Introduction to LOE

Question 1

Purpose of LoE

Answer 1

Law of Evidence are laws and rules governing:

a) How evidence is to be collected, stored, and presented.

b) The admissibility of evidence.

c) Assessment/analysis (weight attached) and drawing inferences

Question 2

Case law def:

Answer 2

TREGEA V GODART 1939 AD 16 at 30:

Law of evidence is ‘A set of rules which has to do with judicial investigations into questions of fact’.

Question 3

What LoE prescribe?

Answer 3

a) Which facts may be presented to a court?

b) How to prove an issue.

c) Who may present a fact or prove an issue?

d) How this may be done.

Question 4

Question of law
versus Question fact

Answer 4

o Law = body of principles & rules capable of being predicated in advance.
▪ Example: As a matter of law, it is a criminal offence to exceed the speed limit.

o Facts = descriptive statements that can be falsified.
o Adjudicative facts relate to activities or characteristics of litigants (Did SAPS read Miranda rights to accused?).

Question 5

why is this distinction between question of law and question of fact not always easy.?

Answer 5

Consider a delict where the fault is one of the 5 elements for a delict;
▪ Culpa (form of fault) is based on diligens paterfamilias (would defendant reasonably foresee that their conduct can cause patrimonial loss to Plaintiff + would they take reasonable steps to guard against it).

Question 6

LoE in context

Answer 6

LoE must always be seen against founding principle that the purpose of evidence is the pursuit of justice and fact-finding → LoE will consider the fairness & integrity of the fact-finding process

Question 7

Pre-colonial LoE

Answer 7

o The SA Law of Evidence, also known as the “child of the jury” was introduced by the British colonial government – barely existed before British arrival on African continent

Question 8

Rules governing
facts uniqueness:

Answer 8

o The rules governing collection, storing, and presenting of facts and the evaluation thereof (including inferences to be drawn) are not unique to British-introduced rules.

▪ They are found in many disciplines + jurisdictions:
Xhosa customary law has exclusionary rules (testimony of bribed witnesses = inadmissible).

Question 9

SA court blend ito LoE

Answer 9

o SA has blended the state and traditional courts where the principles of evidence and proof find application.

Question 10

3 FUNDAMENTAL FEATURES OF COLONIALITY IN SOUTH AFRICAN LAW OF EVIDENCE

Answer 10

1. LAW OF EVIDENCE OPERATES WITHIN PROCEDURAL MILIEU OF
   ADVERSARIAL-ACCUSATORIAL JUSTICE SYSTEM.
   ▪ Fact-finding is then party-focused,
   ▪ The judge is impartial and passive, and
   ▪ Evidence is tested by cross-examination.
2. PROCEDURAL BIFURCATION BETWEEN LAW OF EVIDENCE AND LAW OF
   PLEADINGS.
   ▪ Pleadings: have no regard to admissibility of evidence and proof of facts.
   ▪ Evidence: focus - presentation and admissibility of evidence and proof facts
   ▪ Distinction remains – Rules of evidence (Chap. 24 CPA), whilst pleadings
   (Uniform Rules of Court, and rest of CPA).
3. LAW OF EVIDENCE IS COUCHED IN RATIONAL PERSUASION (MOVE
   AWAY FROM TRIALS BY ORDEAL, BATTLE OR COMPURGATION)
   ▪ Foremost purpose of fact-finding = getting to truth and doing so
   fairly (without prejudice).
   ▪ This commitment manifests through the allocation of the risk of non-persuasion predominantly on the dominus litis.

Question 11

Jury systems:

Answer 11

o A large part of South Africans litigates in the traditional courts and don’t follow the adversarial nature of state courts.
▪ The jury system was abolished in SA justice system in 1969 (Abolition of the Juries Act 34 of 1969).

Question 12

Changes to
decolonialise
LoE:

Answer 12

1. Hearsay Evidence, per Law of Evidence Amendment Act 45 of 1988, changed strict English rules to a more flexible system that suits SA better.
2. Court also interprets Law of Evidence Rules in line with S 39(2) of Const - requires courts to develop (amend) common law rules to be consistent with Const.
3. Court doesn’t have to follow a precedent if it is not in line with the boni mores or not aligned with Const.

Question 13

Finishing note

Answer 13

o This Law of Evidence = product of British Colonialism

▪ Emphasises tools like adversarial cross-examination and discovery procedures in the fact-finding process as opposed to more inquisitorial, narrative-based, truth-seeking mechanisms of traditional courts

Question 14

overview of application of sources of LoE

Answer 14

o Rules stemming from the common law (English Law of Evidence) and case law (reflecting and interpreting English Common Law) are peculiar because the legislature has not promulgated them.

o The case law is binding (stare decisis), making the need to search for the English Common Law obsolete.

o Any English cases after 30 May 1961 can be used for considerable persuasive value, but it would not be binding.

