LAW OF EVIDENCE AND LITIGATION

TECHNIQUES

(LAEV8411)
PRIANKA MUNGRAY
2024
MODULE LECTURER 👩🏫 PRIANKA MUNGRAY

pmungray@ i ie .ac. z a
 MODULE INFORMATION

• When it comes to what regulates matters of evidence, we look to common law, case
law, various pieces of legislation such as the Law of Evidence Amendment Act 45 of
1988 and the Criminal Procedure Act 51 of 1977.

• As with all fields of our law, the Law of Evidence and its sources are informed by the
principles, values and rights that come from the Constitution of the Republic of South
Africa, 1996, as the supreme law of the land.

• The development of the body of rules that make up the Law of Evidence has come
mostly from case law. It therefore forms part of the procedural/adjectival area of
law and we find evidence is central to civil trials, criminal trials, inquests, and many
other tribunals where there is a dispute that requires resolution.
 MODULE INFORMATION

• The purpose of this module is to provide you with an overview of the Law of Evidence in respect of
criminal and civil trials.

• It is important for students to study the history and development of the Law of Evidence in order to
understand the current approach in respect of admissibility and presentation of evidence.

• Therefore, this module will place an emphasis on the admissibility and presentation of evidence as
read with, among other sources, the South African Constitution, 1996 and the Criminal Procedure Act
51 of 1977.

• Throughout this module, you will engage with definitions, explanations and practical exercises which
will help you to acquire the knowledge which is essential in respect of implementing the rules of
evidence correctly.

• The laws of evidence in a skilled legal practitioner’s hands prove to be a formidable weapon in court.
 MODULE RESOURCES📚

MODULE OUTLINE - PLEASE TEXTBOOK – PRINCIPLES OF VC LEARN

REFER TO PAGE 7 OF YOUR EVIDENCE (5TH ED)
MODULE OUTLINE FOR A
LIST OF ALL THE PRESCRIBED
MATERIAL AND
RECOMMENDED READING
FOR THE PURPOSES OF THIS
MODULE.
 ASSESSMENTS📝

Please refer to pages 12 and 13 of

your module outline for
preparation hints
PROGRAMME ASSESSMENT SCHEDULE 📄 (PAS)
 LEARNING UNIT 1 –

INTRODUCTION TO THE CONCEPT OF

THE LAW OF EVIDENCE
 OVERVIEW

• The Law of Evidence, as a branch of the Law of Procedure, • In this learning unit, we will look at:
concerns the rules that govern the admissibility of
• a broad introduction to the law of evidence, the
evidence in both criminal and civil trials in South Africa.
sources of the law of evidence,
• Currently, there is no all-embracing statute governing this
area of law, and as such, various sources regulate how • the impact that is made on it by the Constitution of
courts adjudicate on the proof of facts in order to make a the Republic of South Africa, 1996,
finding on a case before them.
• the difference between substantive and adjectival law,
• It is imperative for any legal practitioner to understand
which evidence is admissible in a civil or criminal matter • as well as the difference between inquisitorial and
and which will ultimately prove his or her case. As such, it accusatorial procedure and some of the general
is vital that students grasp the distinction between principles that underlie this branch of the law.
different categories of evidence and sources of this area of
law.
OVERVIEW
 INTRODUCTION

• The first 'evidence statute in South Africa was passed by the English colonial government in 1830.’ -
Ordinance for Altering, Amending and Declaring in Certain Respects the Law of Evidence within this
Colony 72 of 1 March 1830

• Some of the broad concerns that the 50 rudimentary and sporadic sections of the statute sought to
address include:

§ the manner in which evidence should be collected and presented to court,

§ its admissibility,

§ the evaluation of its weight, and

§ the overall pursuit of justice in fact-finding.

§ These core aspects continue to form the foundation of the contemporary South African law of
evidence.
 WHAT IS THE LAW OF EVIDENCE?

• The question, "What is our law of evidence?" was raised historically in Tregea and Another v
Godart and Another.

• The answer given by the Appellate Division was that it was

'a set of rules which has to do with judicial

investigations into questions of fact.’

• The wide-ranging scope of these questions of fact includes 'who did what, to whom, when,
and why?’.

• These rules are peculiar because they have not been developed and promulgated by
the legislature.

• Instead, it is through the numerous rulings made by adjudicators in contested trials

over the years that they have emerged.
 WHAT IS THE LAW OF EVIDENCE?

• The law of evidence is also sometimes referred to as 'lawyers" law not only because of

how specialised and diffuse some of the rules have been perceived to be, but also, as

Schum points out, because 'the use of evidence seems to be stock-in-trade for practising

attorneys.’

• Although the rules of evidence cover the wide scope of gathering, storing, retrieving ..

transmitting information … [and] putting this information to inferential use, it is

primarily the lawyers that lead the adduction and testing of this evidence in court.
 A DECOLONIAL PERSPECTIVE OF THE
HISTORY OF THE LAW OF EVIDENCE IN
AFRICA

• Not only is South Africa's contemporary law of evidence unintelligible outside its colonial

context, but a specialisation called the 'law of evidence' hardly existed before the arrival of the

British on the African continent.

• It is common for this branch of law to be referred to as the ‘child of the jury’ or the ‘child of

the adversary system:’.

• However, this is not to say, as some have suggested, that rules for admitting and evaluating

evidence did not obtain in pre-colonial Africa.

 A DECOLONIAL PERSPECTIVE OF THE
HISTORY OF THE LAW OF EVIDENCE IN
AFRICA

• The formulation of rules for the drawing of inferences from evidence is a relatively

universal practice that is germane to several disciplines and jurisdictions.

