SU 7- INFORMAL ADMISSIONS
Admission
An oral or written admission that is made by a party in civil or criminal proceedings
which is adverse to that party’s case
Informal admission
Made out of court
Are an item of evidence that can be contradicted or explained away.
Can be admitted to prove the truth of their contents.
Hearsay in nature.
They are viewed objectively and their consequences are decisive.
State of mind of the party is not important.
Formal admissions
Made in the pleadings or in court.
They are also binding on the maker and are made to reduce the number of issues
before the court.
Hearsay evidence
Section 3(4) of the Law of Evidence Amendment Act:
o Evidence whether in oral or in writing, the probative value of which depends
on the credibility of any person other than the person giving such evidence.
ADMISSIBILITY
Only one requirement- relevance
Section 219A of the CPA-
o In criminal matters an admission must be proved to have been made
voluntarily before it can be admitted into evidence
Civil matters: common law
If statements are made in the course of negotiations for the settlement of a dispute-
such statements cannot be disclosed without the consent of both parties
ADMISSIONS BY CONDUCT
Admissions may be contained in a verbal or written statement and may also be
inferred from conduct
S v Shepards-
o A party’s payment of an invoice was an admission that the services specified
in that invoice had been performed
Conduct does not need to be positive to constitute an admission
Admission may be inferred from silence
FORMS OF ADMISSIONS BY CONDUCT
, A. Failure to answer letters
B. Statements in the presence of a party
C. Failure to cross examine
D. Admissions by silence
A. FAILURE TO ANSWER LETTERS
An admission can be inferred from the failure to answer a letter
Responding to a letter requires a greater degree of positive conduct than oral denial
and because of this courts are hesitant to draw such an inference
R v West-
o Accused failed to respond to a letter from the complainant which alleged that he was
the cause of her pregnancy.
o Court held- an acknowledgement of paternity could not be inferred from his silence.
Before an admission can be inferred-
Must be established in light of the surrounding circumstances that it would be
reasonable to draw the inference that the party did not respond because he
acknowledged that the contents of the letter were true
Mcwilliams v First Consolidated Holdings (Pty) Ltd-
o When a party receives a letter stating that they have a legal obligation to the sender,
their failure to respond doesn't necessarily mean they agree with the claim.
o However, if it is common in the business world for parties to strongly deny such
claims when they are untrue
o The party's silence and lack of action can be seen as an admission of the
claim's truth
o Unless they can provide a satisfactory explanation for their silence (firm
repudiation of such an assertion would be the norm if it was not accepted as
correct)
B. STATEMENTS IN THE PRESENCE OF A PARTY
May be put before the court for the court to assess whether the party’s response to
hearing the statement amounted to an acceptance of its truth
Party does not have to assent to the statement for an inference to be drawn
Truth of the statement may be inferred from silence
Inference can also be drawn from denial if court finds that the party’s demeanour
contradicts the denial
R v Jackelson-
Accused was charged with contravening the Transvaal Liquor Ordinance.
o A witness was found in possession of illegally supplied alcohol and when she was
asked by a detective where she got the alcohol she pointed to the accused.
o Accused did not assent to the truth in this ‘statements’.
, o Defence held- the evidence cannot be admitted unless the accused assented to
statement at the time it was made.
o Court held- the evidence was admissible in reference to the demeanour of the
accused at the time, but no proof was found of the correctness of the ‘statement’
C. FAILURE TO CROSS EXAMINE
S v Mathlare-
Appellant was convicted of rape in a regional court.
On appeal-
o Argued that the prosecution had not formally presented evidence to confirm that the
blood samples used to identify the appellant as the father of the child conceived
from the rape were taken from him, the child, and the complainant.
During the trial-
o The origin of the blood samples had not been questioned during crossexamination.
o The focus of the cross-examination was on the reliability of the sample analysis and
the conclusions drawn from it.
The appeal court concluded-
o The nature of the defence cross-examination, within the specific trial context,
implied an informal admission of the blood sample source.
o Essentially, by failing to challenge the admissibility of the evidence during the trial,
the appellant was prevented from challenging its admissibility during the appeal
D. ADMISSIONS BY SILENCE
Silence in the face of an accusation may amount to an admission when it forms the basis of a
common-sense inference against a party
Jacobs v Henning-
o Plaintiff- brought an action for damages for seduction
o Led evidence that the defendant, when confronted and accused by the plaintiff’s
father of having caused his daughter’s pregnancy, remained silent and simply
lowered his head
o Court found- this conduct was sufficient corroboration of the plaintiff’s version.
