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Summary Law of Evidence - 471
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1History and theory of the law of evidence
Note for how to do this module use lectures to determine what is important in the
textbook, as it has way too much information. She will also never ask anything that was not
discussed in class.
Definition and significance of the law of evidence
Law of Evidence is the area of law that regulates the proof of facts, and is a branch of
the law of procedure.
o The law of evidence forms part of the law of procedure, which forms part of
the branch of law referred to as ‘adjectival law’
It is significant because:
o LOE forms part of procedural law, which is the machine that transforms the
rules of substantive law into orders and enforcements.
o Remember that we distinguish between substantive and procedural law:
Substantive law – determines the rights and duties of the parties
Our source for substantive law is generally Roman Dutch law
Procedural law – determines the processes and procedures to enforce
the rights and duties of the parties
Also known as adjectival law
Our source for procedural law is English law
Functions of the law of evidence:
o Main function of the law of evidence: to determine which facts are legally
receivable/admissible to prove the facts in issue.
o The law of evidence determines:
Admissibility of facts to prove the facts in issue
Manner of presentation of evidence
What evidence should not be considered
Factors influencing the probative value of evidence – whether a piece
of evidence makes a relevant disputed point (more or less) true
Determines what evidence may be lawfully withheld from the court
Rules for assessing the weight or cogency of the evidence
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What standard of proof (i.e. beyond reasonable doubt or on a balance
of probabilities) should be satisfied before a party bearing the burden
of proof can be successful.1
Where the law of evidence fits
o A branch of procedural law (adjectival law)
Source - English law
But there are rights and duties created by procedural law.
Linked to criminal law and civil procedure
History and theory of the law of evidence
Our history and development of evidence is broadly divided into 3 categories:
o 1) religious/primitive stage:
It was thought that a person should not judge another person.
A trial by ordeal (popular in England) was considered a reliable truth-
finding mechanism. It was an appeal to God to decide the dispute.
Ordeal of the accursed morsel: entailed that an accused person would
be required to swallow a dry piece of bread with the idea that if he/she
was guilty he/she would choke on the bread. There is some evidence to
show that there was good reason to use this method – if a person that
might result in them feeling nervous, which would result in dryness of
mouth, which may lead to choking.
o 2) formal stage
The oath was the primary mode of truth. This stage came because of
an increase in human reason, which began to replace God as the
decider of guilt or innocence. In England, the oath helpers were
people prepared to state under oath that the oath of one party
should be believed over another. The party who was able to summon
the largest number of oath helpers would win the case.
The oath has subsequently been thought to hold a strong hold on a
person’s conscious and we still retain this in the oath that witnesses
take.
o 3) The rational stage and the development of the jury
1
The burden of proof is also a rule of adjectival law, even though it was incorrectly classified as a
substantive law rule in Tregea.
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The jury has significantly shaped our rules. During this stage, oath
helpers became more significant, and they were no longer called
upon to express mere belief in the veracity of a party’s oath – they
were expected to also sit as adjudicators (mostly because of their
knowledge of events).
Society grew, the matters that came before the court became more
complex, became more difficult for parties to keep track of matters
discussed in court. Idea of witnesses was introduced. There was then
a distinction between jurors and witnesses: jurors set aside their
character as people who had knowledge of the events and personal
knowledge of the event actually became a disqualifying factor (idea of
impartiality was introduced into the system). Witnesses became the
only parties called upon for their knowledge of the events.
Jurors v witnesses
o Witnesses testified
o Jurors determined facts on the basis of testimony
Jurors v judges
o Jurors determined the facts; judges determined the
law. The fact that there was a jury still present in the
system meant that judges had to guard against the
danger of having laypersons decide even the facts of the
matter. Judges then introduced rules to protect from
jurors being distracted, misled, placing undue
weight on facts or rules that were notoriously
untrustworthy
o Why did judges consider the admissibility of evidence
as a matter of law?
Since our system was designed around juries
and we abolished trial by jury in 1927 and 1969
respectively, should we still have a system of
evidence that was designed for jury trials when
we no longer have a jury in SA? We have very
strict exclusionary rules even though most of our
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matters are decided by judges with extensive
knowledge of the law
Abolishing the jury system
o Trial by jury was abolished in SA in 1927 and again
(finally) in 1969, but we have retained an evidentiary
system designed for jury trials.
