CONCEPTS OF LAW OF EVIDENCE:

ADJECTIVE AND SUBSTANTIVE LAW:

 Two main branches of law.

 Substantive: covers one’s legal rights and obligations. It tells one what one may or may not do. A
subdivision of substantive law is, for instance, criminal law, which prohibits certain actions upon pain of
punishment.
 Adjective: (also know as procedural law), prescribes the general procedure to be followed in court and
legal transactions. A subdivision of adjective law is criminal procedure which prescribes, for instance,
how a person should be brought before the court by way of arrest, summons or warning to appear, and
how these rights are to be protected in court. Law of evidence is part of adjective law.

 Primary evidence: Evidence that does not, by its very nature, suggest that better evidence may be
available. (An original document)
 Secondary evidence: evidence that does, by its very nature suggest that better evidence may be available.
(a copy of a document)

PROOF AND THE LAW OF EVIDENCE:

The law of evidence may be defined as:

 The field of law which generally regulates the proof of facts in a court of law.

Proof is central to the entire field. Proof is defined as:

 Proof of a fact means that the court has received probative material with regard to such fact and has
accepted such fact as being the truth for purposes of the specific case. Evidence of a fact is not yet proof
of such fact: the court must still decide whether or not such fact has been proved. This involves a process
of evaluation.
Evidence” essentially consists of oral
statements made in court under oath or
affirmation or warning (oral evidence). But it
also includes documents (documentary
evidence) and objects (real evidence) produced
and received in court.
JUDICIAL NOTICE:

 The court may accept certain facts as proved even though no evidence was led to prove such facts.
 An example would be facts of general knowledge (Notorious facts)
i. Facts of general knowledge.
ii. Specific facts.
SOURCES OF LAW OF EVIDENCE:

HISTORICAL SOURCES:

The substantive law of South Africa was mostly drawn from the principles of Roman-Dutch law. procedural law
of South Africa is mostly drawn from the principles of English law. English law is therefore seen as the common
law for our law of evidence. English law is therefore the historical source of our law of evidence.

KNOWLEDGE SOURCES:

A wider concept covering not only the historical sources but also relevant court cases and applicable South
African legislation. The court cases create binding law. Constitution of the Republic of South Africa 108 of 1996
applies. This Act has given the Constitutional Court a testing right to declare existing (or new) legislation and
common law unconstitutional. The constitution is the supreme law of the land and is therefore a very important
source of evidence.

NB SECTIONS OF CONSTITUTION:

 Section 35(1) provides that every arrested person shall have the right:
1. to be informed, in an understandable language, that he or she has the right to remain silent, and about the
consequences of making a statement.
2. not to be compelled to make a confession or admission which could be used in evidence against him or
her.

 Section 35(2) provides for the rights of a detained person, including the right:
1. to be informed promptly of the reason for being detained
2. to choose, and to consult with a legal practitioner, and to be informed of this right promptly.
3. to have a legal practitioner assigned to the detained person by the state and at state expense, if substantial
injustice would otherwise result, and to be informed of this right promptly.

 Section 35(3) provides that every person shall have the right to a fair trial which includes the right:
1. to be informed of the charge with sufficient details to answer it.
2. to be presumed innocent, to remain silent during the plea proceedings as well as during the trial, and not
to testify during the trial.
3. to adduce and challenge evidence and not to be a compellable witness against himself or herself.

Only accused people have these rights, and therefore they arise only once the arrested person is accused of
(charged with) committing an offence. Section 35(5) provides that evidence obtained in a manner that violates
any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair.

 Section 36(1) contains a provision which has become known as the limitation clause. The rights given in
Chapter 2 (Bill of Rights) may be limited, but only is such limitation is reasonable.
 The following factors should be considered when limiting a right:
i. Nature of the right.
ii. Importance of purpose of limitation.
iii. Nature and extent of limitation.
iv. Relationship between the limitation and its purpose.
v. The least restrictive means to achieve the purpose.
RESIDUARY SECTIONS:

The definition of a residuary section is therefore a section in a South African statute which incorporates a part of
foreign law into our law, and thereby preserves something of the foreign law.

THE PRESENTATION OF EVIDENCE:

CRIMINAL AND CIVIL TRIALS:

The course of events in criminal and civil trials is quite similar in the sense that opposing parties take turns to
lead evidence.
THE PRESENTATION OF ORAL EVIDENCE:

Oral evidence is the most common means of adducing (presenting) evidence. This is particularly true in criminal
cases. The cause of action in a civil case will also determine the nature of the evidence required. If the cause of
action is breach of contract, there will usually be more documentary than oral evidence.

As a general rule, oral evidence must be given under oath. The three significant stages in a trial in which oral
evidence is presented are examination-in-chief, cross-examination and re-examination.

1. EXAMINATION-IN-CHIEF:

Is conducted by the party who calls the witness. The purpose of examination-in-chief is to put relevant and
admissible evidence before the court by making use of the question-and-answer method.

CREDIBILITY:

party who undertakes the examination-in-chief is not allowed to attack the credibility of the witness. The reason
for this – the party calling a witness does so for the purpose of proving its case by relying on, among other things,
the testimony of that witness. Impeaching the credibility of its own witness will certainly not further this purpose.

LEADING QUESTIONS:

leading questions may not be asked during examination-in-chief. A leading question is a question which suggests
the answer, or which assumes the existence of a disputed fact. leading question may, however, be asked on
undisputed facts. trial judge or magistrate always has a discretion to allow leading questions if they consider it
necessary to serve the interests of justice or to expedite the proceedings.

UNFAVOURABLE AND HOSTILE WITNESSES:

party calling a particular witness will, be entitled to challenge the credibility of its own witness if the witness
gives evidence which is unfavourable to the party that called her. An unfavourable witness is someone who
merely gives unfavourable evidence. the party calling this witness may lead other evidence which may contradict
their evidence.

if it becomes clear that the witness intends to prejudice the case of the party who has called them, that party may
apply to court to have the witness declared a hostile witness. Once such a witness has been declared a hostile
witness, they may be cross-examined by the party who called them.

THE WITNESS MAY REFRESH THEIER MEMORY:

As a general rule, witnesses are required to give independent oral testimony and are not permitted to rely on or
refer to an earlier record. However, owing to the fallibility of human memory and the complexity of some issues,
a witness may be given time to refresh their memory as a necessary exception.
whether a witness may refresh her memory depend on whether (1) the witness wants to refresh her memory
before her testimony or during an adjournment, or whether (2) the witness wants to refresh her memory by
referring to a document while in the witness box.

The legal position in the case of (1) is quite simple: there is no general rule that prevents a
witness from reading her witness statement, or some other statement that was drawn up soon after the event,
before testifying or during an adjournment.

Certain requirements must be met before a witness in the witness-box may be allowed to refresh their memory.
The party who wishes to refresh the memory of the witness must prove the following requirements:

i. Personal knowledge of the event: witness must have personal knowledge of the events recorded. (The
need for this requirement is to avoid the inadvertent admission od hearsay – information received
which cannot be substantiated.
 ii. Inability to recollect it must be shown that the witness is unable to recollect fully on the matter. The
court must be satisfied at all times that the claim is genuine. In normal courses of events the witness
mere “ipse dixit” may be sufficient.

“He himself said it” – a statement made by an

individual based solely on their authority.

iii. Verification of doc. Used to refresh memory: The witness must have made the recording/doc. They
may use a doc. done by someone else under instruction of the witness. It must be shown that the
events recorded were fresh in the mind of the witness when recording was done/instructions were
given.
iv. Fresh in the memory: A check whether the writing came into being, was checked or verified at the
time the facts were still fresh in the memory of the witness.
v. Use of original document: Original doc. must be used when the witness has no independent
recollection. When original is not used the copy must be verified.
vi. Production of document: The doc. used must be made available to the court and opponent for
inspection. If the doc. is privileged, the holder has two options.
1. Wave privilege so doc. can be produced.
2. Claim privilege for doc. can be used.

2. CROSS-EXAMINATION:

After a witness has given evidence-in-chief, they are cross-examined by the opponent of
the party that called them.

Where persons are tried jointly, they are referred to as “co-accused”. The practice is for the defence witness to be
cross-examined first by the co-accused’s legal representative and then by the prosecution.

The purpose of cross-examination is:

1. to elicit evidence that supports the cross-examiner’s case.
2. to cast doubt on the credibility of the opposing party’s witness.

A witness may also be asked leading questions during cross-examination.

It should be clear that the scope of cross-examination is wider than that of examination-in-chief, but its
boundaries are not without limit. Questions asked during cross-examination. must be relevant either to the issue
or to the credibility of the witness. Questions about the accused’s previous convictions or bad character are
beyond the scope of cross-examination and such questions may not be asked.

3. RE-EXAMINATION:

After having been cross-examined by the opponent, a witness may be re-examined by

the party that originally called her. The purpose of re-examination is to enable the witness to clear up any
misleading impressions which may have resulted from the answers she
gave in cross-examination. Re-examination is similar to examination-in-chief in mainly the following two ways:

1351. it is undertaken by the party that called the witness

1362. leading questions are not permissible

An important facet of re-examination is that it is confined to matters arising from cross-examination.

A witness may be re-examined on a new matter only with leave of the court and, in this event, the opposing party
will, of course, have the right to cross-examine the witness on any such new matter.

A WITNESS CALLED BY THE COURT:

In terms of section 186 of the Criminal Procedure Act 51 of 1977, the court may call witnesses of its own accord
and must do so if the evidence of these witnesses appears to be essential in order to make a just decision.

ARGUMENT:

Once all the evidence has been adduced by both parties but before the court evaluates such evidence and comes
to its decision, each party will be given the opportunity to “address the court in argument”. The parties will give
the court their assessment of the evidence and will also argue the law that may be applicable.

They will also refer to the strong points in their own case and to the weak points in the case of their opponents
and, in this manner, will attempt finally to persuade the court to find in their favour.

WITNESSES:
English law is applicable – residuary
COMPETENCE: clause (Parts of English law remain
part of South African law of evidence)
Section 192 of the Criminal Procedure Act:

 Every witness is competent and compellable unless expressly excluded:

i. Every person not expressly excluded by the act from giving evidence shall be subject to
provisions of Section 206, be competent and compellable to give evidence in criminal
proceedings.
Section 8 of the Civil Proceedings Evidence Act:

 Any person shall be competent and compellable to give evidence in a civil proceeding.

EXCEPTIONS TO THE GENERAL RULE:

instances where a person is not competent to testify.

CHILDREN:
There is no statutory provision barring children under a certain age from testifying and also no particular age
above which a child is competent to testify. subject to the same general rule of presumed competency like all
other persons, provided that they understand what it means to tell the truth, have sufficient intelligence, and can
communicate effectively.

MENTALLY DISORDERED OR INTOXICATED WITNESSES:

a person should only be withheld from giving evidence when his ability is of such a nature that he cannot
contribute to the matter before the court. following aspects are important in this regard: a person’s ability to
observe, to remember his observations, and to communicate them to the court.

in considering section 194. the first requirement of the section is that it must be shown to the trial court that the
witness suffers from (1) a mental illness or (2) that he or she labours under imbecility of mind due to intoxication
or drugs or the like. It must be established that, as a direct result of such mental illness or imbecility, the witness
is deprived of the proper use of his or her reason. These two reasons must be collectively satisfied.

Section 194 of the Criminal Procedure Act: Incompetency due to state of mind.
 No person appearing or proved to be afflicted with mental illness or to be labouring under any imbecility
of mind due to intoxication/drugs and who is thereby deprived of the proper use of their reason, shall be
competent to give evidence while so affected/ disabled.

OFFICERS OF THE COURT:

The legal representative and prosecutor are therefore presumed to be competent and compellable witnesses. It is,
however, undesirable for a party’s legal representative or the prosecutor to testify in a case.
COMPELLABILITY:

There are cases in which a competent witness may not be a compellable witness.

