THE DISPARITIES IN SECTION 3, HEARSAY-ADMISSIBILITY RULES AND THE NEGATIVE EFFECTS THE CONSENT CLAUSE IN SECTION 3(1)(A) HAS ON THE ACCUSED WHOSE REPRESENTATIVES AGREE TO THE ADMISSION OF HEARSAY EVIDENCE TO PROVE A CASE AGAINST THEIR CLIENTS
Authors: Mampolokeng Mary-Elizabeth Monyakane  
Published: October 2021

In order to safeguard invaluable evidence from being eroded and contrary to the outcry against this move (the admissibility of hearsay evidence has for ever attracted controversy and endless appeals by the aggrieved convicts), our law of evidence anticipated the need for the admission of hearsay evidence which was previously inadmissible in terms of our common law. To do this, the Law of Evidence Amendment Act (45 of 1988) became operative. Thus the intention of the legislation is that this Act operates to solve possible prejudices in relation to the loss of hearsay evidence which would otherwise be inadmissible. It is apparent from case law dealing with the admissibility of hearsay evidence that the interpretation of this Act in the context of the Constitutional right to fair trial divulges yet another purpose namely, to protect the accused from uncalled-for prejudices through the use of hearsay evidence in the conduct of criminal trials.The application of this law was subjected to its compatibility with the provisions of any other law applicable in South Africa. Although it was in the best intention of the legislature that this Act operated to solve possible prejudices in regard to the loss of hearsay evidence which would be otherwise admissible, its implementation has posed more problems than a solution. Mostly with respect to the recent practice in criminal courts, where hearsay evidence in the form of statements by witnesses, even though available, witnesses were not summoned to court to testify, accused persons are exposed to excessive prejudice. Coupled with this scenario is the situation where parties consent to hearsay evidence.In terms of section 3, hearsay evidence is admissible under three conditions: first, through consent of parties to the lawsuit; secondly, where the witness on whose credibility the truth and the extent of reliability of the evidence depend would come before court and undergo the court’s scrutiny and thirdly, where the court has established that the interest of justice demands the admissibility of hearsay evidence. The application of these provisions is not cumulative, implying that each of them is independently applied. This results in the possibility of uneven processes by courts in testing the admissibility of hearsay evidence. In some cases the exception to the hearsay requirement attracts judicial scrutiny of such evidence for any potential prejudice, while in some cases it would not be the duty of the court to intervene regarding any harm hearsay evidence poses.This article will examine the weaknesses that these disparities pose in finding justice through the use of hearsay evidence in terms of section 3 of Act 45 of 1988. I shall endeavour to show that in criminal cases, consent to hearsay evidence provided in section 3(1)(a) is even more detrimental to the administration of justice. This I shall endeavour to do through discussing the application of section 3(1)(b) to expose statutory protections in this section which are not present when section 3(1)(a) is used. Further, I shall explain how possible prejudice against accused persons is safeguarded by the provisions in section 3(1)(c) which safeguards are not applicable on the admissibility of hearsay evidence in terms of section 3(1)(a). It will be apparent in my analysis that seeking justice through the invocation of hearsay evidence is not such a perfect exercise even if section 3(1)(c) is invoked.