Understand and define the concept of “hearsay,” and be able to explain it with examples.
(c) Evaluate the basis for the common law rules pertaining to hearsay prior to 1988, and recognise and explain how these rules have been revolutionised by the Law of Evidence
Amendment Act 45 of 1988.
(b) Understand and discuss the problems inherent to hearsay evidence, and explain why it
may be prejudicial to the party against whom the hearsay evidence is sought to be used.
(d) Provide the statutory definition of hearsay pursuant to section 3(4) of the Law of Evidence Amendment Act 45 of 1988, and distinguish between this definition and the common law definition.
(e) Explain in detail, and apply to a set of facts, the admissibility of hearsay evidence pursuant to sections 3(1)(a) – (c) of the Law of Evidence Amendment Act 45 of 1988, namely:
1. by agreement (section 3(1)(a));
2. where the hearsay declarant testifies (sections 3(1)(b) and 3(3); and S v Ndhlovu 2002
3. in the interests of justice [section 3(1)(c); S v Shaik 2007 (1) SACR 142 (D); and the McDonald’s Corporation case 1997 (1) SA 1 (A)].
(f) Explain in detail, and be able to apply, the factors that the court must consider before the court may admit hearsay evidence, namely:
1. the nature of the proceedings [section 3(1)(c)(i)].
2. the nature of the evidence [section 3(1)(c)(ii)];
3. the purpose for which the evidence is tendered [section 3(1)(c)(iii)].
4. the probative value of the evidence [section 3(1)(c)(iv); S v Ndhlovu [2002 SCA];
and S v Saat 2004 (1) SA 593 (W)].
5. the reason why the evidence is not given by the hearsay declarant [section 3(1)(c)(v)].
6. any prejudice to a party if the hearsay is admitted [section 3(1)(c)(vi); S v Ndhlovu [2002 SCA]; and S v Molimi 2008 (2) SACR 76 (CC)].
7. any other factor that the court is of the opinion should be taken into account (section 3(1)(c)(vii); and Skilya Property Investments v Lloyds of London 2002 (3) SA 765 (T).
Name and list other statutory exceptions to the rule against hearsay, specifically:
1. Sections 212, 213, 214, 215, 221, 235, 236, and 337 of the Criminal Procedure Act 51 of 1977.
2. Sections 22(1), 26, 28, and 33 – 38 of the Civil Proceedings Evidence Act 25 of 1965.
3. the Electronic Communications and Transactions Act 25 of 2002.
4. Sections 50(4) and 51(1)(c) of the Companies Act 71 of 2008.
(h) Recognise and understand the other common law exceptions to the rule against hearsay.
(i) The following is prescribed:
(a) Kapa v S (CCT 292/21) [2023] ZACC 1; 2023 (4) BCLR 370 (CC); 2023 (1) SACR 583 (CC) (24 January 2023).
(b) Mawanda Makhala and Another v Director of Public Prosecutions, Western 27Cape 2025 (1) SACR 275 (CC).
(j) Know and understand the contents of Schwikkard & Mosaka: Chapter 13 (pages 285-306) & Chapter 15 (pages 313-329)
Explain why the common law exceptions to the rule against hearsay may not be obsolete.
(b) Define and explain the concept of “res gestae”.
(c) Know and be able to apply the requirements for admission of the following res gestae statements:
i. Spontaneous statements (S v Tuge 1966 4 SA 565 (A).
ii. Composite Acts (R v Kukubula 1958 (3) SA 698 (SR).
iii. Statements that prove state of mind (S v R 1965 (2) SA 463.
iv. Statements that prove physical sensations.
(d) Discuss and apply the requirements for admission of dying declarations.
(e) Know and understand the contents of Schwikkard & Mosaka: Chapter 14 (pages 307- 311).
