Although the Tax Court is not a court of law, fundamental principles of the law of evidence apply
03 July 2015
Posted by: Author: PwC South Africa
Author: PwC South Africa
Even though the Tax Court is not ‘a court of law’ in the strict sense of the word, but a specialist tribunal with a very restricted jurisdiction, a hearing in the Tax Court must be conducted in accordance with the cardinal rules of evidence that prevail in the ordinary courts.
Thus, rule 44(2) of the rules promulgated under s 103 of the Tax Administration Act 28 of 2011 provides very concisely that –
"A party must present all evidence . . . and must adhere to the rules of evidence”.
The judgment referred to below makes an important point in this regard.
It is a principle of evidence that, in a court of law, a litigant or his legal representative is not permitted to ask leading questions of his own witness, save in relation to issues that are not in dispute.
A leading question is one that is expressed in a form that suggests the answer ("were you very angry when you saw what had happened?”) instead of expressing the question in a neutral form and leaving it to the witness to decide how to answer ("what was your reaction to what had happened?”).
Leading questions can, however, be freely put in the course of cross-examination by a litigant to a witness called by the other litigant in order to impugn the testimony the witness has given. ("You have poor eyesight, don’t you?”)
The same bar on leading questions will apply to proceedings in the Tax Court.
Thus, if the taxpayer’s representative asks leading questions of his own witnesses (including the taxpayer), the answers to those questions can be accorded little weight. In Z v Commissioner for the South African Revenue Service  ZATC 2,Wepener J said –
A litigant or his representative will usually object if the opponent asks leading questions of his own witness and the judge will usually then rule that the question cannot be put in that form, and must be rephrased.
"During both his evidence in chief and in re-examination, leading questions were put to the appellant [by his own counsel] . . . The veracity of the witness’s conclusions on the very controversial issue is such that little or no reliance can be placed on the conclusions of the witness given to direct leading questions.”
However, as the above quotation makes clear, if a leading question is asked of the litigant’s own witness and is answered, the answer will carry little weight.
This article first appeared on pwc.co.za.