Hearsay evidence and the child witness

Abstract

In terms of section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988 the court has, since 3 October 1988, been given a wide discretion to admit hearsay evidence if it would be in the interests of justice to do so. How this discretion is to be applied has given rise to difficulty. The question to be addressed here is whether it would be in the interests of justice to admit the hearsay statements of a child who is a complainant in a criminal matter and who is subsequently unable to testify. The courts are very wary of admitting hearsay statements emanating from children, due to issues of competency and the cautionary rule, and for this reason certain countries have created specific legistative provisions to regulate the admissibility of children’s hearsay statements. In Namibia, the Combating of Rape Act 8 of 2000 admits hearsay via the backdoor. It is submitted that not legislation, but a common sense approach is needed to determine whether hearsy statements from child victims should be admissible. The fact that evidence is hearsay is a factor which should go to weight and not the admissibility thereof.