2.6 Rules of evidence
2.6.3 The hearsay rule and children’s testimony
Hearsay evidence is evidence of a statement by a person other than a witness which is relied upon to prove what the statement asserts. The term “hearsay” originates from the fact that the witness says in court what he or she has heard (or read).350 The term is known to both the inquisitorial and the accusatorial systems, but plays a less important role in the inquisitorial system, where the hearsay nature of evidence affects only its weight. Various reasons have been advanced for the exclusion of hearsay evidence, the most compelling being that it is unreliable evidence and may therefore mislead the court. It is said to be unreliable because the person who witnessed the facts at first hand is not present to tell the court what he or she observed. In terms of the accusatorial system the person testifying should
348 Brouwer 1981 Australian LJ 220.
349 Murschetz “Child witnesses in Austria” in Spencer et al Children and Cross-examination: Time
to Change the Rules? (2012) 136.
350 According to s 3(4) of the South African Law of Evidence Amendment Act 45 of 1988 hearsay
is defined as “evidence, whether oral or in writing, the probative value of which depends on the credibility of any person other than the person giving such evidence”.
testify under oath and there should be an opportunity for cross-examination. This is not the case with hearsay testimony nor is the court in a position to challenge the reliability of the first-hand witness. It is therefore not possible to test the evidence as is required by the accusatorial system. For this reason the rule developed that testimony so given should be excluded uncompromisingly unless it could be accommodated within a recognised exception.351
This rule also found its way into South African law by means of legislative enactments that in effect incorporated the English common-law position on the matter. This remained the position until 1988, when the Law of Evidence Amendment Act 45 of 1988 brought about some changes, replacing the system with a more flexible approach. Although there is still a general rule against hearsay, the new approach gives courts the power to admit hearsay evidence in cases where the traditional hearsay dangers are either satisfactorily accounted for or are insufficiently significant.352 Section 3 of the Law of Evidence Amendment Act353 has introduced three main exceptions to the rule against hearsay. In terms of this section hearsay may be admitted by agreement, where the person upon whose credibility the probative value of the proceedings depends himself or herself testifies at such proceedings or where the court, having regard to seven listed factors, is of the opinion that such evidence should be admitted in the interests of justice.354
A child may be unable to give evidence at a trial because he or she has either been found incompetent or is too afraid. A report made to a mother, guardian, social worker or police officer depicting the event will amount to hearsay and will not be admissible.355 In terms of the three exceptions such a report may be admissible if the other party agrees, the child himself or herself testifies at the trial or the court allows it within its discretion. It is doubtful whether any opposing party in a criminal proceeding would consent to such evidence. The second category is not applicable
351 Schmidt & Rademeyer Law of Evidence Issue 11 (July 2013) para 18 1. See also Vulcan
Rubber Works (Pty) Ltd v SAR & H 1958 (3) SA 285 (A); S v Mpofu 1993 (3) SA 864 (N).
352 Zeffert & Paizes Essential Evidence 135. 353 45 of 1988.
354 S 3 (1)(a)-(c) of the Law of Evidence Amendment Act. 355 S v T 1973 (3) SA 794 (A).
as the child does not want to testify or is not allowed to do so, having being declared incompetent. The third category may hence prove to be the vehicle through which to submit children’s hearsay evidence.
Section 3(1)(c) affords the court a wide discretion to admit hearsay evidence if this is in the interests of justice. In considering the interests of justice and in deciding how much weight should be afforded to the hearsay evidence, the courts must take into account the nature of the proceedings, the nature of the evidence, the purpose for which the evidence is tendered, the reason why the evidence is not being given by the person upon whose credibility the probative value of such evidence depends, any prejudice to a party which the admission of such evidence might entail and any other factor which should in the opinion of the court be taken into account. The court therefore has to weigh up all the factors in exercising its discretion to admit the hearsay evidence. This provision is the most far-reaching of the three exceptions.356 Everything depends on how far the courts are prepared to go in exercising their discretion to introduce evidence of this nature. The response has been mixed, with some courts expressing reluctance, especially in criminal cases, to exercise a wide discretion.357
In S v Ramavhale358 the court stated that it has an “intuitive reluctance to permit untested evidence to be used against an accused” in a criminal case as an accused person “usually has enough to contend with without expecting him to engage in mortal combat with an absent witness”. It also emphasised that “a Judge should hesitate long in admitting or relying on hearsay evidence which plays a decisive or even significant part in convicting an accused, unless there is compelling justification
