The rule
was then formulated as follows: -

“It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the
accused has been guilty of criminal acts other than those covered by the indictment, for purposes
of leading to the conclusion that the accused is a person likely from his criminal conduct or
character to have committed the offence for which he is being tried.”

45
[1894] AC 57 (PC)

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 31 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
You do not prove one crime by showing that the accused was previously involved in similar crimes
generally.

Why similar facts evidence is inadmissible?

1. The risk of prejudice is high particularly if the evidence is merely tended to show propensity
nothing more. It portrays the accused as a bad person, he is always dancing with the demons. R
V Meyer46 in which he questioning by the court proceeded along the following lines: -

“Q. Do you know Mr. Meyer, the accused?

A. Yes
Q. When did you first meet him?
A. In the Central Prison.”

The evidence was disallowed because the intimation was that he was a jail bird. The
evidence was excluded or precluded on the basis that it was unduly prejudicial.

It was also irrelevant since the purpose was merely to establish propensity and nothing
more.

Undue prejudice – the over strong tendency to believe that the accused is guilty of the
charge merely because he is the most likely person to do such acts.

2. The other side (spinoff) is that similar fact evidence has a tendency to raise unnecessarily
collateral issues which the court has no business investigating at that point in time e.g. in the old
case of Hollingam v Head47 in which the plaintiff bought quano from the defendant and was
claiming that the defendant had given him a warranty as to the quality of the guano. The plaintiff
sought to call other buyers to give evidence that they had been given the same warrant. The
court said that the evidence was insufficiently relevant. In Banana v The State48 Chief Justice
Gubbay at page 9 of the judgment had this to say: -

46
1953 (1) SA 26
47
(1858) 4CB (NS) 388
48
2001 (1) ZLR 607 (S)

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 32 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
 “It is clear in this jurisdiction that the test has always been applied as in this case is that
formulated in Boardman v D.P.P49– namely that similar facts evidence must be of such an unusual
nature or striking similarity that it would an affront or insult to common sense to assume that the
similarity to the offence charged was explicable on the basis of coincidence.”

The Chief Justice referred to other cases like S v Ngara50, S v Mupa,51 S v Mutsinziri52 and S v
Meager.53

The test nowadays has been to establish a nexus between the two set of facts namely character
traits of the accused on one hand and the charge facing the accused on the other hand.
Traditionally, the approach was to look at striking similarities. In terms of contemporary practices
there is more flexibility allowed nowadays than using rule of thumb methods or straight jacket of
similarities. Similarities could include substance of offence, manner of operation modus operandi
motive and objectives of the accused person, class of victims e.g. Banana cases – aide de camp
– people he could easily manipulate, where the reception of similar facts evidence safeguards
have been put in place to minimize the risk of prejudice (to the defendant). At the same time
admissibility is predicated upon. The compelling reason that of severe miscarriage of justice
would occur if the evidence were to be excluded. Justice demands the admission of the evidence
in spite of its prejudicial nature but the net effect of this is that the court would have to be convinced
that the relevance of evidence outweighs its potential for prejudice. As a tool of analysis in
determining the level of relevance required the courts have found it convenient to insist or to
establish striking similarities – so that the evidence cannot be merely dismissed on the basis of
coincidence or accident. Nowadays there is movement to extricate and disengage the courts
from the straight jacket of striking similarities although that is applicable.

At the end of the day as we saw complainant in sexual cases the absence or emphasis is on
proving the case beyond a reasonable doubt. It is a time-honored approach – the heart and soul
upon which the criminal law justice system is anchored. See S v Banana. The system must be

49
[1974] 3 All ER 887
50
1987 (1) ZLR 91
51
1989 (1) ZLR 279
52
1997 (1) ZLR 6
53
1977 (2) RLR 327

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 33 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
flexible not to insist on a straight jacket approach. The system has helped however as each case
depends on each case. Other considerations are useful guides. Historically speaking similar
facts evidence has been used to rebut the issue of accident or coincidence. Justice cannot be
properly effected or attained without disclosure of prior acts of misconduct. R v Bond54 in which
the accused was convicted of using instruments with an intention to procure an abortion on a
female ex domestic servant. The prosecution was allowed to adduce evidence of another girl to
the effect that the accused had done the same to her nine months previously. She also told her
that he had put dozens of girls right. Both girls were servants of his who had become pregnant
by him. Bond was a doctor and his defence was that he was using the instruments in order to
examine the complainant for a sexually transmitted infection (STI). His defence was one of
accident and innocent intention and the court admitted evidence which showed the improbability
of accident. The court observed that the same accident should repeatedly occur to the same
person is unusual especially if it confers a benefit to him. In R v Smith55 the accused Mr. Smith
was charged with murdering his bigamously married bride and the evidence of the unusual death
of two other women to whom the accused was married was held to have rightly admitted. In each
of the three cases, the deceased had been married to the accused and they were found drowned
in the family bathroom, the door to the bathroom would not lock and they all had insurance policies
taken in favour of the accused and by way of defence he had always availed that the women
suffered from epilepsy and had suffered from seizure. The criminal court certified the evidence to
have been rightly admitted. Accidents or mistakes happen but it was remarkable that they
happened several times in precisely the same way.

To lose one wife under such circumstances may be held as misfortune. To the second is
carelessness and to lose a third wife boils down to murder. He had established a trademark –
adverse to interest of justice not to recognize the trademark.

(i) marriage
(ii) insurance policies
(iii) bathroom victims – the system according to which he operated
(iv) locks would not lock

54
1906 (2) QB 389
55
1915 CAR 229

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 34 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
Another category of evidence in which similar fact evidence has been used to rebut the defence
of innocent association – innocent explanation – see R v Ball56 in which the two accused persons
were brother and sister of full blood were indicted under the Punishment of Incest Act for having
had canal knowledge of each other during stated periods in 1910. Evidence was given on behalf
of prosecution to the extent that at times specified in the indictment the accused had lived together
as husband and wife prior to incest becoming criminalised. They lived together in the same house
which contained only unfurnished bedroom. A double bed which bore unmistakably signs of two
persons having occupied it. The prosecution then tendered evidence of prior sexual relations
between the two accused and the evidence was that the male accused in November 1907 took a
house in which he brought the female accused as his wife and lived there as such for about
sixteen months and that at the end of March 1908 the female accused gave birth to a child
describing herself in the papers as the mother and the male accused as the father. This had
taken place prior to the enactment of the legislation. The accused were then convicted whereupon
they appealed to the Court of Criminal Appeals. The basis of the Appeal was that the similar fact
evidence ought to have been excluded – “that the time honoured tradition and approach which
says that you cannot convict a man of one crime by proving that he had committed some other
crimes should be carefully observed but in this case the evidence went directly to prove the actual
crime for which the parties were indicted. The court was satisfied that similar facts evidence had
been rightly admitted in order to admit the existence of sexual intercourse passion between the
parties and disprove the fact of innocent association.

In R v E57 in which the accused a white farmer was found guilty of a charge of rape. The
complainant was a young married African woman who worked for him. He pleaded lack of
capacity as his defence. To rebut this defence the prosecution then led evidence which showed
he was suffering from a venereal disease which he got from other women and this rebutted his
defence of incapacity – his innocent explanation or innocent association of being merely her cook.
The defence of innocent association overlaps with that of innocent explanation. The idea of
introducing similar fact evidence is to nullify or negate the accused’s innocent explanation e.g. in
R v Armstrong58 in which the accused was charged with the murder of his spouse through
cyanide poison. It was proved that he had bought a lethal quantity of cyanide shortly before the

56
1911 AC 47
57
1960 (1) SA 691 (SR)
58
1922 (2) QB 555

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 35 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
death and he had kept the poison in small packets each containing a fatal dose and his defence
was that he bought the poison to exterminate weeds and he offered the explanation that the wife
might have committed suicide. The court allowed the prosecution to adduce evidence that 8
months after the death he also attempted to administer poison to a rival lawyer. This was allowed
in order to show that the cyanide had been bought with criminal intentions.

Yet in another category of relevance is one which similar fact evidence has been used in order to
establish identity e.g. in Thompson v R59 the accused was charged with committing gross
indecency with two boys and the acts in respect of which the charges were brought were alleged
to have occurred on March 16 of a given year and the person who committed them was alleged
to have made a further appointment with the boys for March 19. The police were informed in the
meantime and kept watching with the boys in the rendezvous (vicinity). At the appointed time the
accused arrived and was immediately identified at the man who had committed the offence on
the 16th of March. His defence was of mistaken identity. At the trial the prosecution then tendered
evidence that when arrested on 19th March the accused was carrying powder puffs and he had
indecent photographs of boys in his room clearly indicating that he was a sexual pervert and the
courts ruled that the who question is as to the identity of the person who came to the spot on the
19th with the person who committed the acts on the 16th. The court was satisfied and the offender
of the 16th and the accused has the same abnormal propensities and this evidence tended to
show the probability of the truth of the boys’ story as to identity. The accused then was regarded
as being extraordinary – bizarre, curious tendencies because of their homosexual tendencies. It
was more than coincidence for the boys to pinpoint the accused. The identification was therefore
proper – “had tools of trade on him” – see also S V Mutsinziri60

“Similar fact evidence is generally admissible if it is relevant to the question in issue but it will be
excluded if it proves only disposition or a mere general similarity”. Also, similar fact evidence has
been used as “res gestae” Part of the story.

The reception of similar fact evidence reached its peak or zenith with the landmark case of DPP
v Boardman61. In English law Boardman’s case was the high-water mark or milestone in so far

59
1880 AC 221
60
1997 (1) ZLR 6
61
1974 3 All ER

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 36 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
as admissibility of similar fact evidence is concerned. This judgment has been quoted with
approval on numerous occasions by the Zimbabwean courts – Banana and Mutsinziri – both by
High Court and Supreme Court.

Boardman’s case is a landmark case. It is a case in which the whole logic underpinning the
reception of similar facts evidence was extensively considered by the court and in many cases
drawn from this jurisdiction and South Africa it has been an unequivocal endorsement e.g. Myer’s
case, Mutsinziri’s case in Banana’s case both at High Court and Supreme Court level. In
Boardman’s case the House of Lords concluded that there was a certainly/definite requirement
for high degree of relevance for such evidence to be admitted. In order for the court to admit the
evidence the prior or antecedent dishonorable pacts of the accused must share with the
discreditable conduct or charge in question. Certain commonalities so much that it will be an
affront to common sense and common decency to attempt to explain it away otherwise by
coincidence,

Mr. B was a headmaster at an exclusive grammar school in England. The school catered
predominantly for the needs of foreign students particularly those from the oil gulf states. He was
facing two counts one involving a 16-year-old boy C and another 17-year-old boy H. Both were
pupils at the school and both counts involved Mr. B and each boy gave evidence to the following
effect: -

“The accused would come to their dormitory very late at night and would ask the boys
separately to accompany him to the school garden for purposes of consummating a
homosexual relationship. In either case the victim stated that the accused invited the boys
to take the active and aggressive part whilst Boardman would play the role of the woman.”

At the trial the court held that each boy’s evidence was admissible and also corroborative of the
other victim’s evidence. Corroborative evidence is evidence aliunde – another evidence
confirming an issue or support other prior evidence. Probative force should outweigh the
prejudicial effects.

Scenario
(i) visit at night

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 37 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
(ii) invite victims to the garden
(iii) passive and active role.

These factors establish a pattern, trademark modus operandi. The court was satisfied that there
was no corroboration.

Similar fact evidence in civil proceedings – basically the principles of admissibility of similar fact
evidence is based or predicated upon the same principles as the case with criminal cases
provided, as case law puts it, the admission of such evidence would not be oppressive or unfair
to the other side or party and also that the opponent or adversary is given fair notice of the
intention to introduce evidence of similar facts so that if they want they can rebut it, see Mood
Music Publishing Co. v De Wolfe62 which dealt with the infringement of a musical copyright by
the defendant which copyright was owned by the plaintiff and was used as background music in
TV programs. The Plaintiff complained that the work infringed their copyright and it was common
cause that their work was very similar to the Plaintiff’s work and also that the defendant’s product
was composed after the Plaintiffs had produced their own work.

To show a system and rebut coincidence the plaintiffs were allowed to introduce evidence of three
other recordings which bore striking resemblance to works subject to copyright which had been
reproduced by the defendants without the consent of the copyright owners. The idea was to rebut
coincidence. Upon being found liable the defendants appealed to the House of Lords and Lord
Denning M L made the following observation:-
“That in civil cases the courts have followed a similar line in admitting similar fact
evidence and such evidence will be admitted if it is logically probative or relevant in
determining the issue provided the defendant has fair warning of the intention to use
similar fact evidence and that he is able to deal with it”.

He cited with approval an earlier English case of Haels v Kerr63 in which it was based on
negligence. The plaintiff alleged that he had contracted an infectious disease through the
negligence of eh defendant, a barber who used razors and other appliances in a dirty and
unsanitary condition. In support of his case he tendered evidence of two other witnesses that

62
1976 (1) All ER 763
63
[1908] KB 601

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 38 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
they contracted the same disease in the defendant’s shop under similar conditions. The evidence
was admitted to show that the disease affecting the plaintiff was not a mere accident –
coincidence.

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 39 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
 PART FIVE:
OPINION EVIDENCE

a) The value of an opinion

b) Expert opinion evidence
c) The rule in Hollington v Hewthorn(1943) 2 ALL ER 35

Opinion Evidence
It is generally exclusionary because it is irrelevant by and large. Opinion evidence – evaluation,
inferences and interpretations observed from a certain set of facts. Our judicial approach is that
the witness must narrate to the court, for its benefit, his experience, what he observed, perceived,
what he saw and it then becomes the duty of the court to draw conclusions based on his narration
of events. The underlying principle here is that it is possible clinically to draw a distinction between
inferences, opinions, conclusions on the one hand and on the other hand the facts upon which
they are based. It becomes the function of the court to draw appropriate inferences regarding
liability or guilty or otherwise based on the witness’ narration.

In the celebrated case of Hollington v Hewthorn64 the court said:

“It frequently happens that a bystander has a complete and full view of the accident. It is
beyond question that, while he may inform the court of everything that he saw, he may not
express any opinion on whether either or both of the parties were negligent. The reason
commonly assigned is that this is the precise question the court has to decide, but in truth,
it is because his opinion is not relevant. Any fact that he can prove is relevant but his
opinion is not”

It is often said that the courts desire to guard against the usurpation of their function. It is the
court that must ultimately make a determination and not a witness. Where and when opinion

64
[1943] (2) All ER 35 at p.40

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 40 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
evidence is admitted – as an exception to the general exclusionary rule – in as much that
admissibility is borne out of recognition that the evidence in question would be relevant. Relevant
opinion evidence is therefore admissible. It falls under 2 categories: -

1. Expert opinion evidence

2. Evidence of lay persons.

Expert Opinion – generally admissible on the basis of its relevance – assisting the court in
resolving the issue in one way or another. By reason of technical expertise and knowledge
experts are sometimes better placed than the court to help the court on matters that generally fall
outside the ordinary experiences of the court e.g. highly specialized fields of human endeavour
e.g. medicine, engineering, fingerprints, psychiatry, ballistics.

Requirements for Admissibility

Relevance is the principle upon admissibility

(i) Expert Opinion Evidence – It falls outside the ordinary competence or competent
court. A party who desires to call expert evidence should satisfy the court about the witnesses’
qualification – expertise which can be obtained through training or experience – animal breeder.
N.B. Opinion evidence – only acceptable where the court cannot solve the problem on its own.

Formal qualifications are not always decisive – each case depends on its facts. See R v
Silverlock65 in which the lawyer who had made a study of handwriting over a long time but without
formal qualifications was allowed to testify as an expert. The expert must furnish the court with
his reasons for holding a particular view. The court should not be satisfied with sweeping
generalized and bald declarations unsupported by reason. * In Zimbabwe jurisprudence, our
courts had had occasions to admit expert opinion in a variety of situations e.g pathology, death,
general medicine, handwriting disputes – Blackmore, inaudible tape in the treason trial of the
century, accident – road – reconstruction of the scene. If the evidence can easily be arrived by
the court mero motu there will be no need to enlist the services of an expert. It still has the

65
1899 (2) QB 766

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 41 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
constitutional mandate to give the final say. Expert evidence or opinion must not surplant or
displace the judgment of the court. Read the following cases: -

R v Sibanda 1963 (4) SA 182 (SR)

R v Nyamayaro 1967 RLR 288(A)
Nkosiyabo Ndzombane v The State SC 77/14
S v Motsi 2015 (1) ZLR 304 (H)
Glenister v President of the Republic of South Africa and Ors [2013] ZACC 20:2013 (II) BLCR
1246 (CC)

The basic criterion of lay opinion evidence is still relevant. The court realized that some cases
are extremely difficult for some witnesses to testify without giving evidence of an opinion. The
opinion must be based on observation – s 22(2). If the court is in a good position as that of the
witness to come to its own determination over the issue then the lay opinion evidence becomes
redundant and superfluous.

In S v Adams66 the court said that it is permissible for a witness, for example, to say that he
thought that the accused was intoxicated because his breath smelt of strong liquor, his speech
was slurred, walking in a zig zag manner, saying unintelligible things. It is however still the court’s
duty to conclude whether the driver’s ability was indeed impaired because of his drunken state.
Lay opinion evidence has been received in a number of situations e.g identification of somebody’s
handwriting or identification of persons, apparent age or identifying a dead body, or talking about
bodily sensations e.g. excited, down, happy etc e.g speed estimation. As long as evidence assists
it becomes relevant.

Exam: Rule in Hollington v Hewthorne67 section 31 of the Civil Evidence Act.

One of the most controversial rules of evidence which until 1995 was part of our law. The rule
was that in a Criminal Trial if the court comes with a particular judgment the decision of the court
– say conviction, is irrelevant if future civil litigation between the same parties because it is the
opinion of another court and that the conviction is not admissible in order to establish liability in
civil litigation. In that case he defendant company’s employee had been convicted of careless

66
1983 (2) SA 577
67
1943 (2) All ER 35

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 42 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
driving and the plaintiff was the administrator of his son’s estate. He then sued the company for
negligence – the damages arose from the accident which was caused by the careless driving,
that claimed the life of the plaintiff’s son. Unfortunately for the plaintiff, the only other witness was
his deceased son. In order to prove his case against the defendant company, he sought to lead
evidence of the conviction of the defendant company’s employee. The Court of Appeal very
curiously held that such evidence was inadmissible since it amounted to an opinion of another
court as to the negligence of the employee. It was further argued that the civil court was in the
same position to arrive at its own opinion or its own decision as regards the issue of negligence
– balance of probabilities concept grossly misrepresented, Higher burden of proof in criminal
cases – besides – court knows what evidence to consider. In Goody v Oldhams Press Ltd68 in
which the plaintiff brought an action for defamation against a newspaper which had published an
article saying that he had taken part in the Great Train Robbery where over 2.5 million pounds
was stolen. At the time of the action the plaintiff was serving 30 years imprisonment and curiously
following decisions set by the Hollington case. The civil court would have to start all over again
and until 1995 the case remained law in Zimbabwe. I England it was administered through the
Civil Evidence Act of 1968. See Tombs v Sithole69 in which McNally invited the legislature to put
matters right – section31(2) of the Civil Evidence At which for all intents and purposes shoots
down the Hollington rule.

68
1967 (1) QB 333
69
1981 ZLR 444

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 43 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
 PART SIX:
HEARSAY

a) Statutory and Common Law sources

b) Civil and Criminal Application
c) Implied hearsay
d) The exclusionary rules
e) Declarations by deceased persons
f) ‘Res gestae’
g) Public documents
h) Public interest

Hearsay Evidence – secondary evidence – the original assertor is not there. We are looking at
express or implied assertions of persons other than the witness who is testifying or assertions in
documents produced to the court where no witnesses testify and if the purpose is to show that
such assertions are true then the evidence is inadmissible. Statements made by persons who
would not give evidence are generally exclusionary if the purpose of giving such statements is to
prove their contents as the truth. Generally speaking A may not testify that B told him that C killed
D – such evidence is inherently untrustworthy – it is potentially associated with possibilities of
deception, inexactitude and incorrectness.

Its exclusionary because of the possibility that the original assertor who is not before the court
might have spoken with a forked tongue, jocular, factious – guide against deception and fraud. It
is also an extra-curial statement not made under oath. In our legal system a high premium is
placed on the oath and it has a quasi-religious significance. Also, the other party will be unable
to cross-examine the original assertor. The question of cross-examination is equally important.
The idea is to show inconsistence in the evidence so that little weight may be attached. That
devalues the cogency of the evidence.

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 44 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
Subramaniam v PP70 in which the accused was charged with the unlawful possession of
weapons of war under the laws of Malaysia during British occupation. His defence was that he
acted under duress from terrorists who had captured him in the Malaysian jungle. The trial court
ruled that evidence of his conversations with the terrorist was inadmissible unless the terrorists
themselves can testify. The Privy Council which was the Highest Court of Appeal made the
observation that dismissing evidence out of hand by the judge might have been an error.
Evidence of a statement made to a witness by 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 the fact that the statement was made and not that its contents is the
truth – not the truth of the evidence but the fact that it was inadmissible. Hearsay evidence can
be made either expressly or through implied assertions e.g in the case of S v Van Niekerk71- a
magistrate of all people was charged with the theft of a shotgun that he had confiscated from a
drunkard person who had dies before being brought to court.

The magistrate’s defence was that the drunkard had donated the shotgun to him. Two letters
ostensibly written by the deceased were produced by the prosecution in which the deceased
implored his brother to collect the gun from the magistrate. The purpose of the letters was to
show that the gun had not been donated after all. The court said this was inadmissible as an
applied hearsay assertion.

When is hearsay admissible?

