Inadmissible Evidence Does Not Become Admissible Simply Because It Is The Best Evidence Available

The Western Cape High Court recently delivered a judgment in a default judgment application that stems from a defamation matter instituted by Rosemary Ryan ("Ms Ryan") against the Hyatt Regency Cape Town hotel ("Hyatt Regency") and Yusrie Bornelius ("Mr Bornelius"), a former driver employed by the hotel. The case arose from remarks allegedly made by Mr Bornelius about Ms Ryan to the doorman at the La Colombe restaurant in Constantia.

While the Hyatt Regency entered an appearance to defend and the action continues against it, Mr Bornelius did not do so. Ms Ryan accordingly sought default judgment against Mr Bornelius for damages of ZAR500,000.

In considering the default judgment application, the Court examined the operation of Rule 31(2)(a) of the Uniform Rules of Court and the restrictions on hearsay evidence under section 3 of the Law of Evidence Amendment Act, 1988, ("the Act") particularly where the hearsay concerns the core issue of liability in a defamation claim.

Rule 31(2)(a) states that "Whenever in an action the claim or, if there is more than one claim, any of the claims is not for a debt or liquidated demand and a defendant is in default of delivery of notice of intention to defend or of a plea, the plaintiff may set the action down as provided in subrule (4) for default judgment and the court may, after hearing evidence, grant judgment against the defendant or make such order as it deems fit."

Although Ms Ryan supported her application with an affidavit, the Court directed that oral evidence be led given the illiquid nature of the claim. The Court explained that even in the absence of a defence from a defaulting party, it must be satisfied by admissible evidence that Ms Ryan is entitled to the relief sought.

In her testimony, Ms Ryan informed the Court that Mr Bornelius had transported her and her elderly mother to La Colombe. Later, Ms Ryan's cousin told her that the restaurant doorman had said Mr Bornelius claimed Ms Ryan was abusive to her mother during the ride. The doorman allegedly indicated that members of the public overheard these remarks.

Ms Ryan stressed to the Court that the remarks caused her reputational harm. However, no witness with direct knowledge of the alleged conversation testified. Although the Court adjourned to enable Ms Ryan to secure the doorman's evidence, counsel later informed the Court that the doorman was unavailable, and no further evidence would be led.

Against this evidentiary backdrop, the Court refused to grant default judgment. The Court stated that Ms Ryan's evidence amounted to double hearsay, specifically the doorman's report of what the driver had allegedly said, which was then conveyed to the cousin and subsequently to Ms Ryan.

Referring to section 3(4) of the Act, which defines hearsay as evidence "whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence," the Court explained that the probative value depended crucially on the credibility of the doorman, and to a lesser extent the cousin, neither of whom testified.

The Court further explained that although Ms Ryan's own credibility regarding what was conveyed to her was not in issue, the determinative point was that the Court had no admissible evidence as to the occurrence, content, nature, or extent of the allegedly defamatory remarks, nor any basis to assess the reliability of the doorman's account or the cousin's relaying thereof.

The Court also noted that Ms Ryan did not provide any reasons why the hearsay evidence could be accepted under one of the exceptions provided for in section 3(1) of the Act.

Consequently, the Court concluded that it was not in the interests of justice to admit the evidence submitted by Ms Ryan. The Court held that where hearsay evidence goes to the heart of the case, it is well established that courts are less likely to allow such evidence than in cases where the evidence relates to a collateral aspect.

In closing, the Court stated that "the fact that the hearsay evidence is the only and thus the best evidence available to the plaintiff does not assist. Evidence is not rejected because better evidence is available, and inadmissible evidence does not become admissible simply because it is the best evidence available."

Despite the application being unopposed, Ms Ryan's application for default judgment was dismissed.

It is important to consider whether there is admissible evidence that one can rely upon to sustain a claim. If not, a party should not be rushing into litigation.

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