Summary
Summary Law of Evidence magic notes.pdf
- Course
- EVI3701 (LEV3701)
- Institution
- University Of South Africa (Unisa)
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LAW OF EVIDENCESection A
The case of S v Nel where the mother was doing washing and dagga was sold to the
accused, deals with a trap and secondly with the relevance of evidence because
they wanted to call the mother of the accused to testify. The case can be used as
authority for other sections of the work as well. Also, the case of Holtzhausen v
Roodt which deals with relevance and admissibility can later be used when dealing
with expert and opinion evidence.
Question – Discuss character evidence with reference to the case of S v
Pietersen. (7 or 8 marks)- Similar fact evidence – lecturer fond of this topic.
1. The law of Evidence as part of adjective and Procedural Law
Certain procedural rights and duties stem from the law of evidence for eg. the right to
cross-examine.
In a case of a motor vehicle accident and A sues B for damages, the plaintiff must
prove negligence on the part of the defendant. The court will then order the
defendant to pay the plaintiff say R50 000,00 for damages.
This is a delictual claim – substantive law
How do we give effect to substantive law? Through the law of evidence, by calling
witnesses (oral evidence) and documentary evidence. The law of evidence is
required to give effect to substantive law.
Criminal law will deal with what a crime is, what the requirements are for murder,
rape etc, evidence is required to give effect to substantive law.
The right peculiar to the evidence is the right to cross-examine.
The law of evidence regulates the proof of facts within the process of litigation and
adjudication.
The law of evidence have to be distinguished from substantive law which regulates
the rights, duties and liabilities of the litigants eg contract law
The Scope and Function of the Law of Evidence
In order to determine the scope of the law of evidence, we have to look at the
specific functions of the law of evidence.
The main function of the law of evidence is to determine which facts are admissible
in order to prove the facts in issue (admissible means the evidence that should be
accepted or received by the court for its records)
Are all confessions admissible in court? No, because the confession could have
been made under duress.
Other functions of the law of evidence:
1. Determines the manner in which evidence should be adduced before the court
2. What evidence may be withheld from a court
3. How to evaluate the weight of evidence led (S v Gambushe)
4. What standard of proof should be satisfied (beyond reasonable doubt)
, (civil matters – balance of probabilities)
When your witness testifies for the first time and you lead the witness’s testimony in
court, it is called evidence in chief (examination in chief)
If the state prosecutor leads the complainant and the complainant testifies, it is
examination in chief.
If the accused testifies then counsel for the defence (attorney, advocate) leads
evidence of the accused and this is called evidence in chief.
If a plaintiff testifies in a civil matter, his counsel leads evidence in chief.
If a defendant in a civil matter leads evidence, it is evidence in chief.
Cross-examination is done by the opposing party (S v Stassen) the defence counsel
will cross-examine.
If accused testifies, then the state will cross-examine.
After cross-examination the person who led evidence in chief are allowed to ask
questions again and this is referred to as re-examination.
The court may also ask questions - if the presiding officer is unclear or dissatisfied
with the way in which evidence in chief, cross-examination or re-examination was
conducted.
In the exam we must know the difference between a criminal matter and a civil
matter
In a criminal matter the parties are called the state and the accused (guilty/not guilty)
In a civil matter the parties are called the plaintiff and the defendant. (liable for
damages)
How to evaluate the weight of evidence led
The case of S v Gambushe deals with how the court weighed the evidence of the
witnesses.
The case involves a double murder where there were 3 witnesses.
Two of the witnesses were police officers who’s evidence was only of a formal nature
in the sense that they only testified about events which occurred after the deceased
was killed.The other witness who testified was the only one that was on the scene.
After the witness testified for the state and after the defence counsel closed the
case, the court had to evaluate the evidence.
The court held that the witness was a poor witness, ‘his performance under cross-
examination was nothing short of pathethic’, there were contradictions in this
evidence and his evidence was incoherent (lied). The court held that his testimony
should be treated with caution. After the testimony, the main function of the evidence
was to weigh (balance) the evidence. The court looked at each witness and whether
they made an impression on the court, whether there were contradictions in their
testimony, and if there were, whether the court should disregard their testimony.
The Historical Development of the English Law of Evidence
The development of English law of evidence can be divided into 3 sections
,1. The religious stage:
The general principle here is that one man should not sit in judgment upon
another (if someone declared under oath he did not do it, he should not be
judged)
“Trial by ordeal” (NB)
This method was basically an appeal to God to ‘decide’ a dispute (divine
intervention). Eg. “Ordeal of the accursed morsel” – this was a situation where
the accused had to swallow a dry piece of bread and if he choked, he was
guilty. Stone in cauldron of boiling water.
Trial by battle – trial settled by way of a duel
2. The formal stage:
The oath was the primary mode of proof and mistakes in form could be fatal.
The use of oath-helpers or “compurgators”
An oath-helper or compurgator was a person who was prepared to state
under oath that the oath of one of the parties should be believed. The party
who could summon the most oath-helpers ‘won’ the case.
3. The rational stage and the development of the jury
This was the start of the fact-finding process (evidence process)
The tribunal did not merely have to verify procedural formalities as was the
case in the previous stages
The development of the jury
The system of oath helpers later developed into a crude jury system.
By the 17th century it was accepted that a member of the jury was no longer a
witness, but a person who had to swear by what he could infer and conclude
from the testimony of the witnesses.
Two other important concepts were developed at this time
(a) The principle of viva voce evidence
(b) The notion of an impartial adjudicator
The separate functions of the jury and the judge also developed
Jury determined the facts – adjudicative facts
Judge determined the law – legislative facts
The Influence of the Jury System on the SA Law of Evidence
The jury system was abolished in SA. In civil proceedings the jury system was
abolished in 1927. In criminal proceedings the jury system was abolished in 1969
, However, in many ways we have retained an evidentiary system based on the jury
system
Procedural and Evidential Systems
There are 2 systems of evidence:
Accusatorial system vs. Inquisitorial system
Accusatorial System: (Anglo-American or common law system)
South African Law of Evidence has an accusatorial system.
Most of the principles stem from the English system of an adversarial trial before a
jury. In an adversarial trial there is a battle between 2 opposing parties.
Basic features:
1. Strict system of evidence
2. The parties are in principle responsible for the presentation of evidence in
support of their respective cases
3. The adjudicator is required to play a passive role (impartial adjudicator who
does not take part in the battle.
4. Much emphasis is placed on oral evidence and the cross-examination of
witnesses
If a judge gets involved and oversteps the boundaries and examines the witness, the
matter will be reviewable.
Criticism against the accusatorial system:
1. There is a presumption of equality between the parties.
However, there is no equality (for eg. one party can afford expensive counsel
and the other party cannot, also a junior prosecutor vs experienced defence
counsel)
2. The notions of opponents engaged in a duel may generate unnecessary
conflict
3. The outcome of the case may largely ride on the ability, wit, energy and
ruthlessness or rudeness of the cross-examiner
4. The partial way in which parties may present evidence
Inquisitorial System: (continental or civil law system)
1. The inquisitorial system is judge-centred, on the basis that a trial is not a
contest between two opposing parties
2. This explains the absence of the right to cross-examine.
There are no strict rules of evidence of examination of chief, cross-
examination and re-examination.
3. The court plays an active part and is in charge of the proceedings.
4. Free system of evidence (no rules of evidence)
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