Class notes
law of evidence 471 year notes
- Course
- Law of evidence 471
- Institution
- Stellenbosch University (SUN)
Law of evidence lecture notes. all classes attended and detailed notes made.
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By: smallmel93 • 7 year ago
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LAW OF EVIDENCE 471[Document subtitle]
Content:
1. Class notes chapter 1-32.
2. case summaries (extra)(not already compiled into notes)
, General Introduction
NB: need to know non-prescribed cases to the extent discussed in class
CH APTER 1
Introduction to the history and theory of the law of evidence:
Law of evidence is necessary for proving requirement in order to be successful in claim.
There are certain rights and duties
Law of evidence : how you prove the facts to be successful in the substantive law in a
case is regulated by the law of evidence.
e.g. Insitute rei vindicatio to get possession back, need to prove ownership,possession of
third party defendant, indentifiable thing.
how for example would you prove ownership ?
someone steals your bicycle , how would you prove ownership?
document that you bought it or had it insured for a certain amount , evidence you want
to present to the court to prove ownership, the law of evidence regulates how and when
you will present this evidence.
I N T R OD U C T I ON :
existence or non-existence of facts must be proved before pronouncement of rights and
duties can be made.
it is in the discretion of the court to accept the evidence or not. if you cannot for example
prove ownership , the remedy of rei vindicatio will not be granted. Facts must be proven
before court will make pronouncement of remedies.
proof of facts is regulated by the rules of evidence
provides for procedural rights : the law of evidence is not only the mechanism regulating
proof of facts , it also provides procedural rights
- e.g. the right to cross examination
- sec 35 : gives the right to fair trial which includes the right to cross examination
, -Sec 174 Criminal procedure Act : discharge . In a criminal case the state bears the onus
of prove. If however at the end of the states case, there is not enough evidence for a
reasonable person to prosecute then the accused MUST be discharged. There is no
discretion in this regard. if the judge does not abide by this and makes a ruling , it can be
set aside because of breach of a procedural right.
Law of evidence =adjectival law . it is formal law , a different branch from substantive
law.
law of evidence : english law
what you must prove = Roman dutch law
how you must prove it and the mechanism regulating the manner in which it must be
proved =English law
F U N C T I ON :
Which facts are legally admissable :
-Relevency : facts are admissable as evidence if it is relevant.
HOWEVER:
Evidence that is relevant and legally admissable can still be excluded.
which evidence may lawfully be witheld:
- the law of evidence regulates which evidence may lawfully be witheld
- evidence may lawfully be withheld where
1. it is improperly obtained
2.privilege between man and wife
3. professional legal privilege
4. Unconstitutionally obtained evidence : where police have tampered with evidence
How evidence is presented [ semester 2]
1. how oral evidence is presented
2. how witnesses introduce real and documentary evidence
Weight of evidence
Contains rules which determines the weight given to evidence
Standard of proof
- balance of probabilities
- beyond reasonable doubts
, DEVELOPMENT OF THE L AW OF EVIDENCE
Three phases : [para 1.3]
How principles that originate din the three phases are still applicable today.
1.Religious phase [primitive phase] : take an oath before their Gods, that he wont be
dishonest towards his God.
purifying oath
Trial by ordeal :
ordeal of the accursed morsel : priest would say a prayer to the Gods, and ask the
Gods to let the man choke if he be guilty. the Priest would then give the man a piece of
bread to eat , if he choked he was guilty
trial by battle: man would be sent to battle ,and if he survived he was innocent.
In modern law still have conforntation , it is now however not physical but verbal
2. Formal phase :
Compurgators (oath helpers): Were not eye witnesses but they would testify under
oath as to which party they believed. Had a plaintiff and defendant and they would all
give their testimonies and the compurgators would state under oath which person they
believed. The problem is that the parties would bring their own compurgators. The
person with the most compurgators would win
3. rational phase :
development of the jury : Jury would have to have no personal knowledge of the
event. Blank page must be possessed by the jury to hear the facts afresh when they
come in. Jurers had to have no personal knowledge in order to make a decision, while
witnesses were called because of their knowledge of certin event. The role of judge and
jury member was set out , jurers would make finding of facts and judges would make
findings of fact
The two important principles that originated from primitive to rational phases that inform
the law of evidence :
1. Importance of the oath : Explains emphasis on sworn oral evidence.oath was
considered very important , especially during the early stages. This also explains the
emphasis still today on sworn oral evidence. witness can only give oral evidence in court
if that witness is sworn in
2. Development of the jury: Explains the strict system of evidence : admissibility. The jury
would make decisions based on certain facts that may or may not be relevant or
admissable.
e.g. the fact that someone assaulted someone in 2014 would be irrelevant to the assault
charge in 2016. A jury would take this evidence into account because they are lay people
who can be influenced by lay evidence. Therefore a strict system of evidence was
, developed to exclude certain evidence of inadmissibility and this needs to be understood
from the development of the law of evidence from the time of the jury system.
Trial by jury abolished:
civil cases : 1927
criminal cases : 1969
SA still adheres to a strict system of evidence
EVIDENTI ARY SYSTEM O F SOUTH AF RIC A:
SA adheres to an adverserial system of evidence.
SA ordinary courts=adversarial system
Features :
Judge plays a passive role "Impartial umpire". Judge as a general rule will not ask for
more evidence or cross examine witnesses. Judges play a passive role and considers
evidence as presented by the parties.
party's must present the evidence : party instituting a case must provide evidence to
support his case
Emphasis on oral presentation of evidence and cross examination:
Criticism against this model :
system presupposes equality between parties: presumes parties are in equal
footting in litigation and have the means to acquire the best representation. In practice
however the law is on the side of the party with the most resources.
