LEV3701 – LAW OF EVIDENCE:
PRESENTATION & ASSESSMENT OF
EVIDENCE
PART 1: PRESENTATION OF EVIDENCE
SU 2 - WITNESSES
2 aspects of oral evidence:
1. COMPETENCE OF WITNESS TO TESTIFY
Whether person has mental capacity to testify – if not, they are not competent to testify & court cannot
hear their evidence under any circumstances
Note the diff btw admissibility and competence:
- Admissibility = evidence of a person who is already a competent witness
- Competence = focuses on the person
Parties cannot consent to admission of an incompetent witness’ evidence
Generally – all persons are considered competent to testify because it’s in interests of justice that anyone
who may have something to contribute to resolution of a dispute should to so = subject to the foll
exceptions:
Children:
No statutory provision barring children under certain age from testifying & no particular age above which a
child is competent to testify – children are therefore subject to same general rule of presumed competence
as all other persons, provided:
understand what is means to tell the truth;
have sufficient intelligence; and
can communicate effectively
Evidence is usually led in this regard & child will be questioned by the parties to the issue
Mentally disordered / intoxicated witnesses
Person should be withheld from giving evidence when his ability is of such a nature that he cannot make a
contribution to the matter before court
Foll aspects are NB in this regard (per Schmidt & Rademeyer) – person’s ability to:
Observe;
Remember his observations & communicate them to court
i.e. – person must be able to understand necessity to speak the truth
Court usually gives ruling re competence of such a person after questioning witness & having heard
evidence re his mental condition
Per Schmidt & Rademeyer – words “and who is thereby deprived of the proper use of his reason” = only a
certain degree of mental illness / imbecility of mind will make a person an incompetent witness – i.e. an
imbicile will be allowed to give evidence if he has not been deprived of the proper use of his reason
S194 of CPA states that “while so affected / disabled” = person is incompetent for duration of affliction /
disability – i.e. a drunk person will be competent to testify after having sobered up
Ms. Chetty
,Katoo case:
Court considered s194 of CPA & held firstly it must be shown that witness suffers from:
A mental illness; or
Llabours under imbecility of mind due to intoxication / drugs / the like
Then it must be established that as a direct result of such mental illness / imbecility, witness is deprived of
the proper use of his reason
Above 2 requirements must collectively be satisfied before witness may be disqualified from testifying on
basis of incompetence
Held – evidence led fell short of establishing that above requirements were met –
Psychologist’s evidence did not indicate that complainant suffered from mental illness but only
established that she was an imbecile – imbecility is not a mental illness & per se did not disqualify
her as a witness – its only imbecility induced by intoxication / drugs / the like that fell within the
ambit of the section (& then only when witness is deprived of proper use of his reason)
Was clear from evidence led that complainant was not deprived of proper use of her reason just because
she had a limited mental capacity
Officers of the court
In interests of justice that PO’s remain objective re cases over which they preside =
Judges & mags are considered to be incompetent witnesses re cases over which they preside
However, if PO observes a certain fact in the court over which he is presiding, he will be considered
competent to testify on such fact in another court
Q whether a party’s legal rep / prosecutor is competent to testify?
legal rep & prosecutor are presumed competent & compellable witnesses – however, it’s undesirable that a
party’s legal rep / prosecutor testify in that case – legal professional privilege will in any event restrict the
capability of a legal rep to testify against his client
2. EXTENT TO WHICH WITNESSES MAY BE COMPELLED TO TESTIFY
All persons who are competent to testify may be compelled to testify, subject to the foll exceptions:
Spouses
Civil proceedings –
CL rule that spouse of accused could not testify for / against such an accused does not apply to civil
proceedings any more = spouse of a party is therefore a competent & compellable witness for & against
party concerned – however, rules re privilege may prevent spouse from mentioning certain facts
Criminal proceedings –
Spouse as state witness: S195 of CPA =
Spouse is competent to give evidence on behalf of prosecution, but can only be compelled
to testify in certain circumstances (exceptions apply to proceedings re well-being of &
relationship btw the married couple & well-being of their children)
Applies to people who are married when giving of evidence is at stake AND people who
were married when relevant crime was committed, even though the marriage has been
dissolved in the meantime
S195 was amended by s68 of Criminal Law (Sexual Offences & Related Matters)
Amendment Act (SORMAA)–
o S195(1)(a) now includes child that is in care of wife/husband of accused;
o S195(1)(e) now refers to incest as contemplated in s12 of SORMAA;
o New s195(1)(gA) added which refers to any contravention of any provision of s17 or
s23 of SORMAA = sexual exploitation of children & persons who are mentally disabled
Ms. Chetty
, Spouse as a defence witness: s196(1) of CPA
“An accused & the wife/husband of an accused shall be competent witness for the defence at every
stage of criminal proceedings, whether / not the accused is charged jointly with another person;
provided that:
