South Africa: Expert Evidence

Last Updated: 23 January 2012
Article by Bryce Wray

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”

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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.