A sensible enquiry by any serious-minded student of evidence would proceed as follows: -

(i) Does the evidence fall within the hearsay exclusionary rule? If it does, is it rendered
admissible by any of the common law exceptions and what are the requirements of admissibility.
If the common law exceptions are inadmissible is it then rendered admissible by statutory
exception and if so what are the requirements.

Public documents fall under hearsay but they are admissible e.g birth certificate.

70
1956 (1) WLR 965
71
1964 (1) SA 729

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 45 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
Both common law and statutory exceptions to the hearsay rule have basically been motivated by
two factors:

(i) Necessity – the necessity argument runs as follows: -

(a) “The administration of justice will be severely hampered or emasculated without the
admission thereof of such evidence and
(b) The probability that the evidence is true.

There are safeguards which the law has placed before admissibility can be effected (to minimize
the possibility of admitting evidence properly).

(ii) The untested evidence is probably reliable because there is no motive to misrepresent or
because one is dealing with a spontaneous exclamation which is made by the witness or by a
witness in the heat of the moment and without any premeditation or alternatively a statement
made by a deceased person who is on the verge of death and who entertains a settled and
hopeless expectation of life – waving goodbye with the world and wants to make peace with his
creator before he fulfils his promise of his destiny.

Common Law Exceptions

They fall under two broad categories: -

(i) Declarations by deceased persons

(ii) The Res-gestae doctrine

Declarations by Deceased Persons

(a) Declarations as to public or general rights – oral or written declarations made by

deceased person concerning matters which qualify as public or general rights. Such a declaration
is admissible if it was made before a dispute arose and if the declarant was competent to make
the declaration.

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 46 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
A general right is a right that affects a particular class of persons e.g a community that has a right
to graze its cattle in the paddocks – law students with rights to use a particular lecture room
whereas a public right is a right that can be exercised by any member of the public e.g Harare-
Masvingo road or in the villages people bathing upstream. If the rights are in dispute evidence
can be brought under the following circumstances: -

(i) That the declarant must be dead

(ii) That the declaration must have been made before the dispute arose
(iii) The declaration should deal with the disputed existence of a public or general right.
(iv) The declarant should have been competent to make the declaration.

In the case of Du Troit v Lindenburg Municipality72 in which the boundaries of a township were
proved by the evidence that a deceased old resident who had known the beacons for about 40
years pointed them out to his son before his death. In the ancient Australian case of Millipurn v
Nebalco, the court permitted testimony made by aborigines concerning the rights of various tribes
to particular areas of land.

(b) Declarations against Interests

The oral or written statement of a person since deceased of a fact which he knew to be
against/adverse his pecuniary or proprietary interests when the declaration made is admissible
as evidence of the fact provided that the declarant had personal knowledge of such facts. The
rational underpinning this exception is that no one would make a statement against his own
interest unless it was true e.g the issuance of a receipt since it acknowledges satisfaction of debt
or a statement possessing property to the effect that they not own the property or if somebody
acknowledges paternity (brings burdens) – maintenance.

The requirements of admissibility: -

72
1909 TS 527

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 47 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
(i) The declarant must appreciate that the statements he is making is contrary to his interest
e.g Williams v Eagle Star Insurance73 in which the court admitted a statement by a passenger
who had fallen off a bus and had since dies of his injuries in which the deceased intimated that
the driver should not be blames for his fault. The deceased literary exculpated and/or exonerated
the driver.

This was against his interest in the sense that it produced the estate from seeking for damages.
In Tucker v Oldbury74 in which a claim for compensation which was being brought by the
dependants of a workman dying blood poisoning as a result of injury to his thump. The deceased
intimated that the injury was due to another cause. The court excluded the evidence because it
failed to qualify as a declaration against interest since at that time it was argued that the declarant
was unaware of the possibility of making claims under legislation relating to workman’s
compensation.

On the other hand if there is evidence available to the court which suggest or indicate an
appreciation of the fact that the declarant was aware of the adverse nature of his declaration in
terms of his family’s interest then it is treated as declaration against interest. Probably the most
outstanding example of exceptions to hearsay rule will be predicated upon the pronouncement of
a person knocking at doors of death is the dying declaration. In our law there are requirements
that must be established. The rational underpinning statutory requirements are captured under
section 254 of the Criminal Procedure and Evidence Act. In terms of common law dying
declarations pertain to cases involving murder and culpable homicide. The oral or written
declarations of a deceased person are admissible to show what occasioned death provided that
the following requirements are in place.

(i) The declaration relates to the deceased’s death

(ii) The deceased at the time of the declaration was under a settled and hopeless expectation
of death
(iii) That had he lived he would have been a competent witness.

73
1961 (2) SA 631
74
[1912] (2) QB 317

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 48 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
The underpinning rational has its basis in religious and spiritual considerations namely that no
person would wish to be untruthful before or prior to fulfilling his appointment with destiny. At that
moment he has abandoned all hope to life and considerations which motivate people into lying
have become redundant and irrelevant and he wants to become at peace with his creator who is
becoming to him. As was observed by the court in the ancient English case of R v Woodcock75
that the general principle upon which this type of evidence is based is that these are declarations
made in extremity when the party making them is on the verge of death and every of death and
every hope of this world is gone, when every motive to falsehood is silences and the mind is
induced by the most powerful consideration to speak the truth. A situation so powerful, so solemn,
so awe inducing that it is considered by the law as creating an obligation equal to that imposed
by a court of law through an oath. It is a solemn occasion. It is an occasion where the deceased
would not be expected to start playing games (quasi to religious philosophy).

(iv) This can only be made or admitted if the declarant had since died
and the declaration must relate to the cause of his death and he must entertain no hope of
recovery – hopeless expectation of hope although he need not have died immediately afterwards.
The statement must be complete. If death intervenes prematurely whilst declaration was
incomplete it becomes inadmissible and the declaration need not be adverse to the interests of
the accused person e.g. in one case the deceased said he would not have been fatally struck by
the accused had he not thoroughly provoked the accused. Although it was exonerative towards
the accused was held to be admissible. In the remarkable case of S v Hein76 in which the accused
was charged with the offence of murdering one Dolla by performing an illicit abortion on her. Two
days prior to the deceased’s demise/death a magistrate was called to the hospital where he
recorded declarations from the deceased which said “I Dolla with the fear of death upon me and
without any hope of recovering make the following statement ‘I am going to die, Mrs Hein is the
cause of it all – it was admissible” no hope for recovery. The court observed that it is clear from
the authorities that declarations might be made by persons under conviction of an impending
death and who at the time are in actual danger of death are admissible in evidence. The case of
R v Abdul77 reiterates the requirements. The court noted that for a dying declaration to be
admitted three thins must happen:-

75
1788
76
1910 CPD 371
77
1905 TS 119

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 49 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
(i) The declarant must be in danger of imminent death
(ii) Must have realized the extend of danger so as to give no hope of life
(iii) Death must have occurred.

In terms of the common law, the reliability of declaration is assured by imminence of death and
the consequent like of motivation not to tell anything other than the truth.

It is not necessary that the deceased should have died immediately as long as it is clear that the
deceased had in actual fact given up all hope of recovery. Hearsay is admitted due to necessity
but there must be safeguards. In R v Nzobi78 in which the deceased said “I feel so weak that I
do not think I will succeed in recovering” – the court said the words ascribed to the deceased did
not indicate an irreversible expectation of death (that the end was near). The deceased or
declarant was only being pessimistic without necessarily excluding all hope of life. Another
requirement is that (iv) the declaration must be complete. If it is incomplete it becomes
inadmissible e.g in the case of Waugh v R79 in which the deceased uttered the following words “
The man has an old grudge for me simply because” and before he could conclude he sentence
he expired. The Privy Council held that the purported declaration which was meant or which
sought to be introduced as dying declaration when the accused was being prosecuted for the
murder of the deceased was inadmissible because no-one would tell what the deceased would
have said had he survived longer and as a result the conviction by the court aquo was squashed.
Finally at the time of making the declaration the declarant should have been a competent witness
such that if he had survived he would have been in a position to give evidence. There are certain
categories of witnesses who for reasons are precluded from giving evidence e.g certified idiot,
very drunk person, a child who is too young. In Zimbabwe jurisprudence particularly in sexual
matters the system has become very innovative e.g system of victim friendly courts – the idea is
to make it easier for vulnerable witnesses including complainants to give evidence whilst
minimizing trauma of facing the accused. It involved use of modern equipment e.g video or dolls
where they can illustrate how they were interfered with.

78
1932 WLD 98
79
1950 AC 203

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 50 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
Declaration as to Pedigree

Pedigree – ancestry – lineage – biological origins – family tree

Declarations as to Pedigree may be admitted both in criminal and civil matters. In a criminal
matter this has relevance to incest. In civil cases in relates to maintenance, succession and
inheritance. The statement may be written or oral.
Requirements for admissibility

(i) Declarant must have died

(ii) Declarant must have been a blood relation or spouse of blood relation of the person whose
lineage is in dispute
(iii) The matter must relate to an issue of pedigree, ancenstry or lineage. One often
encounters pedigree declarations in a variety of situations – (a) family bibles which sets out family
tree (b) inscriptions on tombstones (c) immemorial messages in the case of Ex parte Lottery80
in which an application was made to the Registrar of Births and Deaths to issue a birth certificate
and register the birth of child X. The application’s case depended on an entry relating to his birth
in is mother’s bible and the mother has since died. The court refused to accept the entry as the
date of birth was not relevant to the pedigree question.

“According to the law of evidence, unless a matter of pedigree is in debate the entry in the family
bible is not admissible and it cannot be said in the present case that a matter of pedigree is in
issue. No question of succession, descent or legitimacy has been raised”.

Declarations in the course of Duty

These are oral or written statements made by a deceased person and these are admissible to
prove the truth of the content if made as a result of duty to report or record (contemporaneously
made) soon after event with no motive to misrepresent. This exception overlaps with the other

80
1936 TPD 29

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 51 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
common law exceptions to public documents e.g a nurse filling information on a patient chart or
card. In the ancient case of Price v Torrington in entries made by a deceased delivery man
relating to certain records were held to be admissible in order to prove that a beer delivery which
was the subject of a civil action had been delivered. In the case of Nolan v Banard81 in which
entries made by a deceased farm manager in a diary in the course of duty were held to be
admissible in order to prove that strange cattle had made an appearance at the farm on a given
day.

Conditions for Admissibility

(i) There must have been a duty owed to another person to record or report and if that duty
was not fulfilled the declarant could have faced sanctions e.g dismissal, demotion, censor etc.

(ii) The duty must have related to acts done by the declarant and owed to a superior board
or person.

(iii) The recording or reporting must have been done contemporaneously with the occurrence
of the event.

(iv) There must have been no motive to misrepresent and under the common law the death
of the declarant is a must whereas as it is NOT under statutory position.

