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LEV 3701 LAW OF EVIDENCE
ADMISSIBILITY OF EVIDENCE
SUMMARY EXAM NOTES
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LEV 3701
Law of Evidence- Admissibility of Evidence
Study Unit 1 – Overview
State whether the following statements are true or false:
(1) The Law of Evidence is the name of the field of law that you are currently
studying. False (with capitals it refers to the course name)
(2) When it is said that ‘‘the court’’ makes a finding, this actually means that the
judicial officer presiding in the case (plus assessors where applicable) is making
the finding. True
(3) Oral evidence refers to evidence given by a witness from the witness box. True
(4) If evidence is contained in a document, the party who wants to present this evidence will simply
hand the document to the court. False
(5) Evidence that is provided by modern technology, such as computers and video tapes, presents
the law of evidence with difficulties that have not yet all been
resolved. True
(6) In the case of judicial notice and presumptions, evidential material is provided
without the presentation of evidence. True
(7) Decisions on the admissibility of evidence are made during the trial —
decisions on the weight of the evidence are made only at the end of the trial.
True (although, as you will learn later in this course, the weight of evidence may also impact on its
admissibility)
(8) The burden of proof plays an important role during the evaluation of evidence at the end of the
trial. True
(9) It is sometimes necessary for the court to approach certain evidence with caution. True
(10) The law of evidence plays an important role in every single court case conducted in our courts.
True
Study Unit 2 Concepts in the law of evidence
Besides evidence, what other forms of evidentiary material are there? Try to give an
example of each. Where possible, write down the references to decided cases in which
these other kinds of evidentiary material were at issue.
(1) Admissions — S v Mjoli 1981 (3) SA 1223 (A)
(2) Formal admissions — S v Mokgoledi 1966 (4) SA 335 (A)
(3) Judicial notice
(4) Presumptions — S v AR Wholesalers 1975 (1) SA 551 (NC)
Briefly explain, with reference to the two main branches of the law, how the law of evidence fits into the general structure of the law. (5)
Explain the difference between substantive law and adjective law and give an example of each.
Into which category does the law of evidence fall? (5)
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Substantive law covers one’s rights and obligations. It tells what one may or may not do. Criminal law
is an example of substantive law. Adjective law (sometimes known as procedural law) prescribes the
general procedure to be followed in court and legal transactions. Criminal procedure is an example of
adjective law. Therefore, the law of evidence is part of adjective law.
Briefly explain the relationship between “proof” and the law of evidence.(5)
The law of evidence may be defined as that field of law which generally regulates the proof of facts in
court. Proof therefore is central to the entire field of the law of evidence.
Proof : having sufficient grounds for a finding on a point in issue. 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 : probative (evidentiary) material (oral, documentary or real evidence) which is produced in
court. Evidence of a fact is not yet proof of such fact: the court must still decide whether or not such
fact has been proved.
Evidential material : material which goes to furnish proof
Study unit 3 Sources of the law of evidence
Historical source of the law of evidence: Procedural law of South Africa is mostly drawn from
principles of English law and therefore regarded as the common law for the law of evidence in south
Africa, consequently courts may have recourse to English law in the event of any uncertainty on an
aspect of the law of evidence.
Knowledge sources are a wider concept, covering not only the historical sources, but also relevant
court cases creating binding law and applicable South African legislation eg the Criminal Procedure
Act 51 of 1977 and the Civil Proceedings Evidence Act 25 of 1965 applying particularly to the law of
evidence as well as the Constitution of the Republic of South Africa 1996 which is the highest source
of law and its principal provisions affecting the law of evidence are the fundamental rights (‘‘Bill of
Rights’’).
(1) Write down the wording of section 252 of the Criminal Procedure Act 51 of 1977.
Section 252 of CPA : The law as to the admissibility of evidence which was in force in respect of
criminal proceedings on the thirtieth day of May 1961, shall apply in any case not expressly
provided for by this Act or any other law.
(2) Explain what is meant by a ‘‘residuary clause’’ in South African law.
A residuary clause determines that foreign law has to be followed on topics for which no express
local statutory provision had been made (Indirect incorporation). These are those sections in South
African statutes which incorporate foreign law into South African law and thereby preserve that part
of foreign law.
Mention the principal provisions of the Constitution of the Republic of South Africa, 1996 that
affect the law of evidence. (5)
Section 35(1) of the Constitution 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 (sec 35(1)(a) and (b))
(2) not to be compelled to make a confession or admission which could be used in evidence against
him or her (sec 35(1)(c))
Section 35(2) provides for the rights of a detained person including the right
(s 35(2)(a)) - to be informed promptly of the reason for being detained
(s 35 (2)(b)) - to choose, and to consult with a legal practitioner, and to be informed of this right
promptly
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(s35(2)(c)) - 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 accused 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 (sec 35(3)(a))
(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 (sec 35(3)(h)) and
(3) to adduce and challenge evidence and not to be a compellable witness against himself or herself
(sec 35(3)(I) and (j))
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 or would otherwise
be detrimental to the administration of justice.
Study unit 4 Relevance and admissibility of evidence
. explain the meaning of relevance and its relationship with the admissibility of evidence
. list the ‘‘facts in issue’’ in any given case
. relate the admissibility of evidence to questions such as the reasonableness of inferences drawn
from certain evidence and the prejudicial effect of admitting any evidence
From your reading material, give at least two examples that show that evidence may be
inadmissible, despite being relevant.
a) If the evidence is privileged.
b) If the evidence was obtained in breach of constitutional rights.
Definition of relevance:
There needs to be a logical connection between the issues of the case before the court and
the evidence. According to:
(1) Stephen: Essential elements are the following: two facts are related; one normally proves the
other or renders it probable (or not); whether the fact is past, present or future; either by itself or
with other facts.
(2) The US Federal Rules of Evidence: Evidence which tends to make any fact of consequence to the
action more, or less, probable than without the evidence
In the case of S v Shabalala 1986 (4) SA 734 (A);
(1) What is the main reason why the evidence about the behaviour of the police dog was not
admitted in R v Trupedo 1920 AD 58?
The probative value was too tenuous (flimsy), in other words not relevant. To draw inferences from
dogs’ abilities is to enter a region of “conjecture and uncertainty”.
(2) A number of writers have suggested that the decision in R v Trupedo does not mean that
evidence about tracking dogs will always be inadmissible. In what way do they argue should the
judgment be viewed?
The judgment was decided on the facts of the particular case and inadequacy of scientific knowledge
at the time. Modern information about the scenting ability of dogs and their training may justify
admission of the evidence.
(3) What role did the untrustworthiness of the evidence play in the court’s decision?
The (extreme) untrustworthiness was of fundamental importance. If this element is sufficiently
reduced the evidence would become admissible.
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