Accused shall not be called as a witness except upon his own application;
Wife/husband of accused shall not be a compellable witness where a co-accused calls
that wife/husband as a witness for the defence”
Note: If accused is jointly charged with someone else – spouse of such accused will be competent
to give evidence on behalf of that co-accused, but cannot be compelled to do so – but spouse can
be compelled to testify in defence of co-accused
Accused persons: S196(1) of CPA (and confirmed by s35(3)(h) and (j) of Const):
Competent witness in his own defence, but cannot be a compellable witness = state/ court / a co-accused
cannot compel accused to testify – choice whether to testify / not rests solely with accused
Co-accused: where accused persons are tried jointly
Co-accused as defence witness
A & B are charged jointly & are thus co-accused - A may testify in defence of B & vice
versa
General rule applies re competence applies
As far as compellability is concerned, A may not be compelled by B to testify in B’s
defence, because A is also an accused
Co-accused as prosecution witness
Co-accused is not a competent witness for the state, whether to provide the case against himself /
against the accused, because he is also an accused = the Q of compellability does not even arise
where witness is not competent to testify
Circumstances where state may call someone who had previously been a co-accused to testify
(person is no longer a co-accused):
withdrawing charge against co-accused (does not amount to an acquittal - former accused
may be prosecuted again, however, if certain requirements are met, he may be
indemnified from prosecution);
finding co-accused not guilty (he will be discharged & may be called as state witness);
co-accused entering a plea of guilty (trials of accused & his co-accused can be separated);
and
If trials of accused & his co-accused are separated for some other valid reason
S157(2) of CPA provides that at any point during a trial, court may order a separation of trials so
that one accused is no longer a co-accused in the trial of the other = upon such separation, co-
accused may then give evidence against one another, but it is advisable that accused which the
state intends calling on to give evidence, should first be sentenced
Note: always NB to determine if person is a witness for defence or a witness for prosecution
A competent & compellable witness who wants to rely on a privilege may not refuse to enter the witness
box – he may claim his privilege only as each relevant Q is put to him
SU3 – STAGES IN TRAIL PROCESS & PRESENTATION OF ORAL EVIDENCE
Overview of events in criminal & civil trail (see pg 17 of SG)
Presentation of oral evidence
Ms. Chetty
, Most common means of adducing evidence – however nature of case may require that other evidence be
used – i.e.:
Fraud cases require a lot of documentary evidence
Civil cases – if cause of action is breach of contract – there will usually be more documentary than
oral evidence, although some oral evidence may be presented
General rule: oral evidence must be given under oath
3 significant stages in trial in which oral evidence is presented:
Stage 1: Examination-in-chief
Conducted by part who calls the witness
Purpose: to put relevant & admissible evidence before the court by using question-and-answer method
Credibility:
Party who undertakes EIC is not allowed to attack credibility of the witness –reason: party calling a
witness does so for purpose of proving its case by relying on the testimony of that witness –
impeaching credibility of its own witness will not further this purpose (exception to this rule is dealt
with under “unfavourable & hostile witness” below)
Questions re witness’ previous convictions & bad character may not be asked
Leading questions:
Question which suggests the answer / assumes existence of disputed fact
Generally may not be asked – however, may be asked on undisputed facts
Trial judge / mag has discretion to allow leading Q’s if he considers it necessary to serve interest of
justice / expedite the proceedings
Unfavourable & hostile witnesses:
Party calling witness is entitled to challenge credibility of its own witness if witness gives evidence
which is unfavourable to the party who called her
Unfavourable witness = gives unfavourable evidence – to counter this evidence, the party calling
this witness may lead other evidence which may contradict her evidence – however, if it becomes
clear that witness intends to prejudice case of party who has called her – that party may apply to
court to have witness declared a hostile witness – once such witness has been declared a hostile
witness, he may be cross-examined by party who called him
Witness may refresh her memory:
General rule: witnesses are required to give independent oral testimony & are not permitted to
rely on / refer to an earlier record
However, due to fallibility of human memory & complexity of some issues, a witness may be given
the time to refresh her memory as a necessary exception
Legal principles determining if a witness may refresh her memory depend on whether witness wants to
refresh her memory:
before her testimony / during an adjournment; or
o no general rule prevents witness from reading her witness statement / some other
statement that was drawn up soon after the event, before testifying or during an
adjournment
o no particular legal principles need to be complied with before this can happen
by referring to a doc while in the witness box
o 6 requirements to be met before this can be allowed:
Witness must have personal knowledge of events recorded (reason: to avoid
inadvertent admission of hearsay evidence);
Witness must be unable to recollect fully a matter on which she is being examined;
Ms. Chetty