SPOUSES:

at common law was that the spouse of an accused person could not testify for or against such an accused. This
rule does not apply to civil proceedings anymore. The spouse of a party is therefore a competent and compellable
witness for and against the party concerned although the rules regarding privilege may prevent a spouse from
mentioning certain facts while giving evidence. With regard to criminal proceedings, specific rules are in force
depending on whether the spouse is a state witness, a defence witness or a witness for a co-accused.

SPOUSES AS A STATE WITNESS:

Section 195 clearly states that a spouse is competent to give evidence on behalf of the prosecution, but that such
spouse can be compelled to testify in certain circumstances. In general, these exceptions apply to proceedings
which deal with the well-being of and relationship between the married couple, as well as the well-being of their
children. Note that section 195 is applicable not only to people who are married when the giving of evidence is
relevant, but also to people who were married when the relevant crime was committed, even though the marriage
has been dissolved in the meantime.

section 195 of the Criminal Procedure Act 51 of 1977 has, to some extent, been amended by section 68 of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. The following amendments
should be taken note of here:

Subsection 195(1)(a) now also includes a child that is in the care of the wife or the husband of the accused.

Subsection 195(1)(e) now refers to incest as contemplated in section 12 of the Criminal Law (Sexual Offences
and Related Matters) Amendment Act 32 of 2007.

A new subsection 195(1)(gA) has been added which refers to any contravention of any
provision of section 17 or 23 of the Criminal Law (Sexual Offences and Related Matters)

Amendment Act 32 of 2007. These sections deal with the sexual exploitation of children and persons who are
mentally disabled.

SPOUSES AS A DEFENCE WITNESS:

In terms of section 196 of the Criminal Procedure Act, the spouse of an accused is a competent as well as a
compellable witness in defence of that accused, whether such an accused is jointly charged with someone else or
not.

Section 196: Evidence of accused and husband/wife on behalf of accused:

 An accused and wife/husband of an accused shall be competent witness for the defence at every stage of
criminal proceedings, whether or not the accused is charged jointly. Provided that:
i. An accused shall not be called as a witness upon their own application.
ii. The wife/husband of an accused shall not be a compellable witness where a co-accused calls that
wife/husband as a witness for the defence.

ACCUSED PERSONS:

An accused person is a competent witness in his own defence, but not a compellable witness. Neither the state
nor the court, nor a co- accused may compel the accused to testify – the choice of whether to testify or not rests
solely with the accused.

CO-ACCUSED:

Where accused persons are tired jointly, they are referred to as co-accused.

CO-ACCUSED AS A DEFENCE WITNESS:

Where A and B are charged jointly and are thus co-accused, A may testify in defence of B and vice versa. As far
as compellability is concerned, A may not be compelled by B to testify in B’s defence, because A is also an
accused.

CO-ACCUSED AS PROSECUTION WITNESS:

A co-accused is not a competent witness for the state, whether to prove the case against
himself or against the accused, because he is also an accused.
There may, however, be circumstances where the state may call someone who was previously a co-accused to
testify. This happens when this person is no longer a co-accused in that case. It can happen in one of the
following four ways:

i. By withdrawing the charge against the co-accused. Note that such a step does not amount to an
acquittal and the former accused may be prosecuted again. However, if certain requirements are
met, he may be indemnified from prosecution.

ii. By finding the co-accused not guilty. In such a case, he will be discharged and may be called as a
state witness.

iii. By the co-accused entering a plea of guilty. In such a case, the trials of the accused and his co-
accused can be separated.

iv. If the trials of the accused and his co-accused are separated for some other valid reason.

Section 157(2) of the Criminal Procedure Act 51 of 1977 provides that at any point during a trial, the court may
order a separation of trials so that the one accused is no longer a co-accused in the trial of the other. Upon such a
separation, the co-accused may then give evidence against each other/one another.

REAL EVIDENCE:

PERSONAL APPEARANCE:

The court may look at a person in order to determine, for instance, his age, gender or race or to observe his
performance as a witness. the behaviour (or demeanour) of the witness is real evidence concerning a relevant
fact, namely the credibility of the witness.

The trial court sees the witnesses during the court case, their body language, signs of stress, and so on whereas
appeal courts have to judge the case purely on the written record.

INSPECTIONS IN LOCO, DEMONSTRATIONS AND BODILY SAMPLES:

An inspection in loco furnishes real evidence of what is inspected on site. The court adjourns in order to
accompany the parties in an inspection of the scene of an accident or crime, and witnesses are sometimes asked
to point out specific places. If the court draws any conclusions which are unfavourable to any of the parties, it
should mention these in order to give the relevant party an opportunity to convince the court that its conclusions
are incorrect.

An inspection in loco may enable the court to:

i. follow the oral evidence more clearly, or
ii. observe some real evidence which is additional to the oral evidence.

Inspection should be held in the presence of both involved parties. And a presiding officer may inspect on their
own.
Blood and tissue as well as DNA are examples of real evidence which definitely need to be explained by means
of expert evidence. In the case of blood tests, a written affidavit is used but because tissue tests and DNA tests
are so complex, it is probably more useful to hear the oral evidence of an expert.

HANDWRITING AND FINGERPRINTS:

Because the very fine detail in fingerprints is generally not visible to the layperson, an expert witness usually has
to be called and his opinion is then accepted as admissible evidence.

When fingerprints are used, an enlargement of the accused’s fingerprint is compared in court with that of a
fingerprint found at the scene of the crime. If seven points of similarity are found, this will usually amount to
proof beyond reasonable doubt that the same person made the two sets of prints.

The same procedure is followed with regard to handwriting, but the court is not as bound by the opinion of an
expert and may also hear lay evidence in this regard or draw its own comparisons.

The manner in which fingerprint evidence is obtained is:

i. police will lift the fingerprint by means of folien from the object then send the folien and fingerprints
taken from the suspect to a police expert.
 Expert will compare fingerprints.
 Expert will mount an enlarged photo of each print and mark points of similarity.

Manner in which handwriting is examined:

i. Expert in comparison of handwriting is called a “questioned document examiner”.
ii. Court is not bound by the expert’s opinion.

EVIDENCE DERIVED FROM A COMPUTER AND OTHER DIGITAL DEVICES:

the court made a distinction between machine-based evidence where a human had also been involved at some or
other stage on the one hand, and evidence which had been created by machines (computers) working without
human interference on the other. The different exhibits were then classified into either of these two categories
without resorting to a third, the sui generis (of its own kind) category.

ELECTRONIC EVIDENCE:

Data is in digital form if is in a format created or stored on an electronic device. (Easy to manipulate and alter)

A special electronic evidence legislation was created: Electronic Communications and Transactions Act (ECT
Act)

ECT ACT:

Focus is on data and data messages.

The act defines data as:
i. Electronic representations of information in any form.
The act defines data messages as:
i. Date generated, sent or received by electronic means and includes:
 Voice, where the voice is used in an automated transaction and
 A stored record
Section 15(1) of the act permits the admissibility of electronic evidence by laying down the following:
i. In any legal proceedings, the rules of evidence must not be applied so as to deny the admissibility of a
data message is evidence…
 On the mere grounds that it is constituted by a data message or
 If it is the best evidence that the person adducing it could reasonably be expected to obtain, on the
ground that it is not in its original form.

ASSESSING THE EVIDENCIAL WEIGHT OF DATA MESSAGES:

Section 15(1) ensures that information in the form of data messages must be given due to evidencial weight.

Guidance for the assessment thereof is provided for by section 15(3).

In assessing the evidential weight of a data message, regard must be had to…
a. The reliability of the manner in which the data message was generated, stored or communicated.
b. The reliability of the manner in which the integrity of the data message was maintained.
c. The manner in which its originator was identified and
d. Any other relevant factor.

DOCUMENTARY EVIDENCE:

A document may provide evidence of a high probative value since its contents are fixed and can be considered by
the court itself. A written contract would, for example, provide stronger evidence on the provisions of an
agreement than oral evidence by the parties involved. However, documents can be forged (falsified) and their
authors might not be before the court to confirm that they are original.

ADMISSION OF DOCUMENTARY EVIDENCE:

The main requirements that should be met before a document can be used as evidence are, generally speaking
(there are many exceptions to all these rules), that a document
will be admissible only in the following circumstances:

i. if the original document is produced in court, and

ii. if the document is proved to be authentic.

DEFINITION OF DOCUMENTARY EVIDENCE:

This is evidence presented by way of a document.

Document:

i. Seccombe v Attorney-General: the word document is a very wide term and includes everything that
contains the written or pictorial proof of something. Two central ideas in this definition:
 Writing/drawing is an integral part of any document.
 Document should be able to prove something.
ii. R v Daye: a document is any written thing capable of being evidence.
iii. Section 221 of CPA: a document is any device by means of which information is recorded or stored.

PRODUCING THE ORIGINAL DOCUMENT:

No evidence may be used to prove the contents of a document except the original document itself. Primary
evidence or the best evidence of the document has to be provided.

It is not always clear on how to identify an original document. There is an allowance for carbon copies which is
multiples of the original document.
Original document = the best evidence.
 Best evidence rule only comes into play when contents of the actual evidence is directly an issue.

Original remains a requirement of South African law.

Secondary evidence may not be used to prove contents of a document but may be used to prove the existence of
the document itself. Secondary evidence may only be used to prove contents of a document when:
 The original is damaged or lost.
 Opposing party is in possession of the original document.
 It is impossible to produce the original document.

PROOF OF AUTHENTICITY:

document cannot simply be handed in from the bar but has to be handed in by a witness who can identify the
document and prove that it is authentic. “Authenticity” means that the document is what it appears or is alleged
to be. Even if the document has been authenticated, this does not mean that its contents will be admissible.

If the authenticity of a document is not proved or admitted, it will not only be inadmissible, but may also not be
used for purposes of cross-examination. a dispute as to authenticity is determined by the finder of fact (the court)
at the end of the case.

PROVING AUTHENTICITY:

a document may be authenticated by the following persons:

i. The author, executor or signatory of the document.

ii. A witness. A person who saw the author drawing up the document or a signatory signing the document.
iii. A person who can identify the handwriting or signature. Such evidence is permitted only if the author or
signatory is not available.
iv. A person who found a document in the possession or under the control of an opponent.
v. A person who has lawful control and custody of a document. In isolated instances it is permissible for
such a person to authenticate the document.

EXCEPTIONS TO THE RULE REGARDING AUTHENTICITY:

In a number of instances, a document need not be identified or authenticated by a witness.

i. When the opposing party has discovered a document (see below) and has been asked to bring it before
the court.
ii. When the court takes judicial notice of the document.
iii. When the opponent admits the authenticity of the document.
iv. When a statute provides for an exception

PUBLIC DOCUMENTS:
Public documents are by their very nature more reliable than most other documents. public document is a
document that “must have been made by a public officer in the execution of a public duty, it must have been
intended for public use and the public must have had a right of access to it”.

At common law, public documents are admissible to prove the truth of what they contain.
This means that they are treated as an exception to the hearsay rule. Section 18(1) of the Civil Proceedings
Evidence Act 25 of 1965 allows for the admissibility of certified copies of public documents in civil proceedings
under certain conditions. Section 233 of the Criminal Procedure Act 51 of 1977 has the same effect.

STAMP DUTIES ACT 77 OF 1968:

In terms of the Stamp Duties Act 77 of 1968, certain documents are required to be stamped with revenue stamps.
Should these provisions not be complied with, the relevant document is not supposed to be used as documentary
evidence at all.

The revenue Law Amendment Act 60 of 2005 repealed the Stamp Duties Act as from 1 April 2009. All
documents executed since 31 March 2009no longer need to be stamped. The act is not retrospective therefore
documents from before the Amendment was put in place need to be stamped. Where the document has not been
stamped the court will give the party the opportunity to have it stamped.

DISCOVERY, INSEPCTION AND PRODUCTION OF DOCUMENTS:

Discovery” simply means that it may be expected (in terms of Supreme Court Rule 35 and Magistrate’s Courts
Rule 23) of one of the litigants to discover all possibly relevant documents in his or her possession, in the sense
of making them available to the opposing party. This is done by means of a written affidavit listing all possibly
relevant documents in the possession of the declarant party or his or her lawyer, except for those which they may
lawfully refuse to discover.

