LAW OF EVIDENCE

(LAEV7311)

PRIANKA MUNGRAY
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 (4TH 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.
 INTRODUCTION

• Courts normally have to make a finding concerning the existence or non-existence of certain
facts before pronouncing on the rights, duties and liabilities of the parties engaged in a dispute.

• In this process of litigation and adjudication the proof of facts is regulated by the law of
evidence, which is a branch of law of procedure.

• A factual basis is necessary to determine the rights, duties and liabilities which exist in terms of
substantive law, e.g. the law of contract.

• There are also procedural rights and duties that stem from the law of evidence e.g. the right to
cross-examine and the duty to adduce evidence.
 INTRODUCTION

• The law of evidence is closely linked to criminal and civil procedure and forms

part of that branch of the law commonly referred to as ‘adjective law’ or

‘adjectival law’.

• In some instances, it is not always easy to draw the line of demarcation between

substantive law and the law of evidence as a branch of the law of procedure -

however, this demarcation cannot be ignored.

The substantive-law rights and duties of the
parties to an action are determined by
rules and principles which largely stem
from Roman-Dutch law, whereas the
English law of evidence serves as the
common law of the South African law of
evidence.
 SCOPE AND FUNCTIONS OF THE LAW
OF EVIDENCE

• Procedural law gives practical meaning and effect to the rules of substantive
law.

• The law of evidence governs the proof of facts in a court of law and therefore
forms part of the procedural machinery that makes substantive law effective.

• The general scope of the law of evidence can be determined with reference to
its specific functions:
The law of evidence also determines:
- in what manner evidence should or may be adduced;
- what evidence may be lawfully withheld from a court
The main function of the law of evidence is to of law;
determine what facts are legally receivable (i.e. - what rules should be taken into account in assessing
admissible) to prove the facts in issue. the weight or cogency of evidence;
- what standard of proof should, in a given situation, be
satisfied before a party bearing the burden of proof
can be successful.
 CONSIDER THESE QUESTIONS:

1. WHAT DOES AN ACCUSATORIAL SYSTEM ENTAIL?

2. WHAT DOES AN INQUISITORIAL SYSTEM ENTAIL?

 There is more
than one solution
PROCEDURAL AND EVIDENTIAL to the problem of
fact-finding.
SYSTEMS AND SOME UNIVERSAL
PRINCIPLES OF FACT-FINDING
THE ANGLO-AMERICAN (STRICT THE CONTINENTAL (FREE OR
OR COMMON LAW) SYSTEM CIVIL LAW SYSTEM)

• The SA law of evidence belongs to the Anglo-American • The Continental method is based upon inquisitorial
‘family’. principles and a free system of evidence.

• Most of the principles of the Anglo-American law of

evidence stem from the English system of adversarial
(accusatorial) trials before a lay jury as opposed to the
Continental inquisitorial trials by professional judges
adjudicating without the assistance of a true jury.

• The Anglo-American procedural method of proving or

ascertaining facts in a court of law is based upon
adversarial principles and a strict system of evidence.
 1. The
• It is a universal principle that protection of the truth Procedural
cannot be sacrificed for the sake of mere simplicity, And
speed and convenience. Evidential
Innovations
Which the
PROCEDURAL 2.
SA legislation
Has introduced
AND
• Presentation of facts and adjudication of disputes
must of necessity proceed in an orderly fashion (a In respect of
lawsuit is “essentially a proceeding for the orderly Small Claims
EVIDENTIAL settlement of a dispute between litigants”). Courts should
Be assessed in
SYSTEMS AND 3. Light of this as
Well as the
SOME • Resolution of legal disputes must be done in such a
way that reasonable litigants leave court with the
Fact that Small
Claims Courts

UNIVERSAL
feeling that they were given a proper opportunity to Are seen as
state their respective cases, that their cases were
presented in the best possible light and manner, and, A proper and

PRINCIPLES OF further, that the issues were decided by an impartial

trier.
Acceptable
Solution to the

FACT-FINDING 4.
Problem of
Legal costs
Which a
• The law of procedure and evidence must at all times Litigant may
maintain a certain level of efficiency and effectiveness Encounter in
in order to ensure that the rules of substantive-law Enforcing a
are not, for all practical purposes, relegated to the Modest civil
ranks of unenforceable norms. claim.
O R DINA R Y CO UR T S A ND SMA LL CLA I M S CO UR T S: A N
EXA M INA T IO N O F P R O CED UR A L A ND EV ID EN T IA L
DIFFER ENCE S.

