Preface
Mode of citation of principal works and sources
Section A
An Introduction to the Law of Evidence
1 An Introduction to the History and Theory of the Law of Evidence –S E van der
Merwe
11 Introduction
12 Scope and Functions of the Law of Evidence
13 Early History and Development of the English Law of Evidence
131 The religious (primitive) stage
132 The formal stage
133 The rational stage (and development of the jury)
14 Procedural and Evidential Systems and Some Universal Principles of Fact-Finding
15 Ordinary Courts and Small Claims Courts: An Examination of Procedural and
Evidential Differences
151 Small claims courts and the inquisitorial procedure and free system of
evidence
152 Accusatorial versus inquisitorial procedure
153 Strict versus free system of evidence
16 Jurors and Assessors: Some Brief Comparative Remarks
17 Rules of Evidence in Criminal and Civil Proceedings
2 Basic Concepts and Distinctions –S E van der Merwe
21 Introduction
22 Facts in Issue and Facts Relevant to the Facts in Issue
23 Evidence and Argument
24 Evidence and Probative Material
25 Evidence and Proof
26 Conclusive Proof and Prima Facie Proof
27 Admissibility and Weight of Evidence
28 Conditional Admissibility
29 Circumstantial and Direct Evidence
2 10 Primary and Secondary Evidence
2 11 Hearsay
2 12 Relevance
2 13 Privilege
2 14 Formal and Informal Admissions
2 15 Confessions
2 16 Judicial Notice
2 17 Presumptions
2 18 The Burden of Proof (Onus of Proof, Legal Burden) and the Burden of Rebuttal
(Evidential Burden, “Weerleggingslas”)
, Page viii
3 Sources of the South African Law of Evidence and the Impact of Constitutional
Provisions –S E van der Merwe
31 Introduction
32 Original and Regional Incorporation of English Law: The Pre-Union Period
33 Criminal Proceedings: The Post-Union Period
34 Civil Proceedings: The Post-Union Period
35 Interpretation of the 30 May 1961 Provision
351 English decisions considered to be incorrect
352 South African rules of practice incompatible with English law
353 Rules inconsistent with constitutional provisions
36 Value of English Cases Decided after 30 May 1961
37 Value of Privy Council Decisions
38 Further Sources
39 Constitutional Provisions
4 The Law of Evidence and Substantive Law –E van der Berg and A Govindjee
41 Introduction
42 The Significance of the Distinction
43 The Burden of Proof
44 Irrebuttable Presumptions
45 Estoppel
46 Parol Evidence
461 The integration rule
462 Some exceptions
463 Rectification
464 The interpretation rule
Section B
The Admissibility of Relevant Evidence
5 Relevance and Admissibility –S E van der Merwe
51 Introduction
52 Rationale for the Exclusion of Irrelevant Evidence
53 The Meaning of Relevance and the Determination of Relevance
531 The issues (as the essential point of departure)
532 Reasonable or proper inference: assessing the potential weight of the
evidence
533 Avoiding a proliferation or multiplicity of collateral issues
534 The risk of manufactured evidence
535 Prejudicial effect
536 The doctrine of precedent
537 The principle of completeness
538 Constitutional imperatives and the position of the accused
54 Proposals of the South African Law Reform Commission
6 Character Evidence –P J Schwikkard
61 Introduction
, Page ix
62 Character in Criminal Cases
621 The character of the accused
622 Evidence of the accused’s bad character
623 Section 197 of the CPA
6231 Section 197(a)
6232 Section 197(b)
6233 Section 197(c)
6234 Section 197(d)
624 Section 211 of the CPA
625 Witnesses other than the accused
626 Character of the complainant
6261 Rape or indecent assault
6262 Crimen iniuria
63 Character in Civil Cases
7 Similar Fact Evidence –P J Schwikkard
71 Introduction
72 The Rationale for the Exclusion of Similar Fact Evidence
73 Formulating the Rule for Determining the Admissibility of Similar Fact Evidence
731 The formulation in Makin v Attorney-General for New South Wales
732 The inadequacies of the Makin formulation
733 A necessary proviso
7331 The nexus requirement
734 The dangers of categorisation
735 The formulation in DPP v Boardman
74 The Requirement of Similarity