If a party fails to discover possibly relevant documents, such documents may not be used in subsequent litigation
without the express permission of the court. Once the discovery affidavit has been analysed by the opposing side;
the Rules also provide for the inspection of selected documents by such opposing party.

If a relevant document is in the hands of a third party (not involved in the litigation), such party may be ordered
to come to court and bring the document with them. This happens in terms of a subpoena ducestecum (literally “a
summons to bring it with you”) from the court.

ELECTRONIC DOCUMENTS:

Today, most documents are in electronic format and therefore subject to special evidential considerations.

EVIDENCE OF UNCERTAIN CLASSIFICATION:

PHOTOGRAPHS AS EVIDENCE:

Photographs may sometimes constitute real evidence, particularly where the physical photograph itself
is central to a case, either because, for example, it has fingerprints on its surface (the subject of the
photograph being immaterial) or because it is a very rare historical photograph which was stolen from a
museum.

The situation is arguably quite different when the photograph is simply used to represent something that
264

is the subject matter of the particular court case. It then serves a documentary function, and both the
dictionary and judicial definitions of “document” are wide enough to cover it.

VIDEO AND AUDIO AS EVIDENCE:

In S v Ramgobin and others it was held that was no difference in principles between admission of audio
tapes and video recordings. Milne JP held that the state had to prove that following factors beyond a
reasonable doubt:

i. Originality
ii. That no interference had taken place
iii. Recording was faithful.
iv. Speakers were identified.

COMPUTER OUTPUT AS EVIDENCE:

The ECT act: Electronic Communications and Transactions Act 25 of 2002

it was enacted to give effect to “electronic commerce” (“e-commerce”, for short). Its evidential
provisions were designed to cope with the evidence in a digital format. e- commerce” refers to buying
and selling by electronic means. the evidential norms laid down by the ECT Act are based on those laid
down by the European Union.

274What is meant by a “digital” format? Once a photograph, a letter, a picture or even a video
has been stored in a computer, the format changes from analogue (much the same format
as the original) to digital. In order to be stored in digital format, the entire content of the file or
document is broken up into electronic bits and bytes (with eight bits constituting a byte) and the content
is then said to be stored “digitally”.

Moves beyond concept of “computer printers focus is on data and data messages.
Data: electronic representation of information in any form.

THE ADMISSIBILITY OF CERTAIN TYPES OF EVIDENCE:

RELEVANCE AND ADMISSIBILITY OF EVIDENCE:

Both the Criminal Procedure Act 51 of 1977 and the Civil Proceedings Evidence Act 25 of 1965 provide that
irrelevant evidence will be inadmissible. relevance is not the only requirement for admissibility and some
evidence, though highly relevant, might still be inadmissible. A witness can, for example, refuse to disclose
relevant but privileged information and a presiding official has, in both civil and criminal cases, a residual
common law discretion to exclude unfairly (improperly) and also unlawfully (illegally) obtained relevant
evidence in order to reinforce overriding notions of fairness.

In addition, section 35(5) of the Constitution provides a criminal court with the power to exclude relevant
evidence obtained in violation of a right in the Bill of Rights. Closely related to the last-mentioned situation is the
discretion provided by section 252A of the Criminal Procedure Act 51 of 1977 to exclude evidence obtained by
means of entrapment.

Relevance is a matter of degree. The word ‘relevant’ means that any 2 facts to which it is applied are so related to
each other that according to common course of events one either taken by itself or in connection with other facts
proves/renders probable the past, present or future existence/non-existence of the other.

The problem, lies somewhere between the extremes of being clearly relevant and clearly irrelevant. As the
logical relevance of the evidence diminishes, its irrelevance grows. In terms of the general meaning of
“relevance”, it is first of all important to determine “the issues” (or facts or points in issue) in any given case.
This must be done because the probative value or potential weight of evidence can only be determined if these
issues are pinpointed. In this sense, the weight of evidence must be such that a reasonable inference can be drawn
from the evidence with regard to the facts in issue. The evidence must have enough probative value or weight in
order to prove or disprove a fact in dispute.

Three things, therefore, stand out when a court has to decide on relevance:

i. the importance of “the issues”

ii. the potential weight of the evidence
iii. the potential prejudicial effect of admitting the evidence.

i. THE IMPORTANCE OF THE ISSUES:

Every court case basically revolves round certain facts or issues about which the different
parties are not in agreement. In other words, these facts or issues are in dispute. As a result, they are often
referred to as the “facts in issue”, or “the facts in dispute”, or, simply, “the issues”. The issues are basically
determined by the charge sheet (in criminal matters) or the pleadings (in civil matters), which are heavily
influenced by the substantive law applicable to the particular field of the law involved in the proceedings.

Each one of the facts in issue has to be proved by the party who bears the burden of proof. However, each one of
these facts can also be admitted by the opponent. Such an admission would place the fact beyond dispute. In
other words, it is no longer in issue.

Note that facts relevant to the facts in issue (facta probantia) can become in issue themselves. One of the
considerations in determining whether evidence should be admitted because of its relevance is the question
whether the admission of the evidence would not simply be a waste of time.

The law must draw a line between those facts which it regards as sufficiently relevant to be admissible and those
it considers to be too remote. Where the line is drawn is bound to be a decision which the law makes on grounds
of fairness and convenience.

The question of relevancy can never be divorced from the facts of a particular case before the court. The Nature
and extent of the factual and legal dispute must be considered.

The first question asked must be “what are the issues?”

Relevance finds concrete application in the light of the primary facta probanda (the facts which a party must
prove in order to succeed in the civil action or which the prosecution must prove in order to succeed in the
criminal proceedings.) and the secondary facta probanda.

It is not in the interest of justice that relevant material be excluded from the court. In R v Solomons it was held
that, subject to considerations of prejudice, a ruling on the admissibility of evidence could at a later stage be
reversed in the light of new factual issues which might come into light during the course of the trial.

AVOIDING MULTIPLICITY OF COLLATERAL ISSUES:

There is a desire to avoid waste of time in probative exertions of litigation. In determining relevance, the court
should consider the following question: Would the admission of the evidence lead to a protracted investigation
into many collateral/side issues which, once proven would be of little probative value in regard to the true issue?

The courts initial assessment of the potential weight of the evidence is done for determining admissibility and
such evidence must be re-assessed in the light of all other evidence for determining sufficiency.

S v Nel: the question is not solely one of logical relevance but one of the legal relevance. The question is not
confined to whether the opinion (what has been stated) is relevant in the sense it could possibly lead to a more
reliable assessment of a witness’s credibility. If practical disadvantages of receiving logically relevant evidence
do not warrant its reception it will be legally irrelevant and inadmissible, but if its probative value outweigh those
disadvantages, it will be of material assistance to the court and therefore legally relevant and admissible.
 ii. THE POTENTIAL WEIGHT OF THE EVIDENCE:

An important consideration in determining the admissibility of evidence is the question of its weight or probative
value (or cogency). The principle is that the evidence must have enough weight or probative value that a
reasonable inference can be drawn from the evidence with regard to a fact in issue. Evidence can therefore only
allow a reasonable inference to be drawn if it carries sufficient evidential weight.

When it has to consider whether evidence should be admitted or not, the court is not concerned with a
determination of the final weight of the evidence. This is only done at the end of the case, when all the evidence
has been presented and the weight of a particular piece of evidence can be considered in the context of the other
evidence allowed in the case. What the court needs to do now is to make an initial assessment of the potential
weight of the evidence, and whether it is sufficiently substantial to justify admission. (whether it is not “too
inconsequential). it might eventually happen that the evidence, although admitted, proves to be of little probative
value given the totality of all the other evidence.

Rex v Mponza: facts are relevant if from their existence inferences may properly be drawn as to the existence of
a fact in dispute. In order to determine whether a proper inference might be possible, the court must make
provisional/tentative assessment of the potential weight of the evidence sought to be adduced. There must be
some advance indication that evidence if received would be of reasonable assistance to the court in the exercise
of its fact-finding duty.

At the admissibility stage the judge is only concerned to make a rough/ready estimate of the potential
contribution that evidence in question make and whether it is substantial enough to justify admission.

iii. THE PREJUDICAL EFFECT OF EVIDENCE:

Evidence that is logically relevant may be excluded because of its prejudicial effect on the
party against whom it is presented. Prejudice, in this sense, must be correctly understood.
If a strong case can be made by presenting evidence with a high probative value against
a party, it will be damaging (prejudicial) because it is likely to lead to the court finding against that party. The
law of evidence has no problem with this kind of prejudice.

CHARACTER EVIDENCE:

“character” mainly refers to two things, namely disposition (or personality) and reputation. In short, disposition
can be described as the real character of a person or the way that person really is, whereas reputation is what
other people think of that particular person. what other people may think of you is not necessarily a true
reflection of who you really are, but, in terms of common law, only evidence of general reputation is allowed for
purposes of the law of evidence.

CHARACTER IN CIVIL CASES:

In civil cases the character of parties is generally irrelevant. In certain cases, evidence pertaining to the character
of a party will be regarded as relevant in respect of an issue or in qualifying damages.

In a defamation action a party who fails in their defence may adduce evidence of the plaintiff’s general bad
reputation in mitigation of damages, however, the defendant may not refer to specific acts of misconduct. In
certain cases, character may be considered relevant to credibility.

ACCUSED’S GOOD CHARACTER: (General reputation is often considered irrelevant)

Accused may adduce evidence of their own good character but prosecution is prohibited from adducing evidence
of their bad character, subject to specific exceptions. The reason for permitting evidence of good character:

i. Such evidence is admissible because it renders it less probable that what the prosecution has averred is
true.

Disposition is relevant as past behaviour is a good indicator of likely future conduct. Disposition evidence may
well be logically relevant in establishing of a particular behaviour, the relevance comes from the prejudice of a
generalised application of claims of social psychology as well as residual scepticism as to the accuracy of past
behaviour as a predictor of future behaviour.

Accused may establish good character by giving evidence themselves, by calling a witness or by cross-examining
prosecution witnesses, however, once accused themselves of their witness adduces evidence as to their good
character the prosecution can respond by introducing evidence of bad character.

ACCUSED’S BAD CHARACTER:

The state will always want to show the court that the accused is of bad character and has criminal tendencies.
However, evidence which proves only that the accused has a bad character will normally be inadmissible. The
only real exception to this rule is where the accused has presented evidence of his good character. In such a case,
the state is entitled to call a witness to testify about the accused’s bad character, although this is most unusual.

317Where the accused has called witnesses to testify about his good character, the state may of course cross-
examine such witnesses to test the accuracy of their evidence. If the accused has given evidence about his own
good character, the state may cross-examine him on this evidence. Section 197 of the Criminal Procedure Act
places certain limits on the questions which may be asked in this regard.

CROSS-EXAMINATION OF THE ACCUSED:

Section 197 of the Criminal Proceedings Act 51 of 1977

Section 197(a) protects accused against cross-examination that is directed at showing bad character. It also
permits cross-examination of the accused as to character if the accused introduces evidence as to their own good
character. (Once an accused had put their character in issue their whole character will be subject to cross-
examination i.e. their whole past).

Section 197(b) makes the accused liable to cross-examination as to their character if they give evidence “against
any other person charged with the same offence/an offence in respect of the same facts.”, however, a person who
has been charged with the same offence, convicted and sentenced prior to testifying will not be considered an
accused.
“evidence against” a co-accused means evidence which supports the prosecution in a material respect, or which
undermines the defence of the co-accused.

The court has a discretion to restrict and control the ambit of the cross-examination under sec 197(b). The
discretion must be exercised in the light of the principles governing relevance. The cross-examination must be
relevant to the issue of credibility, and it must not prejudice the accused being cross-examined in the conduct of
their defence to the extent that their right to a fair trial is undermined.

Section 197(c) provides that if the charge is one of receiving stolen property the accused may be questioned in
respect of their previous convictions and their bad character.

