Exam (elaborations)
LEV3701 - Law Of Evidence Important Exam Notes
- Course
- LEV3701 - Law Of Evidence
- Institution
- University Of South Africa (Unisa)
Summary of LEV3701 - Law Of Evidence Examination Notes
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Exam Notes LEV 3701Explain difference between proof, Evidence and Evidentiary material:
Proof- Proof of fact means that a court has received probative material wrt such fact
and accepted such fact as being the truth for purposes of the specific case.
Evidence- Evidence of a fact is not yet proof of such fact, the court must still decide
whether such fact has been proved. It involves a process of evaluation.
Evidentiary material - relates to all forms of evidence for example oral,
documentary, real, circumstantial etc.
Rights of arrested and accused persons that are important:
• The rights of arrested and accused persons are provided for in section 35 of
the Constitution of South Africa 1996.
• Section 35(1) provides that every arrested person has the right to informed in
an understandable language that he or she understands, right to remain silent
and the consequences of making a statement.
• Section 35(3) provides the rights of the accused for example to be informed
of the charge, to be presumed innocent and to adduce and challenge
evidence.
The competency of a co-accused as prosecution witness:
In general, a co-accused is incompetent to testify against another accused for the
state. The exception to the general rule is when the person is no longer a co-
accused as in the following circumstances:
• When the state withdraws the charge against the co-accused
• By finding the co-accused not guilty, therefore is discharged and later called
as a witness
• By the accused entering a plea of not guilty. In such a case the trial of the
accused and co-accused are separated.
• If the trials of the accused and his co-accused are separated for some other
valid reason.
,Evidence of complainant soon after an alleged offence of sexual nature
Requirements:
1. Previous consistent statements are admissible in several exceptions for
example in complaints of a sexual nature.
2. The evidence should be made soon after an alleged offence of a sexual
nature.
3. Evidence that such a complaint was made and evidence about the contents
of the complaints.
4. The evidence that the complaints was made is important as it serves to
support the credibility of the complaint.
5. It also indicates that the evidence tendered in court has not been recently
fabricated.
Admissibility of data messages:
A data message means data generated, sent, received, or stored, by electronic
means, and includes:
a) Voice, where such voice is used in an automated transaction
b) A stored record
The evidential provisions of the Act were designed to cope with evidence in
a “digital” format.
Once a voice recording, a photograph, a letter, a picture, or even a video
has been stored in a computer, the format changes from analogue to
digital.
The concept of “data” is central to the Act because a data message is the
digital alternative to traditional evidential concepts of statement, object, or
document.
Although it is tempting to argue that courts appear to have little discretion in
respect of the admissibility of a data message but rather that they are
required to exercise their discretion when they assess the weight to be
attached to the evidence, it is unlikely that such an approach will be followed
by the courts.
For example, the view of the court in Ndlovu v The Minister of Correctional
Services is that section 15 serves to facilitate the admissibility of electronic
evidence by excluding evidence rules which deny the admissibility of
electronic evidence purely because of its electronic origin.
, Explain the admissibility of confessions, admissions and pointing-out:
Confessions:
1. Is a comprehensive out of court informal admission by the accused of all
the elements of the alleged crime.
2. Can be described as an unequivocal acknowledgement of guilt which if it
where made in a court of law would be accepted as a plea of guilty.
In terms of section 217(1) of the Criminal Procedure Act 51 of 1977, the basic
requirements for the admissibility of all confessions are:
➢ That they have to be made freely and voluntarily,
➢ by a person in his sound and sober senses,
➢ without unduly influence thereto,
➢ if the confession is made to a peace officer who is not a justice of the
peace or a magistrate,
➢ it has to be confirmed and reduced to writing in the presence of a
magistrate or justice of the peace.
Admissions and pointing out:
Section 218 of the CPA regulates the admissibility of facts discovered as a
consequence of an inadmissible admission or confession and it provides that:
1. Evidence may be admitted in evidence notwithstanding that the witness who
gives such evidence of such fact, obtained such fact only in consequence
of information given by an accused in a confession which by law is
inadmissible against such accused and that the such fact came the
knowledge of such witness against the wish of the accused
2. The evidence may be admitted as pointed out by the accused
notwithstanding that such pointing out forms part of a confession or
statement which by law is inadmissible against such accused.
3. The admissibility of evidence discovered in consequence of information
given by an accused in any confession or statement which is not
admissible and of evidence of a pointing out by an accused that forms part of
a confession or statement which is not admissible is qualified by decided
cases and the Constitution
4. It was decided in S v Sheehama, that a pointing out is essentially a
communication by means of conduct and therefore a declaration by the
person performing the pointing out that she knows something about the facts
in issue. If this statement is to the disadvantage of the person doing the
pointing out, it will constitute an extra-judicial admission.
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