Res Gestae

Is arguably the second most important common law exception to the hearsay rule after declaration
by deceased persons. It basically means part of the story or transaction and whereas most
evidentiary rules are exclusionary res gestae statements are inclusionary. The doctrine is a
blanket expression which covers the admissibility of evidence as an exception to a number of
exclusionary rules particularly hearsay. It is a doctrine that has often been criticised by lawyers,
judges and academics alike because of it lack of precision in exactitude. When we say that
evidence or an incident is part of res gestae it will be part of a chain of events and becomes
relevant because of spontaneous and contemporaneity so that the statement under the

81
1908 TS 114

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 52 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
microscope would look meaningless unless it is taken in the larger story that it is in response to a
state of facts or events usually of an exciting nature. There is no premeditation, fabrication and
it’s not contrived and not stage managed, not choreographed, exciting could be in the negative.
The assertion that an item of evidence forms part of the res gestae means that it is relevant chiefly
on account of its spontaneity and contemporaneity with matter under investigation and linked to
the transaction. When such evidence are admitted the safeguard lies in the spontaneity of the
statement and the probable absence of fabrication.

Specific examples under which res gestae has been applied

Probably the most exemplification is through spontaneous exclamations. These take the form of
uncalculated outburst in the heat of the moment, unprogrammed – outstanding – without
preparations – not stage managed – but under excitement made by someone who took part in
the event and who witnessed. In American case of Thompson v Trevanion82 - it was an action
by the plaintiff for an unprovoked assault on his wife and Holt C J held that what the wife said
immediately upon the hurt received before she had device or contrive anything for her own
advantage might be given in evidence.

The national/justification is that the statement is probably true because it is spontaneous and
unchoreographed – made in the heat of moment with a speaker under threat of nervous
excitement and without an opportunity or presence of mind the dream up a lie. It is a natural
reaction to an event. A litigant who wishes to introduce evidence under cover of res gestae
assumes the onus or burden of proving the admissibility of such evidence. The onus lies on such
a party to show that the statement was made in conditions of involvement and pressure such as
to exclude the possibility of concortion or fabricating to the advantaged of the declarant and
detriment of other party.

In R v Taylor83 in which the accused was charged with the offence of culpable homicide, it being
alleged that he had savagely assaulted his wife with a leather scotch thereby inflicting certain
wounds and injuries from whose effect she has since died. Events were given by certain persons
occupying rooms nearby that they heard scuffles accompanied by hysterical cries by the

82
1693 Skin 402, 90 ER 179
83
1960 (3) SA 167

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 53 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
deceased in which she had said “John please don't hit me any-more, you will kill me”. The defence
objected to this evidence as hearsay. The court said the evidence was receivable as part of the
res gestae. The court said “What the wife said immediately upon the hurt received, and before
she had time to devise or contrive anything for her own advantage, might be given in evidence”.
In S v Tuger84, the court in a very neat way summarised the requirement as follows:-

(i) There must be an occurrence which produce a stress nervous excitement

(ii) The statement must have been made whilst the stress was still so operative upon the
speaker that his reflective powers must be assumed to have been in abeyance. The reflective
powers or senses must have been on leave.

(iii) The statement must not constitute a reconstruction of past evidence. The idea is to negate
the danger of fabrication and concoction. In the case of Ratten v R85, in which the accused wife
telephoned the exchange operators in a voice of pregnant with hysteria and emotions – “get me
the police please” – moments later she was shot dead. The court observed that although the
statement was hearsay since impliedly taken the evidence was that the husband was attacking
the wife, it was part of the res gestae. The court also held that it is essential that the words spoken
should be in reaction or some reaction to a relevant event and should be relevant to that event.
A spontaneous exclamation has a strong assurance or guarantee that a story which is sought to
be introduced in evidence was not contrived because the declarant had no time to reflect or
reconstruct. The event must be so unusual, so dramatic as to dominate the thoughts of the victim.

In the interesting case of R v Bedingfield86 in which the accused was charged with murder by
severing a woman’s throat. His defence was that she had committed suicide. Apparently, the
victim had come out of the room of the murder and her throat was gangling an cried “Look what
Bedingfield had done to me”. The court noted that although the terror produced by events was
still upon the deceased the words were spoken after the relevant events to which they related.
The throat cutting process or ceremony was over so the words “Look what Bedingfield had done
to me” where not enough – the events were spaced not to amount to res gestae – the reaction or

84
1966 (4) SA 573
85
1971 AUR 801
86
(1879) 14 Cox CC 341

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 54 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
utterances were no longer part of the story – they were stale – no spontaneity and
contemporaneity.

Commenting on Bedingfield’s decision the court in Ratten v R observed that there could hardly
be a case where the words uttered carried clearly the mark of spontaneity and involvement. Lord
Wilberforce took a swipe at the decision in Bedingfield as having been wrongly decided. In S v
Qolo87 in which A saw a man covered in blood and walked to him to render assistance. He was
severely injured and when asked what it was the man pointed a finger at a nearby willow tree and
said “lo tsotsi”. The accused was cowering behind the branches of the tree and was apprehended.
The injured man slapped the accused on the face and died of the wounds. There was no evidence
as to where the stabbing took place. The court said the utterance to A was not contemporaneous
to form the res gestae. The statement could not have been as dying declaration because the
deceased did not have a certain and solid expectation of dying. The matter of spontaneity in the
determination of res gestae was finally put to rest in R v Andrews88 in which the seriously
wounded victim of a robbery told the police he had been robbed by two men and gave the name
of one of the robbers. He became unconscious, taken to hospital and died two months later. The
trial judge permitted evidence by prosecution in which the victim named the accused and the
accused appealed contending that the statement was inadmissible hearsay. R v Andrews clearly
shows that Bedingfield no longer represents the law. It shows that the test that is used by the
courts in determining spontaneity is not necessarily on one of exact spontaneity that is defined
with mathematical precision. It suffices to establish approximate or substantial spontaneous. The
doctrine is not limited to spontaneous exclamations e.g

(i) A statement which accompany and explain a relevant act can also be regarded as part of
the res gestae in appropriate situations. Statements made by someone whilst doing an act
relevant to a particular issue are admissible to explain the act even though the speaker does not
give evidence. The case of Lensen v R89 is quite instructive – the accused was charged with
operating a gambling house. Police witnesses who anonymously kept watch upon the house
were allowed to give evidence of that they heard gamblers say as they entered or left the gambling
house. It was held that the statements were part of the res gestae and the fact that they related

87
1965 (1) SA 174 (A)
88
1987 AC 281
89
1906 TS 154

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 55 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
to the house was relevant to the question whether or not it was a gambling house and the
statements which accompanied the visit were therefore admissible. The idea was to show that
the patrons were visiting L’s house in order to place bats.

Requirements for admissibility

(i) The statements must be made by the actor

(ii) The statement should be more or less contemporaneous with the act.

In Turper v the Queen90 in which the accused was convicted of the arson of a shop belonging to
his wife and to identify the accused as the arsonist evidence was given by a police constable that
he heard an identified woman shouting “your place is burning and you are going away from the
fire” and that he then saw a car in which there was a man resembling the accused. This incident
took place ½ an hour after the fire had started and about 220 yards from the shop. On appeal it
was held that the words by the witness did not form part of the res gestae and where not exempted
from the general rule against the admission of hearsay evidence. The court reaffirmed the legal
position, namely that to be admissible it is essential that the words sought to be proved by hearsay
evidence should be contemporaneous with events or at least so clearly associated with the events
in time, place and circumstances that they are part of the thing being done.

(iii) Statements concerning maker’s contemporaneous state of mind or emotions – statements

made by a person indicating the way he is feeling at the moment are admissible whether or not
he is called as a witness. This exception is born out of practical necessity in that often, there is
no other way of finding out the way someone was thinking or feeling except by looking at their
own statements.

The statement must relate to the speaker’s contemporaneous state of mind. In Ex parte May91
in which a statement by a testator made immediately after destroying his will was admitted in
order to prove that he had done so with intent to revoke his will.

90
1952 AC 480
91
1966 (2) SA 184

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 56 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
Statutory exceptions to the Hearsay Rule – the CP and E Act and the Civil Evidence Act both
make the provision for statutory exceptions to the hearsay rule in the interest of the proper
administration of justice. This is born out of necessity and public policy considerations.

Single witness evidence Testis unis testis nulis (old concept) – See section 69 of the CP & E
Act – the court can convict in cases following outside perjury and treason on the basis of the
evidence of a single witness provided that the evidence is satisfactory in all material respects but
as a matter of practice the court must be very cautious about convicting on the uncorroborated
evidence of a single witness. It must be on circumspect and on its guard in practice particularly
where it is clear that the single witness might be influenced or motivated by other interests other
than the mere pursuit of justice. In Banana v the State at page 7 of the judgement, Gubbay CJ
had this to say “it is of course permissible in terms of section 269 of the CP & E Act for a court to
convict a person on the single evidence of a competent and credible witness provided that the
single witness evidence is found to be clear and satisfactory in every material respect. “ The court
also noted that whilst the single witness evidence must be approached with caution, in essence
a common sense approach has to prevail. If the court is convinced beyond reasonable doubt that
the sole witness has spoken the truth it must convict notwithstanding the fact that the evidence in
some respects may be unsatisfactory. Corroboration is not mandatory but it is useful – This
overrules Mupfudza which insisted on a two-pronged approach. The courts have shifted towards
a much more flexible approach but proof beyond reasonable doubt is a must. In Ellis v R (SR)
which involved the conviction of accused upon two counts of theft. The case predominantly relied
upon the evidence of single witness who happened to be an interested party. On appeal to the
Federal Court reaffirmed that it is permissible to convict an accused person to an offence against
him on the evidence of one person that evidence should be clear and satisfactory. The court went
on to note that the old section 205 which has been replaced by 269 should not be invoked in the
following situations: -

(a) Where the single witness has a clear interest or bias adverse or prejudicial to the accused;
(b) Where he has made previous inconsistent statements;
(c) Where he contradicts himself in the witnesses’ box;
(d) Where he has been found guilty of an offence involving dishonest in the pact;
(e) Were he has not had proper opportunities for observation e.g matters relating to identity
– Musonza & Ors v State SC 187/88 – common assault arose as a result of an altercation

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 57 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
involving the complainant and the appellants and the state had relied solely on the evidence of
the complainant.

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 58 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
 PART SEVEN:
CORROBORATION

a) Rational
b) Accomplices
c) Single witness
d) Cases of Treason and Perjury
e) Sexual offences
f) Young children

Mandatory reading
Cross R. and Tapper C. Cross on Evidence (2007)
S-v-Tsvangirai HH 119-03.
S-v-Corbett 1990 (1) ZLR 205 (S) 207H 1
S-v-Zimbowora 1992 (1) ZLR 41 (S)
S-v-Ngara 1987 (1) ZLR 91 (S)
S-v-Banana 2000 (1) ZLR 607 (S)
S-v-Katsiru 2007 (1) ZLR 364 (H)
S-v-Nyirenda HB-86-03
S-v-Mupfudza 1982 (1) ZLR 271 (S)
S-v-Jackson 1998 (1) SA 470 (SCA) 476
S-v-Sibanda 1994 (1) ZLR 394 (S)

Corroboration – the essence of corroborative evidence is that one credible item of evidence
confirms another credible item of evidence and the term corroboration denotes or mean
confirmation. Suspect evidence is given by a suspect witness – need not be a dishonourable
citizen – only evidence is suspect. The court out of experience has to be on its guard against
such evidence. In R v Baskervile92 in which the court said that “we hold that evidence in
corroboration must be independent testimony which affect the accused by connecting or tending
to connect him with the crim. It must be evidence that implicate him, evidence which confirms in

92
1916 (2) KB 658

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 59 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
some material not only that the crime has been committed but also that the accused committed it
– evidence aliunde – independent confirmatory evidence – used in the context of corroboration.