• SA small claims courts function along inquisitorial lines.

• Section 26(3) of the Small Claims Courts Act 61 of 1984

(the Act) provides that:
A party shall neither
question nor cross-
examine any other party
to the proceedings (or a
witness called by the latter
party).

• The same section provides that the presiding

commissioner: “shall proceed inquisitorially
to ascertain the relevant facts,
and to that end he may
question any party or witness
at any stage of the
proceedings.”
O R DINA R Y CO UR T S A ND SMA LL CLA I M S CO UR T S: A N
EXA M INA T IO N O F P R O CED UR A L A ND EV ID EN T IA L
DIFFER ENCE S.

• BUT, there is a proviso in terms of which the presiding

commissioner may, in his discretion, permit any party to put
a question to any other party or witness – the procedure
in our ordinary courts is completely different.

• SA small claims courts are not bound by the ordinary

Read continued
Anglo-South African rules of evidence – they are not discussion on
required to follow the strict system of evidence which is pages 10 – 11.
applied in the ordinary South African courts, and which can
also be referred to as the Anglo-American or common-law
system.
Section 26(1) of the Act provides that, subject to the
provisions of chapter 5 of the Act, the rules of the law of
evidence shall not apply in respect of the proceedings in a
small claims court and that such court ‘may ascertain any
relevant fact in such manner as it may deem fit’.
 • In the Anglo-American world, small claims courts have forced the
adjudicator into a new procedural role - as early as 1913 Pound
concluded that the adjudicator in a small claims court should
not be a mere umpire but should represent “both parties
and the law” while actively seeking the truth largely, if not,
SMALL CLAIMS wholly unaided.
COURTS AND
THE
• This strict system of evidence is a concomitant of the adversarial
INQUISITORIAL
PROCEDURE model of fact-finding.
AND FREE
SYSTEM OF • A free system of evidence promotes procedural simplicity, avoids
EVIDENCE
procedural formality and sophistication which can create
psychological barriers for litigants.

• Involved rules of evidence make a trial more complicated than is

necessary and may cause a gap between the courts and the people
– this will not increase faith in the administration of justice.
 • 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;

ACCUSATORIAL § Much emphasis is placed upon oral presentation of

VERSUS evidence and cross-examination of witnesses.
INQUISITORIAL
PROCEDURE § 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- READ PAGE 12
examination of an opponent who testifies, but also all FOR
CRITICISMS
witnesses called by such opponent. OF THE
ADVERSARIAL
TRIAL SYSTEM.
 • 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.
!Read pages
• For the inquisitorial model, judicial examination is the pivotal 12 and 13
ACCUSATORIA for the
L VERSUS mechanism in the process of fact-finding. differences
between
INQUISITORIAL • The emphasis is on an inquiry conducted with the aid of such the
PROCEDURE accusatorial
evidence as the inquirer deems fit. and
inquisitorial
• The absence of the right to cross-examine also explains why the systems.

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.
 • The strict system of evidence is to a large extent a
concomitant of the adversarial system, whereas the
inquisitorial trial is generally accompanied by a free
system of evidence.

• The idea is that a professional or “career” adjudicator

should not be restricted by artificial rules relating to the
exclusion of evidence.

• The central idea was and still is that in the adjudication of

STRICT VERSUS
facts a professional judge need not be guided by
FREE SYSTEM
OF EVIDENCE rules of admissibility – the true issue in the process
of adjudication is not one of admissibility, but
weight; and the determination of weight is
something which can and must be left to the
professional judge.

• To the Anglo-American lawyer admissibility is largely a !Read the

continued
matter of law, whilst weight is a question of fact – the discussion
Anglo-American approach is to make admissibility on pages 14
and 15.
dependent upon the potential weight of the evidence.
 RULES OF EVIDENCE IN CRIMINAL AND
CIVIL PROCEEDINGS

• The law of criminal evidence is more extensive than the law of civil evidence.