• For example, at Xhosa customary law, certain exclusionary rules obtain (for example, the

testimony of bribed witnesses is inadmissible), and the evidence is tested through cross-

questioning by lay councillors (and not the adjudicator or the parties).

• South Africa has a blend of traditional and state courts where principles of

evidence and proof are applied.

 A DECOLONIAL PERSPECTIVE OF THE
HISTORY OF THE LAW OF EVIDENCE IN
AFRIC A

• South Africa's law of evidence was introduced by the British colonial government through
the promulgation of the Cape Ordinance of 1830.

• The subsequent Natal Ordinance 19 of 1845, the Orange Free State Ordinance 6 of 1856
(and later Ordinance 11 of 1902) and the Transvaal Law of Evidence Proclamation 16 of
1902 were carbon copies of the original Cape statute.

• These statutes were, in turn, grounded primarily on the work of James Fitzjames Stephen,
particularly as encapsulated in the Indian Evidence Act of 1872.
 A DECOLONIAL PERSPECTIVE OF THE
HISTORY OF THE LAW OF EVIDENCE IN
AFRIC A

• Stephen's work is characterised by a distillation of the core components of the law of

evidence into three parts:

• 'relevance' (admissibility),

• 'presentation', and

• 'proof" (evaluation)."

• This conception remains embedded in contemporary South African evidence scholarship.

 A DECOLONIAL PERSPECTIVE OF THE
HISTORY OF THE LAW OF EVIDENCE IN
AFRICA

• Before Stephen, William Nelson's The Law of Evidence (1717) was one of the earliest
texts on the law of evidence as a distinct specialisation of law.

• The law of evidence can hardly be said to have existed as a separate branch of law before the
eighteenth century.

• There is evidence, however, of a potpourri of scattered evidential maxims, such as probationes

debent esse evidentes, id est, perspicuae et faciles intelligi (proofs ought to be made evident, that is,
clear and easy to be understood) and in jure non remota causa sed proxima spectator (in law it
is the immediate, not the remote, cause which is regarded), being in operation during the
European medieval period.
BASIC CONCEPTS AND DISTINCTIONS
 FACTS IN ISSUE AND FACTS RELEVANT
TO THE FACTS IN ISSUE

The facts in issue (facta probanda) are the The facts relevant to the facts in issue
essential criteria of a cause of action.
They are the material facts which the (facta probantia) are the evidentiary facts,
proponent is required to prove in order or the subordinate or collateral facts in
to establish his/her case.
They are essential for one side and issue, from which the establishment
disputed by the opponent. of the facts in issue is inferred.

See example on page 12 – Makwanyane case

 EVIDENCE AND ARGUMENT

Read page 13 of your textbook.

• Fact-finding processes of all kinds are characterised by the gathering of 'many trifles
or details' of information from the parties concerned.

• These disparate pieces of evidence, have to be 'marshalled' and 'organised' into one
body from which the pertinent inferences can be drawn.

• According to Wigmore, the logical process of piecing these pieces of evidence

together is called argumentation.

• For example, while an accused's blood stains and DNA strands at a crime scene
are each highly probative pieces of evidence, they still need to be pieced
together into a logical form of argument about the establishment of the
accused's commission (factum probandum) of a particular offence.
 PRESENTATION OF EVIDENCE AND

EVIDENTIARY FACTS

• The term 'evidence' is often used interchangeably with two distinct concepts,
namely the 'brute facts' or the 'evidentiary facts' about a state of mind, form of
conduct or any other matter or thing in the world, and the mechanism witness
testimony, documents, physical items or audio-visual recordings through
which these facts are presented.

• For example, the accused's commission of 10 incidents of rhino poaching in

Makhanda (evidentiary facts) was established in Ndlovu, using various items,
such as five tranquiliser darts, a tranquiliser dart gun, a freshly removed rhino
horn, and a yellow bow saw that were obtained in a search of the accused's
chalet by the police.
 EVIDENCE AND PROOF

• The term 'proof’ is derived from the Latin probare, which means to ‘see out’ or 'to trace by sight' and is used
to designate the quality of a factum probandum having been established to the requisite standard by one or

more evidentiary facts.

• The standard of proof in civil cases is on a balance of probabilities while in criminal cases must be established

beyond a reasonable doubt.

• The term 'evidence' is typically used to refer either to the brute evidentiary facts or to the mechanisms

(testimony, documents, physical items) through which these facts are adduced.

• Adjudicators must then evaluate this evidence in order to determine whether the pertinent
standard of proof is met.

• For example, the Supreme Court of Appeal held in Doorewaard that trifling pieces of evidence such as the
accused admitting that they physically apprehended the deceased on suspicion of stealing their sunflower

heads, the deceased dying from blunt force injuries and the evidence of a single eyewitness were insufficient

to prove beyond a reasonable doubt that the accused threw the deceased off their vehicle.
 CONCLUSIVE PROOF AND PRIMA FACIE
PROOF

• The prima facie proof standard obtains with respect to preliminary and interlocutory
determinations (such as whether or not to charge the accused).

• Determinations of conclusive proof, on the other hand, are made at the end of legal
proceedings in accordance with the prescribed standard of proof.

• Similarly, the prima facie proof designation is used to refer to the probative value (evidence that is
sufficiently of value to prove a fact in issue in a trial) of the proponent's case after discharging its
burden of proof, but before the opponent has rebutted it.

• If left without rebuttal, the proponent's prima facie case may, depending on the
circumstances, be held to be conclusive.

