South Africa: What Weight Is Given To Expert Evidence?

Last Updated: 19 March 2012
Article by Bryce Wray

Originally published in Legal Times 27 January 2012

It has been argued that there are issues which simply cannot be decided without expert guidance. Expert opinion evidence is therefore readily received on issues relating to, inter alia, ballistics, engineering, chemistry, medicine, accounting and psychiatry. The question that, however, poses itself is whether expert evidence is in all circumstances necessary.

Phipson (Evidence, 11th edition) and Hoffmann (Evidence, 2nd edition) both point out the dangers inherent in expert testimony. The inability of the court to verify the expert's conclusions and the tendency of experts to be partisan and over-ready to find and multiply confirmation of their theories from harmless facts are problems that can easily occur when accepting expert evidence.

There has been some reluctance to convict an accused solely on the uncorroborated evidence of an expert, but there is no rule that a court cannot make a finding solely on the evidence of an expert. In saying this there are still certain kinds of expert evidence that are treated with more circumspection than others and in the cases of Kunz v Swart 1924 AD 618, Annama v Chetty 1946 AD 142 and recently the case of Levin v Levin 2011 SCA 114 handwriting evidence was treated with caution.

In the case of Levin v Levin (supra) the Supreme Court of Appeal dismissed an appeal against the decision of the South Gauteng High Court which found a will to be valid. Briefly the facts of the case were as follows:

On 3 March 1999 and 8 August 2001 (the 2001 will) respectively, the deceased executed two wills which were in a series of at least nineteen such documents said to have been made by her. The one dated 3 March 1999 dealt with the deceased's assets in Israel which the deceased bequeathed to, the first respondent, being one of her daughters (X) and X's children (the appellants). The 2001 will, related to her assets situated in South Africa and the deceased nominated X as executor (together with her accountant and the Standard Bank of South Africa Ltd) of her estate and granted X and the appellants further, substantial bequests. Under the disputed will, which was dated 4 August 2002, on the other hand, in addition to appointing a new executor, the deceased bequeathed her estate as follows – (a) 25 per cent to each of her children, (b) R50 000 to her doctor and (c) the remainder of her estate to be shared equally among her grandchildren. The purpose of this new will was to restore peace to her family as they would all share equally in the estate upon her death. The appellants brought an action in the court a quo which was then taken on appeal on the basis that the signature on the will was not that of the deceased.

In order to determine the validity of the signature on the will the appellants relied on a reputable hand writing expert to give expert evidence. The expert examined the testatrix's signature on many documents including cheques, letters and the previous wills. In the first of two reports prepared by the expert on the authenticity of the testatrix's signature in the disputed will, he expressed the following view:

"If on 4 August 2002, the deceased's general health had markedly improved – compared with the state of her muscular control and eyesight, demonstrated in the signatures in the will written some twelve months earlier, it is my view, that she was, in all probability, the writer of the disputed signatures. If, however, it can be proved that her eyesight and muscular control had dramatically deteriorated during the intervening period between the penultimate and the questioned will, then there is in my view, a strong possibility that the disputed signatures are very good freehand, simulated forgeries."

What the expert had not been told (after being furnished with further signatures of the deceased), was that the deceased had in fact undergone an eye cataract operation after signing the 2001 will. According to one Dr Deist, corroborated by X, this procedure had significantly improved the deceased's vision and hand-eye coordination. Dr Deist opined that it was reasonable in the light of this improvement to expect the deceased's handwriting to be neater. The expert then conceded that in addition to this operation he was not aware that the deceased was blind in one eye and did not consider the deceased's position when she signed the documents and that all these factors were relevant to his enquiry. While he still nursed some misgivings about the genuineness of the signature in the disputed will, he fairly conceded that he would yield to direct evidence to the effect that the signature was that of the deceased.

The court embarked on one simple enquiry to solve the debate surrounding the signature. Upholding the decisions in Kunz v Swart and Annama v Chetty (supra) the court held that where a judge has arrived at a decision based on the surrounding facts and based on the evidence from direct witnesses, then the evidence from an expert which is in conflict with these two aspects can be disregarded.

It is safe to say that a judge in a civil or criminal trial cannot play the role of an expert. The parties to an action will call an expert whose function in a trial it is to assist the court to reach a conclusion on matters on which the court itself does not have the necessary knowledge to decide. It is not the mere opinion of the witness which is decisive but his ability to satisfy the court that, because of his special skill, training or experience, the reasons for the opinion which he expresses are acceptable. It is therefore for the court ultimately to decide whether an expert's opinion is to be relied on or not and to determine what weight (if any) has to be given to it.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions