The presentation of witness testimony in civil matters-time for a new approach? (Part 1)

Abstract

The problems in relation to access to justice in civil matters are not unique to South Africa but are of global concern. After the adoption of the final Constitution in 1996, several initiatives have been implemented in South African law in an attempt to enhance access to justice in civil matters as guaranteed by section 34 of the Constitution. Some of these initiatives are related to the presentation of evidence at the trial of a civil action. More than twenty years ago, there were several unsuccessful pleas from academic writers advocating that a similar position to England and Wales should be considered in South African law in relation to the compulsory exchange of witness statements before trial. It therefore seems like an opportune time to revisit the development relating to the exchange of witness statements in South Africa over the past few decades. Moreover, it is important to not only embark on an analysis of the exchange of witness statements, but also to look at the presentation of all evidence during action trials, including affidavit evidence. Part 1 of this article provides a comparative study between the presentation of witness evidence at trial in South Africa, England and Wales. The discussion firstly focuses on the presentation of witness testimony in South Africa and the exceptions to the general rule that it should be presented orally in court. Secondly, the position in England and Wales will be critically evaluated, as well as the newest developments relating to the presentation of witness evidence during trial. In part 2 of this article, some of the developments concerning the presentation of witness evidence in trial actions in Australia are critically examined. Lastly, some possible alternatives to the current presentation of witness testimony in South Africa are considered.