Jurors and assessors
The trial by jury was abolished, but we have retained many of the same rules. This is
justified by some in light of the fact that we use assessors in the lower courts.
Assessors in the lower courts or High Court can be compared to jurors because both
are factfinders and do not decide legal matters.
However, assessors, unlike jurors, must give reasons for their verdict they
either disagree or agree with the findings of the presiding officer. If they disagree,
they must give reasons for their verdict in a separate judgment (which is read out in
court).
o Secondly, assessors, unlike jurors, are under constant and immediate judicial
guidance.
S v Gambushe 1997 1 SASV 638 (N) 93(2)
Facts:
o The accused was found guilty of murder in a Magistrates Court on the basis of
the recommendation of two assessors who based their decisions on the
testimony of a single witness.
o The assessors outnumbered the magistrate (2 assessors, 1 judge).
o The judge expressed reservations about the ability of assessors, who are
generally laypersons, to assist a judge in deciding guilt or innocence of an
accused. The two assessors accepted the evidence of the single witness,
whereas the magistrate did not. The magistrate expressly mentioned in his
judgment that the evidence of one witness should be viewed with extreme
caution.
On appeal in the High Court
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o The High Court found that the view of the Magistrate was correct and
therefore set aside the court a quo’s order. The court makes a significant
distinction between 2 different kinds of assessors: those appointed ito the
Magistrate's Court Act 32 of 1944, and those appointed ito the Criminal
Procedure Act 51 pf 1977
s93(2)(a) of the MCA allows the use of assessors and notes that when
electing assessors, the judicial officer must have regard to the
accused’s cultural background, and the nature and seriousness of
offence etc. the purpose of the section is to bridge the gap between
the cultural differences and differences in education of the
magistrate v the accused the assessor must bridge gaps in
understanding between the accused and mag.
S145(1)(b) Criminal Procedure Act – states that an assessor for the
purposes of the section is a person who has experience in the
administration of justice or skill in any matter which may be
relevant for the trial
This kind of assessor is an expert of sorts.
The difference: the purpose of a MCA assessor is to provide guidance
which should be recorded in the record of the trial, and their
evidence is not to be approached in the same way as an assessor
appointed ito the CPA.
A CPA assessor, once appointed, is seen as a member of the
court and the finding of the majority of the members of the
court (including assessors) on a question of fact is a finding of
the court.2
o Held:
It is not feasible nor in the interests of the proper administration of
justice for assessors appointed in terms of the MCA to be presumed to
have the same status and capabilities as the assessors appointed ito
s145 of the CPA.
Judgment gives directions ito assessors appointed ito s93:
The magistrate should provide certain instructions to assessors
appointed ito s93, should give them guidance ito legal
2
(unless there is only one assessor, in which case the judge’s finding is the finding of the court).
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principles that are applicable in the matter all of this should
form part of the record so that the appeal court can have that
information available.
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Systems of Law of Evidence
2 primary systems:
o 1) Anglo-American system (followed in SA)
Adversarial in nature
Stems from trial-by-jury
Strict system with strict rules of evidence because our system stems
from trial-by-jury
o 2) Continental System
Inquisitorial
Stems from a trial by a professional judge
Free system because it stems from a trial being decided by a judge
Accusatorial v inquisitorial procedure:
o Accusatorial/ adversarial system:
Strict system of evidence
3 most important features:
1) the parties are in principle responsible for the
representation of evidence in support of their respective cases.
2) the adjudicator is required to play a passive role.
3) much emphasis is placed on oral presentation of evidence
and cross-examination of witnesses.
Trial by battle, where parties present their respective cases to an
impartial judge
The oath is taken here, as it is seen to be the strongest hold on a
person’s conscience
Judge plays mostly a passive role.
This applies in most of our courts: MC, HC, SCA, CC
Premise: greater approximation of truth is possible if litigants are
allowed to present their own evidence in a process which guarantees
cross-examination of opponent and all witnesses called by the
opponent.
The right to cross-examination is fundamental and the
evidence in our courts is generally presented orally.
o Inquisitorial system:
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Free system of evidence.