▪ Much the same, other countries using the Anglo-American jurisdictions (using the English Law of Evidence) can be considered, such as Australia, Canada, and the USA.

o The Const is an important source and plays a significant role in how evidence is to be interpreted and applied. The Const and the Law of Evidence are inseparable.

Question 15

All legal rules
(incl. common
law) must align
with Const

Answer 15

S 39: Courts must promote the spirit, purport and objects of the Bill of Rights when interpreting legislation and developing the common law.

S 2: The Constitution is the supreme law- Any law or conduct which is inconsistent with the Constitution is invalid.

S 8(3): The Court must develop the common law to give effect to the Bill of Rights.

S 35: Rights to arrested, accused, and detained- Some of these rights pre-existed but are now given ‘supreme’ status under the constitution.

Question 15

Impact of due
process (right to fair trial) on police
dockets:

Answer 15

PAST (PRE-CONSTITUTION)

R V STEYN 1954 (1) SA 324 (A)
Before the advent of the constitution, a blanket police docket privilege was applied, which
protected the contents of a police docket from disclosure without the consent of the state

NOW

SHABALALA V ATTORNEY GENERAL TRANSVAAL 1995 (2) SACR 761 (CC),
HELD: owing to right to information and fair trial [S 25(3) of Interim Const], a blanker police docket privilege is
unconstitutional. Court introduced flexible test which provides access to docket to accused if required for fair trial

Question 15

what does S 35 gives right to?

Answer 15

S 35 (1): o Be informed of certain rights:
▪ Passive defence rights: Right to be presumed innocent [S 35(3)(h)], remain silent [S 35(1)(a)], and not be compelled to give self-incriminating evidence [S 35(3)(j)].

▪ Active defence rights: Right to adduce and challenge evidence S 35(3)(i)].
S 35 (3): o Right to a fair trial - This is the due process right

Question 16

s35(1)(a) of the Con stitution

Answer 16

o Accused has the right to be informed of their right to legal representation [S 35(1)(a)]
and the right to remain silent, which had a bearing on the admissibility of confessions and pointing out:

Question 17

Obtaining
evidence by
unconstitutional
means:

Answer 17

Matlou v S 2010 (2) SACR 342 (SCA).

o Accused pointed out the deceased body and hidden murder firearm because he was assaulted. The court admitted actual pointing out of the body as evidence. The court a quo found the accused
guilty of murder in court a quo.

The accused lodged an appeal to SCA.
▪ S 218(2) of CPA: allows the actual pointing out and the fact or thing discovered despite the fact that such pointing out FORMS PART OF A CONFESSION, which is INADMISSIBLE.

▪ S 218(2) of CPA: allows the actual pointing out and the fact or thing discovered to BE ADMISSIBLE DESPITE the fact that such pointing out forms part of confession, which is inadmissible.

o SCA HELD: The pointing out offended the constitutional rights of the accused and the court thus upheld the appeal on the murder charge

Question 18

Constitution’s
bearing on reverse
onus:

Answer 18

S v Zuma

o S 217(1)(b)(i)-(ii) of CPA:
(i) A confession before a magistrate reduced to writing and/or confirmed by him shall on its mere production be admissible as evidence, AND
(ii) be presumed to be made freely and voluntarily unless the accused proves the contrary.

o S 25(2)(c) if Interim Constitution: Right to be presumed innocent.
→ Unconstitutional and invalid.

Question 19

Constitutional
bearing on how
evidence is
presented in CC:

Answer 19

o Rule 31 of the Constitutional Court Rules.
▪ Previously Rule 34 under the interim constitution.
▪ Issued under S 171 of the Constitution of RSA 1996 AND
▪ S 16 of the Constitutional Court Complementary Act 13 of 1995.

Question 20

Rule 31(1)

Answer 20

31. Documents lodged to canvass factual material;

(1) Any party to any proceedings before the Court and an amicus curiae properly admitted by the Court in any proceedings shall be entitled, in documents lodged with the Registrar in terms of these rules, to canvass factual material that is relevant to the determination of the issues before- the Court and that does not specifically appear on the record: Provided that such facts—

(a) are common cause or otherwise incontrovertible; or
(b) are of an official, scientific, technical, or statistical nature capable of easy verification

Question 21

where is rule 31 NOT applicable?

Answer 21

This rule does not assist a litigant with adjudicative facts but to legislative facts where the court is to develop law or policy.