• For example, the prima facie evidence of the arresting officer in Hall that the accused was driving
under the influence of alcohol and the concentration of alcohol in his blood exceeded the legal limit
of 0,05 grams per 100 millilitres was left unrebutted by the accused, and this, according to the
Western Cape High Court, made it conclusive.
 ADMISSIBILITY AND WEIGHT OF
EVIDENCE

Weight Admissibility
• The determination of the weight of evidence • Admissibility assessments are
presupposes that it has already been admitted.
'interlocutory and provisional' and thus
• Therefore, admissibility is a necessary, but not sufficient, determined within a trial within a trial.
condition of the allocation of probative weight.
• Criteria such as relevance, exclusionary
• The allocation of probative weight is final and includes
rules and prejudice determine
the evaluation of the contents, credibility and/or
admissibility.
authenticity of the evidence once it has been admitted.

• Furthermore, the evaluation of the weight of evidence is

guided primarily by the decision rules pertaining to the

allocation of the burdens of proof between the parties as

well as the overall standard of proof.
CIRCUMSTANTIAL AND
DIRECT EVIDENCE

Consider: What is the difference?

 CIRCUMSTANTIAL AND DIRECT
EVIDENCE

Consider: What is the difference?

• Zeffertt and Paizes contend that all evidence requires the drawing of a baseline
inference of authenticity (that is, its credibility and reliability) as distinguishable
from its contents.

• The direct evidence designation refers to evidence that requires no

additional inferences, other than this baseline authenticity inference,
in order to establish a particular factum probandum.

• The evidence of an eyewitness typically falls within this category.

 CIRCUMSTANTIAL AND DIRECT
EVIDENCE

Consider: What is the difference?

• However, there are instances where an additional, second-tier inference has to be drawn in
addition to the baseline authenticity inference.

• In such instances, the drawing of the baseline authenticity inference is probatively insufficient
for the evidence to establish the factum probandum concerned - this is called circumstantial
evidence.

• For example, the witness testimony of Captain Mangena in Pistorius about the nature of the
weapon and ammunition (Black Talon) used by the accused, and the manner in which the shots
were fired, required not only that its authenticity (that is, its credibility and reliability) be
established, but also that further inferences be drawn about the accused's aim towards the
door and his overall intention (dolus eventualis) when he fired the shots.
 CIRCUMSTANTIAL AND DIRECT
EVIDENCE

Consider: What is the difference?

• In these instances, the court is required to draw inferences, because the

witnesses have made no direct assertions with regard to the fact in issue.

• These inferences must comply with certain rules of logic.

• Circumstantial evidence furnishes indirect proof - In a murder trial, for

example, evidence may be given that A had a motive to kill B and was seen
running from B's home with a bloodstained knife.

• Evidence, however, is direct when a fact in issue is proved directly by such

evidence; for example, where witness C testifies that he saw A stabbing B in
the latter's home.
 HEARSAY

• S3(4) of the Law of Evidence Amendment Act 45 of 1988 hearsay evidence

means:

evidence, whether oral

or in writing, the
probative value of
which depends upon
the credibility of any
person other than the
person giving such
evidence.
 RELEVANCE

• Relevance is the one criterion by which an evidentiary fact may be admitted if

it is likely to render a factum probandum more or less probable.
 PRIVILEGE

• Privilege refers to the right or duty of a witness, including a party, to lawfully

withhold evidence from court of law.
 FORMAL OR INFORMAL ADMISSIONS

• Whereas formal admissions are binding on their maker, and they are made for
the purpose of dispensing with the necessity of adducing evidence to establish
a particular factum probandum, informal admissions may be contradicted or
explained away by their maker.
 CONFESSIONS

• A confession is a comprehensive out of court informal admission by the

accused of all the elements of the alleged crime.

• It can be described as an unequivocal acknowledgement of guilt, which – if it

were made in a court of law – would be accepted as a plea of guilty.
 JUDICIAL NOTICE

• A court may accept certain facts as proved even though no evidence was led
to prove such facts – this process is known as “judicial notice”.

• E.g. general knowledge or local knowledge.

 PRESUMPTIONS

• A presumption is a provisional ex lege (as a matter of law) acceptance of a

particular conclusion or state of affairs usually on condition that a certain
epistemic fact or circumstance is established.

• Presumptions can be rebuttable or irrebuttable.

 SOURCES OF THE Apart from legislation and pre- If a total lacuna is encountered, a SA
LAW OF EVIDENCE existing common law, SA courts court may for comparative purposes
have established a considerable
AND THE IMPACT OF body of case law on evidence
look for guidance in English cases
decided after 30 May 1961.
CONSTITUTIONAL which interprets and expresses the These cases would normally have
PROVISIONS English common law which was in
force on 30 May 1961.
considerable persuasive value, but would
not be binding authority.
These cases are binding authority In the event of a lacuna, support for a
and obviate the need to explore old decision can also be gleamed from the
• The SA rules of evidence are contained law of evidence of other Anglo-American
English common law rules of
mainly in statutes such as the CPA, CPEA, jurisdictions e.g. US Canada etc.
evidence.
LEAA and the ECTA.

• If these are silent on an issue, the common

law applies. The SA Constitution is an important
source of the law of evidence and has
had a significant impact on how rules of
• However, the common law of evidence is evidence are interpreted and applied.
not the Roman-Dutch law that forms the While our legal system still operates in a
colonial culture, all legal rules, including
basis of SA’s common law, but rather, the those contained in the English common
English law of evidence which was in law of evidence, must align with the
values enshrined in the new
force in SA on 30 May 1961. constitutional order.
 SOURCES OF THE SA LAW OF EVIDENCE

The pre-Union period: colonial incorporation of English law

• The English law of evidence in was established in 1830.