Section 197(d) provides that accused may be cross-examined as to previous offences if the purpose of such
evidence is to “show they are guilty of the offence with which they are charged”. It does not permit the accused
being asked questions relevant to an issue before the court if such questions tend to show bad character.
PREVIOUS CONSISTENT STATEMENTS:

A written or oral statement made by a witness on any occasion prior to testifying which corresponds with or is
similar to their testimony in court. A witness in chief or re-examination may not be asked whether they made a
previous statement consistent with their evidence in court = rule against narrative.

Proof of previous inconsistent statement is as a rule admissible because inconsistent statements are relevant to
credibility. Previous consistent statement (PCS) is generally insufficiently relevant as a lie can be repealed as
often as the truth.

i. a statement made by a person.

ii. which is consistent with (ie more or less the same as).
iii. a statement made by the same person during testimony in court (or sometimes by another witness)
iv. offered in an attempt to corroborate this person’s testimony.

Statement:

The statement may be made orally or in writing. The previous consistent statement is not the statement that the
witness makes in court while giving evidence, but the statement made previously.

Another witness:

It does not matter whether the witness testifying in court (W) is somebody other than the maker of the previous
statement (M) – if W gives evidence about the previous consistent statement in order to corroborate M’s
evidence, it will still comply with the definition. Of course, if W testifies about the previous consistent statement,
his evidence can be affected by the hearsay rule.

Corroboration
Generally, the only reason why evidence of a previous consistent statement is offered in court is to corroborate
(support and strengthen) the testimony of the maker of the statement. corroboration may come only from a source
independent of the witness. In other words, self-corroboration is not allowed.

THE RULE IN RESPECT OF ADMISSIBILITY:

The rule of the law of evidence is that it is inadmissible for a witness to testify that he made a statement
consistent with his evidence in court (or to be questioned to this effect). This is because evidence about a
previous consistent statement is irrelevant.

THE EXCEPTIONS TO THE RULE:

Evidence of a previous consistent statement will be admissible if it falls within one of these exceptions. If not, it
cannot be admissible. We will deal in some detail with two important exceptions.

1. Complaints in sexual cases:

Two pieces of evidence about a complaint made soon after an alleged offence of a sexual nature are admissible
even if this evidence is about a previous consistent statement.
These are:

i. evidence that such a complaint was made.

ii. evidence about the contents of the complaint.

Supreme Court of Appeal stressed that evidence of a complaint in a sexual case is admitted only in exceptional
cases as evidence of consistency in the account given by the complainant.

Section 58 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 makes it
clear that the court may not draw any inference only from the absence of a previous consistent statement in a case
of a sexual nature. The section states:

Evidence relating to previous consistent statements by a complainant shall be admissible in criminal proceedings
involving the alleged commission of a sexual offence: Provided that the court may not draw any inference only
from the absence of such previous consistent statements.

the absence of a previous consistent statement does, however, remain one of the factors that “may be taken into
account with all other factors and circumstances which may affect credibility, and which must ultimately go into
the scale to determine whether there is proof beyond reasonable doubt”.

The following requirements have to be satisfied for this exception to apply:

i. The exception applies to cases of a sexual nature if there has been some degree of assault involved, or if
the complainant was the victim of a sexual offence which involved physical contact. In the case of young
children, however, no such physical contact is required. (Rape, incest and indecent assault).

ii. The complaint must have been made at the first reasonable opportunity. What this reasonable opportunity
would be depends on the circumstances of each individual case, and factors such as the age and
understanding of the complainant and whether contact was made with a person in whom the complainant
could confide. (Section 59 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act
32 of 2007 now determines that, in criminal proceedings involving the alleged commission of a sexual
offence, the court may not draw any inference only from the length of any delay between the alleged
commission of such offence and the reporting thereof.
 iii. The complaint need not have been made totally spontaneously, but may not be made after questioning
which can be considered intimidating or leading (ie putting the words in the complainant’s mouth). The
court has to decide how much intimidation it will allow before the evidence becomes inadmissible.

iv. The complainant has to give evidence. In the absence of any evidence by the complainant, the evidence
will be inadmissible because it then stands to be admitted as hearsay, unless it is found to be relevant for
some purpose other than proving the content of the complaint. The court allowed evidence (by another
witness) of her complaint and the contents thereof, since it found such evidence relevant to indicate the
complainant’s state of mind at the time of the incident, and to counter the defence of consent (to sexual
intercourse).

2. To rebut an allegation of fabrication:

If it is suggested or alleged (mostly during cross-examination) that the witness has recently fabricated a part of
his evidence, evidence may be led to show that the same thing was said at an earlier opportunity. This evidence is
only tendered to show that he did not recently fabricate the evidence in order to support his credibility. The
evidence is therefore relevant for this purpose (to support the witness’s credibility), but not to corroborate the
witness’s evidence.

HEARSAY:

In terms of section 3(4) of the Law of Evidence Amendment Act 45 of 1988, hearsay evidence “means evidence,
whether oral or in writing, the probative value of which depends upon the credibility of any person other than the
person giving such evidence.”

Evidence, oral or in writing:

hearsay evidence is evidence given in court. It can either be oral or written evidence. Written evidence will
invariably be contained in a document, which means that the principles relating to documentary evidence also
come into play.

Probative value:

“Probative value” means value for purposes of proof. This means not only, “what will the hearsay evidence
prove if admitted?”, but “will it do so reliably?” – same as weight of evidence.

Evidence is always given for a reason. evidence must always provide proof of some fact in issue. When one has
to determine the probative value of a certain piece of evidence in a given case, one first has to establish what the
reason for that evidence. The second question is the extent to which the evidence actually provides proof of the
particular fact in issue.

If the piece of evidence only provides a little proof, it will have little probative value; if it provides a good deal of
proof, it will have a good deal of probative value. if hearsay is presented as the truth and in order to prove a fact
in dispute, it will generally be inadmissible. If not presented for the truth thereof, but merely to prove that, for
example, a certain statement was previously made in order to show the consistency or credibility of a specific
witness, it will not be hearsay.

Whose credibility does probative value depend on? – Probative value depends sufficiently upon credibility of
someone other than the witness to lead a court to believe that its potential for prejudice is sufficiently great to
warrant a full examination of all the relevant facts.

Credibility of a non-witness:
The credibility of the witness who is testifying will often be an important factor in determining how much or how
little probative value the particular piece of evidence has. The credibility of a person is determined by a
combination of factors, such as her truthfulness and trustworthiness, her powers of observation, and her memory.
Credibility can be described as the extent to which a person can be believed.

The credibility of a witness is normally tested by cross-examination. If the credibility of a person cannot be
tested because that person is not in court, then it is uncertain whether that evidence can be trusted, and it should
be excluded. This is the main reason for the inadmissibility of hearsay, namely that the witness who gives the
hearsay evidence cannot guarantee its reliability.

person other than the witness:

Since a witness, standing in the witness box, can be cross-examined and her reliability tested, and since she can
vouch for her own observations, it is only when the credibility of a person other than the witness is involved that
the evidence can be hearsay. It makes no difference if the other person will testify at a later stage.

THE RULE IN RESPECT OF ADMISSIBILITY:

Admission of hearsay may result in procedural and substantive prejudice. It would be unduly prejudicial if an
accused found themselves forced to testify in order to rebut hearsay evidence in the absence of direct evidence
supporting the prosecution case. Admission of hearsay evidence may unduly lengthen proceeding and place an
onerous duty of rebuttal on the party against whom it is admitted.

Where the interests of justice require the admission of hearsay, the resultant strengthening of the opposing case
cannot count as prejudice for statutory purposes, since in weighing the interests of justice the court must already
have concluded the reliability of the evidence is such that its admission is necessary and justified. If these
requisites are fulfilled, the very fact that the hearsay justifiably strengthens the proponent’s case warrants its
admission, since its omission would run counter to the interests of justice.

THE EXCEPTIONS TO THE RULE:

Section 3(1) of the Law of Evidence Amendment Act 45 of 1988 specifically states three exceptions to the
general rule that hearsay is inadmissible. there are certain statutory exceptions that also determine the
admissibility of hearsay evidence. In addition, the common law exceptions to the hearsay rule could also still
apply today.

i. consent
ii. if the other party testifies
iii. if the court exercises a discretion and allows hearsay
iv. common law exceptions
v. statutory exceptions

i. Consent:

The failure to object to the admission of hearsay evidence may be regarded as consent. Consent with also be
inferred where a party deliberately elicits hearsay evidence from their opponent in cross-examination. However,
the courts will be slow to infer informed consent where a party is unrepresented. A presiding officer must
properly explain the relevant law to an unrepresented accused. A judicial officer has the duty to explain toa
witness who may be tendering hearsay evidence to avoid doing so until the court has made a ruling in that regard.

ii. The other person testifies:

In terms of section 3(1)(b), if the person on whose credibility the probative value of the evidence depends on
testifies at a later stage, the hearsay evidence becomes admissible. words, the mere fact that the person testifies at
a later stage cannot always result in the hearsay evidence being admissible, since this person might not confirm
the hearsay evidence. If this person affirms the hearsay evidence during subsequent testimony, the hearsay
evidence will be admissible.
The admissibility of all hearsay evidence not affirmed under oath at the proceedings in question therefore
depends on whether the interests of justice require it. The court may provisionally allow hearsay evidence on the
understanding that the person who made the statement will testify at a later stage. This provision allows a party to
lead evidence in a particular order without having to call the maker of a statement as an earlier witness. Of
course, if the maker of the statement does not testify, the court will have to ignore the hearsay evidence, unless it
can be admitted under one of the other exceptions.

iii. Common law exceptions:

The difficulty with the common-law hearsay rule was that it led to the exclusion of relevant and reliable
evidence. In an attempt to ameliorate this consequence of the application of the hearsay rule, a number of ad hoc
exceptions developed. These exceptions are now obsolete, yet they may still be considered in the interests of
justice.

a. Res gestae statements: Evidence of facts may be admissible as part of the res gestae if these facts are so
closely connected in time, place and circumstances with some transaction which is at issue that they can
be said to form part of that transaction.

b. Spontaneous statements: They are the product of an instinctive response and are therefore less likely to
be an invention or deliberate distortion.

c. Composite acts: Where an act was accompanied by a hearsay statement, and the act could only be
properly evaluated as evidence if it was considered in conjunction with the statement, the statement could
be admitted if certain conditions where met. The statement and act had to be approximately
contemporaneous. The statement must have been made by the person who committed the act.

d. Dying declarations: Under common law dying declarations could be admitted into evidence provided the
following requirements were met. 1. The declaration was relevant to cause of death. 2. The evidence was
adduced on a charge of murder/culpable homicide. 3. The deceased would have been a competent
witness. 4. At the time of making the statement the declarant was under a settled hopeless expectation of
death.

iv. Statutory exceptions:

many of the statutory exceptions (apart from Act 45 of 1988) relate to evidence of a more formal nature, such as
business records or a certificate relating to forensic investigations of some sort, where it will be a waste of time
to call a witness.

NB- Section 212 of Criminal Procedure Act and Section 34 of Civil Proceedings Evidence Act.

DISTINGUISHING HEARSAY FROM CONFUSINGLY SIMILAR CONCEPTS:

distinguishing between hearsay, previous consistent statements and admissions (or confessions).

i. First determine whether the witness testifies solely about her own experiences. If the witness relates what
another person showed or told her, or what she read or saw of another’s observations or experiences, the
evidence will generally be hearsay. evidence of a previous consistent statement is not given to prove the
truth of that statement, but merely to show that a particular witness is consistent in her testimony. Such
evidence can never serve as corroboration of the witness’s evidence.

ii. If the witness in a criminal case tells the court that something was admitted or confessed by another
person, the admissibility of that evidence should only be determined with reference to the law on
admissions. If the witness in a civil case tells the court that something was admitted by another person,
such evidence will constitute hearsay and the court will, therefore, have to decide whether it should admit
the hearsay in the interest of justice after exercising its judicial discretion in this regard.

DISADVANTAGES THAT MAY ACCURE FROM ACCEPTANCE OF HEARSAY EVIDENCE:

It is not subject to the reliability checks applied to first-hand testimony. Its reception exposes the party opposing
its proof to the procedural unfairness of not being able to counter effectively inferences that may be drawn from
it. It does not infringe the constitutional right to challenge evidence.

