What is opinion evidence and how does it apply? In this instance, we reflect on the law of evidence, which is not a recent development in law, but has evolved with the expansion of the judicial system dating back to the Roman law, which in turn influenced the English and Roman-Dutch laws, the latter two forming the cornerstones of South African law and indeed of our entire judicial system. Opinion evidence 1. The ultimate issue doctrine states that it is the function of the court to come to a conclusion based on fact and that the witness cannot deliver an opinion as this would usurp the function of the court or the enquiry. 2. The prerogative to draw certain inferences from the fact is bestowed only on the court or the enquiry, and no inferences may be drawn by a witness. 3. In R vs.Van Tonder 1929 TPD 365, opinion evidence was found to be inadmissible. In R vs. Louw 1930 CPD 368 Judge Watermeyer stated that the magistrate could not accept the bare statement of a witness that, ‘in his opinion’, an obstruction was caused. The witness must state what he saw, and it was for the court to say whether that amounted to an obstruction. 4. It is therefore clear that a witness may only state what he/she found and not what circumstances might have influenced or a certain document was indicative of, or what he/she could deduct from certain documents and/or certain circumstances. 5. In R vs. Ndlovu 1954 4 SA 482N 483H Judge President Broome classified the rulings in R vs Van Tonder and R vs Louw by stating that “...the objection to evidence was obvious in both cases. The witnesses themselves were deciding the question (Question of Law) upon which their (The Accused) innocence depended and they were thus usurping the function of the court.” 6. It is therefore the prerogative of the chairman in a disciplinary inquiry and the judge in a court of law to decide whether or not an inference is to be drawn between the action of the accused (res gestae), and the consequences of such action. In the proceedings we are concerned with facts, not with the beliefs of witnesses as to the existence of facts. 7. As it is used in law, “opinion” has the meaning of inferences or conclusions drawn from other facts. Opinion, be it expert opinion or not, which is expressed on an issue in terms of which the chairman or a judge can decide without receiving such opinion, is in principle inadmissible because it is irrelevant. The opinion of the witness is totally irrelevant when the chairman decides on the charges. (Refer to S vs. H 1981 2 SA 586 SWA.) Therefore, the court or the chairman may never subject itself or him/herself to the opinion of a witness. Author: Johan Nell
Posted on: Tue, 03 Sep 2013 06:36:31 +0000
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