Class notes
CPR41YO Evidence Notes
- Course
- Law of civil procedure
- Institution
- University Of Johannesburg (UJ)
This is a comprehensive and detailed note on law of evidence; historical development and sources. Essential!!
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LAW OF EVEVIDE
IDE
IDENC
NC
NCEE - HIST
HISTOR
OR
ORIC
IC
ICAL
AL DE
DEVE
VE
VELO
LO
LOPME
PME
PMENT
NT & SO
SOUR
UR
URCES
CES
1) EVO
EVOLUT
LUT
LUTIO
IO
IONN OF TH
THE E LAW OF EV
EVID
ID
IDENCE
ENCE
The South African law of evidence is based on the English law of evidence as it was on the 30th of May 1961.
The religious stage:
o This stage was characterized by illogical and primitive thinking.
o There were 3 methods of determining innocence:
i. Divine judgment;
ii. Purifying oath; and
iii. Compurgators (this was not the same as a witness, he was merely a person who testified about the
character of the accused).
o During the Anglo-Norman period, compurgators developed into juries. Dueling also developed.
o In 1215 the pope forbade trial by ordeal.
The formal stage:
o During this stage, confessions were often obtained by the use of torture.
o Presumptions developed.
o Rules were set down preventing people with an interest in the outcome of the trial from testifying.
The rational stage is characterized by human reason.
2) FOR
FORMAT
MAT
MATIVE
IVE F ACT
ACTORS
ORS O F THE ANGL
ANGLO- O-
O-AMER
AMER
AMERICA
ICA
ICANN SYST
SYSTEM
EM
The jury system saw the development of assessors.
The doctrine of precedent features in this system.
o Precedent is only applicable to rulings from higher courts or courts with the same status.
o The facts of the case must be the same for precedent to be applicable.
Oaths are still used because it is the strongest known hold on a conscience.
This system is accusatorial.
o Therefore, the judge is passive, and
o He who alleges must prove.
3) THE CO
CONST
NST
NSTITU
ITU
ITUTIO
TIO
TIONN
Chapter 2 contains fundamental rights.
S36 (1) sets out the limitations of rights.
S39 (1) refers to the interpretation of the constitution.
o Interpretation must promote the values of the constitution;
o Foreign law may be considered; and
o International law must be considered.
Our constitution is similar to the Canadian Charter (due to the limitations clause), therefore, Canadian constitutional
decisions are important.
4) THE O ATH
If an accused refuses to take the oath, their guilt is confirmed according to s163.
S164 states that the court must enquire whether or not such a person understands the nature of the oath.
In the case of children, competency must first be determined.
5) SOU
SOURCE
RCE
RCESS
The South African law of evidence isn’t codified.
The constitution is a source that must be followed.
o The difference between the old and the present constitutions is that rights are now guaranteed.
Legislations must be obeyed.
o The Criminal Procedure Act is applicable,
o As well as the Civil Procedure Evidence Act, and
o The Law of Evidence Amendment Act.
Cases set precedent.
BASI
BASICC CO
CONCE
NCE
NCEPT
PT
PTSS
THE L AW
, SUBS
SUBSTAN
TAN
TANTIV
TIV
TIVEE (material) ADJ
ADJECT
ECT
ECTIVE
IVE (formal)
Determines rights, duties and powers. Determines procedure, pleadings and proof.
Determines the remedy to an infringement. Governs litigation.
Determines the facts at issue. Determines the probative facts that prove the facts at
issue.
Facum probandum. Facta probantia.
Common law is Roman-Dutch law. Common law is English law.
Admi
Admiss ss
ssibil
ibil
ibility
ity
ity: A fact is admissible if the law allows it to be proven by evidence.
o To be admissible, a fact must be in issue, or have a degree of relevance to the fact at issue.
o Evidence is admissible if the court rules allow it to be adduced before the court.
Burd
Burden en of p roorooff: This is the duty to prove the facts in issue.
Burd
Burden en of r ebu
ebutt tt
ttal
al
al: This is the burden to rebut prima facie evidence to avoid a decision against oneself.
Nex
Nexusus
us: A causal connection between two sets of facts with relevance as a basis.
Pro
Probati
bati
bativeve mat
mater er
erial
ial
ial: All materials that can give proof.