The broad category of cases that require corroboration falls under suspect evidence adduced by
a suspect witness by virtue of circumstances and interests in the case. In our law there are
occasions where corroboration is required either statutorily – cases involving accomplice
evidence, treason and perjury. The CP & E Act makes specific reference to the need for
corroboration – Evidence Aliunde. On the other hand, out of experience the courts have come to
insist/require corroboration in certain other situations which fall outside statutory injunctions or
imperatives e.g evidence of young children – viewed with a bit of caution, evidence involving
sexual matters – the courts are always on their guard, evidence of prostitutes in matters relating
to their sexual picadillos or exploits – dishonourable profession – evidence treated with caution –
S V Mupfudza 1982 (1) ZLR 271.

It was the locus classicus on corroboration for a long time in sexual matters. In the last five years
there is now a movement away from the rigorous of Mupfudza case. Mupfudza established a
two-pronged approach to corroboration.

(1) First is the witness credible – if not, the question falls away

(2) Second – if the witness is credible the court is compelled to look for corroboration so that
you eliminate the possibility of being misled by an honest witness who made an honest mistake.
With sexual cases corroboration is no longer a requirement as long as the witness is telling the
truth. Mupfudza case also tells us why the courts are often on their guard in relation to e.g. sexual
cases – complainants can easily fantasise and in the end misleading. In rape cases a complainant
might cry rape in order to disguise that she consented – to hide the shame – married woman
caught infragmento delicto.
Children – are easily suggestible – this is he traditional belief – drum a story into his/her mind a
story that is not true – they believe it. They are manipulable single witnesses who might have
observed events incorrectly or have bias in the matter.

Evidence of young children – by way of tradition and common law principle the court must be on
its guard where the evidence in question is that of a young child but nowadays the trend is for the

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 60 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
court to assess the credibility of the child witness and then ask itself the question whether or not
it is safe to convict on the uncorroborative evidence of the child. In S v Ponder93SC 35/89 in
which the curt made the following observation that “there is no rigid requirement in our law that a
child’s evidence must be corroborated. Where the court believes the child and applies its mind
to the dangers inherent in founding a conviction upon the child’s uncorroborated evidence the
court may nonetheless convict.” The main purpose of applying the cautionary rules is to guard
against fabrication for invention that might come about as a result of the child witness’
manipulability”

As was said in R v J94 in which the court noted that corroboration of evidence of children of tender
years is not required by any positive provisions of the law but their evidence must nevertheless
be treated with caution. In R v Dossi95 in which the accused was charged with indecent assault
– his admissibility that he had accidentally fondled a child was held to be corroborative evidence.
In another case R v J96, McDonald JA presided over the appeal. A girl of ten years who gave
evidence very well that a man she knew very well had raped her. She immediately made a
complaint to her mother. The material evidence left no doubt that she had been sexually
molested. The material issue hat remained outstanding related to identity. The court said that in
the circumstances of the case it was highly unlikely that the little girl who was genuinely distressed
would falsely accuse a man whom she knew so well as the wrongdoer. There was no motive for
false incrimination and the information was not forced out of the girl. The appeal court was
satisfied that the conviction in the court a quo was justified. See S v Zaranyika97. See also
Musasa Edmore v S.

Single witnesses – section 269 of the CP & E Act

Testis unis, testis nullis – one witness mistake is no witness. (p114-116) – an old approach that
has been discarded.

While the other had since died before trial. McNally JA

93
1989 (1) ZLR
94
1958 (3) SA 699 (SR)
95
1918 CA 158
96
1966 (1) SA 88
97
1997 (1) ZLR 539

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 61 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
“As a general rule it is undesirable for the state to rely on uncorroborated evidence of a
single witness especially on assault cases or even more where there are counter
allegations of provocation, self defence or justification in one form or another. The
complainant in such case clearly has a potential for bias and a reason to place himself on
a favourable light and the accused in an unfavourable light.”

Look at S v Nyati98, (2) R v Mokoena99 and (3) S v Nathoo Supermarket (Pvt) Ltd100.

Corbett 1990(1) ZLR 205 (s), Mukondo HH-15/87.

Evidence of Prostitutes

Generally there is not requirement for corroboration and cautionary rule – however where the
mater under investigation involve the prostitute’s own picadilos it would be useful and helpful for
the court to be in its guard because prostitution involves deception and chicanery and a prostitute
might easily cry rape when in actual fact the act could very well could be consensual for a variety
of reasons or some such other malicious reasons. These are people who are unlikely to tell the
truth in so far as their sex life are concerned unlike in murder cases. R v George101 - Police traps,
spies, informers – A category regarded by the court with suspicion since they have an interest in
making a strong case against the accused. They are paid to obtain evidence. Although
corroboration is not required by law it will be useful to have it.

Claims against deceased estates

Again there is no rule that requires corroboration but at the same time the other party is not
available it is prudent for the court to look for independent confirmatory evidence. In Wood v
Estate Thompson102 in which the court said that there is no rule of law or practice which requires
that merely because it is a claim is one made against a deceased estate it must be proved with

98
1977 (2) ZLR 315
99
1956 (3) SA 81
100
1987 (2) ZLR 136 (SC)
101
1963 (1) SA 202
102
1949 (1) SA 607

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 62 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
corroborative evidence. However the court must examine with a caution eye the uncorroborative
evidence given in such matters.

Evidence of identification - Visual identification, identification from photographs, identification

in court, identity parades and voice identification. Read Prof. G Feltoe – Judges’ Handbook for
Criminal Cases, 1st Edition – 2009 pages 92 – 98.

Again as a matter of practice where the conviction of accused depends on evident of identity the
court found it prudent to exercise caution by closely scrutinizing the circumstances in which the
identification took place. Even with an identification parade certain safeguards are put in place in
order to minimize the risk of mistaken identity. Some of the useful questions are:-

(i) How long was the accused under observation – protected or lifting glipse – momentary –
in what like
(ii) In what light was it – dark night, day, dead of night, broad daylight.
(iii) At what distance – was the accused a respectable distance away.
(iv) What was the accused wearing
(v) Any distinguishing characteristics of the accused that remained embedded in the witness’s
mind.
(vi) Did the witness have any special reason to remember the accused – voice.

See S v Masera and Others CRB 175 – 81/02 by Mungwira J where the court said:
“It was put to the witness that the 4th accused has registered with his lawyers a complaint
which mentioned specifically and identified an officer with prominent thick lips as having been
amongst the number of police officers who had assaulted him. The witness’ attitude to that was
that he was not the only person with thick lips.

I consider it appropriate to comment at this stage that from the time the witness took the
witness stand one could not help but make the observation that the lips of the offer testifying were
indeed prominently thick as described by the 4th accused. His lips were so strikingly and unusually
prominent as would provoke comment from one meeting him for the first time.”

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 63 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
In S v Mutters103 in order to avoid or oviate the possibility of an honest witness making an honest
mistake. Read the following cases:
Nkomo and Anor 1989 (3) ZLR 117 (s)
Madziva v S SC 191/90
Mutters & Anor v S SC 66/89

Accomplice evidence – sections 267 and 268 of the CP and E Act

Is one area where corroboration is normally called for because traditionally accomplices are
regarded as witnesses of uncertain reliability because they generally have something to gain by
falsely incriminating the accused or exaggerating the part played by the accused and minimizing
their own roles104.

Section 270 of the CP & E Act – any court which is trying any person on a charge of any offence
may convict him of any offence alleged against him in the indictment, summons or charge under
trial on the single evidence of any accomplice provided that the offence has by competent
evidence other than the single and unconfirmed evidence of the accomplice been proved to the
satisfaction of such court to have been actually committed (evidence aliunde).

The case of R v Ncanana105 in which the celebrated South African Judge Schreiner JA described
accomplices as witnesses with a motive to tell lies about the accused person. Witnesses who are
peculiarly equipped with inside knowledge of the offence that they can easily lie and in S v
Kellner106 in whch the court clarified the law in the context of the equivalent of our section 270 –
“an accomplice is a person who is liable to be prosecuted either of the same offence for which
the accused has been charged or as an accessory to such an offence and the question of whether
the witness is an accomplice or not is a factual enquiry to be determined by the court e.g on a
charge of sodomy consenting of the part of the complainant makes him an accomplice.

103
SC 66/89
104
Section 267 as read with section 270 refer:
105
1948 (4) SA 399
106
1963 (2) SA 435

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 64 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
In R v Levy107 clarifying the operational dynamics of section 270 the court said that corroborative
evidence need only show that the accomplice is a reliable witness but not necessarily in every
detail but at least in regard to those material statements on which the court basis its conviction.
The corroboration should establish a nexus and the crime.

In R v Lakhatula108 - in order to satisfy demands of section 270 there must be other evidence
apart from the evidence of the accomplice that the crime was actually committed so that if the
court has shown itself to be fully appreciative of the dangers posed by accomplice evidence and
is still satisfied beyond reasonable doubt that the accused is guilty it may convict. One case which
is illustrative of the concept of Evidence Aliunde is R v Bikette in which the accused was indicted
of receiving a sheep the property of one B well knowing it to have been stolen. It was proved by
an accomplice named Warren that he had gone out with Jonathan a brother of the accused and
that they had stolen two of Mr B’s sheep one being a large and the other a small one and that
Jonathan gave one of the sheep into the hands of the accused who carried it into the house in
which he and his father lived. The accomplice also stated where the skins were hidden. In order
to confirm the accomplice it was further proved that on the house of the accomplice being
searched a quantity of mutton was found and had formed parts of two sheep corresponding in
size with those stolen from Mr B and that the skins were found in the place named by the
accomplice.

Sexual offences

Corroboration is required again as a matter of practice and not any legal imperative. In Banana
2000 (1) ZLR 607 (s) the Supreme Court ruled that that cautionary rule in sexual cases is based
on an irrational and outdated perception, and has outlived its usefulness. It unjustly stereotypes
complainants in sexual assault cases. The court must be on its guard if the evidence is coming
from the complainant’s mouth only. Historically, the approach was that there are a variety of
reasons as to why the complainant might want to falsely incriminate the accused, fantasizing,
ashamed to admit consent, spite since they have fallen out, paternity case – better – better placed
to look after the child.

107
1943 AD 558
108
1919 AD 216

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 65 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
In R v W109 the court observed that a further reason for corroboration was that sexual allegations
are easy to make and difficult to refute because it happens in private. In that case the court
thought it had found corroboration in the evidence of two witnesses who said they had seen the
complainant go into a church where the accused was playing organ and come out again. On
appeal the evidence was found to be colourless and found to confirm the accused’s innocence.
With sexual offences in the recent past the approach of the Zimbabwean courts was to follow the
2 pronged approach laid in the Mupfudza case.

