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Study Unit 1 – Overview
State whether the following statements are true or false:
(1) The Law of Evidence is the name of the field of law that you are currently
studying. False (with capitals it refers to the course name)
(2) When it is said that ‘‘the court’’ makes a finding, this actually means that the
judicial officer presiding in the case (plus assessors where applicable) is making
the finding. True
(3) Oral evidence refers to evidence given by a witness from the witness box. True
(4) If evidence is contained in a document, the party who wants to present this
evidence will simply hand the document to the court. False
(5) Evidence that is provided by modern technology, such as computers and video
tapes, presents the law of evidence with difficulties that have not yet all been
resolved. True
(6) In the case of judicial notice and presumptions, evidential material is provided
without the presentation of evidence. True
(7) Decisions on the admissibility of evidence are made during the trial —
decisions on the weight of the evidence are made only at the end of the trial.
True (although, as you will learn later in this course, the weight of evidence may also impact
on its admissibility)
(8) The burden of proof plays an important role during the evaluation of evidence at the end
of the trial. True
(9) It is sometimes necessary for the court to approach certain evidence with caution. True
(10) The law of evidence plays an important role in every single court case conducted in our
courts. True
Study Unit 2 Concepts in the law of evidence
Besides evidence, what other forms of evidentiary material are there? Try to give an
example of each. Where possible, write down the references to decided cases in which
these other kinds of evidentiary material were at issue.
(1) Admissions — S v Mjoli 1981 (3) SA 1223 (A)
(2) Formal admissions — S v Mokgoledi 1966 (4) SA 335 (A)
(3) Judicial notice
(4) Presumptions — S v AR Wholesalers 1975 (1) SA 551 (NC)
Briefly explain, with reference to the two main branches of the law, how the law of evidence fits into the general structure of the law. (5)
Explain the difference between substantive law and adjective law and give an example of
each.
Into which category does the law of evidence fall? (5)
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Substantive law covers one’s rights and obligations. It tells what one may or may not do.
Criminal law is an example of substantive law. Adjective law (sometimes known as
procedural law) prescribes the general procedure to be followed in court and legal
transactions. Criminal procedure is an example of adjective law. Therefore, the law of
evidence is part of adjective law.
Briefly explain the relationship between “proof” and the law of evidence.(5)
The law of evidence may be defined as that field of law which generally regulates the proof
of facts in court. Proof therefore is central to the entire field of the law of evidence.
Proof : having sufficient grounds for a finding on a point in issue. Proof of a fact means that
the court has received probative material with regard to such fact and has accepted such
fact as being the truth for purposes of the specific case
Evidence : probative (evidentiary) material (oral, documentary or real evidence) which is
produced in court. Evidence of a fact is not yet proof of such fact: the court must still decide
whether or not such fact has been proved.
Evidential material : material which goes to furnish proof
Study unit 3 Sources of the law of evidence
Historical source of the law of evidence: Procedural law of South Africa is mostly drawn
from principles of English law and therefore regarded as the common law for the law of
evidence in south Africa, consequently courts may have recourse to English law in the event
of any uncertainty on an aspect of the law of evidence.
Knowledge sources are a wider concept, covering not only the historical sources, but also
relevant court cases creating binding law and applicable South African legislation eg the
Criminal Procedure Act 51 of 1977 and the Civil Proceedings Evidence Act 25 of 1965
applying particularly to the law of evidence as well as the Constitution of the Republic of
South Africa 1996 which is the highest source of law and its principal provisions affecting
the law of evidence are the fundamental rights (‘‘Bill of Rights’’).
(1) Write down the wording of section 252 of the Criminal Procedure Act 51 of 1977.
Section 252 of CPA : The law as to the admissibility of evidence which was in force in
respect of criminal proceedings on the thirtieth day of May 1961, shall apply in any case not
expressly
provided for by this Act or any other law.
(2) Explain what is meant by a ‘‘residuary clause’’ in South African law.
A residuary clause determines that foreign law has to be followed on topics for which no
express local statutory provision had been made (Indirect incorporation). These are those
sections in South African statutes which incorporate foreign law into South African law and
thereby preserve that part of foreign law.
Mention the principal provisions of the Constitution of the Republic of South Africa, 1996
that affect the law of evidence. (5)
Section 35(1) of the Constitution provides that every arrested person shall have the right
(1) to be informed, in an understandable language, that he or she has the right to remain
silent, and
about the consequences of making a statement (sec 35(1)(a) and (b))
(2) not to be compelled to make a confession or admission which could be used in evidence
against
him or her (sec 35(1)(c))
Section 35(2) provides for the rights of a detained person including the right
(s 35(2)(a)) - to be informed promptly of the reason for being detained
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(s 35 (2)(b)) - to choose, and to consult with a legal practitioner, and to be informed of this
right promptly
(s35(2)(c)) - to have a legal practitioner assigned to the detained person by the state and at
state expense if substantial injustice would otherwise result, and to be informed of this right
promptly
Section 35(3) provides that every accused person shall have the right to a fair trial, which
includes the right
(1) to be informed of the charge with sufficient details to answer it (sec 35(3)(a))
(2) to be presumed innocent, to remain silent during the plea proceedings as well as during
the trial,
and not to testify during the trial (sec 35(3)(h)) and
(3) to adduce and challenge evidence and not to be a compellable witness against himself or
herself
(sec 35(3)(I) and (j))
Section 35(5) provides that evidence obtained in a manner that violates any right in the Bill
of Rights
must be excluded if the admission of that evidence would render the trial unfair or would
otherwise be detrimental to the administration of justice.