741 The test of coincidence
742 Coincidence and a nexus
743 The degree of similarity
75 The Facts in Issue
76 Other Evidence
77 Examples of the Exclusion of Similar Fact Evidence
78 An Alternative Approach
8 Opinion Evidence –E van der Berg and S E van der Merwe
81 Introduction
82 Fact and Opinion: Some Comments
83 The Basis of the Opinion Rule
84 Lay Persons and Experts
85 The Opinion of a Lay Person
851 The compendious mode
852 Handwriting
853 Probative value of lay opinion
86 The Expert Witness
861 The expert witness: the need to lay a foundation
862 Reasons for opinion and probative value of the opinion
863 Hearsay and expert opinion
864 The expert referring to textbooks
Page x
87 Procedural Aspects
,88 The Rule in Hollington
9 Previous Consistent Statements –S E van der Merwe
91 Introduction
92 Rationale for the Exclusion of Previous Consistent Statements
93 An Example from Case Law
94 Exceptions to the General Rule
95 To Rebut a Suggestion of Recent Fabrication
96 Complaints in Sexual Cases
961 Voluntary complaint
9611 The common law
9612 The provisions of Act 32 of 2007
962 The victim must testify
9621 The common law
9622 The provisions of Act 32 of 2007
963 First reasonable opportunity
9631 The common law
9632 The provisions of Act 32 of 2007
964 Victim of sexual offence
9641 The common law
9642 The provisions of Act 32 of 2007
965 Limited evidential value
9651 The common law
9652 The provisions of Act 32 of 2007
966 Complaints in sexual cases: inferences and the provisions of ss 58 and 59
of Act 32 of 2007
9661 General background
9662 Inferences and ss 58 and 59
97 Identification
98 Part VI of the CPEA
99 Res Gestae
9 10 Refreshing Memory
9 11 Statements Made at Arrest or on Discovery of Incriminating Articles
9 12 Section 213 of the CPA
Section C
Exclusion of Relevant Evidence: Privilege
10 Private Privilege –P J Schwikkard
10 1 Introduction
10 2 The Privilege Against Self-incrimination and the Right to Remain Silent
10 2 1 The rationale
10 2 2 The witness in criminal proceedings
10 2 2 1 The scope of the privilege
10 2 3 The accused
10 2 3 1 Pre-trial proceedings
, Page xi
10 2 3 1 1 Ascertainment of bodily features
10 2 3 1 2 Bail proceedings
10 2 3 2 Trial and plea proceedings
10 2 4 Other investigative inquiries
10 2 5 The witness in civil proceedings
10 3 Legal Professional Privilege
10 3 1 The rationale
10 3 2 The requirements for the existence of the privilege
10 3 2 1 Acting in a professional capacity
10 3 2 2 The communication must be made in confidence
10 3 2 3 For the purpose of obtaining legal advice
10 3 2 4 The client must claim the privilege
10 3 3 The scope of the rule
10 3 4 Waiver
10 3 5 Refreshing memory in the witness-box
10 3 6 Section 19 of the Legal Aid South Africa Act 39 of 2014
10 4 Other Professional Privileges?
10 5 Marital Privilege
10 6 Parent–Child Privilege
11 State Privilege (Public Interest Immunity) –S E van der Merwe
11 1 Introduction
11 1 1 Terminology
11 1 2 The differences between public and private privilege
11 1 3 Development of the English common law
11 2 State Privilege Prior to Constitutionalisation
11 2 1 The decision in Van der Linde v Calitz
11 2 2 Legislative interference (1969 to 1996)
11 3 State Privilege after Constitutionalisation
11 3 1 Impact of constitutional provisions
11 3 2 The balancing exercise
11 4 The Detection of Crime
11 4 1 Communications tending to expose the methods used to investigate crimes
11 4 2 Communications tending to reveal the identity of an informer
11 4 3 Extension of the informer’s privilege
11 4 4 The constitutionality of the informer’s privilege
11 4 5 Examples of statutes that exclude evidence of the identity of persons who
have a statutory duty to report
11 4 5 1 Section 38(3) of the Financial Intelligence Centre Act 38 of 2001
(FICA)
11 4 5 2 Section 17(9) of the Protection of Constitutional Democracy
against Terrorist and Related Activities Act 33 of 2004
11 5 The Police Docket and Constitutional Provisions
11 5 1 Access for purposes of trial
11 5 1 1 Disclosure of contents not the equivalent of further particulars
