Brief Summary

Evidence — Hearsay evidence — Admissibility of hearsay and opinion evidence in civil trial — Plaintiff and defendant unwilling to call authors of pivotal documents — Court emphasizes necessity of proper evidence to uphold the integrity of the judicial process — Application for hearsay evidence dismissed due to lack of verification and potential unreliability of witnesses.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerns a substantive interlocutory application brought during the course of an ongoing civil trial. The application sought a ruling on the admissibility of hearsay evidence contained in discovered documents, specifically two internal departmental letters, for purposes of determining liability on the merits of the plaintiff’s delictual claim.

The parties were Garth Wayne Sheffryk as applicant/plaintiff and the MEC for Police, Roads and Transport: Free State Province as respondent/defendant. The interlocutory dispute arose while the plaintiff was still presenting his case in the main action.

The procedural history, as reflected in the judgment, was that the trial had proceeded to the point where the plaintiff had already led multiple witnesses, and the plaintiff then launched this application to have two discovered letters (marked D208 and D209) admitted as hearsay evidence under section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988, primarily for use on the merits, and also (as advanced in argument) for use in relation to costs.

The general subject-matter of the dispute in the trial was the alleged negligence of the defendant (as the responsible roads authority) arising from the alleged existence of potholes on a specific stretch of road at the time of a motor vehicle accident. The specific subject-matter of the interlocutory dispute was whether the plaintiff could rely on the contents of two departmental letters without calling their authors, and whether discovery or agreement that the documents were what they purported to be rendered their contents admissible as proof of their truth.

2. Material Facts

The matter arose from a motor vehicle accident that occurred on 14 July 2014 on the road between Memel and Vrede (Road P16/2). In the main action, the central factual controversy was whether the road was, on that date and at the relevant place, littered with potholes in a manner that contributed to the accident.

The judgment records that the plaintiff led the evidence of at least seven witnesses who testified from direct observation that the road surface was in a poor condition and had potholes at the scene. The defendant, however, disputed the alleged pothole condition and appeared to base its case (as outlined by the plaintiff in the application papers) on, among other things, photographs said to have been taken on 29 July 2014 (approximately fifteen days after the accident), which allegedly showed no potholes, and on contentions regarding road repairs said to have occurred between the accident and the date of those photographs.

Two letters became pivotal to the interlocutory application. They were properly discovered by the defendant and were marked D208 and D209. On the face of these letters, they were reports addressed to the defendant’s legal services section and authored by departmental officials responsible for roads, namely Mr T.A. Moloi (Road Superintendent) and Mr S.Z. Gaba (Principal Road Superintendent), signed in December 2014.

The contents of the letters included statements to the effect that the road condition was bad and affected by potholes, that warning signs were erected, that maintenance was carried out, and that departmental challenges prevented the road from being kept “100% safe.” The letters also contained evaluative statements and opinions, including an assessment that the accident could have been avoided if the claimant had adhered to road regulation signs and that the office was not in favour of 100% compensation.

A crucial factual feature for the admissibility dispute was that neither party intended to call the authors of these letters as witnesses. The plaintiff expressly declined to consult with or call them (citing concerns that, as employees, they might be loyal to the defendant and might not confirm the contents in oral testimony). The defendant similarly did not intend to call them and, on the court’s account, had not consulted them to clarify the context, scope, and reliability of what the letters asserted.

The judgment treated as significant that the letters were not self-evidently tied with precision to the specific location and date of the accident, were drafted months later, referred to annexures that were not the subject of a parallel admissibility application, and appeared general in nature. The court regarded these contextual uncertainties as capable of being addressed by viva voce evidence from the authors, but that evidence would not be led.

3. Legal Issues

The central legal questions the court was required to determine were whether the letters D208 and D209, as discovered documents, could be admitted in evidence for the truth of their contents as hearsay evidence under section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988, despite neither author being called to testify, and despite the presence of opinion content within the documents.

A further legal question was whether the fact of discovery, together with the parties’ apparent agreement that the documents were “what they purport to be,” meant that the contents of the documents became admissible as true and authentic proof of what they asserted. This question was treated as a point of law concerning the evidential status of discovered documents, and how far such agreement can go in overcoming the hearsay rule.

The dispute primarily concerned the application of law to facts, namely how the statutory factors in section 3(1)(c) should be applied to the circumstances of the trial, including the purpose for which the evidence was tendered (merits and costs), the probative value, the reasons for not calling the authors, and the potential prejudice. It also involved an evaluative judgment under the “interests of justice” standard in section 3(1)(c), particularly against the background of trial fairness and the ability to test evidence through cross-examination.

4. Court’s Reasoning

The court approached the matter by emphasising foundational principles of the law of evidence, namely that a document is not automatically proof of the truth of the assertions recorded in it, and that the hearsay and opinion rules remain operative even where evidence is tendered in documentary form. The court stressed that adjudication on the merits cannot proceed on evidence whose veracity cannot be tested where the probative value depends on someone other than the witness giving evidence, and that the integrity of the judicial process would be undermined if parties could circumvent evidential rules by relying on documents while avoiding calling the authors.

In addressing the argument that discovery and agreement that documents are “what they purport to be” should carry the plaintiff to admissibility, the court relied on the Supreme Court of Appeal’s guidance in Rautini v Passenger Rail Agency of South Africa. The court interpreted that authority as recognising that a standard discovery agreement that documents are what they purport to be is legitimate to treat documents as real evidence, but it does not dispense with the need to lead admissible evidence to prove the truth of their contents where reliance is placed on the contents as proof of disputed facts. The court thus distinguished between authenticity of the physical document and admissibility of its contents for their truth.