It has been observed that the admission of hearsay evidence by definition denies an accused the right to cross-
examine, since the declarant is not in court and cannot be cross-examined. The use of hearsay evidence by the
state violates the accused’s right to challenge evidence via cross-examination. If it’s meant that the inability to
cross-examine the source of a statement in itself violates the right challenge evidence. The Bill of Rights does not
guarantee an entitlement to subject all evidence to cross- examination.

OPINION EVIDENCE:

“opinion” can be described as an inference of fact which is based on other facts. 401The word “opinion” can be
used in various senses. When one says, to take one meaning, “That is a matter of opinion”, one is saying that the
point is open to question: it is a matter on which doubt can reasonably exist. When one prefaces an assertion
with, “In my opinion”, one is indicating that it is a personal belief.

Used in this sense, opinion is contrasted with fact – facts simply are; opinions are variable in that differing
opinions on the same matter may without absurdity be held by different people ... Opinion, in this sense, is
inadmissible in evidence, not because of any exclusionary rule, but because it is irrelevant. Legal proceedings are
concerned with facts.

A fact in issue may be proved by the direct evidence of a witness with personal knowledge, or it may be proved
by way of inference from other facts which tend logically to prove the fact in issue. As used in the law of
evidence, “opinion” has the meaning of an inference or conclusion of fact drawn from other facts.

ADMISSIBILITY OF OPINION EVIDENCE: GENERAL RULE:

the relevancy principle also governs the admissibility of opinion evidence. It is therefore important to
determine the issues which are in dispute. Briefly stated, if the opinion of an expert, or even a knowledgeable
layperson, would be of great assistance to the court, his opinion will be relevant, and the court should admit his
evidence. If a witness is in a better position than the court to form an opinion, the opinion will be admissible of
basis of relevance.

A court need not rely on opinion evidence in respect of matters which require only ordinary knowledge and skill.
If the opinion is related to a situation on which the court can deliberate on its own (without requiring the opinion
of an expert or a knowledgeable layperson), opinion evidence will be irrelevant and, as a result, inadmissible.

if the court is as competent as a witness to draw inferences from the evidence, an inference made by a witness (eg
regarding the guilt of the accused) will be superfluous and hence irrelevant. It is said that the exclusion of
opinion is intended to protect the function of the tribunal of fact.

OPINION EVIDENCE GIVEN BY A LAYPERSON:

This opinion must be excluded when it cannot assist the court. It can be admitted if it yields the following results.
1. Approximate age of a person. 2. State of sobriety of a person. 3. General condition of a thing. 4. Approximate
speed of something.

The question is not if the person is an expert of lay person, it is whether the opinion of the witness of the case can
assist the court in determining issues. A distinction between a lay person and witness does not govern
admissibility (distinction is only important for procedural purposes). In civil cases parties should give notice of
their intention to use expert opinion. In a criminal case prosecution is required to (on constitutional grounds)
disclose expert opinion evidence to the accused prior to commencement of the trial.
THE ADMISSIBILITY AND EVALUATION OF EXPERT EVIDENCE:

Expert evidence is almost invariably led in order to assist the court with regard to facts which can only be
properly evaluated by an expert with particular qualifications. Since the court then has to draw inferences from
these facts, experts are usually involved when considering circumstantial evidence. expert evidence is an
excellent example of the application of the Vilbro rule.

the following three requirements have to be met when opinion evidence is at issue:

i. The court should be satisfied that the expert is capable of giving evidence about the specific issue. a
foundation for the expert’s expertise must be established. It is important to test her expertise by asking
searching questions on her qualifications, practical experience in her fi eld, as well as her previous track
record as an expert witness.

ii. the court must be generally informed of the reasons and grounds upon which the opinion is based. This
will enable the court to compare the expert’s findings with other findings of fact in the particular case to
see whether the expert’s findings are corroborated by them.

iii. the court need not rely on the opinion of an expert witness. If, however, the evidence is of such a
technical nature that the court cannot make a reliable inference, the court must rely fully on the evidence
given by the expert.

When an expert uses textbooks, she must not merely convey the textbook’s opinion to the court, since that will
constitute hearsay evidence. The expert should have personal knowledge of the subject in question.

THE RULE IN HOLLINGTON V HEWTHORN: - Page 110 of textbook

In Hollington v Newthorn it was held, inter alia, that the opinion of the previous tribunal was irrelevant to.
Sections 11, 12, 13 of the English Civil Evidence Act have made previous judgments admissible in certain
specified instances. In SA we are still bound by English common-law rule.

ADMISSIBLILTY OF ADMISSIONS AND CONFESSIONS:

An admission is a statement made by a party, in civil or criminal proceedings, which is averse to that party’s
case. Informal admissions, which are usually made out of court, must be distinguished from formal admissions
made in the pleadings or in court. Formal admissions are binding on the maker and are generally made in order to
reduce the number of issues before the court whereas informal admissions merely constitute an item of evidence
that can be contradicted of explained away.

Informal admissions may be admitted proving the truth of their contents. The rationale for admitting such
evidence would appear to be that a person is unlikely to make an admission adverse to their interests if the
contents of that admission are not true. In many instances informal admissions will be hearsay in nature.

- A statement: An admission is normally contained in a statement (made verbally or in writing). In this

statement, a person states something that will be to her disadvantage in any subsequent legal proceedings.

- Conduct: Mere conduct by a person may amount to an admission. Conduct which does not amount to a
communication, but from which an unfavourable fact can be inferred, is not an admission, but
circumstantial evidence. Evidence of an attempt by the accused to commit suicide after she has been
charged, is an example of this.
 In certain circumstances, a person’s silence may amount to an admission. in criminal cases, the
courts may be more unwilling to draw a negative inference from conduct than in civil matters. The
Constitution contains and protects the right to remain silent and the right to be presumed innocent. The
courts are thereby probably precluded from drawing an adverse inference from the silence of the accused.

The right to remain silent can be described as the absence of a legal obligation to speak. Its underlying
rationale is three-fold. 1. Concern for reliability which relates directly to the truth-seeking function of the
court. 2. A belief that individuals have a right to privacy and dignity which, whilst not absolute, may not
be lightly eroded. 3. The right to remain silent is necessary to give effect to the privilege against self-
incrimination and presumption of innocence.

- Adverse to the person making it: it often happens that part of the statement is incriminating, and part of it
is exculpatory. This may influence the admissibility of this statement and may affect the evidential value
of the statement.

VARIOUS FORMS OF ADMISSIONS:

i. Unintentional admissions:

An admission need not be made in the knowledge that it is averse to the maker thereof. Even a statement which is
intended to be exculpatory will constitute an admission if it is ultimately to the disadvantage of the maker.
Therefore, the criterion employed is objective rather than subjective.

The criterion employed is objective rather than subjective? Objective criterion can be independently verified,
different people measuring the criteria will reach the same result, as they are already defined. Subjective criterion
relies on feeling or on opinions of someone.

ii. Formal and informal admissions:

Distinction:

It is important to distinguish between formal and informal admissions for the following two reasons:

1. they are proven in different ways, and

2. the evidential value of formal admissions differs from that of informal admissions.

A formal admission places the fact admitted beyond dispute. It can be made in the pleadings or during the trial.
Since it places the admitted fact beyond dispute, that fact is not in dispute and no evidence needs to be adduced
about it. Formal admissions may therefore be classed together with presumptions and judicial notice as pertaining
to “facts of which evidence is unnecessary.

An informal admission does not place the admitted fact beyond dispute. Such an admission has to be proven by
adducing evidence about the admission, and its evidential value will be considered at the end of the trial together
with all the other evidence. Although informal admissions are normally made out of court (ie extra-judicially or
extramurally), they may also be made in court.

Proving a formal admission:

a. In civil proceedings:

In civil proceedings a formal admission can be made in the pleadings or at the trail. It shall not be necessary for
any party in civil proceedings to prove, nor shall it be competent for any such party to disprove any fact admitted
on the record of such proceedings. Every allegation of fact in the combined summons or declaration which is not
stated in the plea to be denied or to be admitted, shall be deemed to be admitted.

b. Criminal proceedings:
Such admissions made during criminal proceedings are normally made as part of the plea process. Section 112 of
the Criminal Procedure Act 51 of 1977 allows an accused to plead guilty to a charge. After a plea of guilty, the
court will normally question the accused to ensure that the accused is legally guilty. If the court is not satisfied
that the accused is legally guilty, it will enter a plea of not guilty on behalf of the accused. In terms of section
113, any admission made by the accused during the questioning in terms of section 112 “stands as proof ... of
such allegation”.

When an accused pleads not guilty to a charge that is put to her, section 115 of the Criminal Procedure Act 51 of
1977 allows the accused to explain why she does not plead guilty. Normally, this explanation will be
exculpatory. The court must then ascertain from the accused whether she is prepared to consent to such
admission being recorded. If the accused consents, this recorded admission is deemed to be an admission under
section 220.

evidential value of an admission made by the accused during the explanation of the plea of not guilty, where the
accused does not consent to it being recorded as an admission.

Withdrawal of a formal admission:

in both civil and criminal cases, the court has a discretion to relieve a party from the consequences of a formal
admission made in error. Before a civil litigant will be granted leave to amend its pleadings it must establish, 1.
That a bona fide mistake was made and, 2. That the amendment will not cause prejudice to the other side which
cannot be cured by an appropriate order as to costs.

The withdrawal of an admission is usually more difficult to achieve because it involves a change of front which
requires full explanation to convince the court of the bona fides thereof and it is more likely to prejudice the other
party, who had by the admission been led to believe that they need not prove the relevant fact and might, for that
reason, have omitted to gather the necessary evidence.

Vicarious admissions:

an admission made by someone other than the person whom it prejudices or disadvantages. Since an admission
may normally only be admissible in respect of its maker, someone’s vicarious admission will not be admissible
as evidence against the person whom it prejudices. However, there are a number of exceptions which relate
mostly to such an admission being made by a person who had express or implied authorisation to make it, or to
the situation where the two persons share some “privity of interest or obligation”.

Note that a third party’s statement which is presented as an admission in a civil case is hearsay in terms of
section 3(4) of the Law of Evidence Amendment Act 45 of 1988.

Statements made without prejudice:

General rule in civil matters is that an admission will be accepted into evidence provided that it is relevant.
However, admissions included in a statement by a person involved in a dispute and which are genuinely aimed at
achieving a compromise are protected from disclosure. Such admissions may only be accepted into evidence with
the consent of both parties.

The words without prejudice do not by themselves protect the statement from disclosure. If communication
constitutes a bono fide attempt to settle the dispute, it will be “privileged” even though it has not been prefaced
with the words without prejudice. Conversely, even if during the course of genuine negotiations. Before the
privilege will prevail there must be some connection with or relevance to the settlement negotiations.

A ‘without prejudice’ offer will only be protected from disclosure if it is made in good faith. If the statement
contains statements which are criminal or fraudulent, it will not automatically be presumed to be made in bad
faith, and the criminal or fraudulent content will only be relevant to admissibility if it tends to show bad faith.

DEFINITION OF A CONFESSION:
The difference between a confession and an admission is one of degree rather than of nature. By this we mean
that the nature of a confession is fairly similar to that of an admission – a confession is simply an admission of
every fact in issue. However, because the rules governing their admissibility are different, it is essential to
determine whether a statement amounts to one or more admissions, or whether it amounts to a confession. As
you will see below, the admissibility of a confession can be determined only with regard to the rules governing
the admissibility of confessions; and the admissibility of admissions can be determined only with regard to the
rules governing the admissibility of admissions.

THE ADMISSIBILITY OF AN ADMISSION IN CIVIL MATTERS:

In civil matters there is only one general requirement for admissibility, and that is relevance. An additional
requirement must be met where statements are made in the course of negotiations for the settlement of a dispute,
in that such statements cannot be disclosed without the consent of both parties. In criminal matters an admission
must be proved to have made voluntarily before it can be admitted into evidence.

