Witnesses are an integral part of both the criminal and civil law system. The question however is always what the court looks at before determining the weight to place on what witnesses present to the court.
A party can compel a competent witness to attend court to give evidence, however, when giving evidence the weight of such evidence is reliant of the credibility of the witness on the stand.
The question of the credibility of a witness is within the peculiar preserve of a trial court. Furthermore, the question of impressiveness or convincingness are products of credibility and veracity; and a court becomes convinced or unconvinced or unimpressed with oral evidence according to the opinion it forms of the veracity of witnesses.
The weight of the evidence given in court is however tied to the credibility of any particular witness and such credibility is gauged by varying factors.
Bias
Signs that the witness is biased in relation to the testimony given can be deduced in cross-examination, if denied, allegations of bias can be independently proved.
The weight evidence given by an individual who carries some bias or is in some fashion conflicted is thereby a candidate for rebuke by the court either in part or in its entirety as there is a potential clear motive to mislead the court on the facts surrounding any particular dispute.
Hostile witnesses
A witness can be considered hostile upon the formation of the opinion by the court that he displays a hostile attitude against the party examining him and does not give evidence fairly and with the clear intention of assisting the court with a truthful testimony.
Hostility can be deduced from a refusal to answer to a particular line of questioning or from an inconsistent series of answers to questions posed. The conduct of the witness while in the witness box may also guide the court in making a determination of hostility.
In Meyer’s Trustee v Malan , it was simply put that:
“the court must come to a decision as to whether the witness is adverse i.e hostile from his demeanour in the box, his position towards or relationship to the party calling him and from the general circumstances of the case.”
It must be noted however that mere inconsistencies in testimony are insufficient to warrant a declaration of hostility.
Inconsistent Statements
A witness who is seen to be hostile by the court has their credibility inevitably impaired.
The variation of written testimony or evidence given on the stand leads to contradictions making the evidence suspect.
Admittedly contradictory statements cannot be placed as proof of fact on which the court can act.
Once it is established that a witness has deviated therefor from a previous statement either during their testimony or with a prior written statement on the same subject matter his credibility must be tested to ascertain the cause of such deviation and the implications on the evidence presented.
Aguda J (as he then was) stated in PHETO v. THE STATE 2000 (1) BLR 105 (CA) that:
“There can be very few cases in which testimonies differing with each other on points of detail are not found. Where this happens, it does not necessarily reflect on the reliability of the witnesses in question. Witnesses who honestly endeavour to tell the truth as they recall it often differ on points of detail. It is only where such differences relate to vital points in proving a case that they may come to be of importance.”
It is thereby the position of the court that minuscule deviations may not carry much impact on the overall credibility and reliability of the testimony of a witness however once such deviations become glaring and obvious in nature the court ought to deal with the testimony cautiously.
It appears to be the position of the law that the evidence of a witness is largely accepted and its value appreciated so long as the witness is not seen to fall within characterisations that diminish their credibility, some of which are discussed above.
A determination of credibility guides the court on the manner to proceed in its evaluation of the overall evidence before it in that if credibility is absent the evidence may be disregarded and in the absence of further evidence,
From a reading on the literature and case law on the issues surrounding credibility of witnesses, it is clear that the courts have been reluctant to set tests for conclusively dealing with the manner particularly as the test is highly subjective. Furthermore, it is apparent that most of our guidance is derived from criminal law decisions and our courts are yet to set a clear tone on the subject matter in civil matter.
NB: Case Law on credibility is very scarce in our jurisdiction, much development is needed in our jurisprudence.
Kago K Y Boiki
LLB (UB) LLM (PRETORIA)
