Fact Witnesses and Expert Witnesses: Why the Difference Matters More Than People Realise
Most people who find themselves involved in a court case don’t realise that witnesses fall into two very different categories: fact witnesses and expert witnesses. The distinction sounds technical, but in practice it plays a huge role in how a case unfolds. Choosing the wrong type of witness, or using the right one in the wrong way, can set a case back very quickly.
Over the years, I’ve dealt with a number of matters where this became a real issue. Two particular cases stand out, and they illustrate exactly why South African courts take the distinction so seriously.
What a Fact Witness Does
A fact witness is simply someone who tells the court what they saw, heard, or personally experienced. Their role is narrow. They don’t give opinions, they don’t analyse, and they don’t guess. They stick to direct knowledge, nothing more.
If a person starts wandering beyond that, if they begin giving explanations or theories, the other side will usually object, and the court will stop them.
What an Expert Witness Does
An expert witness is different. Courts ask experts to help with matters that require specialised knowledge, things the court wouldn’t expect a magistrate or judge to know in detail.
In South Africa, experts are used across a wide range of fields, for example:
accountants dealing with financial or bookkeeping issues
doctors explaining medical conditions or the likely cause of an injury
engineers analysing structural failures or road design
psychologists discussing trauma
actuaries calculating future loss
IT specialists explaining cyber incidents
Essentially, whenever the court needs help understanding something technical, it will rely on someone qualified to explain it.
But there’s a catch: an expert’s opinion is only useful, and admissible, if it falls squarely within their area of expertise, and if the expert is independent. An expert is there to assist the court, not to act as a “hired gun.”
When “Experience” Is Not the Same as Expertise
A few years ago, I was involved in a motor-vehicle accident case in the High Court. The plaintiff called someone they described as an expert. On paper, it looked promising: he had years of experience training truck drivers and knew the general area where the accident took place.
However, he was not an accident reconstruction specialist. His background was practical rather than technical. He tried to give opinions on how the collision occurred, the likely movements of the vehicles, and the behaviour of the drivers.
We objected to this, and rightly so. Much of what he said was based on his own impressions of the area, which made him more of a fact witness, but he was being presented as an expert. He couldn’t cross the line into giving specialised opinions because he didn’t have the required qualifications for accident analysis.
The court regarded him as a witness of limited value, and his testimony did little to assist their case. It’s a good example of how using the wrong witness can harm a case. Someone can have years of experience in an industry but still not be qualified to give technical, expert evidence.
When an Expert Isn’t Truly Independent
In another matter, the expert was an accountant who had previously been involved in a professional dispute with the opposing party’s accountant. When this relationship surfaced at trial, the court questioned the expert’s neutrality. Although his analysis might have been sound, the credibility of his evidence was weakened by the personal history.
Expert witnesses must not only be qualified, they must also be seen to be neutral. If there is any suggestion of rivalry, bias, or past conflict, the weight of their evidence drops dramatically.
How Experts Are Introduced in South African Cases
South African civil procedure requires that experts be disclosed ahead of time. A party who intends to call an expert must give the other side:
the expert’s CV or a summary of their qualifications
a written report explaining what they will testify about
the factual basis for their opinions
This gives both sides time to prepare and reduces the risk of surprise at trial. Courts don’t allow “trial by ambush” when it comes to expert evidence.
Why This Matters for Clients
Many clients think an expert witness is simply “someone who knows a lot.” In reality, it’s far more specific. The wrong expert can undermine a case. A biased expert can damage credibility. A fact witness who is pushed into giving opinions can lead to objections and lost momentum.
The right expert, properly disclosed and genuinely independent, can help the court understand complex issues and can strengthen your position significantly.
Final Thoughts
Expert evidence is powerful, but only when used correctly. Understanding the distinction between fact and expert witnesses helps clients appreciate why choosing the right witness matters, and why careful preparation is essential in litigation.
At Salitan Attorneys, we guide clients through every stage of the litigation process. This includes helping them identify the right experts, ensuring proper procedural compliance, and preparing their matters so that the evidence presented is clear, credible, and effective.
📩 If you’re involved in litigation and need guidance on expert evidence or witness strategy, feel free to reach out.