THE ADMISSIBILITY OF AN ADMISSION IN CRIMINAL MATTERS:

Admissions by the accused made voluntary:

in section 164(1) it is pointed out that an extra-curial admission of an accused is inadmissible against a co-
accused and that section 219A of the CPA does not contemplate an extra-curial admission being received against
anybody else other than its maker. The admissibility of an accused ‘extra-curial admission is governed by the
common law.
THE ADMISSIBILITY OF A CONFESSION:

Section 217(1) contains three basic requirements for the admissibility of all confessions.

They have to be made:

1. freely and voluntarily.

2. by a person in his sound and sober senses.

3. without being unduly influenced thereto - All confessions have to conform with these three requirements. Note
that a confession need not be in writing and that it can be made to private individuals. However, there is an
additional requirement in the case of a confession made to a peace officer, namely that.

4. if the confession is made to a peace officer who is not a justice of the peace or magistrate, it has to be
confirmed and reduced to writing in the presence of a magistrate or justice of the peace.

When the requirements for the admissibility of a confession have not been met, this does not mean that the
statement is no longer a confession. It remains a confession but, in such a case, is an inadmissible confession.
Nor can it suddenly become an admission, the admissibility of which is determined according to the principles of
admissions.

the requirements for admissibility in terms of section 217 are aimed at ensuring fairness. They are there to ensure
reliable confessions, to protect the privilege against self-incrimination, and to prevent improper behaviour by the
police towards those in custody.

1. Freely and voluntary:

The requirements that the statement be made freely and voluntary and without undue influence are treated as
separate requirements, each having a distinct meaning. The requirements of freely and voluntary is assigned its
common-law meaning: the statement must not be induced by threat or promise emanating from a person in
authority. The elasticity of this concept is such that “it in effect covers all cases in which external influences have
operated to negative the accused’s freedom of volition.”

2. Person of sound mind and sober senses:

Before a confession will be admitted into evidence it must be proved that the accused understood what they were
saying. This is all that is mean by the requirement that the accused must be of sound and sober senses.
Consequently, the fact that the accused was intoxicated or extremely angry of in great pain will not in itself lead
to the conclusion that this requirement has not been met, unless it is established that they could not have
appreciated what they were saying.

3. Without being unduly influenced thereto:

Undue influence will be present where some external factor operates so as to extinguish the accused’s freedom of
will. The undue influence need not emanate from a person in authority. Clearly violence or a threat of assault
would constitute undue influence.

4. confession is made to a peace officer who is not a justice of the peace or magistrate:

In terms of section 1 of the Criminal Procedure Act 51 of 1977, the term “justice” refers to “a person who is a
justice of the peace under the provisions of the Justices of the Peace and Commissioners of Oaths Act, 1963. An
officer in the South African Police Service (SAPS), including someone with the rank of lieutenant, captain,
major, colonel and brigadier. the term “peace officer” includes “any magistrate, justice, police official, member
of the prisons service and any person who is a peace officer under
[section 334(1)]”. All justices of the peace are therefore peace officers yet not all peace officers are justices of the
peace.
Practical examples of the application of the requirements:

Two cases which depict application:

i. S v Latha 1994 (1) SACR 447 (A) 447–451- page 78 of case book.
ii. S v Nyembe 1982 (1) SA 835 (A) 841E – page 75 of case book.

determining whether a statement is a confession, or an admission is a separate enquiry from determining the
admissibility of such a statement. As soon as it is established that a statement is an admission or a confession, that part
of the investigation is completed, and the nature of the statement is determined. The only thing left is to determine its
admissibility.

The admittance of an otherwise inadmissible confession:

In terms of section 217(3), the prosecution may prove an otherwise inadmissible confession if the accused
adduces evidence of any statement made by him as part of, or in connection with, this confession and if this
evidence is, in the opinion of the judicial officer presiding at the proceedings, favourable to that person. Note that
section 217(3) is normally applicable to situations where the defence presents part of a statement which is
favourable to the accused and the state reacts by presenting the unfavourable part of the statement.

DETERMINING THE ADMISSIBILITY OF ADMISSIONS AND CONFESSIONS:

Whenever a dispute arises over the admissibility of an admission or confession, this dispute is determined by way
of “a trial within a trial”. This procedure involves a separate trial during which the main trial is suspended, and
the admissibility of the particular statement becomes the main fact in issue. Both the prosecution and the defence
will adduce evidence as to the circumstances during which the statement was made. Note that a trial within a trial
is also held to determine whether a statement is an admission or confession. The presiding officer with or without
assessors will then decide with regards to admissibility.

REQUIREMENTS FOR ADMISSIBILITY OF ADMISSIONS AND CONFESSIONS, AND THE

CONSTITUTION:
The stipulations in section 35(1)(b) were previously contained in the so-called “Judges’ Rules”. The object of
these rules was to show the police what conduct would be regarded as proper when they questioned a suspect.
When you come across a reference to these rules in the law reports, remember that they have now been
incorporated into the Constitution.
The fact that the technical requirements for admissibility have been met does not mean that an admission or
confession will automatically be admissible. However, any violation of the Constitution does not mean that an
admission or confession will automatically be inadmissible.

POINTING OUT OF FACTS IN CONSEQUENCE OF AN INADMISSIBL ADMISSION OR

CONFESSION:

that evidence of any fact may be admitted at criminal proceedings, notwithstanding that the witness discovered
such fact only in consequence of information given by an accused in a confession or statement which is not
admissible.

although section 218(1) therefore allows the admissibility of such evidence in the above-mentioned
circumstances, it does not allow for evidence of the fact that the accused pointed them out. However, this fact can
be affected by section 218(2).

Section 218(2) essentially states that evidence of any pointing out by an accused may be admitted at criminal
proceedings, notwithstanding that such pointing out forms part of a confession or statement which is not
admissible. This allows for evidence that the accused pointed out the particular facts.

THE ADMISSIBILITY OF EVIDENCE OF A POINTING OUT:

The admissibility of evidence discovered in consequence of information given by an accused in any confession
or statement which is not admissible (s 218(1)) and of evidence of a pointing out by an accused that forms part of
a confession or statement which is not admissible (s 218(2)) is further qualified by decided cases and the
Constitution.

NB cases:

i. S v Sheehama 1991 (2) SA 860 (A) from 877 – page 116 of case book.
ii. S v January; Prokureur general – page 126 of case book.
iii. Natal v Khumalo 1994 (2) SACR 801 (A) – page 126 of case book.

PRIVILAGE:
Privilege exists when a witness is not obliged to answer a question or supply information that is relevant to an
issue before the court. A claim of privilege must be distinguished from the non-competence or non-
compellability of a witness. An incompetent witness does not have the capacity to testify, a non-compellable
witness has the right to refuse to testify, whilst a witness who wishes to claim privilege is still required to enter
the witness box and then raise privilege as the reason for not answering the question. A claim of privilege can be
waived.

Privilege can be divided primarily into two categories, depending on the interests to be protected. It may be the
interests of individuals or of the public at large that need to be protected. Privileges falling into the first category
can be classed as private privileges, and those falling into the second as state privileges.

evidence which is protected from disclosure by privilege will generally be both relevant and reliable, but is
afforded protection because a higher value, which depends on the particular privilege, needs to be protected.

Private privilege:

1. Normally, the persons whose interests are protected by privilege should raise it themselves (or their legal
representatives should do so).

2. It is always possible for such a person to waive the privilege. This means that he chooses to testify on this
privileged information. Once the witness has waived a privilege, it falls away and cannot be raised again.

3. Private privilege exists not only during the trial, but also during all pre-trial procedures.

4. Privilege does not affect the witness’s competence or compellability to testify. The witness cannot refuse to
testify but has to take the stand and only then may he claim the privilege.

PRIVILEGE AGAINST SELF-INCRIMINATION:

Privilege against self-incrimination prohibits a person being compelled to give evidence that incriminates
themselves. This rule is part of common-law it also is reflected in certain statutory provisions and enjoys
constitutional protection. The right to remain silent (the absence of a legal obligation to speak) is necessary to
give effect to the privilege against self-incrimination.

The privilege against self-incrimination and the right to remain silent are natural consequences of the
presumption of innocence which places a burden on the prosecution to prove the accused’s guilt beyond a
reasonable doubt.

The accused:

In the Constitution there are particular provisions which guarantee the accused the right to a fair trial include
protection against self-incrimination. These include the right not to be a compellable witness against oneself. The
accused’s right against self-incrimination finds application at different stages of the criminal process and the
accused must be informed of this right at all these stages in both pre-trial and trial proceedings.

i. Trial proceedings:

A presiding officer must inform an unrepresented accused of his right against self-incrimination and of other
related rights. A failure to do so will generally lead to the exclusion of evidence obtained as a result thereof.
Furthermore, an accused should not be penalised for exercising his right to remain silent. A court should
therefore not draw an adverse inference from an accused’s decision not to testify at the trial.

ii. Pre-trial proceedings:

Although the privilege against self-incrimination is only specified in relation to the accused’s right to a fair trial,
Schwikkard points out that this distinction has little significance since there is authority for the view that the right
to a fair trial does not begin in court but already exists during the pre-trial stages of the criminal process.
 A detained person’s privilege against self-incrimination should therefore also be respected. Schwikkard goes
further and argues that not only detained persons should be entitled to the relevant rights, but also persons who
feel obliged to speak when merely questioned, though not detained or even suspected of wrongdoing.

Consequently, a person who is questioned by the police, and who does not know that he or she is not obliged to
answer the questions, and feels compelled to speak, will be detained for the purposes of the Constitution.

If, therefore, someone is not advised of his right against self-incrimination during the pretrial stages of the
criminal process, including bail proceedings, and evidence is obtained because of this violation, the evidence will
generally be excluded in terms of section 35(5) of the Constitution. However, before this happens, the test
contained in section 35(5) will have to be applied, taking the facts of the case into account.
The witness in criminal proceedings:

NB

case: Magmoed v Janse van Rensburg 1993 (1) SACR 67 (A) – page 152 of case book.

A witness may refuse to answer a question if it would expose them to criminal charge. However, the refusal will not
be justified if it is based on a fear that it may give rise to a civil claim. Presiding officers are required to warn the
witness in criminal proceedings of their rights under section 203. Failure to do so will render the incriminating
evidence inadmissible.

The witness in civil proceedings:

the privilege is wider in civil matters. It covers a witness not only against criminal charges, but, under the
common law, also against penalties and forfeitures. However, the latter two protections are obsolete and of little,
if any, practical significance.

Section 14 of CPEA states:

A witness may not refuse to answer a question relevant to the issue, the answering of which has no tendency to
incriminate himself, or to expose him to penalty or forfeiture of any nature whatsoever, by reason only or on the
sole ground that the answering of such question may establish or tend to establish that he owes a debt or is
otherwise subject to a civil suit.

Section 42 of CPEA states:

The law of evidence including the law relating to the competency, compellability, examination and cross-
examination of witnesses which was in force in respect of civil proceedings on the thirtieth day of May 1961,
shall apply in any case not provided for by this Act or any other law.

These two sections must be read together. The effect of these provision is to give a wider ambit to the privilege
against self-incrimination in civil cases.

MARITAL PRIVILEGE:

Spouses are entitled to refuse to disclose communications from the other spouse made during the marriage. The
only requirement is that these communications must have been made while spouses were married. The privilege
continues after divorce (only communication prior to divorce are privileged).

LEGAL-PROFESSIONAL PRIVILEGE:
all “communications” between a legal adviser and her client are protected from disclosure by this privilege
subject to certain requirements to which we will return shortly. The privilege applies both to criminal and civil
matters.

The privilege of the client involves the following two things:

1. The client may refuse to answer any question which requires her to disclose any of the information she has
shared with the legal adviser.

2. The client may prevent the legal adviser from disclosing any such information.

The result of this is that the client has the assurance that she may speak freely to her legal adviser without fear
that the legal adviser will (or can) inform the police or the court or anybody else of anything that she (the legal
adviser) learnt in the process.