Study unit 4 Relevance and admissibility of evidence
. explain the meaning of relevance and its relationship with the admissibility of evidence
. list the ‘‘facts in issue’’ in any given case
. relate the admissibility of evidence to questions such as the reasonableness of inferences
drawn from certain evidence and the prejudicial effect of admitting any evidence
From your reading material, give at least two examples that show that evidence may be
inadmissible, despite being relevant.
a) If the evidence is privileged.
b) If the evidence was obtained in breach of constitutional rights.
Definition of relevance:
There needs to be a logical connection between the issues of the case before the court and
the evidence. According to:
(1) Stephen: Essential elements are the following: two facts are related; one normally proves
the
other or renders it probable (or not); whether the fact is past, present or future; either by
itself or with other facts.
(2) The US Federal Rules of Evidence: Evidence which tends to make any fact of
consequence to the action more, or less, probable than without the evidence
In the case of S v Shabalala 1986 (4) SA 734 (A);
(1) What is the main reason why the evidence about the behaviour of the police dog was not
admitted in R v Trupedo 1920 AD 58?
The probative value was too tenuous (flimsy), in other words not relevant. To draw
inferences from dogs’ abilities is to enter a region of “conjecture and uncertainty”.
(2) A number of writers have suggested that the decision in R v Trupedo does not mean that
evidence about tracking dogs will always be inadmissible. In what way do they argue should
the judgment be viewed?
The judgment was decided on the facts of the particular case and inadequacy of scientific
knowledge at the time. Modern information about the scenting ability of dogs and their
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training may justify admission of the evidence.
(3) What role did the untrustworthiness of the evidence play in the court’s decision?
The (extreme) untrustworthiness was of fundamental importance. If this element is
sufficiently reduced the evidence would become admissible.
(4) Finally, the court warned that the distinction between weight and admissibility should not
be blurred. What principle did the court establish in this connection?
If the weight of the evidence is so inconsequential and relevance so problematic, it serves no
purpose to accept the evidence.
Read S v Mavuso 1987 (3) SA 499 (A) Answer the following questions:
(1) Write down the ‘‘test’’ for relevance as stated in R v Mpanza 1915 AD 348 at 352.
“[A]ny facts are so relevant if from their existence inferences may properly be drawn as to
the existence of the fact in issue.”
(2) Why was the assumption that the accused knew dagga because of his previous
conviction for possession of dagga, a false one?
Firstly, the previous conviction was a very long time ago. Secondly, the definition of
“possession” at the time was so wide that a conviction could follow, even if the accused was
merely found in the vicinity of the dagga.
Study unit 5 Similar fact evidence
Read R v Solomons 1959 (2) SA 352 (A Note that one of the more important additional
aspects of the admissibility of evidence to come out of this judgment is that a piece of
evidence may be inadmissible at one point in a trial, and become admissible at a later stage
(or vice versa)
Explain why the court eventually allowed the similar fact evidence. Identify the following in
your answer: the facts in issue, the similar facts and the nexus between the similar facts and
the facts in issue.
Give a definition of similar fact evidence. Explain how similar fact evidence might be irrelevant at one stage of the
trial, yet relevant at another stage, with reference to R v Solomons 1959 (2) SA 352 (A). (5)
During examination-in-chief of a witness, the state wanted to submit evidence about two
knife assaults which the accused had been involved in earlier on the night of the alleged
crime. (This is the similar fact evidence).
However, the court refused to admit this evidence because it was not sufficiently relevant at
that stage. Even though there was a logical connection between the facts in issue and the
similar fact evidence, the admission of the latter was not desirable. No reasonable
inferences could be drawn from the similar fact evidence that could help to decide the facts
which were in issue at that stage.
Later on it transpired that there were additional facts in issue: the accused not only denied
that he had been in possession of a knife, but also denied that he had been anywhere
near the scene of the murder. He also lied about how he had obtained the jacket and the
watch. The similar fact evidence was then admitted, because a reasonable inference could
be drawn (from the similar fact evidence) on the new issues as to whether the accused
had a knife in his possession, his alibi and how he had obtained the jacket and the watch.
A nexus therefore existed between the similar fact evidence and the facts in issue.
Fully discuss the admissibility of similar fact evidence. Also refer in your answer to a
definition, examples and applicable cases. (10)
Similar fact evidence is evidence about a fact which is similar to a fact in issue such as:
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