• The Cape Evidence Ordinance 72 of 1830 was promulgated to establish the English law of
evidence, under common law or statute, throughout the colony.

• This Ordinance later served as a model for similar statutes in other southern African colonies,
especially the four colonies that later constituted the Union of South Africa.

• The English law of evidence was similarly adopted in the Natal Colony in 1859.

• In 1902, the Evidence Proclamation 16 of 1902 was issued and contained mostly provisions
from the Cape Ordinance, but also contained a residuary section to deal with matters not
covered by the new proclamation – see section 45 on page 21! (The Supreme Court of
Judicature in English will apply if the proclamation was lacking)

Read continued discussion on page 21 📖

 SOURCES OF THE SA LAW OF EVIDENCE

The post-Union period:

• After the four colonies became the provinces of the Union of South Africa in 1910, the
provisions in colonial statutes with respect to the law of evidence in criminal proceedings were
consolidated in the Criminal Procedure and Evidence Act 31 of 1917.

• This Act was later replaced by the Criminal Procedure Act 56 of 1955, which excluded English
law where any matter or topic relating to evidence was expressly dealt with in South African
legislation.

• However, English law had to be followed where a matter was specifically covered ‘in the Act by
a reference to the law as applied in the Supreme Court of Judicature in England.’

• Residuary clauses which invoked the English law with regard to issues not expressly covered by
South African legislation were also included in post-union legislative changes.

• With respect to civil proceedings, the colonial statutes remained in force after the unification
of the colonies.
 SOURCES OF THE SA LAW OF EVIDENCE

The Republic of SA: law of evidence after 30 May 1961:

• When the Union of South Africa became a Republic on 31 May 1961,

political sensitivities and a desire for independence from British rule
and binding British precedent made untenable any continued reference
to the law of England.

• This move to develop an independent South African law of evidence

was facilitated in two ways.
 SOURCES OF THE SA LAW OF EVIDENCE

The Republic of SA: law of evidence after 30 May 1961:

• First, through local legislative amendments, explicit references to 'England' were removed.

• The Criminal Procedure Amendment Act 92 of 1963, for example, removed all references to the Supreme

Court of Judicature in England from the then Criminal Procedure Act 56 of 1955, and replaced it with

references to the law as it stood on the thirtieth day of May, 1961 (the day before South Africa became a

Republic).

• In Savoi and Others v National Director of Public Prosecutions and Another, Madlanga J, writing for a unanimous

Constitutional Court, stated that the reference to the law as it stood on 30 May 1961 was a circuitous way

of referring to the law of England; circuitous because of the perceived inappropriateness of the direct

reference — in parliamentary Acts of the then new Republic — to the laws of another country.

• In 1977 the Criminal Procedure Act 56 of 1955 was (except for ss 319(3) and 384) replaced by

the CPA. The CPA generally retained the references to the law as it stood on 30 May 1961, the residuary
sections incorporating the English law.
 SOURCES OF THE SA LAW OF EVIDENCE

The Republic of SA: law of evidence after 30 May 1961:

• It is generally accepted that the South African law of evidence remains to a certain

extent frozen as of 30 May 1961.

• The common law that must be followed consists of English legislation that existed on

the various dates of original indirect incorporation, as well as English case law prior to

30 May 1961.

• Second, local courts developed a system of precedent with respect to the law of

evidence in criminal proceedings to clarify the meaning of the '30 May 1961' provision –

read pages 23 – 25!

 • The South African legal system was constitutionalised on 27 April
1994 when the Constitution of the Republic of South Africa,
1993 (Interim Constitution) came into operation.

• It was followed by the Constitution, which came into operation

on 4 February 1997.
THE IMPACT OF • Parliamentary sovereignty was replaced by a Constitution
THE considered to be the supreme law of the land and comprising a
CONSTITUTION, justiciable Bill of Rights.

1996, ON THE • Any statutory or common law rule which conflicts with the
LAW OF rights and freedoms contained in the BOR must be declared

EVIDENCE unconstitutional unless it can, in terms of s36(1) of the

Constitution, be saved as a constitutionally permissible limitation
of a constitutionally guaranteed fundamental right or freedom.

• The Constitution has had the effect that some common-law and
statutory procedural and evidentiary rights of accused persons
have hardened into substantive, constitutionally protected rights.
 • These rights include:

The right to exercise a “passive

defence right”, which incorporates
The right to be informed of the right to remain silent upon
certain rights arrest; to be presumed innocent; not
to incriminate oneself and not to
THE IMPACT OF testify during trial.

THE
CONSTITUTION, The right to a fair trial (due process),
1996, ON THE The right to exercise an “active
defence right” which includes the
which includes the rights as set out in
s35(3) of the Constitution. This right
LAW OF right to adduce and challenge
evidence.
has an important impact on the
application of the rules of evidence.
This right has had an impact on
EVIDENCE police docket privilege.

The constitutional pre-trial rights to

be informed not only of the right to
legal representation but also the right
to silence affects the admissibility pf
confessions and admissions (including
“pointings-out).
 • Constitutional provisions have been invoked to declare
certain statutory presumptions and reverse onus clauses
unconstitutional.

• Constitutional provisions likes ss 32 and 34 have an impact on

state privilege.

THE IMPACT OF • One of the most far-reaching effects of the

THE Constitution on our law of evidence concerns the

CONSTITUTION, admissibility of unconstitutionally obtained evidence.