Premise: a trial is not a contest between two people but a quest to
discover the material truth.
Judge-centered: the judge addresses the witnesses and leads the
questioning, and the judicial officer examines the parties and
witnesses. This examination is the pivotal mechanism in the process of
truth or fact-finding.
Absence of right to cross examine means that the inquisitorial system
prioritises the written word as a method or receiving evidence.
We follow this system in our small claims courts
Disadvantages adversarial system:
o It presupposes for its success that there is some equality between the
parties. There is often not equality between the parties in practice, with the
result that the version of the more powerful party becomes the “truth”.
o The idea that opponents are engaged in battle can generate unnecessary
conflict which is not necessarily conducive to the resolution of a dispute.
o Much of the outcome of the case depends on the ruthlessness of the cross-
examiner.
o The partial manner in which the parties are allowed to present their evidence
(and the fact that the adjudicator can only call witnesses in limited instances)
can have the result that the “procedural truth” is promoted above the
material truth.
Disadvantages of the inquisitorial system:
o The general absence of formal preliminary findings (like, for instance, in small
claims court) regarding the admissibility of evidence might lead to a
proliferation of evidence and a multiplicity of collateral issues.
Basic concepts of LOE
Facta probanda and facta probantia:
o Facts in issue/disputed facts = facta probanda
The facts which a party must prove to be successful with his case
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E.g. of paternity case: if a woman wanted to prove a man was the
father of her child, the identity of the father would be the facta
probanda.
Number of facts in dispute can be reduced by way of formal
admissions
o Facts that are relevant to the facts in issue = facta probantia
Facta probantia are facts which tend to prove or disprove the facts in
dispute.
E.g. to prove that that particular man is the father of the child, the
woman will have to show there was sexual intercourse with that man.
Evidence and proof
o Important distinction between evidence and proof:
Proof of a fact means that the court has received probative material
with regard to such a fact and has accepted such a fact as being truth
for the purposes of the case.
If the court accepts the testimony (below) of John as being true,
then the evidence will be proof of a fact.
Court will evaluate surrounding circumstances and other
proven facts to determine whether proof is true.
Evidence of a fact is not yet proof of such a fact. The court must still
decide whether or not such fact has been proved, and this would
involve a process of evaluation.
E.g. if John testifies at a murder trial that his gun was stolen by
the murderer 3 months before the murder, this is evidence.
Conclusive proof v prima facie proof
o Conclusive proof means that rebuttal is no longer possible (proof that is
taken as decisive and final). Prima facie proof implies that proof to the
contrary is still possible.
o Conclusive proof: if we accept, for instance, that the ID document of an
individual is valid, the production of that document showing that the accused
is 38 years old, this is conclusive proof
o Prima facie proof: this is proof on the face of it, but it can be rebutted.
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E.g. hearing testimony in an assault case, the court can conclude there
is prima facie proof the accused punched the assailant but this is only
prima facie and not conclusive proof because the court may still
change its mind after hearing the accused’s version.
Admissibility and weight of evidence:
o Admissibility relates to whether the evidence is allowed in court, or
whether the courts can take such evidence into account at all. Test for
admissibility is relevance.
o If the court decides to admit the evidence, the court must still decide how
much weight to attach to it. The weight of evidence is the determination that
the court makes as to what degree the items of evidence are to influence its
final evaluation of proof.
There are no degrees of admissibility, something is either admissible or
not.
o However:
Admissibility of evidence is in principle determined with reference to
its relevance. In determining relevance, reference must be made to the
potential weight of the evidence (however this is a mere preliminary
investigation to determine relevance).
o E.g. in an assault case, the complainant’s evidence that she was physically
attacked will be admissible, but if the complainant gives an unreliable
testimony, the court may decide to attach little weight to the complainant’s
evidence.
Evidence and argument
o Evidence is material that the court receives and evaluates to determine if
such evidence proves a particular fact (and if the court receives evidence
which persuades it to accept a fact as being true for purposes of the case, that
evidence is proof).
o Argument is mere persuasive comment that parties, or their legal
representatives make in court.
Evidence v probative material
o This distinction is more difficult: both refer to facts that may prove the fact
in issue.
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