INDEX
CONTENTS PAGE
1. INTRODUCTION 1
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2. BASIC CONCEPTS
2.1 Evidence 1
2.2 Evidential Materials 1
2.3 Argument 3
2.4 Facts in issue 3
2.5 Facts relevant to the facts in issue 3
2.6 Primary Evidence 3
2.7 Secondary Evidence 3
2.8 Prima Facie Proof 4
2.9 Conclusive Proof 4
2.10 Circumstantial Evidence 4
2.11 Direct Evidence 4
2.12 Admissibility 5
2.13 Relevance 5
2.14 Privilege 5
2.15 Formal and Informal Admission 6
2.16 Confession 6
2.17 Judicial Notice 6
2.18 Presumptions 6
2.19 Burden of Proof and Evidential Burden 7
1
BASIC CONCEPTS IN THE LAW OF EVIDENCE
1. INTRODUCTION
The law of Evidence is an indispensable tool for any person who may wish to practice
the law. In order to utilize this tool efficiently and effectively it is imperative for one
to have an understanding of certain basic concepts that are constantly referred to by
authors in various publications on the Law of Evidence.
The purpose of this note is to prepare and equip persons to identify and become
conversant with basic concepts in the Law of Evidence and to provide them with a
basis that will enable them to relate to the Law of evidence in its totality.
2. BASIC CONCEPTS
2.1 Evidence
Evidence consists of information put before the court to enable the court to decide on
the facts in issue.
2.2 Evidential Material
Evidential material refers to all the material that can be utilized as proof in court.
The Law of Evidence is about proving facts and regulates the manner in which the
facts may be proved. Facts may be proven by using different forms of evidential
material.
Evidential material is comprised of:
2.1 Oral, Documentary or Real Evidence
2.2 Formal or Informal Admissions and Confession
2.3 Judicial Notice
2.4 Presumptions
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See: Mjoli 1981 (3) SA 1233 A at 1248A
Tsankobeb 1981 (4) SA 614 (A) at 626G
The diagram provides a clear illustration of the different branches of law; indicates which
branch the Law of Evidence falls under; a definition of the Law of Evidence and indicates
what Evidentiary Material consists of.
LAW
Substantive Law Procedural Law
(Criminal Law) (Criminal Procedure;
Law of Evidence)
LAW OF EVIDENCE
PROOF OF FACTS BY MEANS OF
EVIDENTIAL MATERIAL
Evidence Formal Admissions Judicial Notice Presumptions
Informal Admissions
Confession
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2.3 Argument
Argument by the state and the defence does not constitute evidence and only has
persuasive value. It compromises of opinions or suggestions aimed at emphasizing
legal positions or factual situations and is used to convince the court to make a certain
finding.
See: V’s Case 1995 (1) SACR 173 (T)
Before judgment is delivered the parties have an opportunity to present closing
arguments which address the evidence presented during the trial.
2.4 Facts in Issue
Facts in issue are facts that a party has to prove to succeed in a case.
2.5 Facts relevant to facts in issue
Facts which tend to prove or disprove the facts in issue.
Example: In a case where paternity is in issue, the identity of the father will be
the fact in issue, and having sexual intercourse with the father will be a
fact relevant to the fact in issue.
2.6 Primary Evidence
Primary evidence implies that it is the best evidence or that not better (stronger)
evidence is available.
2.7 Secondary Evidence
Secondary evidence implies that better evidence exists or did exist.
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Example: An original document is regarded as primary evidence whereas copies
are secondary evidence.
2.8 Prima Facie Proof
The word prima facie is a Latin phrase meaning “at first appearance.” The phrase
prima facie in law simply means that the evidence before the court is sufficient to
establish a fact or a case unless disproved.
In the absence of any contrary proof, prima facie will become conclusive proof.
2.9 Conclusive Proof
Conclusive proof means proof which is final and which cannot be disproved by any
contrary proof.
2.10 Circumstantial Evidence
Circumstantial evidence is indirect proof.
Example: (1) In a murder trial, evidence may be given that A had a motive to
kill B and was seen running from B’s home with a bloodstained
knife.
(2) X testifies that he heard glass breaking, turned around and saw
Y standing in front on Z’s broken window with stone in his
hand.
2.11 Direct Evidence
Direct evidence is evidence of an observation by an eyewitness.
Example: In a murder trial, C testifies that he was standing outside the window of
B’s home and he saw A stab B.
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2.12 Admissibility
Admissibility simply means acceptance of evidence, there is no degree of
admissibility. Evidence is either admissible or not admissible. Whether or not
evidence is admissible depends on whether it is relevant and whether its admission
will cause any prejudice to the accused.
2.12.1 Conditional Admissibility
The admitting of evidence subject to a condition being satisfied at the end of
the case. If the condition is not satisfied, the evidence is disregarded.
See: S vs Swanepoel 1980 (1) SA 144 (NC)
Court held that a document can be used in cross examination in spite of its
authenticity being denied by the opposing party. It is only after the state has
closed its case that the defence has a chance to tender evidence on
authenticity. If authenticity is not proven, any evidence emanating from cross
examination must be disregarded by the court.
2.13 Relevance
In order to decide on relevance, the court must consider whether the evidence being
presented is related to the facts in issue.
2.14 Privilege
Privilege is a right or duty claimed by either a witness or a party to withhold evidence
from the court. There are two main types of Privileges: Private Privilege and State
Privilege.
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2.15 Formal and Informal Admissions
2.15.1 Formal Admissions
Formal admissions are admissions made in court which constitutes conclusive
proof and which cannot be contradicted or withdrawn unless certain legal
requirements have been satisfied.
2.15.2 Informal Admissions
Informal admissions are admissions made outside court which can be
explained or contradicted.
2.16 Confessions
A confession is an unequivocal admission of guilt by the accused, which if made in ca
court of law, would be accepted as a Plea of Guilty.
2.17 Judicial Notice
Judicial notice means acceptance by the court of facts of general knowledge and local
knowledge as proven which have not been proven by the leading of evidence.
2.18 Presumptions
A presumption is a conclusion derived from a particular set of facts based on law.
There are three types of presumptions:
2.18.1 Presumption of Fact
2.18.2 Presumption of Law
2.18.3 Irrebuttable presumptions of Law
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2.19 Burden of Proof and Evidential Burden
2.19.1 Burden of Proof
Burden of proof refers to the duty or obligation of a party to prove its case
beyond reasonable doubt in our criminal law the burden of proof rests on the
prosecution.
2.19.2 Evidential Burden
Evidential burden refers to one party’s duty to produce sufficient evidence to
enable the court to call on the other party to answer and to adduce sufficient
evidence to challenge the prima facie case made by the opposing party.