Wit
Witnes
nes
ness s: A person who gives sworn evidence at a hearing.
Com
Compellpell
pellabil
abil
ability
ity
ity: The capacity to be lawfully obliged to give evidence.
Com
Compet pet
petence
ence
ence: The capacity to give evidence.
Evid
Evidence
ence
ence: Testimony of a witness, the production of documents, and exhibits to be used as proof.
Fact
Facts s in is
issu
su
sue e (facta
(facta proba
proba nda): Facts that must be proved to establish a case.
obanda
Fact
Facts s rel
relevan
evan
evantt to t he facfactsts in i ss ue (fac
ssue (facta
ta pr
proba
oba
obantia
ntia): Facts that render probable the existence/non-existence of a fact in
issue.
Law of evid
evidence
ence
ence: That part of the law that determines what proof (how and by whom) may be put before the court to prove
facts.
Prim
Prima a fac
facieie
ie: Provisionally accepted, but rebuttable.
Prim
Primaryary e vide
vidence
nce
nce: The best and strongest evidence that was available.
Priv
Privileg
ileg
ilegee: The right to withhold information.
Pro
Proof
of
of: The method of establishing the existence/non-existence of a fact.
o Quan Quantum tum
tum: Balance of probability, or beyond reasonable doubt.
Rel
Relevan
evan
evance ce
ce: The relationship between two facts, wherein, according to logic or common experience, the existence of one fact
renders probable the existence of the other.
Seco
Secondar
ndar
ndaryy evid
evidence
ence
ence: This evidence implies that better evidence exists.
Subp
Subpoenoen
oena a: The document issued in a civil or criminal court, requesting a person to be present at a specific time and place
for a specific purpose.
Tes
Testim
tim
timony
ony
ony: The statement of a witness sworn in court offered as evidence of the truth.
1) ADMI
ADMISSIB
SSIB
SSIBILIT
ILIT
ILITYY AND THE ASSE
ASSESSME
SSME
SSMENT
NT OF E VI
VIDEN
DEN
DENCE
CE
, The Anglo-American system draws a distinction between the rules of admissibility, and the rules of assessment of evidence.
o This system aims its admissibility rules at excluding different types of evidence.
The continental systems, on the other hand, allow all the evidence and it is the court’s function to lend appropriate weight to
the different pieces of evidence.
The rules regarding the assessment of evidence are aimed at assisting the courts in evaluating evidence.
In assessing evidence, the court must:
o Draw credibility findings;
o Draw inferences; and
o Consider all the possibilities.
Assessing evidence allows the court to determine whether a case has been proven or not.
2) ADMI
ADMISSIB
SSIB
SSIBILIT
ILIT
ILITYY
The admissibility rules determine what qualifies as evidence.
Most rules regarding admissibility are negative in nature.
The law sets requirements to be met before it will take that evidence into consideration:
o Relevance (able to contribute to proving the facts in issue)
Previous consistent statements;
Similar fact evidence; Generally
Character evidence; inadmissible
Collateral facts; and
Opinion evidence, are all inadmissible.
o Other exclusionary rules (additional requirements to relevance). These rules refer to evidence that is relevant, but is
still excluded.
Competence and compellability of witnesses;
Privilege;
Hearsay;
Documents; and
Admissions and confessions.
Therefore, the general rule is that all relevant facts are admissible, subject to certain qualifications in the form of the
exclusionary rules.
The exclusionary rules are not a numerous clausus .
2.1 Natu
Nature
re an
andd orig
origin
in of our sy
syst
st
stem
em
Our system is based on the English system.
The English system is a comprehensive set of rules aimed as excluding evidence.
The English system is characterized by:
o The accusatory system;
o The jury system; and
o The doctrine of precedent.
The proof of admissibility is a legal question, which is settled by a trial within a trial.
o In most cases, the judge will decide. But in cases of confessions or statements made by the accused, assessors
must assist the judge.
Wrongfu
2.2 Wrongfu lly obtained
ngfully btained evidence
vidence
The English system places no bearing on the wrongfulness because the question is whether or not the evidence is relevant.
The constitution changed that and provides that the Canadian system should be followed. This system gives the judge three
options:
o Rigid inclusion (English);
o Rigid exclusion (US); or
o A compromise (Canada) – the judge has the discretion to exclude evidence in certain circumstances. This
balances the interests of the accused and the community.