356 Zeffert & Paizes Essential Evidence 139.
357 Zeffert & Paizes Essential Evidence 139. See for example also S v Dyimbane 1990 (2) SACR
502 (SE) where evidence as to the statements of the two deceased were admitted, in comparison to S v Cekiso 1990 (4) SA 20 (E) at 22A, where hearsay evidence on “controversial issues upon which conflicting evidence has already been given” was disallowed.
for doing so”.359 The importance of this caution was emphasised in S v Ndholovu360 where Cameron JA held that a trial court, in applying the hearsay exceptions, must be scrupulous in ensuring respect for the fundamental right of the accused to a fair trial. Cameron JA concluded, however, that where the interests of justice require the admission of hearsay, the provision “does not require the absence of all prejudice”.361 In S v Shaik,362 a case where the conviction of the appellants on some of the charges depended heavily on hearsay evidence, the Supreme Court of Appeal received the evidence, stating that “sight should not be lost of the true test for the evidence to be admitted, and that is whether the interest of justice demands its reception”.363
The importance of allowing the hearsay evidence of children has recently been highlighted albeit in a Labour Court dispute. In the case of Minister of Police v M,364 a case of the rape of a child was connected with a dismissal dispute in the Labour Court. The employee (RM) was dismissed because he had raped his daughter over a period of time starting when she was fourteen years old. Her father (RM) was employed in the VIP protection unit of the South African Police Service (SAPS). After his arrest in 2009 he faced both a criminal trial and a disciplinary hearing in which it was alleged that he had contravened the SAPS code of conduct.365 The daughter (K) testified against her father at the internal disciplinary hearing. Her testimony was corroborated by two other witnesses who were present in the house where some of the sexual assaults/rape allegedly occurred. RM was represented at the disciplinary hearing by a union representative. The witnesses were cross- examined by the representative. RM also testified in his own defence and was cross- examined.366 The presiding officer at the disciplinary hearing found RM guilty on the charges and he was dismissed. RM lodged an internal appeal, but was unsuccessful. He then referred an unfair dismissal dispute to the Safety and Security 359 At 649d-e. 360 2002 (2) SACR 325 (SCA) at 337-338. 361 At 348. 362 2007 (1) SA 240 (SCA). 363 Para [171]. 364 (JR 56/14) [2016] ZALCJHB 314 (19/08/2016).
365 Minister of Police v M (JR 56/14) [2016] ZALCJHB 314 (19/08/ 2016) at paras [1]- [2]. 366 Paras [3]-[4].
Sectoral Bargaining Council (SSSBC) for arbitration.367 As the arbitration constituted a new hearing the evidence had to be introduced de novo. At this point the victim, K, refused to testify again. Consequently the employer had to rely on the transcripts of the internal disciplinary hearing to prove the substantive fairness of RM’s dismissal. SAPS applied to have the transcripts admitted as hearsay in terms of one of the exceptions listed in section 3 of the Law of Evidence Amendment Act,368 namely that of in the interests of justice. The commissioner agreed to admit the transcripts but found the weight of the evidence derived from the transcripts against RM to be “minimal without additional testimony or documents substantiating the allegations”. As the arbitration was a hearing de novo, the commissioner consequently found RM’s dismissal substantively unfair and reinstated him. The Minister of Police challenged this decision in the Labour Court before Judge Whitcher.369
In evaluating the matter, Judge Whitcher emphasised that the commissioner had correctly admitted the transcripts as hearsay evidence, but that the matter rested on the question of what weight this hearsay evidence should be afforded.370 The judge stated that she had some sympathy for the approach adopted by the commissioner in not readily admitting hearsay evidence. She however pointed out that while it may be unreasonable to give hearsay evidence too much weight, the opposite is also true. Not giving hearsay evidence sufficient weight may also constitute a material error or irregularity.371
According to Whitcher J the present case represented an example of a case in which the hearsay evidence was not given enough weight in that the commissioner did not seem to realise that the transcripts were no ordinary hearsay but were “hearsay of
