Exam (elaborations)
LEV3701 Updated Exam Pack 2023
- Course
- LEV3701
- Institution
- University Of South Africa
LEV3701 Updated Exam Pack 2023
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1LEV3701 Updated Exam Pack 2023: Old until the last
exam written exam Concession Paper for April 2023
LEV3701
Concession Paper
Due: 4 April 2023
Question 1
Does the word “evidence” only refer to oral evidence? Fully explain. (5)
No, the word "evidence" does not only refer to oral evidence. Evidence refers to any
information or materials presented in court or to a tribunal to establish or prove a fact in
dispute.
Evidence can take different forms, including oral testimony from witnesses, physical
exhibits such as documents, objects, and photographs, as well as digital evidence such
as emails, text messages, and social media posts.
In fact, in many legal proceedings, non-oral evidence such as documents and other
physical exhibits can be more persuasive than oral evidence because they are tangible
and can be reviewed and analyzed in greater detail.
It's important to note that the admissibility and weight of evidence depend on various
factors such as its relevance, authenticity, and reliability. The rules of evidence in each
jurisdiction set out the requirements and standards for admitting and evaluating
evidence in court or before a tribunal.
(Exra)
Real evidence refers to physical objects or things that are presented in court for the
purpose of aiding the court's understanding of the case. Real evidence can include a
wide variety of objects, including weapons, clothing, drugs, tools, or even a person.
Unlike testimonial evidence, which relies on witness statements or accounts, real
, evidence can be viewed by the court directly, allowing the judge or jury to draw their
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conclusions from their own observation and analysis of the physical object.
However, in order to be admissible as evidence, real evidence must be authenticated
and properly identified. This means that the evidence must be shown to be relevant to
the case and must be properly introduced and explained to the court by a competent
witness.
In addition, there may be specific rules or procedures governing the handling,
preservation, and presentation of real evidence in different jurisdictions and in different
types of cases. These rules and procedures are designed to ensure that the evidence is
reliable and trustworthy, and that its presentation is fair to all parties involved.
OR
No, the word "evidence" does not only refer to oral evidence. In South African law,
evidence can take many forms, including documentary evidence, real evidence,
circumstantial evidence, and expert evidence. Documentary evidence includes any form
of writing or recording, such as letters, contracts, photographs, and audio or video
recordings. Real evidence refers to physical objects or materials that are relevant to a
case, such as weapons, clothing, or tools.
Circumstantial evidence is indirect evidence that can be used to infer a fact, such as a
footprint found at a crime scene that can be linked to a suspect's shoes. Expert
evidence refers to testimony given by an expert witness, who has specialized
knowledge or experience in a particular field, such as medicine, forensic science, or
engineering.
In South African law, the definition of evidence is provided in the Interpretation Act 33 of
1957, which defines evidence as "any statement, whether oral or documentary or by a
sound recording or other means of producing a visual or audible reproduction, which is
admissible as evidence in any proceedings in any court of law." Therefore, the term
"evidence" encompasses all forms of admissible statements or materials that can be
presented in court to prove or disprove a fact in issue.
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In conclusion, the term "evidence" in South African law refers to any admissible
statement, whether oral or documentary, and any admissible material, whether real or
circumstantial, that can be presented in court to prove or disprove a fact in issue.
Question 2
Various statutory provisions state that the law as to some or other evidentiary
subject is that which applied on the thirtieth day of May 1961. Fully explain what
this means and give examples to substantiate your answer. (5)
Several South African statutes contain provisions that state that the law applicable to a
particular evidentiary subject is that which was in force on the 30th of May 1961. These
provisions are commonly referred to as "30th May clauses" and they are often found in
legislation that regulates legal proceedings or the admissibility of evidence in court.
The purpose of these clauses is to preserve the common law rules that were in force
before the relevant legislation was enacted. This means that if a specific evidentiary
subject is not addressed in the current legislation, the law that applied on the 30th of
May 1961 will continue to apply.
Prior to 1961, the Roman-Dutch law of evidence was the primary source of evidentiary
rules in South Africa. However, with the coming into force of the Appellate Division
Amendment Act 54 of 1959, a number of changes were made to the law of evidence.
These changes included the introduction of statutory rules of evidence and the abolition
of some common law rules.
The effect of the transitional provisions in certain statutes is to preserve the pre-1961
common law of evidence in relation to certain matters. For example, section 18(2)(b) of
the Riotous Assemblies Act 17 of 1956 provides that, in any prosecution for a
contravention of the Act, "the law applicable in relation to the admissibility of evidence
shall be the law as it stood on the thirtieth day of May, 1961". This means that the
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common law rules of evidence that applied before the changes brought about by the
Appellate Division Amendment Act 54 of 1959 continue to apply in relation to the
admissibility of evidence in prosecutions under the Riotous Assemblies Act. Similarly,
section 11(2) of the Suppression of Communism Act 44 of 1950 provides that, in any
prosecution under the Act, "the law applicable in relation to the admissibility of evidence
shall be the law as it stood on the thirtieth day of May, 1961". Again, this means that the
common law rules of evidence that applied prior to the changes made by the Appellate
Division Amendment Act 54 of 1959 continue to apply in relation to the admissibility of
evidence in prosecutions under the Suppression of Communism Act.
Examples of evidentiary subjects that are subject to 30th May clauses include:
1. Competence and compellability of witnesses - Section 206 of the Criminal
Procedure Act 51 of 1977 provides that the law in force on 30th May 1961
regarding the competence and compellability of witnesses continues to apply in
cases not provided for in the Act.
2. Hearsay evidence - Section 3 of the Law of Evidence Amendment Act 45 of
1988, provides that the common law relating to hearsay evidence, as it stood on
30th May 1961, remains in force in cases where the Act does not provide
otherwise.
3. Admissibility of confessions - Section 5 of the Law of Evidence Amendment Act
provides that the common law relating to the admissibility of confessions, as it
stood on 30th May 1961, remains in force in cases where the Act does not
provide otherwise.
the reference to 30 May 1961 in certain South African statutes relates to the
preservation of the pre-1961 common law rules of evidence in relation to specific
evidentiary matters. This means that, in certain contexts, the common law rules that
applied before the introduction of statutory rules of evidence and other changes to the
law of evidence continue to apply.
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