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Law of Evidence 471 Summary
Neat and comprehensive summary of all the coursework prescribed for the final year module, Law of Evidence 471.
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LAW OF EVIDENCESTUDY UNIT 1: INTRODUCTION TO THE LAW OF EVIDENCE
INTRODUCTION TO THE LAW OF EVIDENCE
DEFINITION AND SIGNIFICANCE OF THE LAW OF EVIDENCE
- Definition:
o Law of Evidence is the area of law that governs the proof of facts in a court of law
- Significance:
o Serves as the machine that transforms the rules of substantive law into orders
and enforcements
o Important distinction:
§ Substantive law = Rights and duties of parties
§ Procedural law = Procedural mechanisms to enforce these rights and
duties (Law of Evidence is part of this)
FUNCTIONS OF THE LAW OF EVIDENCE
- The law of evidence determines:
o Admissibility (What can a court admit as evidence to proof the facts in
issue/facta probanda)
o The manner in which evidence should be presented
o What evidence should not be considered by a court
o Factors that influence the probative value of evidence
§ Probative value = Whether a piece of evidence makes a relevant disputed
point more or less true
o What evidence can be lawfully withheld from the court
o What rules are applied for assessing the weight or cogency of the evidence
o What standard of proof should be satisfied before a party bearing the burden of
proof can be successful
WHERE DOES THE LAW OF EVIDENCE FIT IN?
- It forms part of the branch of procedural law (adjectival law)
o Source in SA = English law
o Linked to both criminal law and civil procedure
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, HISTORY AND THEORY OF THE LAW OF EVIDENCE
THE EVOLUTION OF THE JURY
- Jurors vs witnesses
o Witnesses who had knowledge of the facts testified
o Jurors, who had no knowledge of the fact (for impartiality purposes), determined
the facts on the basis of testimony
- Jurors vs judges
o Jurors determined the facts
o Judges determined the law
o Why did judges consider the admissibility of evidence a matter of law?
§ Judges had to guard against the various discrepancies that can come
about by having people with no knowledge of the law decide the facts of
the matter
§ Therefore, established rules to guard against these discrepancies that can
come from the presence of a jury
• Were of the view that the jury could easily be misled/distracted or
place a lot of weight on facts that were notoriously untrustworthy
§ Thus, established that certain evidence is admissible, and others are not
- Abolishing of the jury system
o Jury in civil (1927) and criminal (1969) cases abolished
o But we still have an evidentiary system designed for jury trials (Good or bad?)
JURORS AND ASSESSORS
- Although the trial by jury was abolished, we have retained the system that was designed
for it.
- Some argue that this is partly because we still use assessors in lower courts
o Assessors are co-founders of facts with the judge and must give reasons for their
verdict
o Assessors must at all times be guided by judges
- S v Gambushe 1997 1 SASV 638 (N) (Prescribed)
o Indicates that the role of assessors can sometimes bring problems to a case
o In this case an accused was found guilty of murder in a magistrate court by two
assessors who based their decision on the testimony of a single witness
o To make a finding on the basis of a single witness is very dangerous
o Judge expressed reservations about the ability of an assessor in assisting the
judge when they are technically laypersons who might be derailed by evidence
that are notoriously untrustworthy
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, S v Gambushe 1997 1 SASV 638 (N)
Facts
Accused was found guilty in a magistrates’ court that consisted of two assessors and the
magistrate.
The state presented one witness and the two assessors accepted the evidence of this single
witness whereas the magistrate did not. The magistrate held that the evidence of a single
witness should be approached with extreme caution. Nevertheless, the two assessors took
the view that despite the discrepancies in the single witnesses’ testimony that they believed
the version of the witness and, as a result, found the accused guilty whereas the magistrate
found the accused not guilty.
The matter went on appeal and the high court found that the view of the magistrate was
correct and set aside the order of the court a quo. The appeal court made a very interesting
comment about the two types of assessors:
Section 93(2) of the Magistrate’s court Act
Allows for the use of assessors who can help the court in the facts finding process and that
the selection of the assessors under this section is to be kept in mind when deciding how to
approach evidence. The court notes that in terms of this section, when electing assessors,
the judicial officer would generally have regard to the accused’s cultural and social
surroundings; the accused’s educational background; the nature of the offence and
punishment; as well as any other facts that the magistrate might find to be relevant.
The purpose of this section is to bridge the gap between the magistrate, who might not be
of the particular community that the accused comes from or understand the educational
development of the accused. This, therefore, means that the assessor who is appointed
under this section is essentially a layperson and are there to serve as a parent to a child to
ensure that if there are any gaps in understanding between the magistrate and the accused,
that those gaps are bridged.
Section 145(1)(b) of the Criminal Procedure Act
An assessor for the purposes of this section is a person who has experience in the
administration of justice or skill in any matter that might be considered at trial. He/she is
therefore an expert of some sorts. A person that can actually have a greater say.
Judge in this case distinguished this assessor from the one above and held that assessors
appointed in terms section 93(2) are to be provided with certain guidelines that should be
outlined in the record of the trial and that their evidence is not necessarily to be
approached in the same way as that of assessors appointed in terms of the CPA.
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, Court’s findings
Court held that it is not feasible nor in the interest of the proper administration of justice
that assessors who are appointed under the MCA should be presumed to have the same
status and capabilities as assessors appointed under the CPA.
Guidelines provided by court = The magistrate should provide certain instructions to
assessors appointed under the MCA and give them guidance to ensure they are aware of
certain legal principles that form part of the matter and that all of this should form part of
the record so the appeal court can have all that information before them.
SYSTEMS OF LAW OF EVIDENCE
- Two primary systems of evidence:
o Anglo-American System (What we follow)
§ Adversarial
§ Stems from trial by jury
§ Very strict system of evidence
o Continental System (Followed by i.e. Germany)
§ Inquisitorial
§ Trial by professional judge
§ Free system of evidence because the judge themselves would engage in
the truth finding process
ACCUSATORIAL vs INQUISITORIAL PROCEDURE
- Accusatorial/adversarial system
o Trial by battle = Parties present their cases before a passive judge
o The oath = Strongest hold on the conscience of a person
o Happens in Magistrate Court, High Court, Supreme Court of Appeal and the
Constitutional Court
o Premise = The truth is possible if a litigant is allowed to present their own
evidence and guarantees the cross-examination of the opposition
evidence/testimony and witnesses.
- Inquisitorial system
o Judge centered = Judge leads the questioning
o Judicial examination = Pivotal mechanism in the process of fact finding
o Followed in the Small Claims Court
- Advantages and disadvantages of each system?
o Think about it and see textbook
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