Critical Analysis on the Interpretation and Application of the Law Governing Admissibility of Hearsay Evidence in Civil Proceedings in Lesotho; A Plea for Reform

Abstract

The admissibility of evidence in civil proceedings has since colonial times been governed by the Evidence in Civil Proceedings Ordinance (referred to as the Ordinance).1This piece of legislation remains in force to this day. The Ordinance makes it binding for the courts to apply the English Law of evidence in determining matters that relate to the admissibility of hearsay evidence in civil proceedings. As a result of this provision, and the development of English Law the current law applicable to the admissibility of evidence in civil proceedings is the English Civil Evidence Act.2 Due to the progression of time and the adoption of common law from jurisdictions such as South Africa, many changes have occurred in the application of the above legislations. Our Courts have widely adopted the attitude of applying the South African approach when dealing with admissibility of evidence. As a result of this there is a clash and confusion eminent in our judicial system. That is to say, the confusion is present to a notable degree and cannot easily be overlooked. This paper discusses the interpretation of the provisions of the law that governs the admissibility of hearsay evidence in civil proceedings in Lesotho. The aim is to look into the practice of the courts of law in civil cases as against the statutory provisions for purposes of determining whether or not there is adverse impact of basing court decisions on a line of reasoning that emanates from the South African law, and if not, to determine whether a time for reform of the Ordinance has arrived. The paper focuses on hearsay evidence in civil proceedings and how such evidence should be treated in the courts of law.