to the charge
Page xii
11 5 1 2 Information which only becomes available after commencement
of the trial
, 11 5 1The position of the undefended accused
3
11 5 1Position of suspects
4
11 5 1Further procedural and evidential matters
5
11 5 1Cross-examination on the basis of the state witness’ statement
6
11 5 1Abolition of the blanket docket privilege: defence interviews
7
with (potential) state witnesses
11 5 2 Access for purposes of a bail application
11 5 2 1 Constitutional validity of s 60(14) of the CPA
11 5 2 2 Duty and power of court to order state to disclose
11 5 2 3 Sections 60(14) and 335 of the CPA
11 5 2 4 Ethical duty of prosecutor
11 6 The Promotion of Access to Information Act 2 of 2000
11 6 1 The PAIA and mandatory protection of records privileged from production in
legal proceedings
11 6 2 Non-applicability of the PAIA to records required for criminal or civil
proceedings after commencement of such proceedings
Section D
Exclusion of Relevant Evidence: Unconstitutionally Obtained Evidence
12 Unconstitutionally Obtained Evidence –S E van der Merwe
12 1 Introduction
12 2 The Competing Interests
12 3 Rationale of the Inclusionary Approach
12 4 The Theoretical Basis and Practical Purpose of the Exclusionary Approach
12 4 1 The “preventive effect” argument
12 4 2 Due process in the context of a bill of rights
12 4 3 The doctrine of legal guilt
12 4 4 Judicial integrity
12 4 5 The principle of self-correction
12 4 6 Primary rules and the secondary rule (the exclusionary rule)
12 5 The Exclusionary Rule in the USA: A Brief Survey
12 5 1 The rule in Mapp
12 5 1 1 General principles limiting the ambit of the rule in Mapp
12 5 1 2 The “good faith” exception
12 5 1 3 The “independent source” exception
12 5 1 4 The “stop and frisk” exception
12 5 2 The Miranda-warnings
12 5 2 1 The ambit of the exclusionary rule in Miranda
12 5 2 2 The “public safety” exception
12 5 2 3 The “impeachment” exception
12 5 2 4 The “inevitable discovery” exception
12 6 Section 24(2) of the Canadian Charter: A Brief Survey
12 6 1 Seriousness of the state conduct infringing the Charter
12 6 2 Impact on the accused’s interests as protected by the Charter
, Page xiii
12 6 3 The interest of society in an adjudication on the merits
12 6 4 Applying the three lines of inquiry to specific types of evidence
12 7 Position in South Africa Prior to s 35(5) of the Constitution
12 7 1 The Anglo-South African common-law inclusionary approach (and its
development since constitutionalisation)
12 7 2 The interim Constitution
12 7 2 1 Protection of the constitutional right to a fair trial
12 7 2 2 The discretion to exclude unconstitutionally obtained real
evidence
12 7 2 3 Public opinion and the repute of the system
12 8 Section 35(5) of the Constitution
12 8 1 Section 35(5): The threshold test
12 8 2 Section 35(5): The causal link between violation and procurement
12 8 3 Section 35(5) and “standing”
12 8 4 Section 35(5) and the admissibility of evidence unconstitutionally procured
by private individuals
12 8 5 Section 35(5) and the limitations clause in s 36
12 8 6 Section 35(5) and a co-accused’s constitutional right to a fair trial
12 8 7 Section 35(5) and impeachment of the accused
12 8 8 Sections 35(5) and 37: Derogation in states of emergency
12 9 The First Leg of the Test in s 35(5): “must be excluded if . . . admission . . . would
render the trial unfair”
12 9 1 Trial fairness
12 9 2 The content of the accused’s constitutional right to a fair trial
12 9 3 Trial fairness and the court’s discretion
12 9 4 The privilege against compelled self-incrimination: trial fairness and the
court’s discretion
12 9 5 Waiver, trial fairness and the court’s discretion
12 9 6 Trial fairness and the court’s discretion: Self-incrimination, real evidence
and evidence “emanating from the accused”
12 9 7 Trial fairness and the admissibility of derivative evidence
12 9 8 Trial fairness and the admissibility of identification evidence obtained at an
identification parade held in the absence of the accused’s legal
representative
12 10 The Second Leg of the Test in s 35(5): “if . . . admission . . . would otherwise be