This does not mean that the legal adviser has to accept whatever the client tells her. If the legal adviser finds
herself unable to defend the client for some reason, for example, on the grounds of the seriousness of a crime that
the client may have confessed to her, the legal adviser may withdraw from the case on moral grounds.

Statutory provision:

without the consent of the client (the accused), a legal adviser may not give evidence on what was discussed
between them in connection with a case. No similar provision is found in the Civil Proceedings Evidence Act 25
of 1965, with the result that the civil law position is determined by the common law only.

Purpose of legal-professional privilege:

The purpose is basically to improve the effectiveness of legal representation. Legal advisers can only fulfil their
function properly if their clients are able to discuss every aspect of their cases in confidence and without fear of
their advisers being compelled to disclose what was said during these discussions in evidence against them.

Legal-professional privilege and the client:

Legal-professional privilege entails the following:

1. It is the privilege of the client. In practice, the legal adviser will usually claim it on behalf of the client.
However, if the client and the adviser have a difference of opinion on whether or not to claim this privilege, the
court will accede to the client’s choice. The court may not force the client to claim the privilege, although it may
advise the client of the existence of this right.

2. The client may waive the privilege expressly or implicitly. It may be difficult to determine whether waiver has
taken place by implication, but examples include situations where the client reveals the content of a statement or
cross-examines on it. A mere reference to a particular statement is not enough – the content must have been
revealed.
Requirements for existence of the privilege:

1. Acting in a professional capacity:

Whether an advisor is acting in their professional capacity will be a question of fact in each case. Lack of fee
does not mean that the advisor was not acting in their professional capacity. There is no distinction between the
salaried legal advisor, an attorney or an advocate in private practice for purpose of legal professional privilege.

2. Communications must be made in confidence:

Whether the communications were made in confidence is the question of fact. Confidentiality will usually be
inferred where it is proved that a legal advisor was consulted in a professional capacity for the purpose of
obtaining legal advice. The inference of confidentiality will always be rebuttable. An instruction to an attorney to
negotiate and effect a settlement is not privileged.

3. For the purpose of obtaining legal advice:

If a communication is made in confidence but not for the purpose of legal advice it will not be privileged. If a fee
note contains more than mere references to advice sought and includes material from which the substance of the
advice can be inferred, privilege may be claimed in respect of such material.

4. Client must claim privilege:

The privilege must be claimed by the client. The court will not uphold the privilege in the absence of a claim. A
legal representative is obliged to claim privilege on behalf of the client. If client waives privilege the legal
representative will be bound by the waiver.

DEFINITION OF “AGENT”:

An agent of a client or legal adviser is someone who is appointed by the client or legal adviser to perform a
specific function. In this sense, “agent” has a somewhat wider meaning than when it refers to the agent who
represents a principal for purposes of private or mercantile law.

Examples of agents are:

i. the private investigator who is appointed by a client to investigate the movements of her husband.

ii. the auditor who is appointed to go through the books of an adversary party.

iii. the mechanic who is employed to keep the vehicles of a client in good working order.

Legal position of an agent:

If an agent communicates certain information to the client or the legal adviser:

1. with the purpose of enabling the legal adviser to advise the client.

2. after litigation has been contemplated, this communication will be privileged. The privilege will still belong to
the client, who is the only person able to waive it.
Once litigation is anticipated in a certain case, information may be required which for some reason is best
obtained by a third party. If the third party is specifically directed to obtain the information for purposes of the
litigation, that party is considered to be an agent of the client, and the client should be in a position to prevent the
agent from disclosing the information which she has communicated to the client or legal adviser.

Independent third parties:

If an independent third party communicates certain information to a client or legal adviser

1. with the purpose of enabling the legal adviser to advise the client, and

2. after litigation has been contemplated, this communication will be privileged, but the independent third party
cannot be prevented from disclosing this communication should she prefer to do so. This means that the third
party may refuse to disclose the information but may not be prevented from doing so.

PROFESSIONAL PRIVILEGE FOR OTHER PROFESSIONS:

Legal recognition of a privilege attaching to communication between categories of people inevitably involves
two conflicting interests. 1. Society’s interest in preserving and promoting certain relationships. 2. The interest of
the administration of justice in ensuring that all relevant evidence is before the court. Professional privilege only
applies for the lawyer-client relationship. Priests, insurers and accountants do not have privilege. Journalists may
be compelled to disclose their source of information.

POLICE DOCKET PRIVILEGE:

is closely related to professional privilege. In essence, it gives the prosecutor the privilege not to have to disclose
any information contained in the police docket to the accused. It is mainly aimed at the protection of the
witnesses. Because the privilege belongs to the prosecutor, it is not, strictly speaking, a private privilege. Neither
is it a public privilege. It is therefore unique or sui generis.

The extent of police docket privilege has been dramatically reduced by the provisions of the Constitution that
allow for greater access to information held by the state, as interpreted by the Constitutional Court.

The privilege today:

NB case: Shabalala v Attorney-General of the Transvaal 1996 (1) SA 725 (CC) – page 178 of case book.

Important parts of case:

i. Paragraphs 14, 15, 30. 50.

ii. Summary paragraph 72A

Note that access to the police docket for purposes of a fair trial differs from access to the police docket for
purposes of a bail hearing. In this regard, section 60(14) of the Criminal Procedure Act 51 of 1977 states that:

Notwithstanding anything to the contrary contained in any law, no accused shall, for the purposes of bail
proceedings, have access to any information, record or document relating to the offence in question, which is
contained in or forms part of a police docket unless the prosecutor otherwise directs.

this should not be seen as an unfettered discretion available to the prosecution to refuse to disclose information in
the docket, and there may be circumstances in which the accused should have access to the docket. Access
should, for example, be granted where this would enable a bail applicant to place enough information before the
court in order to enable the court to take a proper decision on bail. Access should also be granted where criminal
proceedings have been instituted after a written statement has been made by the bail applicant to a peace officer.

person in possession of such a statement must give the person who made the statement, at his request, a copy of
such statement. This is necessary in order to ensure the applicant’s constitutional right to a fair bail hearing.
Because the prosecution’s witnesses can look at their statements in the police docket prior to testifying, a bail
applicant should enjoy a similar right.

EVALUATION OF EVIDENCE:

The onus of proof in criminal and civil matters: Section 78 of CPA

THE DISTINCTION BETWEEN THE ONUS OF PROOF AND THE EVIDENTIARY BURDEN:

The burden of proof functions to assist decision-makers in conditions of uncertainty. An accused in terms of
Section 106(4) and 108 of CPA are entitled to a verdict once they have pleaded. This requires presiding officers
to make affirmative finding in every case irrespective of deficiencies in the evidence.

The allocation of the burden of proof in criminal trials is a product of a society’s preference that innocent people
be protected from erroneous conviction. We require the prosecution to bear the burden of proving guilt beyond a
reasonable doubt it is because the disutility of convicting an innocent person far exceeds the disutility of finding
a guilty person to not be guilty “better that 10 guilty persons go free than one innocent be convicted”.

Burden of proof allocates the risk of non-persuasion, the person who bears the burden will lose if they do not
satisfy the court that they are entitled to succeed in their claim of defence.

Evidentiary burden v onus of proof:

Burden of proof or true onus refers to the obligation of a party to persuade the trier of facts by the end of the case
of the truth of certain propositions. Evidentiary burden refers to one party’s duty to produce sufficient evidence
for a judge to call on the other party to answer and it also encompasses the duty to cast upon a litigant to adduce
evidence in order to combat a prima facie case made by their opponent.

Burden of proof in a criminal trial always rests on the prosecution to prove the accused guilt beyond a reasonable
doubt. Burden rests upon them throughout the case. At the outset of the trial, in tandem with the burden of proof,
the state must also discharge an evidential burden. Once the prima facie case is established the evidential burden
will shift to the accused to adduce evidence in order to escape conviction. However, the burden of proof will
remain with the prosecution. It is possible that even if the accused does not adduce evidence, they will not be
convicted if the court is satisfied that the prosecution has not proved guilt beyond a reasonable doubt. (Accused
can point out weaknesses in states case against them during cross-examination).

there is an interaction between the onus of proof and the evidentiary burden. The onus of proof rests on the state
throughout, but the evidentiary burden sometimes shifts onto the accused, for instance, when good prima facie
evidence has been given. If the accused does not then acquit herself of the evidentiary burden by giving
satisfactory evidence herself, the court will no longer have any reasonable doubt concerning her guilt, and the
state will have acquitted itself of the onus of proof. If the accused, on the other hand, provides satisfactory
evidence and persuades the court or even creates a reasonable doubt in the mind of the court, the court will have
to find against the state because the onus of proof has not been discharged.

THE INCIDENCE OF THE ONUS OF PROOF IN CRIMINAL CASES:

The state always bears the onus of proof with regard to all issues, even with regard to defences which the accused
may raise. Traditionally, there has been an exception to this rule, namely in the case of a lack of criminal
capacity as a result of mental illness or defect.

Section 78(1A) codifies the M’Naghten position in that every accused person is presumed to be sane and
criminally responsible until the contrary is proved. This piece of legislation might, however, be open to
constitutional challenge in the light of section 35(3)(h) of the Constitution, which provides that all accused
persons have the right to be presumed innocent. Section 78(1B) has been interpreted in S v Eadie 2002 (1) SACR
663 (SCA) to mean that a defence of sane automatism now imposes an evidential burden on the accused and not
merely an obligation to raise the defence.

THE RIGHT TO SILENCE AND THE ONUS OF PROOF:

Silence was used as a form of circumstantial evidence to bolster a weak case on the part of the state. Now the
Constitution has changed everything. This type of inference may no longer be made, since a person has the
constitutional right to remain silent if she wishes to. This does not mean that she cannot be convicted, however. If
the state case is in no way contested by the accused or her legal team, the court will have no other option but to
convict, provided that the other prerequisites for conviction have been complied with. This is then done
objectively and the evidentiary burden rests on her because of the good evidence the state was able to produce,
which she did nothing to rebut.

THE STANDARD OF PROOF IN CRIMINAL MATTERS:

The criminal standard of proof is proof beyond a reasonable doubt. “Reasonable doubt” and “proof beyond
reasonable doubt” cannot precisely be defined, but it can well be said that it is a doubt which exists because of
probabilities or possibilities which can be regarded as reasonable on the ground of generally accepted human
knowledge and experience. Where there are no probabilities either way it cannot be said that the innocent version
of the accused is not reasonably true, then the evidence does not constitute as beyond a reasonable doubt.

THE ONUS OF PROOF IN CIVIL CASES:

The incidence of the onus of proof in civil cases:

Onus in the context of civil law depends on the consideration of policy, practice and fairness. “burden of proof”,
“onus of proof” and “overall onus” are used interchangeably to refer to the same concept which is the duty that is
cast upon a litigant to adduce evidence that is sufficient to persuade a court at the end of a trial, that the claim or
the defence as the case may be, should succeed.

Burden of proof is sometimes called the “risk of non-persuasion” because it determines who bears the risk of
failure if evidence on a particular point is lacking.

The incidence of the burden of proof is determined as a matter of substantive law from the nature of the
particular rule of law that is sought to be enforced. Any rule of law which annexes legal consequences to a fact
such as negligence or making of a contract must as a necessary corollary, provide for which party is supposed to
prove that fact.

Burden of proof in action will not necessarily fall on one party alone, but each of the parties may bear a burden
of proof in relation to different issues. In a claim for a recovery of a loan it is for the plaintiff to prove that the
loan was made but the defendant who alleges the loan was paid bears the burden of proving the loan was repaid.
The burden of proof once establishes never shifts what might occur is only each of the parties might bear a
burden of proof in separate issues in the trial.
The burden of proof usually lies on the person who seeks to alter the status quo. Most often that would be the
plaintiff and the defendant will bear burden of proof only in relation to a special defence.

Different issues may generate different onuses of proof:

Where there are several and distinct issues, for instance, a claim and a special defence, then there are several and
distinct burdens of proof, which have nothing to do with each other, save of course that the second will not arise
until the first has been discharged.

