Labour Law South Africa
What are the Legal Implications if a Party fails to Call a Witness
On frequent occasions, our courts have furnished guidelines regarding the conclusion(s) that can be reached and the inferences that stand to be drawn where a party fails to call a particular witness to testify.
In particular, a plaintiff (who, unlike a defendant, generally has the onus to discharge) runs the very real risk of an adverse inference being drawn against him where he ought to call a witness and fails to do so in circumstances where an adequate reason for doing so is not furnished and/or where no acceptable grounds exist for not calling the witness in question.
The aforesaid legal principle applies equally in criminal and in civil law – due regard, of course, being had to the implications and application of the relevant onus that stands to be discharged, as the case may be.
In Bewysreg (Schmidt, 3rd Ed) the following is stated at page 115:
“… Indien die aanklaer van ‘n belangrike getuie bewus is, behoort hy die getuie te roep. …. Dit kan … tot gevolg hê dat ‘n ongunstige afleiding teen die staat gemaak word. …
In S v Teixeira … is ‘n skuldigbevinding weens ongenoegsame getuienis tersydevgestel waar die Staat se saak op ‘n enkele getuie berus het, terwyl ander getuienis beskikbaar was, maar nie aangebied is nie. Die versuim om die ander getuienis aan te bied, het die suspisie gewek dat die enkele getuie nie ten volle ondersteun
sou word nie …”.
In R v Filarius 1916 TPD 415, Mason J stated at page 417:
“… It seems to me that it is the duty of the Crown to call all …crucial witnesses to a prosecution which is being investigated before a magistrate …
But where the prosecution believes that these witnesses are untruthful, they are not going to tell what they believe to be the true story, and where the Crown has reason to believe they are either hostile or in league with the accused the position may be somewhat different…”.
In the above regard :
A Plaintiff should place before the court reasons to believe that
- even a single one of the witnesses not called is an untruthful person or would not tell the true story; and
- Is there reason to believe that any single one of the many witnesses not called would be hostile;
- Is any such witness in league with the other side;
In Elgin Finedays Ltd v Webb 1947 AD 744, it is stated at 745:
“… it is true that if a party fails to place the evidence of a witness, who is available and able to elucidate the facts, before the trial court, this failure leads naturally to the inference that he fears such evidence will expose facts unfavourable to him …”.
In the case of Gleneagles Farm Dairy v Schoombee 1948 AD 830,
one of the parties requested that an adverse inference be drawn against the respondent from his failure to call his father as a witness. However, uncontradicted evidence had been led as to the latter’s poor state of health and mental condition. The court held that, in view of this evidence regarding the ill health of the father, an adverse inference did not stand to be drawn.
Plaintiff should adduce evidence or information regarding any witness(es) that he would like to call being too ill, or incompetent, to testify if that is the case.
Further to the above, in Kock v S.K.F. Laboratories (Pty) Ltd 1962(3) SA 764 EPD, at page 766, the learned Judge stated the following:
“… The pre-requisite for the drawing of an inference adverse to a party is that the witness must be available. By that I do not understand the authorities to mean available in a narrowly circumscribed and defined notion such as that he must have been present in the precincts of the Court at the time of the trial. It seems
to me that a witness is available if his testimony in the case could have been procured by the party against whom it is sought to draw an adverse inference. …”.
In the headnote to Munster Estates (Pty) Ltd v Killarney Hills (Pty) Ltd 1979(1) SA 621 AD, we read the following:
“… Where a party fails to call as his witness one who is available and able to elucidate the facts, whether the inference, that the party failed to call such a person as a witness because he feared that such evidence would expose facts unfavourable to him, should be drawn could depend upon the facts peculiar to the case where the question arises. …”.
TZVI BRIVIK
Malcolm Lyons & Brivik Inc.
Specialist Attorneys in Personal Injury & Labour Law