n Annual Survey of South African Law - The law of evidence

Volume 2006, Issue 1
  • ISSN : 0376-4605



The problem with character evidence tends to be its intended use to suggest a propensity to commit acts that are similar to the acts in issue in litigation (particularly criminal proceedings), where the unfairness of such reasoning outweighs its cogency. However, in defamation actions character is in issue in order to determine the extent to which the plaintiff's good name and reputation have been injured by the defamation. Evidence proving bad character may therefore be led to reduce the damages suffered by the plaintiff. Such evidence cannot relate to incidents of bad conduct, since that would be irrelevant to reputation and would serve only to suggest that the plaintiff has done some bad things. The rule becomes tricky to apply in cases where a justification defence fails, but where the defendant seeks to lead evidence regarding conduct approximating the conduct that formed the basis of the justification defence, ie, evidence that partially justifies the defamatory allegations without amounting to a defence.

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