• There are numerous common law, statutory law and constitutional provisions
which seek to protect accused persons from wrongful convictions, and which seek
to maintain a balance between the state (the prosecution) and the individual.

• There are also certain key areas where there are major differences between rules
of evidence in criminal as opposed to civil proceedings – the most obvious
difference is the standard of proof
What is the standard of proof in
criminal and civil proceedings?
 RULES OF EVIDENCE IN CRIMINAL AND
CIVIL PROCEEDINGS
• A court will also more readily, in terms of the discretion embodied in s3(1)(c) of
the Law of Evidence Amendment Act 45 of 1988, admit hearsay for purposes of
civil proceedings as opposed to criminal proceedings.

• A further major difference between criminal and civil proceedings relates to the
rules which govern the competence and compellability of witnesses, including the
parties.

• The strict rules of evidence may also be relaxed according to the nature and
purpose of the specific proceedings and issue – circumstances will dictate the
extent to which the formal rules of evidence should be adhered to or relaxed, but
the accused may in no circumstances be deprived of his/her
constitutional right to a fair trial.
 Our rules of evidence are found in
local statutes and, where these are
silent on a specific topic or issue, the
Our law of evidence is not based
SOURCES OF on Roman-Dutch authority.
English law of evidence which was in
force in SA on 30 May 1961 serves as
THE SA LAW OF our common law – the CPA and
CPEA contain provisions to this effect.
EVIDENCE
SA has a considerable body of local case law
on evidence. These cases (if decided in If a total lacuna is encountered, a SA court may
for comparative purposes look for guidance in
• The following fundamental accordance with the applicable English common
English cases decided after 30 May 1961.
law rules and principles as at 30 May 1961) are
binding in terms of our law of precedent. These cases would normally have considerable
principles and broad guidelines persuasive value, but can never be binding.
This means that a SA court need not in every
instance try to find applicable English cases. In the event of a lacuna, support for a decision
are important in identifying the can also be gleamed from the law of evidence of
In most instances local precedents will suffice
other Anglo-American jurisdictions e.g. US
on the basis that they accurately reflect the
sources of the SA law of common law position. Canada etc.

evidence:

The SA Constitution is the supreme law – all

rules of evidence must comply with our
constitutional provisions.
The Constitution governs the validity of rules of
evidence and is an important source of the law
of evidence.
 • Any statutory or common law rule which
conflicts with the rights and freedoms contained
in the BOR must be declared unconstitutional
THE IMPACT OF unless it can, in terms of s36(1) of the
THE Constitution, be saved as a constitutionally
CONSTITUTION, permissible limitation of a constitutionally
1996, ON THE guaranteed fundamental right or freedom.
LAW OF
EVIDENCE • Some common law (and some statutory)
procedural and evidentiary rights of the
criminally accused have hardened into
constitutional 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.

THE IMPACT OF • Constitutional provisions likes ss 32 and 34 have an

impact on state privilege.
THE
CONSTITUTION, • One of the most far-reaching effects of the
Constitution on our law of evidence concerns
1996, ON THE the admissibility of unconstitutionally obtained
LAW OF evidence.
EVIDENCE • S 35(5) of the Constitution provides that evidence
“obtained in a manner that violates any right in the
BOR must be excluded if the admission of that
evidence would render the trial unfair or otherwise be
detrimental to the administration of justice”.
 • 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
THE scrutinized in the light of constitutional
CONSTITUTION, provisions.
1996, ON THE
• American and Canadian cases can be useful in
LAW OF interpreting the impact of our Constitution on
EVIDENCE the law of evidence.

• We can be guided by these decisions because of

s39(1) of the Constitution which states that
courts may consider foreign law.
KEY CONCEPTS
 FACTS IN ISSUE AND FACTS RELEVANT
TO THE FACTS IN ISSUE

The facts relevant to the

The facts in issue (facta
facts in issue (facta
probanda) are those facts
probantia) are those facts
which a party must prove
which tend to prove or
in order to succeed.
disprove the facts in issue.