detrimental to the administration of justice”
12 10 1 The presence or absence of good faith (and reasonable) police conduct
12 10 2 Public safety and urgency
12 10 3 Nature and seriousness of the violation
12 10 4 The availability of lawful means or methods of securing the evidence
12 10 5 Real evidence
12 10 6 Inevitable discovery or discovery on the basis of an independent source
12 11 Section 35(5) and Procedural Matters
12 11 1 The trial within a trial
Page xiv
12 11 2 The burden of proof: incidence and standard
12 12 Evidence Procured by Means of Entrapment (s 252A of the CPA and s 35(5) of the
Constitution)
12 13 Civil Cases
, Section E
Hearsay
13 Hearsay –P J Schwikkard
13 1 Introduction
13 2 The Rationale for the Exclusion of Hearsay Evidence
13 2 1 Procedural context
13 2 2 Cost effectiveness
13 2 3 Best evidence
13 2 4 Complexity
13 2 5 Socially necessary
13 2 6 Safeguard against the abuse of power
13 2 7 A constitutional requirement
13 3 Section 3 of the Law of Evidence Amendment Act 45 of 1988
13 4 The Definition of Hearsay
13 5 Admission by Consent
13 6 The Provisional Admission of Hearsay
13 7 Discretion in Terms of Act 45 of 1988
13 7 1 The nature of the proceedings: s 3(1)(c)(i)
13 7 2 The nature of the evidence: s 3(1)(c)(ii)
13 7 3 The purpose for which the evidence is tendered: s 3(1)(c)(iii)
13 7 4 The probative value of the evidence: s 3(1)(c)(iv)
13 7 5 The reason why the evidence is not given by the person upon whose
credibility the probative value depends: s 3(1)(c)(v)
13 7 6 Prejudice to opponents: s 3(1)(c)(vi)
13 7 7 Any other factor which in the opinion of the court should be taken into
account: s 3(1)(c)(vii)
13 8 Procedural Issues
13 9 Conclusion
14 A Selection of Common-Law Exceptions to the Hearsay Rule: A Brief
Perspective –P J Schwikkard
14 1 Common-Law Definition of Hearsay
14 2 Exceptions to the Hearsay Rule
14 2 1 Res gestae statements
14 2 1 1 Spontaneous statements
14 2 1 2 Composite acts
14 2 1 3 Declarations of state of mind
14 2 1 4 Declarations of physical sensations
14 2 2 Dying declarations
14 3 Remarks in Conclusion
, Page xv
15 Selected Statutory Exceptions to the Hearsay Rule –P J Schwikkard
15 1 Introduction
15 2 Civil Proceedings Evidence Act 25 of 1965 (CPEA)
15 2 1 Proof of trial and conviction or acquittal of any person
15 2 2 Proof of certain facts by affidavit
15 2 3 Evidence of times of sunrise and sunset
15 2 4 Bankers’ books
15 2 5 General admissibility of documentary evidence as to facts in issue
15 2 5 1 Weight of admissible evidence
15 3 Criminal Procedure Act 51 of 1977 (CPA)
15 3 1 Proof of certain facts by affidavit
15 3 1 1 State departments, provincial administrations, courts of law,
and banks
15 3 1 2 Denial of information furnished
15 3 1 3 Official acts
15 3 1 4 Facts requiring specialised skills
15 3 1 5 Precious metal and stones
15 3 1 6 Fingerprints, body-prints, bodily samples and crime scene
samples
15 3 1 7 Dead bodies
15 3 1 8 Chain of custody
15 3 1 9 Discretion to call for oral evidence
15 3 1 10 The scope of s 212
15 3 1 11 The constitutionality of s 212
15 3 1 12 Affidavits by persons in a foreign country
15 3 2 Admission of written statements by consent
15 3 3 Evidence recorded at a preparatory examination or former trial
15 3 4 Admissibility of certain trade or business records
15 3 5 Part VI of the CPEA applied in criminal proceedings
15 3 6 Accounting records and documentation of banks
15 3 7 Presumptions pertaining to documents
Section F
The Admissibility and Proof of the Contents of Relevant Detrimental Statements
16 Informal Admissions –P J Schwikkard
16 1 Introduction
16 2 Requirements for Admissibility
16 3 Admissions by Conduct
16 3 1 Admissions by silence
16 3 2 Failure to answer letters
16 3 3 Statements in the presence of a party
16 3 4 Failure to cross-examine
16 4 Vicarious Admissions
16 4 1 Criminal trials
16 5 Examples of Exceptions to the Vicarious Admissions Rule
Page xvi
16 5 1 Express or implied authority
16 5 1 1 Agents and employees
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