1996, ON THE • S 35(5) of the Constitution provides that evidence “obtained

in a manner that violates any right in the BOR must be
LAW OF excluded if the admission of that evidence would render the
EVIDENCE trial unfair or otherwise be detrimental to the administration
of justice”.

• Before this exclusionary rule came into existence, little

regard was shown to the manner in which evidence was
obtained and, generally any relevant evidence was considered
admissible.
 • It can be said that there is an inseparability between
the rules of evidence and constitutional entitlements.
THE IMPACT OF • Our law of evidence must constantly be scrutinized in
THE the light of constitutional provisions.
CONSTITUTION,
• American and Canadian cases can be useful in
1996, ON THE interpreting the impact of our Constitution on the law
LAW OF of evidence.
EVIDENCE
• We can be guided by these decisions because of s39(1)
of the Constitution which states that courts may
consider foreign law – see section 39(2) as well.
 DECOLONISING THE LAW OF EVIDENCE

• De Villiers explains that although residuary sections may still be in place, numerous changes have
occurred over the years, giving certain law of evidence issues a true South African character.

• Some of these changes resulted from new interpretations of old common law principles by the
courts, while others were made directly by way of new legislation.

• A clear example of this is the repeal of the strict English residuary clause on hearsay evidence and
the adoption of a more relaxed rule and exceptions on hearsay by s 3 of the LEAA.

• The Constitution - in giving effect to s 39(2) - mandates higher courts to amend any common-law
rule that is inconsistent with the provisions or values of the constitutional order.

• This has impacted several aspects of the law of evidence including the doctrine of precedent, one of
the greatest contributions of English law to South African law.

• Courts may depart from binding precedent if it is not in line with the spirit of the Constitution or no
longer aligned with the boni mores of the society it serves.

Read continued discussion on page 28!

 CONSIDER THESE QUESTIONS:

1 . W H AT D O E S A N AC C U S ATO R I A L S YS T E M E N TA I L ?

2 . W H AT D O E S A N I N Q U I S I TO R I A L S YS T E M E N TA I L ?
 • The accusatorial (adversarial) trial procedure has three leading
features:

§ The parties are in principle responsible for the presentation of evidence in

support of their respective cases;

§ The adjudicator is required to play a passive role;

A CCUSA T O R IA L
V E R SUS § Much emphasis is placed upon oral presentation of evidence and cross-
INQ UISIT O R IA L
examination of witnesses.
P R O CEDUR E
§ The adversarial model proceeds from the premises that greater
approximation of the truth is possible if litigants are allowed to
present their own evidence in a process which guarantees not only
cross-examination of an opponent who testifies, but also all witnesses
called by such opponent.
 • Unlike the adversarial model, the inquisitorial model is judge-centred.

• It proceeds on the premises that a trial is not a contest between two opposing

parties but essentially an inquiry to establish the material truth.

• For the inquisitorial model, judicial examination is the pivotal mechanism in the

process of fact-finding.
ACCUSATO R IA L
V E R SUS • The emphasis is on an inquiry conducted with the aid of such evidence as the
INQ UISITO R IA L
inquirer deems fit.
P RO CEDUR E
• The absence of the right to cross-examine also explains why the inquisitorial

procedure puts the written word (as a means of receiving evidence) to greater
use than the adversarial system.

• The commissioner in the small claims court may, in his discretion, receive

written or oral evidence, and may actively call for such evidence.
 • First, South Africa's law of evidence, similar to that
of other African countries with common-law legal
heritage, operates within the procedural context of
common-law adversarialism.
T H R E E F U N DA M E N TA L
F E AT U R E S O F C O L O N I A L I T Y • This means that the process of fact-finding is party-
I N T H E S O U T H A F R I C A N L AW
OF EVIDENCE centred; the model of proceeding takes the form of
a contest or dispute before a relatively passive or
non-interventionist adjudicator; and the testing of
evidence is conducted primarily through cross-
There are three particular features of coloniality
that characterise South Africa's law of evidence. examination by the opposing parties.
 • However, it is important to bear the following two
caveats in mind with regard to South Africa's version
of common-law adversarialism.

T H R E E F U N DA M E N TA L • The first is that approximately 42% of the country

F E AT U R E S O F C O L O N I A L I T Y
I N T H E S O U T H A F R I C A N L AW litigates in traditional courts that do not apply this
OF EVIDENCE
form of common-law adversarialism, and the second
is that South Africa abolished the jury system that is
the foundation of the common-law rules of evidence
in 1969.
 • The second feature of coloniality is the procedural
bifurcation (separate into two branches) of procedural law
between what Stephen called the ‘law of evidence' and 'the
law of pleading’.

• The more specialised law of evidence, in this conception, is

focused on the presentation and admissibility of evidence
T H R E E F U N DA M E N TA L and the proof facts, whereas the law of pleading is a
F E AT U R E S O F C O L O N I A L I T Y
I N T H E S O U T H A F R I C A N L AW residual category of all the rules that do not regulate any
OF EVIDENCE
of these specialised areas.

• This distinction has largely remained in South Africa, with

the rules of evidence being contained in certain specified
parts of the law (for example, ch 24 of the Criminal
Procedure Act 51 of 1977), while the residual rules of
pleading are provided for elsewhere (for example, in the
Uniform Rules of Court and the remainder of the CPA).
 • Thirdly, South Africa's law of evidence is located within a long
tradition of Enlightenment Rationalism, which is also known as the
'rationalist tradition of evidence scholarship’.