367 Para [5]. 368 Act 45 of 1988.
369 Minister of Police v M (JR 56/14) [2016] ZALCJHB 314 (19/08/2016) at paras [5]-[7]. 370 Para [35].
a special type”.372 The reason for this is that the transcripts comprised a bilateral and comprehensive record of earlier proceedings in which the child victim’s evidence was corroborated by at least two other witnesses, with the evidence withstanding rigorous cross-examination and in which RM’s own defence was “ventilated and exposed as being implausible”.373 The learned judge stated that transcripts such as the ones in this case must be afforded greater intrinsic weight than simple hearsay because they constitute a comprehensive and reliable record of a prior quasi-judicial encounter between the parties.374
Whitcher J also commented on the child victim’s unavailability as a witness at the SSSBC hearing. She pointed out that, to the extent that this refusal may have influenced the commissioner’s decision, it should be noted that K did not simply refuse to testify but gave two cogent reasons for not testifying, namely that she was no longer “prepared to go through this trauma” and that she was undergoing therapy which would be disrupted if she reopened old wounds.375 Although not specifically stated by Whitcher J, it is submitted that this implies that not only the refusal to testify but also the reasons therefore should be given the necessary consideration by the presiding officer when weighing up hearsay evidence.
Whitcher J furthermore commented on the fact that the situation in which the SAPS found itself in this case may not be unique, as the labour relations system is designed to give dismissed employees a fresh opportunity to fight their case in another forum. This system therefore envisages that vulnerable classes of victims, such as children, would have to testify at least twice before an offending employee can finally be removed from service.376 She highlighted that one way of avoiding this
372 Para [37]. 373 Para [37]. 374 Para [37]. 375 Para [48].
376 Although not addressed in the case, the fact that the employee/accused RM was also
criminally charged may in all likelihood result in the victim (K) having to testify in the criminal trial. The acceptance of the transcripts as an exception to the hearsay rule in the criminal trial may thus prove to be equally important to the victim and may protect her from secondary traumatization.
and of minimising the secondary traumatisation of vulnerable witnesses is to ensure that a good record is created of a procedurally fair enquiry. This would enable the employer in appropriate factual circumstances to rely on the transcript of the initial internal hearing should the original witness not be in a position to testify again at arbitration.377
The case of Minister of Police v M378 again highlights the importance of allowing the hearsay evidence of child victims in appropriate circumstances and affording it the weight it deserves. However, the admission of hearsay evidence remains within the discretion of the presiding officer. It is for this very reason that academics such as Zeiff and Müller argue that an additional statutory provision should be introduced, creating a general exception to the hearsay rule for the statements of children in sexual abuse cases.379 In making this proposal they refer to similar child victim hearsay legislation in the United States of America, especially the model created by the Washington legislature in 1982.380 Under the Washington statute evidence which is sufficiently reliable may be admitted if the child testifies at the trial and is subjected to cross-examination. If, however, the child is unavailable as a witness, the hearsay evidence may only be admitted if there is evidence to corroborate the act or events. The corroboration requirement may be fulfilled through eyewitness testimony; an admission or confession by the defendant; physical evidence that the child was abused; expert psychological testimony that the abuse occurred or any other evidence that corroborates the child’s statement.381
377 Minister of Police v M (JR 56/14) [2016] ZALCJHB 314 (19/08/2016) at paras [49]-[50].
Whitcher J subsequently ordered at para [52] that the arbitration be set aside and that the matter be heard de novo before a new commissioner.
378 (JR 56/14) [2016] ZALCJHB 314 (19/08/2016).
