Class notes
Law of Evidence Lecture Notes & Summaries
- Course
- Law Of Evidence (PBL4801F)
- Institution
- University Of Cape Town (UCT)
Comprehensive lecture notes and case summaries
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EVIDENCE LECTURE NOTESIntroduction
The Decolonial Method: Two primary messages…
- High Performance – required due to multiple problems
o Problems inherited:
90% of sub-continent (40% in SA) litigates under indigenous criminal courts
where untold miscarriages of justices (chief error in LOE: convicting the
innocent) occur
Most Law of Evidence remains in European languages – most English in SA
Too north-bound gazing
No record of wrongful convictions: No successful petitions by convicted prisons
to Minister for a presidential pardon under S237 of CPA since 1995
58 murders per day (21325 pa) + 115 rapes per day (42289 pa) = BUT: only
3987 murder and 5451 sexual offences cases were prosecuted (2019/20)
17 of the 30 most corrupt countries are in Nubian Africa
Fanon’s Zone of Non-Being : Africa is the land of traumatized and terrorized
people – 340 years of enslavement
Not even the word ‘Africa’ was coined by Africans
1914: Entire continent occupied
- Furthering the Decolonial Project
o What is decolonization? Two core ideas
Resistance: Resist colonial vestiges of genocides, epistemicides, linguicides and
cultural imperialism
Rediscovery: Invoking indigenous knowledge systems
Biko’s trope “Here Is A Table”: Some Africans were invited by colonizers to sit
at the European colonizers’ table = reset the table and have Africans be the
ones inviting Europeans to their table
Origins of Evidence in ACL
- No rules of Evidence in ACL
o Bennet: No rules regulating type of evidence that may be admitted, the manner in
which it may be adduced = Procedure not regulated by statute of rules of Court
^COMPLETELY UNTRUE
- SEK Mqhayi’s Ityala Lamawele (1914):
o Brought fact-finding procedures of Xhosa people to light
o Facts: Civil dispute between twin brothers – Wele and Babini – about who should
inherit
Wele’s finger came out of the womb first and was cut off according to custom,
but it was Babini that actually came out first.
o Verdict: Babini is the heir.
o Evidential aspects that led to verdict:
Veracity of witness testimony is tested, by rule, through cross-questioning by
the councilors (sit as fact-finders)
Rule: Only elders can give expert testimony in camera
Kulile from Nqabarha was called by court to testify
Admissible evidence that is similar in fact: Kulile’s expert testimony about a
previous inheritance dispute between another set of twins
In common law: Similar fact is inadmissible
Exclusionary Rule: Evidence of bribed witnesses is always inadmissible
- Colonial roots:
, o Former British colonies: Indian Evidence Act of 1872
SA’s ordinance for altering, amending and declaring in certain respects the LOE
within the Colony
R v Gumede 1942
o Former French and Belgian colonies: Napoleonic Codes (Code d’instruction
criminelle 1809)
- Current Law of Evidence:
o Civil Proceedings Evidence Act 25 of 1965 + Criminal Procedure Act 71 of 1977
Residuary Clauses: Where the law is silent, English Law as it was on the 30th of
May 1961 applies.
S206 of Criminal PA: “The law as to the competency, compellability or
privilege of witnesses which was in force in respect of criminal proceedings
on the 30th of May 1961 shall apply in any case not expressly provided for by
this Act or any other law.”
S42 of Civil PA: “ 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 30th of May 1961
shall apply in any case not provided for by this Act or any other law.”
What is the Law of Evidence?
- Three characteristics:
1) Enlightenment Rationalism
Kant: “Enlightenment is mankind’s exit from its self-incurred immaturity. Immaturity is
the inability to make use of one’s own understanding without the guidance of another.
Self-incurred is this inability if its cause lies not in the lack of understanding but rather
in the lack of the resolution and the courage to use it without the guidance of another.
Sapere aude! Have the courage to use your own understanding! Is the motto of
enlightenment.”
Thayer: Historical irrational methods of fact-finding
Freeman: “The paradigm of rational decision is one reached according to rules,
principles or standards.”