It the witness credible – yes – look for corroboration. If not - acquit. In the Banana case the court
made reference to Mupfudza’s case. In the end one test applies – was the accused’s guilty proved
beyond reasonable doubt? In Banana’s case the court cited a long number of cases abandoning
the traditional view which sought corroboration in matters of a sexual nature. In S v Masango110
the complainant was a 12 year old who testified that one night after retiring to her sleeping hut
with two small children, out of nowhere a man forced himself on her to top and proceeded to rape
her preventing her from screaming by placing his hand over her mouth and threatened her of
both’s arrest if she told anyone. Although she could not see him in the darkness she recognized
his voice and she did not report until 2 weeks after she fell ill. Earlier in the evening the accused
had visited her home and borrowed a tin guitar from the brother of the complainant. In his defence
he had an alibi and he said he had been at a beer drink elsewhere in the neighbourhood where
traditional rights were being performed. It was then established that this ceremony had only taken
place a week after the alleged rape and he had consciously lied. The Supreme Court said “Where
the evidence of a young person is clear and credible but uncorroborated the court while
cognizance of the dangers of false incrimination but satisfied such dangers have been eliminated
may convict”. S v Gardiner111. In Masango’s case the accused’s alibi was false. Can lies
corroborate? In R v Lucas112 the court of appeal accepted that in certain situations a lie told in
court may be corroborative but in order for the lie to be corroborative the following requirements
must be satisfied:-

(i) It must be deliberate lying

(ii) Relate to a material issue

109
1949 (3) SA 772
110
SC 8-90
111
1982 ZLR 290
112
1981 QB 720

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 66 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
(iii) Motive for the lie must be a realization of guilty and fear of the truth
(iv) The lie must be clearly shown to be such. With specific reference to sexual cases in some
cases the depressed condition might assist. Also, material objects – like spoiled underwear or
impounded material object from the accused. Corroborative evidence will depend on the
accused’s defence.

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 67 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
 PART EIGHT:
THE COMPETENCE AND COMPELLABILITY OF WITNESSES

a) The meaning of competence and compellability

b) the position of an accused
c) the spouse of an accused
d) the position of a co-accused as a witness for the prosecution or the defence

Mandatory reading
S244 S246 S247 CP&E Act
S5 Civil Evidence Act
Hoffman & Zeffertt: South African Law of Evidence
Feltoe G: Magistrates’ Handbook
Ndiweni V S S-149-89

Competence and Compellability (section 244 to 248 of the CP & E Act and sections 4 – 10 of
the Civil Evidence Act)

A witness giving evidence in a court of law has to be competent. The person must have locus
standi. Every person is competent to give evidence unless there is another rule of law which bars
them – Section 244 of the CP & E Act. When you are competent to give evidence, it means you
must lawfully give evidence. One is compellable if lawfully they can be obliged to give evidence
without being compellable in a few cases e.g. where privilege attaches – matrimonial, privilege,
legal, professional privilege, state security. if in doubt as to the competence of a potential witness
to give evidence the court hold an initial trial within a trial to determine the matter of competency
or even asking summary questions to determine the soundness or mental faculties of the potential
witness. If the witness is mentally defective or afflicted by idiocy then they are incompetent.
Section 247 refers young children can give evidence no cut off age or threshold s long as the
court is satisfied that the child witness is able to tell the truth. They can give sworn evidence
provided that the child appreciates the difference between the truth and falsehoods quasi-religious
significances. If dealing with an atheist they can be admonished. It is absolutely imperative for

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 68 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
the court to ascertain that the child witness is able to distinguish the difference between telling
the truth and falsehoods. S v Zaranyika113 is imperative reading.

Persons with psychophysical defects can give evidence as long as the defects do not stand in the
way of the person who wants to give evidence. Judiciary officers, although the law does not
specifically exclude them it will contrary to natural justice for a judicial officer to give evidence in
a mater in which he is professionally involved particularly with our acquisitorial system of justice
where a high level of independence and detachment is required. Where he has personal
knowledge under investigation – the most important thing to do is to recuse themselves and give
evidence in an unfettered manner. Likewise, with legal practitioners while they can give evidence
for their clients, if they are involved professionally in the case the most important thing is to recuse
themselves.

Privilege – Section 290 – 297 of the CP & E Act and Sections 6 – 10 of the Civil Evidence
Act

Relative and not absolute inadmissibility because what is privileged to X may not be privileged to
D. The main types are:

(i) Marital
(ii) Legal professional
(iii) Privilege against self-incrimination and right to silence
(iv) State security
(v) Without prejudice is negotiation

Marital Privilege

The rational for privilege in public policy. Marital is to preserve the institution of marriage – the
law accommodates desire of spouses not to have to spy on each other. The desire is to protect
marital confidence and secrets – section 6-10 of the Civil Evidence Act and section 247 of the CP
& E Act which defines situations and circumstances when marital privilege may not apply e.g

113
1997 (1) ZLR 539

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 69 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
bigamy, rape, incest etc – undermine the marriage itself anywhere. Statements made during
subsistence of marriage are privileged and cannot be divulged in a court of law without the
consent of an affected party. The definition is given under section 6 of the Civil Marriages Act.

In R v Jones114 extended the definition to unregistered customary law unions. Contrast is with
section 6. If a third-party intercept information covered by marital privilege, not only is the third
party competent to give it but also compellable. In Rumping v DPP115 in which the accused wrote
a letter to his wife and confessed to having murdered a certain woman with whom he had had a
misunderstanding. The letter came into possession of a third party and the court said that the third
party could give evidence. A witness who claims privilege may not refuse to attend court. They
are still obliged to attend court and claim privilege under oath. They can refuse lawfully to answer
questions.

Legal Privilege – Section 294 of the CP & E Act and section 8 of the Civil Evidence Act.

Rational is for open conduct and honest communication between lawyers and their clients as a
way of promoting a sound judicial system. The communication must relate to either litigation
taking place or contemplated litigation. Section 8 of the Civil Evidence Act refers the privilege
also binds agents of the lawyer e.g. secretaries or junior employees who might have come across
certain information in relation to the client on account of their professional involvement with the
client. It is the client’s privilege and not the lawyer’s privilege – Section 8(5) specifies instances
when the privilege may be lost or abandoned or surrendered – e.g. if the client purposely waves
his privilege or if the communication was meant to further the perpetration of a crime or illegal
object.

In R v Cox and Anor116 in which the accused persons were being charged with conspiring to
defraud the complainants. The prosecutor, a lawyer who testified that the accused persons had
sought legal advice from him on how to effect the scam. The court said that such communication
cannot be privileged (without prejudice). Evidence of prior consultation, admission made by
parties to civil litigation in a spirit of resolving the matter out of court. If for example one party
offers to pay in settlement of certain sum in money on an entirely without prejudice basis and later

114
1966 (2) SA
115
1964 AC 814
116
1884 (14) QB 156

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 70 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
the negotiations reach deadlock or run into a roadblock. The prior offer made by the one party
cannot be introduced in evidence as an admission without their consent. With state privilege the
idea is to protect vital state secrets that have a bearing on national security, interest. In terms of
our law if the Minister of State, Security writes an affidavit in which he deposes to that he verily
believes that the disclosure of certain information is not in the public interests the court might
regard that evidence as privileged. The Ben Menash refers – or section 10 of the Civil Evidence
Act equally refers.

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 71 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
 PART NINE:
PRIVILEGE

a) Types of Privilege and reasons therefore

b) Matrimonial
c) Self-incrimination
d) Legal Professions Privilege
e) Without prejudice negotiations
f) Public interest

Mandatory reading
S290 S 297CP&E Act
Civil Evidence Act SS7, 8, 9 and 10
Corke v Corke & Cook [1958] (1) ALL ER 224
R v John 1966 (2) SA 66
Rumping v DPP 1964 AC 144
Minter v Priest 1930
R v Cox & Railton [1884] 14 QB 156
S-v-Dlamini 1999 (2) SA CR 51 (CC)
Begoshi-v-Van Vuuren NO and Others 1993 (3) SA 953 (T)
S-v-Tsvangirai 2004 (2) ZLR 210 (H)
Law Society of Zimbabwe-v-Minister of Transport and Communication And Another S-59-03

Without prejudice negotiation

“without prejudice” – recognized as a conventional formula signify that what is said is intended
to form part of confidential negotiations. Hoffend v Elgen117. The courts consider it desirable
that the parties to litigation should be free to negotiate settlements of their differences. The
process to negotiate settlements would obviously be inhibited if the parties had continually to
consider how their negotiations would be if revealed to the court at the trial. It is therefore

117
(1949) (3) SA 91 (AD)

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 72 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
necessary that parties should be allowed the opportunity of negotiating confidentially, secure in
the knowledge that if no agreement is reached, the case will be brought without only reference to
what was said in negotiation.

Privilege

There are certain kinds of information which, though relevant, a witness is entitled to refuse to
place before the court. Such information is said to be privileged. The following are the heads of
privilege.

1. Legal professions privilege or confidential communications between attorney and client –

it is necessary for the proper administration of justice that persons should be able to consult legal
advisers to speak freely and frankly to them. Frankness would be impossible if the client. The
privilege extends to communications made to an attorney with a view to employing him in his
professional capacity, even if he refuses to accept the employment. It does not extend to the
communication made to an attorney is some capacity, other than that of legal adviser (e.g deputy
sheriff or moneylender). It does not extend to communications falling outside the scope of the
professional relationship, even though made while such a relationship existed – does not extend
to legal advise obtained in order to facilitate the commission of a crime or to avoid the detection
thereof. Once litigation is being contemplated, the privilege extends to documents and statements
which are brought into existence for the purpose of forming part of the party’s brief. There must
be really some contemplated litigation, some fact to indicate that litigation is likely or probable. It
must not be a mere possibility which is there. See Boyce v Ocean Accident and Guarantee
Corporation Co. Ltd118. The documents must be prepared with a bona fide genuine intention of
placing it before a legal practitioner to obtain advice or to enable him or her to conduct the
litigation.

State Privilege

Public interest – section 10 – CP & E Act referred to as state privilege – and covers every
document the disclosure of which will be harmful to public interest due to nature of the document
e.t.c state security, police methods and their informers. Where it is obvious from the nature of the

118
1966 (1) SA 544 (SR) or 1965 RLR 668

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 73 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
evidence that its disclosure will be contrary to the public interest, no formal objection is required.
The judge will exclude the evidence of his own accord. In other cases if the executive considers
that the evidence ought to be excluded, it must make its objection in the proper form e.g Minister,
Judges of supreme courts may not be examined as to anything done by them in their judicial
capacities. The state does not necessarily need to be party to claim privilege. It can intercede in
a civil action between two private citizens to object to the production of certain evidence.

Content and class claims

State privilege section 296 of the CP & E Act.

Consent – contents of say a particular document are such that it would prejudice the public
interest.

Class – documents falling into a particular class – e.g military, state intelligence documents,
delicate diplomatic negotiations, cabinet ministers.