379 Zeiff 1991 SACJ at 32; Müller The Child Witness in the Accusatorial System (PhD Rhodes
University 1998) 304.
380 WASH. REV.CODE: 9A.44.120 (1982) available at http://apps.leg.wa.gov/rcw/default.aspx?
cite=9A.44.120 (accessed 05/03/2016).
The United Kingdom has also reformed its law with regard to hearsay evidence in Chapter 2 of Part 11 of the Criminal Justice Act of 2003.382 Under the reformed law the hearsay rule is retained for the purpose of criminal proceedings, but made subject to a more general and wider statutory list of exceptions. One of these exceptions, set out in section 116 of the Act, provides for hearsay evidence to be allowed where the original witness is “unavailable” due to a specified list of reasons. One of these reasons includes unavailability“ through fear”. The courts have also been granted an “exclusionary discretion” to allow evidence that falls outside the explicit exceptions where a court is satisfied that it is in the interests of justice to admit such evidence.383 In the last instance the court has to consider a list of nine factors set out in section 114(2) of the Act as well as any other factor it considers relevant.
Spencer384 points out that despite the fact that the hearsay rules are couched in what appear to be extremely cautious terms, the last-mentioned reform of the hearsay rule is potentially significant for child abuse cases. This was vividly illustrated in the case of R v J (S).385 In the said case the defendant was accused of grave sexual assault on his partner’s baby daughter, who was aged two-and-a-half at the time. While she was lying in bed, someone entered her room and penetrated her vagina to such an extent that she required surgical intervention. The only two people who had access to her room were her mother and the defendant. In the days following the event several people asked her what had happened and she told them that Sid had hurt her. The judge ruled this evidence admissible under the aforementioned exclusionary discretion. This decision was upheld by the Court of Appeal. In his judgment, Lord Justice Hooper on behalf of the Court of Appeal stated that “[w]e have no doubt that the judge was right to rule the evidence in”.386
382 See Chapter 2 of Part 11 of the UK Criminal Justice Act of 2003 available at
http://www.legislation.gov.uk/ukpga/2003/44/part/11/chapter/2 (accessed 05/03/2016).
383 See s 112 (2) of Chapter 2 of Part 11 of the UK Criminal Justice Act of 2003 available at
http://www.legislation.gov.uk/ukpga/2003/44/part/11/chapter/2 (accessed 05/03/2016).
384 Spencer in Spencer et al Children and Cross-examination: Time to Change the Rules? 6. 385 R v J (S) [2009] EWCA Crim 1869.
Müller points out that although the factors listed in the Washington statute (and, as indicated above, in that of the United Kingdom) may sound very similar to those in section 3(1)(c) of the Law of Evidence Amendment Act, the real advantage of introducing a new statutory provision would be emphasis on the admissibility of children’s hearsay evidence, in other words, the intention of the legislature would be that the hearsay evidence of children should, where shown to be reliable, be admissible. This would impose a more stringent duty on the court to make the statements admissible. She advocates that the court should evaluate the hearsay evidence placed before it and accord it the weight it deserves.387
This is in line with the inquisitorial system, where hearsay evidence, provided it is relevant, is admissible. In terms of this model nothing prevents the court from hearing testimony from a parent, guardian, doctor, social worker or police officer, for example, about the child’s initial statement. The focus of the court would then be on how much weight should be attributed to the hearsay evidence and not on whether or not it should be admissible.388 Zeiff389 expresses the view that although the enactment of a new statutory exception allowing children’s hearsay evidence to be accepted as evidence would probably be opposed on the grounds that it goes against the common-law tradition or its basic principles, the law of evidence, like the legal system as a whole, must adapt to modern social requirements and attitudes. He believes that the proposed reform will strike a balance between the welfare of the child, the rights of the accused and the needs of society.390
3
CONCLUSION
387 Müller The Child Witness in the Accusatorial System 305.
388 Andaneas in Spencer & Flin Children’s Evidence in Legal Proceedings 9. 389 Zeiff 1991 SACJ 33.
An evaluation of the elements of the accusatorial system, especially those of