The admissibility of criminal findings in civil matters: Re-evaluating the Hollington judgment

Thulisile Brenda Njoko

doi:10.17159/2225-7160/2021/v54a10

Abstract

In Hollington v Hewthorn & Co Ltd 2 1943 All ER 35 it was held that a finding of a criminal court did not have any probative value in a subsequent civil action and was inadmissible as evidence. Despite the case being one of English origin, the South African courts have largely adopted this ruling as one grounded in our common law. In this paper, the judgment in the Hollington case is critically analysed in order to determine its continued applicability in the face of South Africa's existing law of evidence and the Constitution of the Republic of South Africa, 1996 ("the Constitution"). It is argued that in light of the existing law, this rule no longer finds application in South Africa.

Highlights

In this paper the judgment of Hollington v Hewthorn & Co Ltd,[1] is critically analysed in order to determine its continued applicability in the face of South Africa’s existing law of evidence and the Constitution
The rule formulated in the Hollington case (“Hollington rule”) is grounded in our common law.[2]. It prevents the admission of any criminal findings as evidence in a subsequent civil action, even one arising out of the same facts.[3]
The rule in Hollington originated from English law; which forms the basis of the South African evidentiary process and is regarded as its common law.[4]

Summary

Introduction

In this paper the judgment of Hollington v Hewthorn & Co Ltd,[1] is critically analysed in order to determine its continued applicability in the face of South Africa’s existing law of evidence and the Constitution. The rule formulated in the Hollington case (“Hollington rule”) is grounded in our common law.[2] It prevents the admission of any criminal findings as evidence in a subsequent civil action, even one arising out of the same facts.[3] It is argued that in light of the existing law, this rule no longer finds application in South Africa. Following this introduction, the article discusses the judgment in light of the existing common law.

The Hollington judgment

The constitutionality of the Hollington rule

Conclusion