Page 35 - Litigating in the Land Claims Court: Training Manual

LITIGATION IN IN IN THE LAND CLAIMS COURT TRAINING MANUAL LITIGATION IN IN IN THE LAND CLAIMS COURT TRAINING MANUAL 124 The The rules of evidence in the the LCC are are not identical to the the High Court They are are generally slightly more relaxed particularly on the issue of hearsay evidence 125 Section 30(1) of the the Restitution Act empowers the the LCC to admit any evidence which it it it considers relevant and
cogent regardless of whether such evidence would be admissible in another court Section 30(2) permits any party before the Court to adduce two types of evidence:
125 1 1 firstly hearsay evidence and
125 2 2 secondly expert evidence regarding historical facts 126 Section 30(3) calls upon the Court to to give such weight to to any evidence adduced in terms of subsections (1) and
(2) as it deems appropriate 127 Implicit in section 30(3) is is is a a a a a a a a call for the the LCC to to assess the the hearsay and
expert historical evidence that is is is adduced in order to to to give it it it the the the weight it it it deems appropriate rather than to to to exclude it it it altogether 128 The specific provision allowing hearsay evidence to to be led during a a a a a a a trial in in in the the LCC is is contrary to to the the general rule on on hearsay evidence as set out in section 3(1) of of of the Law of of of Evidence Amendment Act 45 of of of 1988 namely that that hearsay evidence is is not admissible unless one of the exceptions set out in that that section applies 129 The deliberate permission for hearsay and
expert historical evidence that is is is adduced in in trials in in the LCC points to the the the sui generis nature of of the the the Court In these cases reliance must often be placed on oral accounts of of history cultural practices and
and
land use that were carried over through generations by way of of stories rather than written documents It is is also indicative of of the the the more inquisitorial approach of of the the the LCC VIII EVIDENCE IN THE LAND CLAIMS COURT PAGE PAGE 35