2.3 Judic
Judicial
ial dis
discr
cr
creti
eti
etion
on
The court has no discretion to allow inadmissible evidence, except in the case of hearsay.
The court has a limited discretion to exclude admissible evidence if
o The probative force of the evidence is slight and the prejudice is potentially high; or
o If the evidence should be excluded according to public policy.
This discretion is provided by s35(5) of the constitution.
The court may allow inadmissible evidence if the counter party gives permission, but this permission must be qualified.
3) REL
RELEV
EV
EVANCE
ANCE
The relevance rule is negatively stated: irrelevant evidence is inadmissible. This rule is stated in s210 of the Criminal
Procedure Act.
Evidence is relevant if there is a logical connection between the evidence and the fact in issue.
Relevant evidence must have a minimum degree of probative force, i.e. it must be possible to draw a reasonable inference
from the fact concerned regarding the fact in issue.
, 4) FACT
FACTSS IN ISS
ISSUE
UE A ND FACFACTS TS R ELE
ELEVAN
VAN
VANTT TO FACT
FACTSS IN ISS
ISSUE
UE
Fact
Factss in is
issu
su
suee (facta probanda) Fact
Facts s rel
relevan
evan
evantt to fac
facts
ts in is
issu
su
suee (facta probantia)
Facts needed by law to establish a claim/liability/defense These facts render probable the existence of facts
forming the subject matter of proceedings, and which are in in issue.
dispute. They provide proof.
In a civil trial, They don’t have to be proved/disproved.
o They are set out in the pleadings, and Facta probantia must be logically relevant to be
o Their proof/disproof is essential. admissible.
In a criminal trial, These facts may form part of a series of facts from
o They are the elements of the crime, which inferences may be drawn.
o Allegations are made in the charge sheet, They can become secondary facts in issue.
o Defenses are relevant, and Secondary facts in issue are established during the
o They include the admissions of the accused. proceedings.
Direct evidence is always relevant.
The primary facts in issue are established before the trial.
5) TO PR
PROV
OV
OVEE A FAC
FACTT IN IS
ISSUE
SUE
PCS
SF
Factually based What Coll
Relevant principle to Char
be ID’d? Op
STEP 1 :
Determin
Fact in Iss
6) S v ORR
ORRIE
IE 2 005
The accused made an exculpatory statement to the police.
o He later claimed that he hadn’t been told of his rights and that he hadn’t been informed that he was a suspect.
Held:
o Any person with a normal intelligence in the position of the accused would realize that he was a suspect.
o A suspect, like an accused, is entitled to a fair pre-trial procedure.
o S35 (3) of the constitution states that any evidence obtained in violation of the rights in chapter 2 must be excluded
it its admissibility would render the trial unfair or detrimental to the administration of justice.
Therefore, fairness identity the decisive factor.
The question of the nature and extent of the prejudice suffered becomes relevant.
o Therefore, admissibility of a statement made without warning will inevitably taint the fairness of the subsequent
trial. Therefore the statement cannot be admissible.
PR
PREVI
EVI
EVIOU
OU
OUSS CO
CONSIS
NSIS
NSISTE
TE
TENT
NT ST
STAT
AT
ATEM
EM
EMENT
ENT
1) ORI
ORIGIN
GIN & G IST
Admissibility means that a fact is able to prove or disprove a fact in issue in order to be relevant.
When referring to a fact in issue, both primary and secondary facts in issue are referred to.
S252 of the Criminal Procedure Act provides that the origin of previous consistent statements lies in English law as it was
on the 30th of May 1961 if there is no relevant legislation or amendments.
A previous consistent statement is defined as a statement (written or oral) made by a witness before its repetition in court.
Such a statement must have been made previously and must be concurrent with the present statement.
2) MOST COM
COMMON
MON SISITUA
TUA
TUATIO
TIO
TIONS
NS
Previous consistent statements are most commonly found in the following situations:
a. A makes a statement to B, who records it in writing. A then adduces this written record in court.
b. A tells a version to B. At the trial, both persons then refer to the statement.
c. A witness at the trial states that they gave the same evidence to B, who is not a witness.
d. The accused gives a statement at trial, and later repeats it under oath.
The question of previous consistent statement can be raised during
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