Claim in proper form – Minister by the head of the department duly authorized by the Minister –
sworn affidavit – where claim is for the whole series of documents, the Minister must have
scrutinized all the documents to determine the validity of the claim of privilege. If not made in
proper form the court will order it be so made before it proceeds to consider merits of the claim.

Common Law

A question arises as to whether the court is obliged simply to uphold such claim or whether it has
power to examine the claim to determine if the claim is justifiable.

In civil matter – may be vital to proof of claim by an litigant against each other on the sate. In
criminal – even more drastic consequences can ensue if evidence is withheld on basis of state
privilege. Need it from successful advancement of some defence.

Initial position – face value (English position 1942) Duncan v Cammel, Laird & Co (1942) –
charged wrongly/

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 74 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
1968 – House of Lords
Conway v Rimmer (1968) – court has discretion to examine merits – only for matters which
relates to high level interactions and not low level – routine documentation passing between junior
civil servants.

American Position US v Acholeck119

S v Tsvangirai – Garwe J said the court had power to look behind the certificate and find out
whether the claim for privilege is justified.
Ngaru v Chief Immigration Officer & Anor120- full bench.

Privilege against self-incrimination and the right to silence – it is a general principle of

common law that nobody should be compelled to furnish evidence against himself on a criminal
charge. A witness may therefore refuse to answer a question on the ground that the answer might
tend to incriminate him. If the effect of the answer would be only to establish some civil claim
against the witness, there is no privilege. The witness claiming privilege must state on oath that
he believes that he might be incriminated by answering the question which he has been asked.

The following general rules apply to all cases of privilege:-

1. A witness is not entitled to refuse to enter the witness box or to take the oath, on the
ground that he anticipated being asked questions which he is not obliged to answer.

2. A claim for privilege may be raised only when an objectionable question has been asked
Weddell v Eyles121.

3. No adverse inference is to be drawn against a party who claims privilege because the
protection of privilege would become worthless – (the party claiming privilege would be in no
better position and often in a worse on, than if he had not made the claim.
International Tobacco Co v United Tobacco Co.122

119
142 F2 d 503
120
SC 26/04
121
1939 TPD 198
122
1955 (2) SA at (10)

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 75 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
4. A claim of privilege may legitimately be regarded as evidence of a person’s unfitness to
hold a position of trust in which completer candour (openness, frankness) is expected.

Statutory exceptions to the hearsay rule

They are necessitated by public interest and convenience.

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 76 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
 PART TEN:
ADMISSIONS AND CONFESSIONS

a) Informal admissions
b) Formal Admissions
c) Confessions

Mandatory reading
S113 S258CP&E Act
S v Slatter &Ors 1983 (2) ZLR 144
R v Murambiwa 1951 SR 271
R v Michael & Martin 1962 R & N 374

Admissions – section 36 of the Civil Evidence Act– An adverse statement made by a party to
litigation which is contrary to their interests and is lead in evidence as an exception to the hearsay
rule. Our law says a statement can be an admission no matter how and to who it was made –
civil litigation – formal admissions in pleadings – or admissions by contact e.g in R v C123 in which
an accused on a sodomy charge had attempted to commit suicide and tried to run away at the
approach of the police – his conduct was indicative of a guilty state of mind. Another case of
Jacobs v Henings124 was regarded as an admission by conduct – seduction for damages in
which plaintiff’s father confronted the defendant and accused him of helping himself to his
daughter at a party to which he made no reply and merely lowered his head in shame.

Vicarious admission
In which on party in law is empowered or authorized to make admissions on behalf of another
party e.g Lawyer on behalf of this client, agent on behalf of his principal. In McNaught v Tyerell125
in which the court said statements or facts made by a lawyer in the pleadings where admissible
in evidence. See S v Gonecalves126- a man involved in an accident was speaking through the

123
1949 (2) SA 438 (SR)
124
1927 (PD) 324
125
1944 (SR) 139
126
1972 (1) SA 243

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 77 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
medium of daughter and made admissions accepted by the court. Van Ryn v Hamfry127 a fire
that erupted between two neighbouring farms. It was enquired from the labourers who admitted.
Confessions – section 256 of the CP & E Act contrast with section 258 of the CP & E Act. It is
admissible in a court of law provided it is free and voluntary without undue influence. In the case
of Ebrahim v R128 the court said it has long been established that no statement by the accused
persons is admissible against him unless it is shown by the prosecution to have been a voluntary
statement in the sense that it has not been obtained from him either by fear of prejudice or hope
of an advantage held out to the accused by a person in authority. S v Slater and Ors129 in which
predominantly white Airforce Officers were suspected of having sabotaged aircraft belonging to
the government. Accused were subjected to long, rigorous interrogation, blind folded, moved
from centre to another, denied access to lawyers, refreshments, proper food. Dumbutshena JP
– held that the statements were not freely and voluntarily and inadmissible. R v Murambiwa130-
accused suspected of murdering his employer. Custody in two days – persistently question in an
aggressive manner. After a final period of interrogation (3hrs) he made an unculpatory statement.
The court said that confession was not done freely and voluntarily. In R v Edwards131 - the court
said that depending on the circumstances even one hour interrogation may be enough to vitiate
a confession. In S v Zaranyika the court said – must voluntary exercise (read sections 256)

Facts discovered by means of an inadmissible statement – section 258 of the CP & E Act – R v
Bvuvure132- condemned the use of illegally obtained evidence but still used it. See also Motsi v
State 2015 (1) ZLR 304 (H).

Judicial Notice (section 24 Civil Evidence Act)

This is a process where a judicial officer accepts the truth of certain facts which are known to him
even though no evidence was led to prove those facts e.g that Johannesburg is in South Africa
and that there are twelve months in a year. These facts are well known or can easily be
ascertained that evidence to prove them would be completely unnecessary and even absurd.

127
1953 (3) SA 392
128
1914 AC 599
129
1983 (2)ZLR 144
130
1951 SR 271
131
1966 (2) SA 359 (SR)
132
1974 (1) SA 206

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 78 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
The rationale for the doctrine is that:-

(i) Expedites the hearing of many cases.

Much time would be wasted if every fact which was not admitted had to be the subject of evidence
which would in many instances be costly and difficult to obtain.

(ii) It produces uniformity of decisions on matters of fact where a diversity of findings might
sometimes be distinctly embarrassing. See Cross and Tapper on Evidence, 91.

Some facts are noticed without any enquiry – without considering a specific source. Whereas
other facts may be judicially noticed only with reference to a source of indisputable authority.
Evidence in respect of disputability of the source in the second category may be led.

The court relies on its own knowledge. This is different from receiving and taking judicial notice
becomes difficulty.

In McQuaker v Goddard133, the court, before taking judicial notice that camels are domesticated
animals, consulted books about camels and heard from witnesses regarding the nature of camels.
The court of appeal noted that the trial judge when hearing the witness’ testimony to the nature
of the camels had not been taking evidence in the ordinary sense. The witnesses were merely
assisting him in forming his view.
The question whether a fact should be judicially noticed is one of law and should be decided by
the court which should where possible inform the parties in advance of its intention to take judicial
notice of a certain act which is of such a nature that it might give rise to conflicting views.

Facts which are judicially noticed are well known to all reasonable persons or to a reasonable
court in a specific locality. It is not sufficient to act on ones personal knowledge of facts. In S v
Mantim134 where the court said a magistrate had erred in making use of his personal knowledge
to take judicial notice of the fact that the climate of a mountain range was suitable for cultivation
of dagga. Precedents should be taken note of.

133
1940 1 KB 687 or 1940 All ER 471
134
1990 (2) SACK 236 (E)

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 79 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
Facts

(i) Notorious facts (general knowledge) – within the locality of the court e.g element
experience in human nature, commercial affairs and everyday life.

(ii) Facts of local notoriety – should be notorious among ill reasonably well-informed people
in the area where the court sits.

(iii) Facts easily ascertainable – these are not, generally known but they are readily and easily
ascertainable – from maps and surveys issues under governmental or other reliable authority e.g
accuracy of dates in calendars and diaries.

S v Bvuurew – pointing out condemned the use of illegally obtained evidence but it was used.

Evidence of what was allegedly pointed out by an accused divorced from any evidence of a
possible inadmissible confer – regardless of the manner in which the pointing out may have been
obtained.

S V Zaranyika unless the court is satisfied that the child understands the distinction between
falsehood and the truth the child is not a competent witness. It is the duty of a magistrate to
ensure that the unrepresented accused has the necessary knowledge to equip himself to conduct
his own defence.

Rebuttable Presumptions of Law

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 80 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
Elliot defines a presumption “as a conclusion which may or must be drawn in the absence of
contrary evidence” e.g presumption of innocents requires the prosecution to prove the accused’s
guilty. There is another kind of presumption which may or must be drawn if another fact is first
approved. A conclusion (presumed fact) is a basic fact/another fact is first approved.

Show that two people went through what appeared to be a marriage ceremony their marriage will
be presumed to be valid.

In R v Bakes135 Dickson CJ noted

“Presumptions can be classified in two general categories. Presumption without basic facts and
presumptions with basic facts. A presumption with without a basic fact is simply a conclusion
which is to be drawn until the contrary is proven. A presumption with a basic fact entails a
conclusion to be drawn upon proof of the basic fact …”

These are aids to reasoning and argumentation which assume the truth of certain matters for the
purpose of some given inquiry. They assist the court in reaching a valid and effective affirmative
finding. They also allocate burdens of proof in accordance with the probabilities and dictates of
fairness. They also save time by not requiring a party to prove that something that is most
probably true. They also reflect policy preferences to desired outcomes.

Classifications

(i) Irrefutable presumptions of law – furnish conclusive proof of the fact presumed and cannot
be rebutted by evidence to the contrary. Most exist for reasons of public policy and not because
they necessarily reflect reality e.g a child under 7 years is presumed to be criminally or delictually
liable. Policy is that “no child under 7 years may be convicted of a criminal offence – better and
realistic wording.

(ii) Rebuttable presumptions – Rules of law compelling the provisional assumption of a fact.
The assumption will stand unless it is destroyed by contrary evidence e.g in terms of certain
statutory offences – refer o section 315 of the CP & E Act)

135
1986 26 DLR (4th) 200

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 81 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
Examples of presumptions
• Validity of marriage if evidence show that a marriage ceremony was performed
Litzegerald v Green136- Decree of divorce.

Paternity
Having sexual intercourse with the mother of the child born out of wedlock at the time when the
child could have been conceived – presumed to be biological father.

Admission and confession – sections 314, 273 of the CP & E Act.

An admission may be broadly defined as a statement which tends to disprove the case of the
party who made the statement. The rationale for acceptance is that a person is unlikely to state
something contrary to his own interests unless what he states is true. There are three broad
grounds upon which an admission may be found not to be free and voluntary. These are:-
(i) physical coercision
(ii) undue influence
(iii) legal compulsion

Physical coercion – actual physical violence of the threat thereof.