The court framed the evidential difficulty as acute because neither party wanted to call the authors of the letters, even though those authors were available and could potentially constitute “best evidence” on the road condition. The court regarded the parties’ reasons for not consulting or calling them as speculative, and considered this approach inconsistent with the trial’s constitutional imperative of fairness, including the opponent’s right to test evidence under oath through cross-examination. The court treated the failure to consult or call these witnesses as a litigation choice that could not convert otherwise inadmissible hearsay into admissible evidence.

Turning directly to the statutory framework, the court set out the definition of hearsay in section 3(4) and applied section 3(1) of the Law of Evidence Amendment Act 45 of 1988, focusing on whether admission under section 3(1)(c) would be justified in the interests of justice. The court treated the statutory considerations as interwoven, and analysed them by distinguishing between two different purposes for which the plaintiff wished to use the letters: first, to bolster the case on the merits in the trial; and secondly, to use them in an eventual inquiry into costs.

On the merits, the court reasoned that the contents of the letters would operate as primary proof of contested facts central to liability (the alleged road condition at the time and place of the accident). In that context, the court held that their probative value was weakened by the inability to test veracity through cross-examination, and by the lack of contextual clarity in the letters themselves (including the absence of clear linkage to the accident date and location, and reference to annexures not before the court for admissibility). Given the nature of the proceedings and the reliance sought to be placed on the documents, the court considered the hearsay evidence inadmissible for determining liability.

On the costs aspect, however, the court reasoned differently. It treated the letters as potentially important in showing what the defendant’s own employees had communicated to the defendant’s legal department at an early stage, which could be relevant to later arguments about costs conduct and litigation choices. In that setting, the court indicated that the documents would be admissible as real evidence for the fact that the communications were made and their contents were conveyed, rather than as proof that every factual assertion in them was true. The court thus accepted a limited admissibility tied to a different evidential purpose, consistent with the principle that evidence may be admissible for one purpose but inadmissible for another.

The court’s evaluative judgment under the “interests of justice” standard ultimately reflected the view that admitting the letters as hearsay on the merits would improperly allow pivotal disputed facts to be determined on untested assertions and opinions, while the parties deliberately avoided calling available witnesses. The court considered that this would prejudice the administration of justice and undermine trial fairness, and it declined to use section 3(1)(c) to cure what was essentially a litigational refusal to lead the best available evidence.

5. Outcome and Relief

The court refused the plaintiff’s application to have letters D208 and D209 admitted as hearsay evidence under section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988 for purposes of the merits of the case.

The court ordered that letters D208 and D209 would be regarded as admissible as real evidence for the purpose of an inquiry into costs, reflecting a limited-purpose admission not extending to proof of the truth of their contents on the merits.

The court ordered that the costs of the application would be costs in the cause of the main action.

Cases Cited

Da Mata v Otto NO 1971 1 SA 763 (T).

Lornadawn Investments (Pty) Ltd v Minister van Landbou 1977 3 SA 618 (T).

Rautini v Passenger Rail Agency of South Africa (Case no. 853/2020) [2021] ZASCA 158 (8 November 2021).

Legislation Cited

Law of Evidence Amendment Act 45 of 1988, section 3 and section 3(4).

Constitution of the Republic of South Africa, 1996 (referred to generally in relation to the constitutional requirement of a fair trial and the testing of evidence by cross-examination).

Rules of Court Cited

No rules of court were cited. The judgment referred instead to Rule 57.1 of the Legal Practice Council Code of Conduct in the context of legal practitioners’ ethical duties (disclosure and non-misleading of the court).

Held

The court held that the fact that a document is discovered and accepted as being what it purports to be does not, without more, make the contents of that document admissible as proof of the truth of what is asserted therein. Where the probative value of the contents depends on the credibility of an absent author, the contents constitute hearsay and remain inadmissible unless they fall within an exception under section 3 of the Law of Evidence Amendment Act 45 of 1988.

Applying section 3(1)(c), the court held that admitting the letters as hearsay evidence on the merits would not be in the interests of justice in the circumstances of an ongoing civil trial where the parties declined to call available authors and where the evidence was central to contested issues requiring testing by cross-examination.

The court further held that the letters could nonetheless be treated as admissible real evidence for the limited purpose of a later inquiry into costs, because for that purpose the fact that such communications were made to the defendant’s legal department could be relevant independently of whether the underlying assertions are proved true.

LEGAL PRINCIPLES

A discovered document, even where the parties accept that it is “what it purports to be,” is not automatically admissible to prove the truth of its contents. Such an agreement primarily facilitates treating the document as real evidence and does not displace the hearsay rule where the contents’ probative value depends on the credibility of a person not giving evidence.

Under section 3 of the Law of Evidence Amendment Act 45 of 1988, hearsay evidence is generally inadmissible unless admitted by agreement, the author testifies, or the court admits it under section 3(1)(c) after considering the listed factors and forming the view that admission would be in the interests of justice. Section 3(2) confirms that the hearsay provisions do not make admissible evidence that is inadmissible on other grounds, such as opinion evidence or other exclusionary rules.

The admissibility inquiry under section 3(1)(c) is context-sensitive and purpose-driven. Evidence may be admissible for one purpose and inadmissible for another, and a court may limit the use of evidence to the specific purpose for which it satisfies admissibility requirements, particularly where reliance for broader purposes would undermine fairness or permit adjudication on untested assertions.

In civil trials, especially where evidence is tendered to establish pivotal disputed facts on the merits, the inability to test the credibility and reliability of the source through viva voce testimony and cross-examination materially affects probative value and fairness, and may justify refusing admission of documentary hearsay even if the documents appear facially relevant.

Sheffrk v MEC for Police, Road and Transport Free State Province (4603/2015) [2022] ZAFSHC 142 (3 June 2022)