The Law of evidence
Journal Article
2011
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Annual Survey of South African Law
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University of Cape Town
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Faculty
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Abstract
The Supreme Court of Appeal dealt with the withdrawal of an admission in civil proceedings in Saayman v Road Accident Fund 2011 (1) SA 106 (SCA). The court (para [12]) held that a concession made during the course of counsel’s address did not amount to a formal admission. Consequently, it was not necessary for an application for a formal withdrawal of the statement to be made. It was possible for the concession be withdrawn at any time during the trial in the absence of prejudice to the opposing party. Heher JA (Leach JA and Majiedt AJA concurring), agreeing with the majority judgment of Bosielo JA, gave a separate judgment providing additional grounds and it is in this judgment that the court expands on the characteristics of an admission. The first hurdle to overcome in following this aspect of the judgment is to determine whether the court views the arguments presented as pertaining to informal or formal admissions. The court explicitly characterizes the relevant statements as informal admissions as they were not recorded as admissions by the court. In doing so the judges refer to section 5 of the Civil Proceedings Evidence Act 25 of 1965, which is somewhat confusing, as section 5 has nothing to say on the matter. (This is perhaps due to the fact that DT Zeffertt, AP Paizes and A St Q Skeen (The South African Law of Evidence (2003) 784) mistakenly refer to section 5 when they actually mean section 15.)
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Reference:
Schwikkard, P J. (2011). The Law of evidence, 2011:848-867