Verbal battle not always conducive to dispute resolution : In a court of law , the
verbal battle between the parties can cause conflict and is not conducive to dispute
resolution and alternative dispute resolution can in some circumstances be more
conducive to dispute resolution.
e.g. where a child is the victim of a sexual crime and that child is the only witness. The
court is a hostile place and the verbal battle that goes on there is not conducive to dispute
resolution. The child would have to be cross examined.
Skill of advocate can be determinative : Those people who are good at playing with
words and tricking witneses are those that are successful and more expensive
Formal truth can be promoted at the expense of material truth:
The judge plays a passive role and as a general rule is not in a position to find out more
before he makes a decision. Not all the evidence will be in front of the judge.It is possible
to withold evidence as unethical as it may be.
Due to critique :
small claims court = Inquisitorial system
, features:
In principle no cross examination
No legal representation allowed
Presiding officer proceed inquisitorially to ascertain relevant facts.
JURORS AND AS SESSORS
In South african law , jurors are no longer used
SA courts do however still use assessors
Assessors are co finders of facts
Assessors can disagree with the judge but must then give reasons
Assessors are under constant judicial supervision
Assessors are different from jurors
Jurors:
other Anglo-American countries use jurors :
jurors are lay people
receive instructions from the judge
Make pronouncement on the facts [alone]
No reasons required
S v Gambushe 1997 1 SASV 638 :
distinction bewteen assessors in high court and assessors in the lower courts
facts :
G found guilty of murder in the MC - one eye witness Jabulani Mavimbela [ in practice
warning bells must ring when there is only one witness]
Jabulani claims that J was instructed by G to drive to a certain destination ,according
to J he stood at the car and G went and kicked down a door and heard four
shots,afterwards G came out said to J that they could leave , went to the shabeen to
carry on drinking.
In the lower court G was found guilty of murder, there were two assessors who found
him guilty and the judge who found him not guilty
judges reasons for finding him guilty :
too many contradictory statements made by the witness
, his versions of events were not truthful : J said he saw G kick down the door, but
according to police from where J would have been standing it was impossible for him
to see G kick down the door.
Judge cautioned assessors to treat J's statements with caution , because he is the only
witness , his statements were contradictory and that he statements sounded more like
those of an accomplice than that of a witness.
judge of appeal :
agreed with judge of the court a quo and found that assessors found him guilty on a
balance of probabilities and not beyond reasonable doubt
version of events was given by J , but who else could have testified ?
G could have given his version of events. He has the right not to give his version of events
but certain inferences can be drawn in giving weight to evidence.
DIFFERENCES BETWEEN ASSESS ORS IN HC AND M C
Sec 93(2)(a) MC act :
judge can appoint assessors in Magistrates court but must make appointment on the basis
of the following considerations :
1. cultural and social circumstances of the acccused
2. educational background of the accused.
3. nature and seriousness of offence
4. possible punishment that can be given
the purpose of appointing assessors is to bridge the gap between the magistrate who is a
learned individual and the accused who may be unsophisticated. There may be certain
practices and sayings that assessors who are coming from the same background would
be aware of but assessors would not be. Additional burden on the magistrate if he appoints
assessors in terms of the Magistrates court Act , because the magistrate must explain all
the niceties of the law and warn the assessors of the risks involved in the case of single
witnesses. the trial record must be attached to the decision, so the appeal court can see
what happened in the magistrates court.
differences in sec 145(1)(b) Criminal Procedure Act :
Assessors in high court :
learned individual
Chapter 2 :
, B AS I C CO NCEP TS AND D I S TI NCTIO NS:
1.1 Facta probanda (plural probandum) vs Facta probantia:
-facta probanda = facts in issue; must prove in order to succeed with claim.
In a murder case, facts in issue is whether the accused intentionally and unlawfully caused
the death of the accused – so these facts in issue must be proved in order to succeed.
Substantive law dictates what facts you need to prove.
It is possible that an accused can admit to intentionally caused the death of the deceased,
but then he would perhaps argue it was not unlawful as it was self-defence: in such case
intention is no longer a fact in issue.
- facta probantia = facts relevant to the facts in issue
The facts relevant to the facts in issue can either prove or disprove a fact in issue.
So a question is, IF intention is a fact in issue, then which facts would prove or disprove
intention? Motive would be a fact relevant to the facts in issue = so motive would be facta
probantia.
If husband killed his wife, then the fact that the husband bought the poison under a
different name would be fact a fact relevant to the facts in issue.
Based on law of evidence, and based on knowledge and experience.
1.2 Evidence
-Restricted to oral evidence + documentary evidence + real evidence
Oral = oral testimony given in court under oath
a. Oral Evidence (Testimony)
-Oath – section 162 CPA
Oral evidence may only be given if witness is placed under oath
-Affirmation ---section 163 CPA
But it is also possible that if the witness has an objection against the oath, then such
person can take an affirmation under s163 CA.
-Warning ---- section 164 CPA
It is possible, under exceptional cases, that a court can administer a warning that the child
must tell the truth and nothing but the truth. Common when dealing with child witness who
doesn’t understand the concept of an oath to warn the child to tell the truth.
Oral evidence is given in court by:
--Evidence in Chief
Party leading the questioning. If state case, cross-examination is always done by the
accused; and re-examination done by State prosecutor.
-- cross examination
A fundamental procedural right forming part of an adversarial system.
--re-examination
Person who did the Evidence in Chief can do re-examination.
b. Documentary evidence
-Anything that can be written on and content is relevant.
Cannot be real evidence. The writing/content is evidence, where the piece of paper should
be submitted as evidence.
-Alphabetical
System of how you deal with evidence: Document A, Document B etc
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