• This tradition is committed to a move away from traditional old

T H R E E F U N DA M E N TA L
F E AT U R E S O F C O L O N I A L I T Y forms of trial (for example, trials by ordeal, battle and
I N T H E S O U T H A F R I C A N L AW
OF EVIDENCE compurgation) to the use of rational persuasion (reasons
and arguments) in fact-finding processes.

• As a result, South Africa's association with this tradition means that

the foremost purpose of fact-finding is the ascertainment of the
truth using this form of rational inferential reasoning.
 • Furthermore, South Africa's law of evidence is also committed to
the pursuit of this truth in a manner that is fair and not
prejudicial to all the parties involved.

• One of the ways through which this commitment manifests is

through the allocation of the risk of non-persuasion
THREE FUNDAMENTAL
FEATURES OF COLONIALITY
predominantly on the dominus litus.
IN THE SOUTH AFRICAN LAW
OF EVIDENCE • A further commitment that lies at the heart of the rationalist
tradition of evidence law pertains to the efficiency with which
fact-finding processes are to be conducted.

• Fact-finding processes that are delayed typically prejudice the

parties involved in various ways, including the increment of
additional legal costs for the litigants.
 THE LAW OF EVIDENCE AND
SUBSTANTIVE LAW

• The law of evidence forms part of adjective law (or procedural law).

• Adjective law is distinguished from substantive law.

• Substantive law comprises legal rules that provide for the rights and duties of

parties, while adjective law provides the procedural mechanisms in terms of

which these rights and duties are enforced.

• Corbett JA explains:

Substantive law is concerned with the ends which the administration of justice

seeks; procedural law deals with the means and instruments by which those ends

are to be attained.
 THE LAW OF EVIDENCE AND
SUBSTANTIVE LAW

• This distinction is not as clear as it appears.

• It is not only substantive law that creates rights and duties.

• Adjective law also provides for procedural rights and duties, for example, the right

of a party in a trial to cross-examine an opponent's witnesses, and the numerous

rights and duties provided for by the rules of court in civil matters, for example, the

rules relating to the discovery of documents and the calling of expert witnesses.

The question is:

Does this distinction between substantive and adjective law really matter? Does it
matter whether a specific rule of law is described as substantive or procedural?
 SUBSTANTIVE VS PROCEDURAL LAW:

IMPORTANCE OF THE DISTINCTION

• In South Africa, two systems of common law apply.

• The historical development of our law resulted in substantive law originating

from Roman-Dutch law, while our procedural law, particularly our law of

evidence, originated from English law.

• Zeffertt and Paizes explain that the result of this mixed lineage is a sort of

internal conflict of laws by which English rules are applied as South African law

to matters which are characterised as involving questions of evidence, while

matters falling outside this category are governed by rules which find their

origin in Roman-Dutch law.

 SUBSTANTIVE VS PROCEDURAL LAW:

IMPORTANCE OF THE DISTINCTION

• Clearly distinguishing between circumstances that demand the

application of rules of evidence and those that require the application of

substantive law rules is therefore important for the accurate resolution

of issues or disputes.

• While the differentiation is a significant one, it is not necessarily straight-forward.

• Following Roman-Dutch law or following English law on a particular issue may

result in diametrically opposed outcomes.

• No better illustration exists than that found in Tregea and Another v Godart and

Another, a case in which the court had to decide the burden of proof where the

validity of a will was challenged.

 SUBSTANTIVE VS PROCEDURAL LAW:

IMPORTANCE OF THE DISTINCTION

• Sonnekus points out another practical consequence of the characterisation of a principle or rule as
being either substantive or evidential.

• In this instance, characterisation has a curious effect on the application of estoppel.

• If estoppel is a rule of substantive law, viewed as a measure of preventing prejudice rather than an
instrument of gain, the relief afforded by estoppel should not extend beyond the actual damage
suffered by the party entitled to assert estoppel.

• If, however, the rule is one of evidence, then, notwithstanding the fact that the actual prejudice
suffered by the representee does not extend to the full amount in question, the representor,
precluded from relying on the true facts, would be unable to recover anything at all.

• The dividing line between substantive law and the law of evidence is blurred by the fact that some
rules of substantive law result in the exclusion of evidence by the court, thus causing the rule to
appear to be one of evidence (the mistaken reasoning being that since it results in the exclusion of
evidence, the rule must be one of evidence.)
 CLASS ACTIVITY ✏

Explain the following key concepts

using your own words:
• Burden of proof.
• Irrebuttable presumption.
• Estoppel.
• Parole evidence.
• Rectification.
 THE BURDEN OF PROOF

• Views on the classification of the burden of proof vary from one extreme to
the other.

• Some hold the opinion that establishing the burden of proof is a product of
purely adjective law and that English law is therefore applicable.

• Others maintain that it is determined by the applicable substantive Roman-

Dutch law.

• The view that it falls in a grey area somewhere between substantive and
adjective law has found support.
 THE BURDEN OF PROOF

• The different outcomes that result from applying English or Roman-Dutch law to
the issue of burden of proof are illustrated in Tregea and Another v Godart and
Another.

• In this case, the Appellate Division had to decide which party carried the burden of
showing that a testator was mentally capable of drafting a valid will.

• The plaintiffs sought the rejection of the will on the grounds that the testator did
not have the mental capacity to execute a will.

• Much depended upon who carried the burden of proof.

