LEV3701 SUMMARISED
NOTES
2022/2023
Learning unit 1
OVERVIEW OF THE LAW OF EVIDENCE
The presentation of evidence
- Oral evidence
- Given by a witness, delivering her testimony from the witness box.
- Certain questions may be asked by the various parties, and others may not
- Real things
- ...
Learning unit 1
OVERVIEW OF THE LAW OF EVIDENCE
The presentation of evidence
- Oral evidence
- Given by a witness, delivering her testimony from the witness box.
- Certain questions may be asked by the various parties, and others may not
- Real things
- may also be presented to the court as evidence.
- Often the information that is contained in some kind of document may be
required, but documents cannot simply be handed to the court since many
requirements need to be met before a document can be used.
- For one, the court generally needs to know that the document is indeed what it
claims to be.
- With modern technology evidence might be available in forms that do not fit into
any one of the traditional categories.
- The law of evidence still does not know exactly how to deal with these forms of
evidence, even though new legislation in this regard has recently been passed.
- Finally, in certain cases, the court will accept some information without any
evidence being presented on it; the court will simply take notice of well-known or
easily determined facts, or some legal rule may provide for the presumption of a
fact.
The admissibility of certain types of evidence
- Essential to know what evidence will be admissible and what will not.
- Admissible evidence
- Can be used to prove one’s case
- Inadmissible evidence
- Cannot be used to prove one’s case.
- It serves no purpose to attempt to offer clearly inadmissible evidence in court as it
will simply be thrown out by the court who has to make the factual findings.
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- However, in many instances it may not be clear whether the evidence will be
admissible or inadmissible.
- It is then for the court to decide whether or not to allow the evidence and, in order
to do so, it has to apply the existing legal rules and principles to the questions
before it.
- The basic principle is that all available evidence should be used in proving the
case.
- Only if there is some reason for excluding (or disallowing) evidence, can it be
excluded.
- Evidence can be admissible only if it deals with the problem in question (if it is
relevant)
- Evidence concerning a prior statement by a witness that merely serves as
corroboration for herself is inadmissible
- Evidence that merely deals with the character of a witness or a party rarely has
any bearing on the question at hand, and is usually inadmissible
- A witness should generally tell of her first-hand experiences and not of what she
learnt from others (hearsay evidence)
- A witness may not give evidence which amounts to taking over the court’s function
of having to reach a conclusion (opinion evidence)
- People who incriminate themselves (through admissions and confessions) have to
do so absolutely voluntarily, otherwise those incriminating statements cannot be
used against them
- Some evidence may be excluded simply because some higher value is believed to
be protected by such exclusion (privilege)
- Evidence acquired in violation of the Bill of Rights in the Constitution may often
have to be excluded
The evaluation of evidence
- Consider the evaluation by the court of the evidence presented in order to reach
its decision.
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- Once all the (admissible) evidence has been presented, it is the task of the court to
evaluate this evidence in order to reach its findings.
- It has to consider:
o the weight of the evidence.
o In this process, it has to determine which party has the burden of proof, and
what the extent of this burden is – the amount (measure) of proof required in
criminal cases is much greater than in civil cases. In the evaluation of
evidence, the weight of the evidence is often determined by questions such as
whether it is direct evidence of the questions in issue or merely
circumstantial evidence; whether there are reasons to be cautious about the
evidence; and the extent to which the various bits and pieces of the puzzle fit
together and support and strengthen (corroborate) one another.
THE INEXACTNESS OF THE LAW OF EVIDENCE
- The law of evidence provides only the basic tools to enable the court to deal with
all the difficult decisions it has to make.
- At best, it is an inexact science which has to attempt to govern thousands of
different possibilities that come up in every case.
- The answers provided by the law of evidence are often rather vague, in which
case a student of the law of evidence should not try to find exact answers.
THE IMPORTANCE OF THE LAW OF EVIDENCE
- The importance of the law of evidence is beyond argument.
- It does not matter whether the case is a criminal or a civil case; deals with the
interpretation of a deceased person’s will; the terms of a contract; an application
for an interdict to prevent someone from doing something; or a claim for damages
of whatever nature: the law of evidence is always applicable.
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Part 1
General concepts and sources of the law of evidence
SUBSTANTIVE AND ADJECTIVE LAW
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