Nel: And we allow it, my lady.
Oldwage: My lady with respect to Mr. Nel's objection. He then makes some content to this email not being relative. It would appear to me that he suggests that what is in this email is hearsay evidence.
Oldwage: Perhaps he objects to the concession as to what he thinks is hearsay.
Oldwage: I will begin right at the beginning in regard to hearsay evidence.
Oldwage: My argument is that this is not hearsay evidence. We have copies for the court. To the matter of the relevant information.
Oldwage: My lady in this matter I might simply explain the facts.
Oldwage: Now facts to that matter must in fact be a kin to this matter.
Oldwage: This goes to the heart of my submission. What must be part and parcel, arriving at the decision as to whether the evidence is truth.
Oldwage: I quote from a caption in a judgement "statements made by non-witnesses are not always hearsay. If they are tendered for their testimonial evidence"
Judge: I think it is page 5.
Judge: We are reading Millar. That is page 5.
Oldwage: I apologise, that is not the way I numbered it on my pages.
Oldwage: Before I deal with any other aspects of this judgement, the truthfulness of what is contained in this evidence. However what Mr. Nel did was to submit at the end of his objection was to state that this was irrelevant.
Oldwage: If the relevance is establish separate to the entirety then it in its truthfulness. We see on many occasions on expert reports, contain references to collateral sources consultated.
Oldwage: The end result of all of this must be, once the relevance of it is established. These communications are not tendered in evidence but to show the truthfulness of the matter.
Oldwage: My lady with respect, there is none the less the onence on the person to prove. The relevance of this communication has already been established.
Oldwage: I am not seeking, to invoke the provisions. My lady, if it should be found that the ladyship ruling is hearsay. Then I ask that we address this issue on the conclusion at the end of Prof. Derman's testimony.
Oldwage: A number of considerations will be addressed, but also in cross-examinations.
Oldwage: The value of the evidence, the reason why this individual so called reporter of this evidence. Can be called to court.
Oldwage: It will become clear once Prof. Derman has finished his testimony. I will ask with respect to along for the reception of this evidence. It will prove to be in the interest of justice.
Oldwage: My lady, when you hear the evidence of Prof. Derman, it will not be on him having to rely on the truth of the information that he has received.
Oldwage: My lady in conclusion is that my submission is that this is not hearsay evidence.
Nel: My lady, I have now heard that I never made an objection. I have heard that Mr. Oldwage takes exception to my objection.
Nel: I summarized what Mr. Oldwage has argued. It is statements from a non-witness that we cannot cross-examine.
Nel: My lady, what I haven't heard is what is the purpose is but at the end I heard the purpose was to support the Professors' findings.
Nel: I have been waiting, my lady. Nothing came to the for, except at the end. The professor will not rely on the truth of those two emails only to supplement the findings.
Nel: My lady I have now read it. It one reads the email. To deal with this in a vacuum, is the incorrect way of going about it.
Nel: How can that be relevant.
Nel: "Still at 50, my fight /flight response is still faster than others"
Nel: How can we test that. This person is not available. It is not relelevant, by including it in here to supplement later. It is evidence of a non-witness.
Nel: My argument is that the court has not been convinced.
Nel: My lady, there is always a way of dealing with something. There should be a different aspect when dealing with an expert.
Nel: My lady, it cannot be accept. It should be dealt with right now. I haven't had as much time as Mr. Oldwage to prepare on the case law.