• If this question was regarded as one of substantive law, Roman-Dutch law would
apply and the defendants would benefit by a presumption that a will, regular on the
face of it, is valid.
 THE BURDEN OF PROOF

• If, on the other hand, the matter was regulated by the law of evidence and
English law applied, the plaintiffs would have been assisted by a rule that cast
the burden of proof on the defendants to prove testamentary capacity on the
part of the testator.
 THE BURDEN OF PROOF

• In coming to a decision, the appeal court explained that 'substantive law lays
down what has to be proved in any given issue and by whom, and the rules of
evidence relate to the manner of its proof’.

• The question was held to be one of substantive law of succession and Roman-
Dutch law was [Link] burden of proof accordingly was on the plaintiffs.

• Schmidt and Rademeyer are of the opinion that Tregea and Another v Godart and
Another was incorrectly decided. They point out that substantive law defines
the rights and duties of persons and thus determines the facta probanda.

• The burden of proof (as well as rebuttable presumptions) does nothing of the
kind; it relates to the manner in which facts are proved and therefore
belongs to the law of evidence.
 THE BURDEN OF PROOF

• The various elements that constitute a cause of action, crime or defence, and thus
the facta probanda, are requirements of substantive law.

• It is unrealistic to refer to the burden of proof without also referring to what has
to be proved.

• This, however, simply means that the burden pertains to the particular probanda.

• But it is for this very reason that the law of evidence is called adjectival.

• It would be more accurate to say that the incidence of the burden of proof is
dependent upon, or varies according to, substantive law rather than that it is
determined by substantive law.

• The existence of the burden of proof, and its various consequences and
qualifications, must therefore preferably be ascribed to the law of evidence.
 IRREBUTTABLE PRESUMPTIONS

• Irrebuttable presumptions of law apply when certain basic facts are proved,
leading to the presumption that another fact exists, and the party against
whom the presumption operates is prohibited from leading evidence in
rebuttal.

• While the formulation of these presumptions may appear to represent rules of

evidence, they are, in fact, rules of substantive law.
 IRREBUTTABLE PRESUMPTIONS

• An example of this presumption is the formerly applied common-law rule that girls
under 12 years are irrebuttably presumed to be incapable of consenting to sexual
intercourse.

• Another way of formulating this same rule would be to say that sexual intercourse
with a girl under 12 years of age amounts to rape even if the girl consented to
intercourse.

• In 2007, this common-law rule was replaced by s 57(1) of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007 (SORMA), which
stipulates: 'Notwithstanding anything to the contrary in any law
contained, a male or female person under the age of 12 years is
incapable of consenting to a sexual act.’

• This rule is therefore now correctly and unambiguously stated as a substantive-law

rule.
 IRREBUTTABLE PRESUMPTIONS

• A similar example is the irrebuttable presumption created by the common-law rule that a child
under the age of seven years is presumed to be doli and culpae incapax and can therefore not
be held liable in criminal or civil proceedings.

• While the formulation of this rule as a 'presumption' may have caused confusion about
whether it is adjectival or substantive in nature, it is a rule of substantive law.

• Section 7 of the Child Justice Act 75 of 2008 has raised the minimum age for criminal capacity
of children to 10 years of age.

• Section 7(1) of the Act represents a clear statement of substantive law: A child who commits
an offence while under the age of 10 years does not have criminal capacity and cannot be
prosecuted for that offence, but must be dealt with in terms of section 9.

• The age of criminal incapacity for children in civil proceedings remains unchanged.

• Since these rules are of substantive-law nature, Roman-Dutch law applies - not English law.
 ESTOPPEL

• The term 'estoppel’ specifically 'estoppel by representation’ is applied to prevent a

person from denying the truth of a false representation where such a false
representation was made to another person who believed the truth of it and was
thereby induced to act to his or her own detriment.

• The doctrine of estoppel is a substantive-law rule, introduced into South African

law from English law on the basis that it corresponded with the principles of
Roman and Roman-Dutch law.

• Various expressions are coupled with the term 'estoppel’.

• Among these are estoppel by record, by deed, by conduct, issue estoppel, estoppel
in pais, equitable estoppel, estoppel by silence and estoppel by negligence.

• There are only two forms of estoppel most common in South African law,
namely estoppel by representation (which covers most of the various
aforementioned forms of estoppel) and estoppel by judgment.
 ESTOPPEL

• Estoppel by judgment is more commonly known in South Africa as estoppel per rem
judicatam, exceptio rei judicatae or a plea of res judicata.

• The expression signifies that a matter has been finally adjudicated on by a competent
court.

• It may then not be raised again if the action is between the same parties, for the same relief
and upon the same cause, and provided further that the judgment was a final one on the
merits of the matter.

• The equivalent of a plea of res judicata in a criminal case would be a plea of autrefois convict or
acquit—that the accused has already been convicted or acquitted of the offence with which he
is now charged.

• Again, the charge must relate to the same or a substantially identical offence and the verdict
must have been pronounced by a competent court on (in the case of autrefois acquit) the
merits of the matter and not merely on an irregularity in the procedure.
 ESTOPPEL

• Confusion about the classification of the estoppel doctrine arose from early South African
case law and English authorities who described estoppel as a rule of evidence, and because the
doctrine is habitually expressed as an exclusionary rule of evidence; the person who made the
false representation may not adduce evidence at variance with the representation, evidence
may not be led in contradiction of a judgment.

• Estoppel has been expressed in the form of an irrebuttable presumption: a judgment is

presumed to be correct.

• Today it is fairly generally accepted, at least in South Africa, that estoppel is more
correctly viewed as a rule of substantive law rather than a rule of the law of
evidence.

• Proper analysis shows that estoppel by representation is a doctrine which involves the making
of a representation, action on the faith thereof, resultant prejudice and possibly fault.
 ESTOPPEL

• Similarly, the correct formulation of estoppel by judgment is by way of a rule

that the judgment of a court is final.