In a civil case, the plaintiff claims damages from the defendant, since he claims that the defendant assaulted him.
This is the first issue and obviously the onus of proving the assault rests on the plaintiff because of the rule “he
who alleges must prove”. However, it may turn out that the question of an assault by the defendant on the
plaintiff is not even in dispute, since the defendant admits the assault but claims that it was done in self-defence
against an attack launched by the plaintiff.

This is the second issue, and the onus to prove that the prerequisites for self-defence existed rests upon the
defendant. Again, this might not even be in dispute, since the plaintiff might acknowledge the primary attack
from his side, acknowledge also that the defendant might have started off acting in lawful self-defence, but then
claim that the defendant exceeded the bounds of his self-defence, that he went much further in the counter-attack
than was necessary to ward off the primary attack, and that he was no longer acting in lawful self-defence and
should therefore be held liable.

This becomes the third issue, where the onus of proof will be on the plaintiff to prove that the defendant
exceeded the bounds of self-defence.

The standard of proof in civil cases:

In civil cases the burden of proof is discharged as a matter of probability. The standard is often expressed as
requiring proof on a balance of probabilities. The probabilities in the case be such that, on a preponderance, it is
probable that the particular state of affairs existed. It must carry a reasonable degree of probability but not so
high as is required in a criminal case. If the evidence is such that the tribunal can say “we think it more probable
than not”, then the burden is discharged but if probabilities are equal then it is not.

ASSESSMENT OF EVIDENCE:

The court should first determine the factual basis of the case before pronouncing on the rights, duties and
liabilities of the parties engaged in the dispute. The factual basis is determined by evaluating all the probative
material admitted during the course of the trial.

To conclude on the disputed issues a court must make findings on 1. The credibility of the various factual
witnesses, 2. Their reliability and 3. The probabilities.

1. the courts findings on the credibility of a particular witness will depend on its impression about the veracity of
the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance,
such as. i. the witness’ candour and demeanour in the witness-box, ii. Their bias. Latent and blatant, iii. Internal
contradictions in their evidence, iv. External contradiction with what was pleaded or put on their behalf, or with
established facts or with their own extra curial statements or actions, v. the probability of particular aspects of
their version.

2. a witness’s reliability will depend, apart from above mentioned the opportunities they have had to
experience/observe the event in question and the quality, integrity and independence of their recall thereof.

3. this necessitates an analysis and evaluation of the probability/improbability of each party’s version on each of
the disputed issues.
In a final step the court will determine whether the party burdened with the onus of proof has succeeded in
discharging it. The difficult task of finally analysing and assessing the weight of the probative material arises
after all the parties have closed their respective cases and delivered their arguments. The presiding
judge/magistrate and assessors where they have been used must then assess the weight or the probative material
in order to determine whether the party carrying the burden has proved its allegations in accordance with the
standard of proof. (Court must give reasons for its decisions made).

BASIC PRINCIPLES:

Two basic principles should be kept in mind whenever evidence is evaluated.

1. Avoidance of piecemeal processes of adjudication:

Evidence that is reliable should be weighed alongside such evidence as may be found to be false. Independently
verifiable evidence, if any, should be weighed to see if it supports any of the evidence tendered. In considering
whether evidence is reliable the quality of that evidence must of necessity be evaluated, as must corroborative
evidence, if any. Evidence must be evaluated against the onus on any particular issue.

It is of paramount importance that the court should eschew piecemeal processes of reasoning. Evidence must be
weighed as whole taking in account the probabilities, the reliability and opportunity for observation of respective
witnesses, the absence of interest or bias, the intrinsic merits or demerits of the testimony itself.

2. Inferences and probabilities to be distinguished from conjecture:

During the course of evaluating evidence inferences may be drawn and probabilities may be considered. These
must be distinguished from conjecture and speculation. There can be no proper inference unless there are
objective facts from which to infer the other facts which is sought to establish. If there are no positive proved
facts from which the inference can be drawn, the method of inference fails and what is left is mere conjecture and
speculation. The court must stay within the four corners of the proved facts. Probabilities must also be proved in
light of proven facts.

CIRCUMSTANTIAL EVIDENCE:

What is circumstantial evidence:

Circumstantial evidence can provide only indirect evidence and inferences then have to be drawn about the
prohibited act. (An eyewitness sees, for example, a suspect running from a house with a bloody knife in his hand.
Upon further investigation, the eyewitness finds someone fatally stabbed inside the house)

The evaluation of circumstantial evidence:

the evaluation of a case based on circumstantial evidence depends on the presiding officer’s ability to think
logically. When evaluating circumstantial evidence, the court should consider the cumulative effect of all the
circumstantial evidence presented in the case. It would therefore be wrong to consider each piece of
circumstantial evidence in isolation.

i. If inferences are to be drawn from circumstantial evidence in a criminal case, two cardinal rules of logic
apply:

Firstly, the inferences sought to be drawn must be consistent with all the proven facts. If this is not the case, an
inference cannot be sustained. Secondly, the proven facts should be such that they exclude every reasonable
inference except the one sought to be drawn. If not, then there must be doubt about the inference sought to be
drawn and the accused cannot be convicted. This is because the state must furnish proof beyond a reasonable
doubt in a criminal case.
In a civil case, the inference sought to be drawn must also be consistent with all the proven facts, but the
inference need not be the only reasonable inference. It is sufficient if it is the most probable inference. This is
because a litigant in a civil matter must furnish proof on a balance of probabilities.

circumstantial evidence is not necessarily weaker than direct evidence and that the cumulative effect of pieces of
circumstantial evidence could have even more value than direct evidence. Also, recent strides in technology have
greatly strengthened some classes of circumstantial evidence. Here one thinks of fingerprint and DNA evidence.

CORROBORATION AND CAUTIONARY RULE:

Corroboration is:

i. evidential material.
ii. that independently
iii. confirms
iv. other (untrustworthy) evidential material
v. and which is admissible.

Requirements for corroboration:

1. Corroborative evidence (evidence which confirms or supports) has to be admissible. Inadmissible

evidence, such as inadmissible hearsay evidence, cannot be used in a court and therefore may also not be
used as corroborative evidence.

2. Corroborative evidence may take on a variety of forms and does not consist solely of oral evidence.
Documentary evidence or real evidence (eg fingerprints) may also serve as corroborative evidence.
Likewise, a formal admission or even a question under cross- examination may provide corroborative
evidence.

3. Corroboration should consist of independent evidence, that is, evidence that does not come from the same
source as the (untrustworthy) evidence which the corroborative evidence seeks to back up. This principle
is derived from the rule against self-corroboration. The original reason for requiring corroboration is the
suspicion that the evidence may be untrustworthy and therefore it is obvious that the corroborative
evidence should come from a source other than that which appears to be suspicious or untrustworthy.

4. The corroborative evidence should confirm the other evidence. Section 209 of the Criminal Procedure
Act 51 of 1977, which provides for the corroboration of a confession, requires that the confession be
“confirmed in a material aspect”. There are wide-ranging interpretations by our courts of the meaning of
this phrase with respect to the nature of corroboration.

The requirements for corroboration may vary depending on how suspicious the evidence is. It is not possible to
formulate general rules on the exact nature or quantity of evidence which will result in corroboration, except to
say that the corroborating evidence should be shown to be trustworthy.

This would be the case, for instance, where the accused confesses to the charge of murdering her victim by
poisoning him with arsenic, and there is evidence of a quantity of arsenic in the body of the deceased. The
evidence of the post-mortem report would then confirm or corroborate this confession.

When a party is required to provide corroboration of certain evidence upon which its case is built, this does not
mean that the standard of proof changes. Corroboration and standard of proof are two distinct concepts. The
result of this requirement with respect to corroboration is simply that the particular party has to find additional
evidence in order to meet the existing standard of proof.

THE CAUTIONARY RULE:

The cautionary rule is:

 i. a rule of practice bearing the mandatory character of a legal rule and
ii. prescribing a specific approach to be adopted by the court,
iii. in order to assist in the evaluation of certain evidence.

Non-compliance with the cautionary rule will generally result in the finding of the court being set aside. our
courts tend not to apply this rule in such a formalistic manner that the exercise of caution is allowed to displace
the exercise of common sense.

Although the cautionary rule was primarily intended to be applied in criminal cases, it is sometimes also applies
in civil cases. The rule requires that the judge or magistrate evaluating the facts:

i. must consciously remember to be on guard regarding certain types of evidence,

ii. must seek a safeguard which will sufficiently dispel the suspicion and the dangers inherent in the suspect
evidence.

The requirement that the judge or magistrate evaluating the facts must consciously remember to apply the
cautionary rule means that he must indeed indicate that he has applied these rules. Practically, this will mean that
the judge or magistrate will mention the application of the rule in his judgment. However, it is not enough to
mention the rule without showing that it has actually been applied.

purpose of the cautionary rule is to exclude the possibility of the court reaching an incorrect finding. The
safeguard sought by the judge or magistrate who is evaluating the facts should have exactly this purpose. The
most common safeguard can be found in the corroboration of the suspect evidence.

SPECIFIC INSTANCES:

since the cautionary rule is not the product of legislation, the scope of this rule has not yet been determined with
absolute finality. As a result, there may indeed be cases that do not belong in the category of the recognised
instances mentioned here, but in which a court may nevertheless apply the rule to the evidence of a particular
witness.

The accomplice:

Our courts accept that an accomplice may often have a motive for falsely incriminating the accused. He may
have an intimate knowledge of the crime and may easily incriminate the accused while at the same time
underplaying his part in the crime. For these reasons, the evidence of an accomplice should be treated with
caution.

principles re cautionary rule re accomplices:

1. Caution is imperative when dealing with accomplice evidence

2. Accomplice is a witness who has a positive motive for telling lies about an innocent accused
3. Corroboration of accomplice’s testimony is required, even where accused is not implicated & accomplice
merely gives details of the crime.
4. Cautionary rule will only be satisfied if there’s corroboration which directly implicates the accused in
the commission of the offence
5. Such corroboration may be found in the evidence of another accomplice, provided that his evidence is reliable.
6. Where no corroboration is available – there must be some other assurance that the evidence of accomplice is
reliable.

Evidence of identification:

Our sensory perceptions are not always reliable, and it is possible that even the most honest and trustworthy
witness may identify the wrong person as the one who committed the crime. For this reason, evidence of the
identity of the accused must be treated with a good deal of caution.
Gross injustices are not infrequently done through honest but mistaken identifications. People often resemble
each other. Strangers are sometimes mistaken for old acquaintances. In all cases that turn on identification the
greatest care should be taken to test the evidence.

Children:

whilst there is no statutory requirement that a child’s evidence should be corroborated, it is accepted that, given
the nature of the charges and the age of the complainant, the evidence of young children should be treated with
caution.

The court has to be sure that the child understands the importance of telling the truth. Trustworthiness depends
on a number of factors such as the child’s ability to observe what happened, to remember what he observed, and
to tell the court about these observations.

The single witness:

The statutory provisions make it possible for a court to convict a person or to give judgment against a party on
the evidence of a single witness alone. If the court is satisfied that the evidence given by the single witness is
satisfactory, it may, but need not, regard that evidence as sufficient to convict the accused.

There’s no rule-of-thumb test / formula to apply when considering the credibility of a single witness.
Evidence of a single witness may be satisfactory even though it is susceptible to criticism - degree of caution
which should be applied to testimony of a single witness may also be increased by other factors – i.e., state relies
on evidence of a single witness & does not adduce other available evidence (i.e., real / documentary evidence).

Cases of a sexual nature: - cautionary rule in cases of sexual nature was effectively abolished.

Police traps and private detectives:

A police trap is someone whose credibility may be questioned because he receives remuneration in exchange for
obtaining evidence for the state.

Cautionary rule must be applied re such persons because there are valid reasons for suspecting reliability of their
evidence.

May be tempted to colour his evidence in such way that accused is falsely incriminated:

i. Possibility of false incrimination is compounded by the fact that the police trap has intimate knowledge
of the crime.
ii. May be motivated by wish to secure conviction.

Private detective is in same situation as police trap in that he is also paid to secure evidence. Evidence of private
detective will also be approached with caution to make sure accused is not falsely incriminated.