The nature of the inference will depend on the surrounding circumstances
Common law-
In the past-
One of the reasons for not drawing an inference from the accused’s silence was the
common law right to remain silent
And the presumption of innocence that requires the prosecution to make out a
prima facie before there can be any obligation on the accused to speak.
, Today these rights now enjoy constitutional protection in s 35(1)(a) and s 35 (3)(h)
The right to remain silent can be described as the absence of a legal obligation to speak
and its underlying rationale is-
1. Concern for the reliability which relates directly to the truth-seeking function of the
court
2. A belief that individuals have a right to privacy and dignity which may not be lightly
eroded
3. The right to remain silent is necessary to give effect to the privilege against self-
incrimination and the presumption of innocence
S v Thebus-
Court considered the permissibility of drawing an adverse inference of guilt; and
constitutionality of drawing an inference as to the credibility of the accused from pre-trial
silence.
o Two accused persons were accused and convicted of murder and attempted murder.
o On arrest- the accused made an oral statement about the shooting incident.
o At trial- he testified that his statement was not intended to include himself. He
refused to make his statement in writing.
o The court rejected his alibi (Appeal to the CC).
Judge distinguishes between silence before and during the trial.
o Silence during the trial (the right to remain silent).
o Judge made an inference as to credibility and argues that drawing an inference as to
credibility amounts to a compulsion to speak and consequently limits the accused’s
right to silence.
Judge concluded- the common law rule is a justified restriction on the right to remain silent
and that late disclosure of the alibi can be followed
VICARIOUS ADMISSIONS
General rule- an admission is not admissible against anyone except its maker
A statement made out of court by a person who is not a party to the matter is
excluded because it is hearsay in nature
Three categories of vicarious admissions-
1. Where X has implied or express authority to make a statement on behalf of Y, the
admissions may be proved against Y
2. Where a litigant adopts the statement of a 3rd party as her own and ratifies it
3. Statement may be admitted where X and Y share a privity or identity of interests
Such statement will only be admissible if it will be accepted as an exception to the
hearsay rule
Admission
An oral or written admission that is made by a party in civil or criminal proceedings
which is adverse to that party’s case
Informal admission
Made out of court
Are an item of evidence that can be contradicted or explained away.
Can be admitted to prove the truth of their contents.
Hearsay in nature.
They are viewed objectively and their consequences are decisive.
State of mind of the party is not important.
Formal admissions
Made in the pleadings or in court.
They are also binding on the maker and are made to reduce the number of issues
before the court.
Hearsay evidence
Section 3(4) of the Law of Evidence Amendment Act:
o Evidence whether in oral or in writing, the probative value of which depends
on the credibility of any person other than the person giving such evidence.
ADMISSIBILITY
Only one requirement- relevance
Section 219A of the CPA-
o In criminal matters an admission must be proved to have been made
voluntarily before it can be admitted into evidence
Civil matters: common law
If statements are made in the course of negotiations for the settlement of a dispute-
such statements cannot be disclosed without the consent of both parties
ADMISSIONS BY CONDUCT
Admissions may be contained in a verbal or written statement and may also be
inferred from conduct
S v Shepards-
o A party’s payment of an invoice was an admission that the services specified
in that invoice had been performed
Conduct does not need to be positive to constitute an admission
Admission may be inferred from silence
FORMS OF ADMISSIONS BY CONDUCT
, A. Failure to answer letters
B. Statements in the presence of a party
C. Failure to cross examine
D. Admissions by silence
A. FAILURE TO ANSWER LETTERS
An admission can be inferred from the failure to answer a letter
Responding to a letter requires a greater degree of positive conduct than oral denial
and because of this courts are hesitant to draw such an inference
R v West-
o Accused failed to respond to a letter from the complainant which alleged that he was
the cause of her pregnancy.
o Court held- an acknowledgement of paternity could not be inferred from his silence.