Undue influence – induced by any promise or threat proceeding from a person in authority – a
position which may in itself strongly affect a weak or ignorant man. Persistent questioning of an
accused by the police may amount to undue influence even if not accompanied by any express
threat or promise. Certain rules for the guidance of the police in interviewing accused persons
and suspects have been approved by the judges both in England and in South Africa. They are
known as the Judges’ Rules.

Judges Rules

In terms of these rules, a suspect should be warned of the nature of the investigation before he
is invited to give any explanations. On being arrested and formally charged, he should be warned
that he is not obliged to make any statement. After arrest, a prisoner should not be questioned
at all. If he volunteers a statement, he should not be cross-examined on it and should be asked

136
1911 EDL 432

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 82 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
only such questions as may be necessary to elucidate points of ambiguity or obscurity. If one of
a number of co-accused makes a statement, the others may be informed of it but should not be
told that they ought to reply to it. It is irregular to confront one accused with another who has
confessed for the purpose of inducing the former to confess. The Judges’ Rules are
administrative direction and do not have the force of law. The fact that the Rules have been
contravened will therefore not automatically render a statement inadmissible. What is important
is whether or not the admission was voluntary and the matters mentioned in the Judges’ Rules
are merely some of the facts which will be considered.

Legal compulsion – the general rule of the common law is that no nobody may be compelled to
incriminate himself in replying to questions which he was legally obliged to answer. There are
statutory exceptions to this rule.

Confession – A confession is, of course, a species of admission. It is distinguished from other

admissions by the fact that it admits the whole of the case against the accused whereas an
admission may deal only with some minor fact in issue.
Read Tsorayi 1985 (1) ZLR 138(H).

Requirements

1. The person must be in his sound and sober senses e.g not affected by mental stress or
abnormality, liquour or drugs.
2. If made to a peace officer it must be reduced to writing in the presence of a magistrate.

A statement which is intended by the accused to exculpate himself is not a confession, no matter
how damaging it may eventually be to his case.

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 83 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
 PART ELEVEN:
PAROLE EVIDENCE RULE

Maparanyanga v the Sheriff ZLR 2003 (1) 325 (s)

This is a rule which says where a contract has been reduced to writing no other evidence of its
contents will be acceptable serve for the written document itself or secondary evidence thereof.
Basically, the point is that the moment you have a written document you may not adduce or lead
oral evidence as to the content of the contract whether to alter, contradict or vary such contents.
In Union Government v Vianin Ferrous Concrete Pipe (Pvt) Ltd137the parole evidence rule
was applied so as to exclude oral evidence. The parole evidence rule is a rule similar to other
rules of evidence which have exceptions to them.

Christie, Business Law in Zimbabwe at page 65 says: -

“it is equally obvious that it (parole evidence rule) contains seeds of injustice because it excludes
evidence which might reveal the true agreement between the parties. To minimize this danger
the application of the rule is subject to a number of limitations.” These are misrepresentation,
fraud, illegality, duress and mistake. See Maparanyanga v the Sheriff138.

Exceptions to the Parole Evidence Rule

(a) The first exception is not strictly an exception as such. It says the parole evidence rule
does not exclude the leading of evidence to establish that the contract was subject to a suspensive
condition because one will not be varying the contract.

(b) The rule would not be applicable where it is the intention of the parties that the contract
should be partly in writing and partly oral (verbal). The court will give effect to the intention of the
parties. See Avis v Verseput139 where the court took the view that this was a situation where the
parties had intended that their contracts should be partly verbal and partly written. The court held

137
1941 AD 43
138
ZLR 2003 (1) 325 (S)
139
1943 AD 331

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 84 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
that the oral agreement will be given effect. See also Harlin Angels Hotel Ltd140where a contract
was held by the court to be constituted by the Lease Agreement and a letter.

To counter the problem of including evidence outside the written contract one has to
include an intergration clause or a whole contract clause. This will be a term stating that the
document will be the entire contract between the parties and all terms, conditions, warranties or
representations not herein included will be expressly excluded. This means that one will be
entrenching the Parole Evidence Rule into the contract. See Mhene v Tembez141. The Parole
Evidence Rule is designed to promote certainty. The contract document serves all the purposes
n evidential aspects. However, the exceptions to the Parole Evidence rule make the written
document uncertain and ultimately the court has to balance the competing interests of the parties.

(c) It does not apply where the validity of the contract itself is being challenged by one of the
parties thereto. See Cok v Osborne142 where the court ruled that one could not exclude oral
evidence to establish the ground of invalidity of a contract e.g mistake – thus courts are sometimes
prepared to disregard the integration clause as it did in Mhene v Tembes (supra).

(page 183 paragraph “F” his case is “look at the agreement of sale. Ignore everything
else”. It is a technical argument ignoring both reality and morality. The learned Judge properly
rejected it.)

An integration clause is often coupled with a non-variation clause. If the parties intend to
vary the terms of the contract it has to be in writing and signed. Any such purported oral evidence
to vary the terms of the contract will be of no force and effect. The non-variation clause is binding
on both parties and any purported oral variation inconsistent with such a clause would be invalid.
However, a non-variation clause does not in itself preclude a waiver. Accordingly, a non-variation
clause is often coupled with a non-waiver clause. A non-waiver or indulgence clause says that
no indulgence made by the party can be taken to be waiver of his rights. The Supreme Court
considered this issue in the case of AFC v Pocock143. P borrowed some money from AFC.
According to the contract AFC could come any time and sell the farm in the event of falling into

140
1962 (3) SA 143
141
1986 (2) ZLR 179
142
1993 (4) SA 788
143
1986 (2) ZLR 229 – SC 135/96

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 85 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
arrears. The contract had a non-variation and non-waiver clause. P fell into arrears and had
discussions with one R, AFC’s General Manager where it was agreed that instead of repossessing
the farm AFC would enter into an agreement of payment in terms of which P would register a stop
order. After that agreement P was surprised to receive a letter from AFC threatening that it would
move in and sell the property. P argued that they had entered into an oral agreement with R – so
AFC could not repossess and sell his property. It was argued for AFC that there was a non-
variation and non-waiver clause and they were therefore entitled to proceed as they had done. P
argued further that the oral agreement constituted a waiver by AFC of its rights in terms of the
contract. P further tried to argue that AFC should be stopped from denying the existence of the
oral agreement with its General Manager. P’s arguments were rejected by the court which ruled
in favour of AFC.

At page 236 the court said: - Gubbay

“I am satisfied therefore, that the respondent cannon rely successfully on either

waiver or estoppels, for the effect of the clause is to negate both defences. Under it the
respondent agreed that condonation of breach will not constitute a waiver of the
appellant’s rights arising from the breach and at the same time accepted notice that any
conduct of the appellant which might otherwise give rise to estoppels may not be taken by
him to be such conduct.”

The Application of Parole Evidence Rule in Maparanyanga v The Sheriff SC/32/02 – ZLR
2003 (1) 325 (S)

The Sheriff entered into a written standard form agreement with the purchaser after purchaser
had offered to purchase the debtor’s property by private treaty. The purchaser’s offer had
conditions of payment different from those in the standard form. The standard form provided for
the full purchase price to be paid on signature thereof. However, both parties regarded
themselves as being bund by the terms of payment set out in the written offer made by purchaser
and accepted by the Sheriff. The High court concluded that although the standard form of contract
did not reflect the terms of the agreement between the parties, that form had been signed merely
as a formality that was required by the practice in the Sheriff’s office. The parties were well aware
of the conditions of the sale that had been agreed upon between them and those conditions were
observed on appeal by Maparanyanga. The Supreme Court set aside the order granted by the

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 86 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
High Court. One of the reasons given by the Supreme Court for setting aside the order was that
it did not regard the standard form of agreement of the dale to be inferior to, or less binding than
any other contract properly entered into by the contracting parties. The court went on to state
that it was satisfied that the consequences of disregarding a material term of such contract were
lot more drastic than as suggested by the High Court.

The Sheriff denied breaching the agreement. His evidence was that the standard form did not
record accurately the agreed terms of the contract. This is also supported by the offer made by
the purchaser which culminated in the signing of the agreement. The offer did not state that full
payment will be made upon the signing of the agreement. Other contemporaneous documents
may be looked to when the written contract is only one part of a larger transaction. The offer
made had to be seriously considered to determine the correct terms of the contract. See
Menashe v Georgiadis144. The purchaser and the Sheriff were agreed as to the true nature of
the terms. It was not intended to contain the whole contract between the parties. See Avis v
Verseput145.

In its decision at page 12 of cyclostyled judgments, the Supreme Court stated “… from a
contractual point of view, having signed such a contract, both parties were bound and obliged to
adhere to its terms”.

It is submitted that this is not the correct statement of the law. The words of a contract are not
engraved in stone. If parties can show that the written contract does not reflect what was greed
between them, a court will not insisted that they perform according to it. Rather, it will insist that
they comply with what each had agreed to do because they consider themselves bound by the
terms not expressed. See R.B Ranges v Estate McLean & Anor,146 Barnabas Plein and
Company v Sol Jacobs and Sons147. In a judicial sale the parole evidence rule should be
invoked by any interested party where it is shown that the departure from a contract was done
with mala fide intention. In this case such was not provided as noted by both the High Court and
the Supreme Court. There was no basis to apply this rule. The purchaser argued that the written
contract did not reflect the terms of the agreement between him and the Sheriff. The Sheriff

144
1936 SR 59
145
1943 AD 332
146
1986 (1) ZLR 79
147
1928 AD 25

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 87 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]
agreed with the submission. Their evidence was not challenged and should have been accepted.
The parole evidence rule does not apply where the parties are in agreement as to the terms of
their contract, though not reflected in the written contract.

It only allows a stranger to lead evidence to contradict its terms, but not to bind the parties to a
written contract where they are agreed that it does not reflect the true terms entered into by them.
The rule operates only on the parties to the contract. See Thorton and Anor v Aetna
Insurance.148 The court also stated that the fact that the contract “was in the form of standard
agreement of sale in no way detracts from its validity” as a binding contract. It is submitted that
what really detracts from its validity is that it does not reflect what was agreed upon between the
parties. The intentions of the drafters of the standard contract are no relevance. It is the intention
of the Sheriff and the purchaser that is relevant. Even after the standard form was signed, both
parties accepted that the written offer by the purchaser set out terms of their agreement. There
was no dispute on that issue. It is difficult to understand how the Supreme Court could insist that
the standard form of the contract which had been signed was the real agreement between the
parties. If there were allegations of fraud or corruption, a court might hold that the evidence given
by the parties, where they are in agreement, cannot be accepted. That was not the case here.
We have a situation where the court is insisting that a document signed by the parties sets out
the terms of the conditions of their agreement when both parties say that it does not.

There was no evidence to support that the standard agreement was the entire contract between
the parties. It is submitted that the Supreme Court’s decision on the application of the parole
evidence rule was wrong.

148
1965 RLR 373

Arthur Marara | Attorney. Author. Speaker

Clairwood Chambers, 38 Clairwood, Alexandra Park, Harare Page 88 of 89
Tel: +263-772-467-255 (Calls), +263-780-055-152 (WhatsApp)
www.arthurmarara.com [email protected]