• Schmidt and Rademeyer make a further distinction between primary and secondary
facta probanda – primary facta probanda would refer to those facts placed in issue by the
pleadings (in civil proceedings) and the plea (in criminal proceedings).

• Secondary facta probanda would refer to facta probantia which are in issue.

• The facts in issue are, generally speaking determined by substantive law, whereas the
rules of procedure (and in particular the law of evidence) determine the facts relevant
to the facts in issue.

See example on page 20.

 EVIDENCE AND ARGUMENT

Read page 20 of your textbook.

Remember: An argument does not constitute evidence!

 EVIDENCE AND PROBATIVE MATERIAL

• There is a distinction between evidence and probative material – our courts are not entirely
consistent in distinguishing between the two.

• “Evidence” essentially consists of oral statements made in court under oath or affirmation or
warning (oral evidence).

• It also includes documents (documentary evidence) and objects (real evidence) produced and
received in court.

• Evidence is not the only means of furnishing proof.

See Sv Mjoli; S v Mokgeledi; S v AR Wholesalers on page 21.

See “probabtive material” on page 21 – it tends to prove demonstrate or prove something.

 EVIDENCE AND PROOF

• Proof of a fact means that the court has received probative material with
regard to such facts and has accepted such fact as being the truth for the
purposes of the specific case.

• Evidence of a fact is not yet proof of such fact – the court must still
decide whether or not such fact has been proved. This involves a process of
evaluation.
 CONCLUSIVE PROOF AND PRIMA FACIE
PROOF

• Conclusive proof – rebuttal is no longer possible. This is proof which is taken

as decisive and final.

• Prima facie proof implies that proof to the contrary is (still) possible. In the
absence of proof to the contrary, prima facie proof will, generally speaking,
become conclusive proof.
 ADMISSIBILITY AND WEIGHT OF
EVIDENCE

• There are no degrees of admissibility (evidence is either admissible or inadmissible) – it cannot be

more or less admissible.

• Once admissible, it can carry more or less weight according to the particular circumstances of the
case.

• The court weighs or evaluates evidence to determine whether the required standard of proof
has been attained.

• It is only after the evidence has been admitted at and at the end of the trial that the court will have
to assess the final weight of the evidence.

• The admissibility of evidence is in principle determined with reference to its relevance –

when determining relevance reference must also be made to the potential weight of the evidence.

• This, however, is a preliminary investigation in order to determine whether such evidence, once
admitted, would be of assistance when it must finally be decided whether the facts in issue
have been proved.
 CONDITIONAL ADMISSIBILITY

Read pages 22 – 23 – S v Swanepoel en ‘n Ander

 CIRCUMSTANTIAL AND DIRECT
EVIDENCE

Consider: What is the difference?

 CIRCUMSTANTIAL AND DIRECT
EVIDENCE

Consider: What is the difference?

• Circumstantial evidence often forms an important component of the information furnished to

the court.

• 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.

• The distinction between direct and circumstantial evidence is of special importance in those
instances where an accused decides not to testify in his own defence.
 PRIMARY AND SECONDARY EVIDENCE

• The distinction between primary and secondary evidence is of importance

with regard to documentary evidence.

• Primary evidence – something which does not, by its very nature, suggest that
better evidence may be available.

• Secondary evidence – something which does, by its very nature, suggest that
better evidence may be available.

• The distinction is of importance in connection with documents because its

contents must be proved by production of the original.
 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.
 PRIVILEGE

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

withhold evidence from court of law.
 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

• There are three different kinds of “presumption”.

• “presumption of fact” – inference drawn from evidence.

• “irrebuttable presumptions of law” – rules of substantive law.

• “rebuttable presumption of law” – an assumption which is demanded by law,

must be accepted in the absence of evidence or proof to the contrary.
 ICE TASK – DUE MONDAY, 21
AUGUT 2023…

1. Differentiate between substantive and adjectival law.

2. Explain the following key concepts using your own words:

a. Burden of proof;
b. Irrebuttable presumption;
c. Estoppel;
d. Parol evidence; and
e. Rectification.
EN D