Wigmore: Always a REASON given for adjudicative decisions
- Modes of social ordering
Forms of Social Ordering
Modes of Participation
Negotiation Contract
Voting Elections
Presentation of proofs
and reasoned arguments Adjudication
2) Bifurcated Procedural Law
,- Bentham: “To give execution and effect throughout to the main, or substantive,
branch of the body of the law, is, or ought to be, the main positive end or object of
the other branch, viz. the adjective, or that which regulates the system of judicial
procedure.”
3) Trifurcated Evidence Law
- Stephen: “Thus in general terms, the law of evidence consists of provisions upon
the following subjects:
(1)The relevancy of facts
(2)The proof of facts
(3)The production of proof of relevant facts.”
- Schwikkard & Van der Merwe:
o Admissibility (sections A-F)
o Production (sections G-H)
o Proof (sections I-J)]
- Zeffert & Paizes:
o Admissibility (Parts III-V)
o Production (Part VI)
o Proof (Parts II and VII)]
Impact of The Constitution
- Two main areas:
o Transformation from Parliamentary Sovereignty to Constitutional Supremacy:
Transformed status and protection of evidential/procedural rights (Zeffert: 15;
Schwikkard: 32)
o Resulted in further blurring between SUBSTANTIVE vs PROCEDURAL LAW DIVIDE
S35: Fair trial rights
S v Zuma 1995 (CC):
o Admissibility/Relevancy: Evidence obtained in breach of the right to privacy
(intercepting private communications) may be excluded – S v Pillay 2004 (SCA)
o Production: Courts are not competent nor permitted to enquire into the
acceptability of a traditional healer’s ‘medical certificate’ for an iniate being
absent from work – Kievits Kroon Country Estate (Pty) Ltd v Mmoledi 2014
(SCA)
o Proof: Some statutory provisions that reverse the onus of proof, by requiring an
accused to prove one or more facta probanda, have been held to be in breach of
presumption of innocence – S v Zuma 1995 (CC)
Standards & Burdens of Proof
1) Forensic Uncertainty
, - MacCormick’s Basic Model of Legal Argumentation:
‘(1) p ⊃ q
(2) p
(3) :. q.’
- Two Sources of Uncertainty:
o Interpretation – Empirical (existence of rule) or Theoretical: Dispute
content/meaning of rule
o Proof - = P (MacCormick’s Legal Reasoning): Dispute existence of the rule
2) Overarching values of LOE (attempt to respond to uncertainties)
Rectitude of Decision
Madondo J: “The primary task of the court is
to find the truth in the interests of justice.”
(S v Mathonsi; Crown Cork & Seal Co. Inc v Rheem SA)
Justice is the ultimate end goal
- Truth (epistemic)
o “…a trial must always be a quest to discover the truth. Irrational and
unreasonable obstacles to the admission of evidence should not impede that
quest. In order to reach a true verdict, a court must be able to consider all the
relevant admissible evidence.” (Madondo J in S v Mathonsi)
- Fairness (moral)
o “It comes down to this: Even if there is some measure of doubt, the decision-
maker must be prepared not only to take moral responsibility on the evidence and
inferences for convicting the accused, but to vouch that the integrity of the
system that has produced the conviction – in our case, the rules of evidence
interpreted within the percepts of the BoR – remains intact. Differently put,
subjective moral satisfaction of guilt is not enough: It must be subjective
satisfaction attained through proper application of the rules of the system.”
(Cameron JA in S v Mavinini)
o Prejudice: “Evidence which is logically probative – or disprobative – can be
excluded because of its prejudicial effect on the party concerned. ‘Prejudice’ in
this context does not mean that the evidence must be excluded simply because
the party against whom the evidence stands to be adduced will be incriminated or
implicated. It means that incrimination or implication will take place in
circumstances where the party concerned may be procedurally disadvantaged or
otherwise exposed to a lengthy trial involving issues which – though logically
relevant – are legally too remote to assist the court in its ultimate decision on the
merits. Evidence is relevant if its probative value outweighs its prejudicial effect.”
(Schwikkard and Van der Merwe)
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