Understand the complexities of the law of evidence with these detailed, well-organised notes. Includes clear explanations, case law, and a focus on critical learning outcomes make it the ultimate study companion to excel. Get ahead with this essential guide!
LU1 – CHP1 AN INTRODUCTION TO LAEV
INTRODUCTION
• The 1st statute governing evidence was passed in by English Colonial Government
in 1830.
• The Ordinance for Altering, Amending, and Declaring in Certain Respects the
Law of Evidence 72 of 1830:
1) How to present evidence.
2) The admissibility of evidence.
3) The worth of evidence.
4) The pursuit of justice in fact-finding.
WHAT IS IT
• Wigmore as cited in Tregea v Goddart 1939: It is a set of rules which has to
do with the judicial investigations into questions of fact.
• Includes: Who did what? To whom? When? Why?
• The rules aren’t promulgated or developed by the legislature.
→ Based on rulings made by adjudicators in contested trials over the years.
→ It is lawyers law as confirmed by Schum: The use of evidence seems to be
stock-in-trade for practising attorneys.
ROLE IN SA
• A wide scope of gathering, storing, retrieving, transmitting, and putting
information to inferential use.
• Focuses on the fairness and integrity of forensic fact-finding processes.
• A functional range, including the determination of the admissibility of evidence.
ITS HISTORY
PRECOLONIAL POV
• The contemporary law of evidence is unintelligible outside of its colonial context.
→ Its specialisation wasn’t present before the arrival of the British.
→ Historically = “the child of the jury”.
• NOT to say that it didn’t exist:
→ Rules for admitting and evaluating evidence possibly existed before then.
→ Such rules for drawing of inference from evidence was a relatively universal
practise. (xhosa excluded testimony of bribed witnesses)
• SA is considered a blend of traditional and state courts:
→ Promulgation of the Cape Ordinance of 1830 introduced the law of evidence,
it was followed by:
All were grounded
1) Natal Ordinance of 1845.
on the work of
2) Orange Free State Ordinance of 1856.
James Stephen!
3) Transvaal Law of Evidence Proclamation of 1902.
• James Stephen: Characterised evidence into relevance, presentation, and proof.
,• European medieval times: The maxims of evidence such as “it ought to be made
evident, that it is clear and easy to be understood” and that “in law it is immediate
not remote cause which is regarded” were in operation.
CURRENT SOURCES
1) Civil Proceedings Evidence Act (CPEA).
2) Law of Evidence Amendment Act (LEAA).
3) Criminal Procedure Act (CPA).
4) Common law rules.
THREE FUNDAMENTAL FEATURES OF COLONIALITY
1) In the procedural context of common law adversarialism.
• At a minimum, the fact-finding process is centred on the model of a contest of
dispute before an impressive adjudicator where the testing of evidence is
conducted through cross-examination by opposing parties.
• The two legal systems:
Accusatorial/Adversarial Inquisitorial
Influence: English common law. Continental Roman law.
Followed by: South Africa and any France.
commonwealth country.
Dominus litis: Applicant/claimant. Judge.
Legal rep: The contest between two The presiding judge of the trial
theoretically equal parties who does the questioning.
do the questioning.
Confrontation: Person v Person Judge v Person
Principle: Orality. Written record.
Cross- Yes. No.
examine:
The burden of Yes = establish a prima facie No = judge assumes the
proof: case. burden.
Precedent: Yes. No.
2) The procedural division of procedural law between evidence and pleading.
• Evidence: More specialised in its conception = focused on the presentation
and the admissibility of evidence and proof of facts. (CPA)
• Pleading: A residual category of all the rules that downed regulates any
specialised area. (Uniform Rules of Court)
3) The tradition of Enlightenment Rationalism.
• It is committed to move away from traditional old forms of trial to the use of a
rational persuasion of fact-finding processes.
• Association with this tradition = the foremost purpose of fact-finding is the
ascertainment of truth in a process that is fair and non-prejudicial to all the
parties involved.
, LU1 – CHP2 BASIC CONCEPTS
FACTS
IN ISSUE RELEVANT TO AN ISSUE
• Facta probanda = facts essential to • Facta probantia = facts not essential
the cause of action. to the cause of action but can be
• Factum probandum = a specific fact used to prove it.
that needs to be proved. (singular) • Factum probans = an extra fact
• Can by itself determine the success offered in proof of the original fact.
of a case. (singular)
• Can’t by itself determine the success
of a case.
S V MAKWANYANE 1994
• Fact: A co-accused argued that he didn’t commit the robbery, and this was
voluntarily admitted and should be admissible.
• The statement:
1) Not committing the robbery = denial of a fact in issue.
2) Being voluntary and thus admissible = proof of a fact relevant to the issue.
EVIDENCE AND …
• Fact-finding processes are characterised as the gathering of many details of
information from the parties concerned = evidence.
→ Refers to either the brute evidentiary effects or mechanisms through which it
can be adduced.
→ Admissibility: Determined within a trial of a trial whether the evidence is
necessary.
→ Weight: Includes an evaluation of the contents, credibility, and or authenticity
of evidence that has been admitted.
→ Types:
1) Circumstantial (2nd tier): Requires additional inferences from the baseline
of authenticity to establish the facts relevant to the facts in issue.
2) Direct: Requires no additional inferences other than a baseline of
authenticity inference to establish a particular fact in issue.
• Evidence needs to be organised into an intelligible body from which pertinent
inferences can be drawn = base of argument.
→ Wigmore: The logical process of piecing evidence together is called
argumentation.
• The quality of a fact in issue being established to a requisite standard by one or
more facts relevant to it = proof.
→ Civil case = balance of probabilities (50+1%).
→ Criminal case = beyond a reasonable doubt (98%).
→ Adjudicators examine evidence before determining the standard of proof
required.
, PROOF
CONCLUSIVE PRIMA FACIE
• Refers to determinations that are • Refers to preliminary an
made at the end of proceedings. interlocutory determinations.
• Used to refer to the value of the case • Used to refer to the probative value
if no rebuttal is made. of a case of the discharging, a burden
of proof before rebuttal.
MISCELLANEOUS
HEARSAY
S3(4) of LEAA: Oral or written evidence whose probative value depends upon
credibility of a person other than the one giving the evidence.
RELEVANCE
Criterion by which evidentiary effects may be admitted.
PRIVILEGE
The right or duty of a witness to lawfully withhold evidence from a court of law.
ADMISSIONS
• Formal: Admissions that are binding on the maker and are made for the purpose
of dispensing a fact in issue.
• Informal: Admissions that may be contradicted or explained by their maker.
CONFESSIONS
A comprehensive out of court informal admission by an accused of all the elements of
the offence.
JUDICIAL NOTICE
Where the court accepts certain facts as proved, even though no evidence was led.
PRESUMPTIONS
A provisional ex lege acceptance of a particular state of affairs on the condition that a
certain it be established.
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