Unit 1: Historical Development and sources of the Law of Evidence
LEARNING OBJECTIVES
After completing this study unit, you should be able to:
a) Understand and explain the historical development of the South African Law of
Evidence.
b) Place the Law of Evidence within the broader South African legal system.
c) Describe and discuss the sources of the Law of Evidence, and in particular be able to
analyse the relationship between the Law of Evidence and the Constitution.
d) Explain what is meant by a decolonial perspective of the history of the law with
specific reference to the three fundamental features of coloniality in the SA Law of
Evidence.
e) Know, list and describe/discuss the sources of the South African Law of Evidence.
f) Know and understand the contents of Schwikkard & Mosaka: Chapter 1 (pages 3-
10), Chapter 2 (pages 11-17), Chapter 3 (pages 19-28) & Chapter 4 (pages 29-41).
g) S2, 8(3), 35, 39, 169, 171 & 173 of the Constitution of the Republic of South Africa.
Read and know the following case law:
Tregea v Godart 1939 AD 16 at 30;
Protea Technology v Wainer 1997 (9) BCLR 1225 (W);
Hohne v Super Stone Mining 2017 (3) SA 45 (SCA);
R v Steyn 1954 (1) SA 324 (A);
Shabalala v Attorney General Transvaal 1995 (2) SACR 761 (CC);
Matlou v S 2010 (2) SACR 342 (SCA);
S v Zuma 1995 (2) SA 642 (CC);
Lee v Minister of Correctional Services 2013 (2) SA 144 (CC);
Certain Amicus Curiae Applications: Minister of Health v TAC 2002 (5) SA 713 (CC);
Mabaso v Law Society, Northern Provinces 2005 (2) SA (CC);
Prince v President, Law Society of the Cape of Good Hope 2002 (1) SACR 431 (CC);
City of Cape Town v South African National Roads Authority 2015 (3) SA 386 (SCA);
Independent Newspapers v Minister of Intelligence Services: In re Masetlha v
President of the RSA 2008 (5) SA 31 (CC);
S v Tandwa 2008 (1) SACR 613 (SCA);
S v Mthembu 2008 (2) SACR 407 (SCA);
Venter v Birchholtz 1972 (1) SA 276 (A);
De Klerk v Old Mutual 1990 (3) SA 34 (E);
Silostrat v Strydom [2021] ZASCA 93 at para 43;
KPMG Chartered Accountants (SA) v Securefin Limited and Another 2009 (4) SA
399 (SCA); [2009] 2 All SA 523 (SCA;
University of Johannesburg v Auckland Park Theological Seminary and Another 2021
(8) BCLR 807 (CC); 2021 (6) SA 1 (CC)
Read and know the following legislation:
Law of Evidence Amendment Act 45 of 1988.
Abolition of the Juries Act 34 of 1969.
S218(2) of Criminal Procedure Act 51 of 1977.
Constitutional Court Complementary Act 13 of 1995.
Superior Courts Act 10 of 2013.
he Civil Proceedings Evidence Act 25 of 1965.
The Law of Evidence Amendment Act 45 of 1988.
Criminal Procedure Act 51 of 1977.
Electronic Communications and Transactions Act 25 of 2002
NOTES
GR: all evidence that is relevant is admissible unless there is an exclusionary rule.
SA follows the English system in Law of evidence.
Court does not have to rely or attach weight to the evidence. Must consider the value
of the evidence. Collaboration= confession.
Can only present evidence pertaining to facts.
Test : what would a reasonable person have done in that situation… This is to
differentiate between facts and law.
Evidence is necessary: need to enable and empower the court to effectively exercise
its judiciary powers.
The law needs to be fair in both litigation. Evidence may affect another adversely and
therefore can be inadmissible. Eg. Police officer that assaults person into a
confession.