Before an admission can be inferred-
Must be established in light of the surrounding circumstances that it would be
reasonable to draw the inference that the party did not respond because he
acknowledged that the contents of the letter were true
Mcwilliams v First Consolidated Holdings (Pty) Ltd-
o When a party receives a letter stating that they have a legal obligation to the sender,
their failure to respond doesn't necessarily mean they agree with the claim.
o However, if it is common in the business world for parties to strongly deny such
claims when they are untrue
o The party's silence and lack of action can be seen as an admission of the
claim's truth
o Unless they can provide a satisfactory explanation for their silence (firm
repudiation of such an assertion would be the norm if it was not accepted as
correct)
B. STATEMENTS IN THE PRESENCE OF A PARTY
May be put before the court for the court to assess whether the party’s response to
hearing the statement amounted to an acceptance of its truth
Party does not have to assent to the statement for an inference to be drawn
Truth of the statement may be inferred from silence
Inference can also be drawn from denial if court finds that the party’s demeanour
contradicts the denial
R v Jackelson-
Accused was charged with contravening the Transvaal Liquor Ordinance.
o A witness was found in possession of illegally supplied alcohol and when she was
asked by a detective where she got the alcohol she pointed to the accused.
o Accused did not assent to the truth in this ‘statements’.
, o Defence held- the evidence cannot be admitted unless the accused assented to
statement at the time it was made.
o Court held- the evidence was admissible in reference to the demeanour of the
accused at the time, but no proof was found of the correctness of the ‘statement’
C. FAILURE TO CROSS EXAMINE
S v Mathlare-
Appellant was convicted of rape in a regional court.
On appeal-
o Argued that the prosecution had not formally presented evidence to confirm that the
blood samples used to identify the appellant as the father of the child conceived
from the rape were taken from him, the child, and the complainant.
During the trial-
o The origin of the blood samples had not been questioned during crossexamination.
o The focus of the cross-examination was on the reliability of the sample analysis and
the conclusions drawn from it.
The appeal court concluded-
o The nature of the defence cross-examination, within the specific trial context,
implied an informal admission of the blood sample source.
o Essentially, by failing to challenge the admissibility of the evidence during the trial,
the appellant was prevented from challenging its admissibility during the appeal
D. ADMISSIONS BY SILENCE
Silence in the face of an accusation may amount to an admission when it forms the basis of a
common-sense inference against a party
Jacobs v Henning-
o Plaintiff- brought an action for damages for seduction
o Led evidence that the defendant, when confronted and accused by the plaintiff’s
father of having caused his daughter’s pregnancy, remained silent and simply
lowered his head
o Court found- this conduct was sufficient corroboration of the plaintiff’s version.
The nature of the inference will depend on the surrounding circumstances
Common law-
In the past-
One of the reasons for not drawing an inference from the accused’s silence was the
common law right to remain silent
And the presumption of innocence that requires the prosecution to make out a
prima facie before there can be any obligation on the accused to speak.
, Today these rights now enjoy constitutional protection in s 35(1)(a) and s 35 (3)(h)
The right to remain silent can be described as the absence of a legal obligation to speak
and its underlying rationale is-
1. Concern for the reliability which relates directly to the truth-seeking function of the
court
2. A belief that individuals have a right to privacy and dignity which may not be lightly
eroded
3. The right to remain silent is necessary to give effect to the privilege against self-
incrimination and the presumption of innocence
S v Thebus-
Court considered the permissibility of drawing an adverse inference of guilt; and
constitutionality of drawing an inference as to the credibility of the accused from pre-trial
silence.
o Two accused persons were accused and convicted of murder and attempted murder.
o On arrest- the accused made an oral statement about the shooting incident.
o At trial- he testified that his statement was not intended to include himself. He
refused to make his statement in writing.
o The court rejected his alibi (Appeal to the CC).
Judge distinguishes between silence before and during the trial.
o Silence during the trial (the right to remain silent).
o Judge made an inference as to credibility and argues that drawing an inference as to
credibility amounts to a compulsion to speak and consequently limits the accused’s
right to silence.
Judge concluded- the common law rule is a justified restriction on the right to remain silent
and that late disclosure of the alibi can be followed
VICARIOUS ADMISSIONS
General rule- an admission is not admissible against anyone except its maker
A statement made out of court by a person who is not a party to the matter is
excluded because it is hearsay in nature
Three categories of vicarious admissions-
1. Where X has implied or express authority to make a statement on behalf of Y, the
admissions may be proved against Y
2. Where a litigant adopts the statement of a 3rd party as her own and ratifies it
3. Statement may be admitted where X and Y share a privity or identity of interests
Such statement will only be admissible if it will be accepted as an exception to the
hearsay rule