• Even if it is expressed as an irrebuttable presumption, it must be borne in mind

that such presumptions are merely rules of substantive law couched in the
form of presumptions.

• These rules of substantive law cause the particular evidence in contradiction of

the representation or judgment to become irrelevant and therefore, according
to the law of evidence, inadmissible.

• The evidence is not inadmissible because estoppel as a rule of evidence

prohibits such evidence; it is inadmissible because estoppel as a rule of
substantive law causes the evidence to be irrelevant.
 PAROL EVIDENCE RULE

• The parol evidence rule was adopted from English law and applies generally to the
law of contracts.

According to this rule, when parties conclude a written contract, the original
document (including its written amendments or additions) is the only
source of the terms and conditions of the agreement and no extrinsic
evidence may be adduced to alter or interpret the written agreement
between the contractual parties.

• 'Extrinsic' refers to evidence other than or extraneous to the document itself.

• The purpose of this rule is to ensure certainty about the terms and
conditions of agreements.

See University of Johannesburg v Auckland Park Theological Seminary and Another

for what the the Constitutional Court said about the essence of the rule – page 36.
 PAROL EVIDENCE RULE

• The parol evidence rule comprises two sub-rules: the integration rule and
the interpretation rule.

• The former defines the limits of the contract, while the latter determines
when extrinsic evidence may be exceptionally adduced to provide context to
contractual terms as well as the extent to which evidence may be led.

• Zeffertt and Paizes explain that the parol evidence rule is not properly part of
the law of evidence even though its formulation disguises it as a rule of
evidence.

• The rule was thus received into South African law on the assumption that it is
part of the English law of evidence, resulting in courts following English
precedents.
 PAROL EVIDENCE RULE

• On proper analysis it becomes clear that the rule is one of substantive law.

• The rule relates to the nature and scope of a jural act and not merely the

admissibility of evidence.

• Certainly, the distinction is a fine one and not as apparent as, for instance, in the

case of estoppel.

• This is so especially since even the leading authors who hold the view that the

parol evidence rule is one of substantive law explain that view with reference to

the source from which the terms of the act are determined.

Read continued discussion on page 37!

 PAROL EVIDENCE RULE

The integration rule:

• The integration rule prevents a contractual party from adducing any

evidence which seeks to modify, contradict or add to the clear and unambiguous
terms of a contract (as opposed to evidence to merely understand the context of a
contract).

• The purpose of this facet of the parol evidence rule is to limit uncertainty when
courts are called upon to interpret contracts in legal proceedings, but courts have
had a difficult time balancing the application of this rule with the need to admit
contextual evidence in order to properly understand and interpret contracts.

• Contextual evidence will readily be accepted by courts if such evidence is

meant to show the meaning of specific terms in an agreement or to
contextualise the contract.
 PAROL EVIDENCE RULE

The integration rule:

• But in 2019, the Supreme Court of Appeal in City of Tshwane Metropolitan v Blair Atholl
Homeowners Association expressed its concern that South African courts have allowed
inadmissible contextual evidence that has resulted in less reliance on the precise
wording used in contracts.

• The Supreme Court of Appeal also held that under this rule, evidence with respect to the
contractual parties’ prior negotiations is inadmissible when interpreting contracts.

• Zeffertt and Paizes explain that parties' previous statements with respect to a
contract can have no legal consequences and that they are therefore irrelevant
and inadmissible.

• No evidence may therefore be adduced that modifies the meaning of clear and unequivocal
words used in a contract.
 PAROL EVIDENCE RULE

The interpretation rule:

• The interpretation facet of the parol evidence rule has been described as:

‘... so remote from the law of evidence that it is hardly feasible to give more than an
account of one aspect of it.’

• This 'account' considered worthy of inclusion in texts on evidence concerns the

extent to which extrinsic evidence may be adduced to facilitate the interpretation
of contracts in legal proceedings.

• Generally, in interpreting contracts, courts consider the literal meaning of

disputed words and phrases in the agreement and then contemplate the
context in which the words or phrases are used, background circumstances
and extrinsic evidence about surrounding circumstances when the language used
appears ambiguous.
 PAROL EVIDENCE RULE

The interpretation rule:

• In the more recent decision of Silostrat (Ply) Ltd and Others v Strydom NO and Others, the
Supreme Court of Appeal held that:

Central to the interpretation of legal documents is the principle that

meaning must be attributed to the words used by the parties in the
document.
Although evidence of context is admissible as an interpretative aid such
evidence may not be led to alter the meaning of the clear and unambiguous
words used in an agreement.

• In University of Johannesburg v Auckland Park Theological Seminary and Another, the Constitutional
Court encouraged the inclusion of extrinsic contextual evidence where disputes exist about
the admissibility of such evidence on the condition that the weight of such evidence be
adjusted in accordance with the extent to which it should be relied upon.
 PAROL EVIDENCE RULE

Exceptions to the parol Read pages 39 – 41 and

evidence rule discuss
 RECTIFICATION

• Rectification allows contractual parties to apply to court for the adjustment of

terms in the contract to accurately reflect their true intention.

• In these cases, extrinsic evidence is admissible to show that the document

does not correctly reflect the consensus between the parties.

• The document is made to conform with the jural act that underlies it: '[A]ll the
Court does is to allow to be put in writing what both parties intended to put
in writing and erroneously thought they had.’

• It is only logical that the law should not hold parties to a document which
purports to reflect an agreement when that is not the case.
EN D