Question 22

What are adjudicative facts

Answer 22

Where the court embarks on fact-finding concerning the immediate parties (who did what, where and when and with what intention).

Question 23

inadmissibility of
controversial
evidence

Answer 23

If the evidence that the party wish to introduce with Rule 31 is controversial, it is inadmissible

Question 24

S 32 + S 34:

Answer 24

o S 32 (access to information) and S 34 (access to courts) have a bearing on State Privilege:

▪ The executive cannot have the final say over the admissibility of evidence in a court of law.

Question 25

S 35(3): Excluding
unconstitutionally
obtained
evidence

Answer 25

o The Constitution had a big impact on the admissibility of evidence obtained in an unconstitutional fashion.

S 35(5): Evidence ‘obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would;
(a) render the trial unfair, or
(b) otherwise, be detrimental to the administration of justice’

Question 26

Case examples to s35(3)

Answer 26

S V TANDWA : Notable feature of Constitution’s specific exclusionary provision - it does not automatically exclude unconstitutionally obtained evidence - fruit from poisonous tree.

S V MTHEMBU: Also known as the fruit of the poisonous tree.

Question 27

Legislation
governing Law of
Evidence in RSA:

Answer 27

1. The Civil Proceedings Evidence Act 25 of 1965.
2. The Law of Evidence Amendment Act 45 of 1988.
3. Criminal Procedure Act 51 of 1977.
4. Electronic Communications and Transactions Act 25 of 2002

Question 28

What happens goes Legislation mute?

Answer 28

Where the existing legislation is mute on the evidence rules, the English common law applies.

Question 29

LOE PRE-UNION
PERIOD:

Answer 29

o Cape of Good Hope: Dutch occupied (from 1652) → British occupied (from 1806).
▪ Roman-Dutch Law remained in place but a growing discontent with the procedural & evidence law which ultimately resulted in English/British LoE being adopted in the Cape of Good Hope and
some other colonies in 1830 (Cape Evidence Ordinance 72 of 1830).
o 1902: British seized the Transvaal Province in 1902 and Evidence Proclamation 16 of 1902 was issued. Orange Free State became subject to British Rule. Evidence Proclamation 11 of 1902 adopted.

Question 30

LoE during Union

Answer 30

o 1910: the 4 colonies became the 4 provinces of the Union of South Africa

▪ Provisions in colonial statutes dealing with LoE in CPEA which Act was later replaced by the CPA

▪ Where the Act did not cover a specific question, the English Law applied.

Question 31

LoE in the Republic

Answer 31

31 May 1961: South Africa became a Republic as there had been a desire for independence from Britain.

▪ Result: reference to ‘England’ was removed from legislation, like CPA, instead replaced with ‘the law as it stood on 30 May 1961’ (However, was obviously British law).

o 1977: Criminal Procedure Act was replaced by CPA, which still applies today and retained the reference to the law as it stood on 31 May 1961

Question 32

System of
precedents
developed by
local courts for
LoE

Answer 32

(1) The SCA may exceptionally depart from the pre-30 May 1961 English decisions if these decisions reflect the English law incorrectly.

(2) Decisions of the Supreme Court of Judicature or the House of Lords, if they are not wrong, bind the SCA.

(3) The SCA replaced the Privy Council in 1950, and decisions before 1950 are deemed to be SCA decisions.

(4) South African practice will be followed on a specific point, even if it differs from the English Evidentiary Rule if it is an established procedure.

(5) English decisions after 30 May 1961 have persuasive value

Question 33

Civil Proceedings
Act + S 42:

Answer 33

All the Civil proceedings in the various colonial were only consolidated when the Civil Proceedings Evidence Act was enacted.

▪ S 42: The Law of Evidence, including the law relating to the competency, compellability, examination, and cross-examination of witnesses (in force i.r.o. civil proceedings on 30 May 1961), shall
apply in any case not provided for in the CPEA or any other South African legislation.

Question 34

Diff between Substantive law and adjective law

Answer 34

SUBSTANTIVE LAW:
Legal rules setting out rights + duties of parties. Goes to the ‘ends’ that administration of justice wishes to achieve.

ADJECTIVE LAW:
Procedural rules regulating how substantive law is enforced. Goes to the ‘means or ‘how’ ends will be achieved.

Question 35

why is the distinction between substantive law and adjective law difficult?

Answer 35

procedural law also creates certain rights, like right to call expert witnesses, cross-examine witness, adduce, and challenge evidence, etc. and duties like duty to discover

Question 36

what is the relevance of the distinction between the two laws?

Answer 36

o The substantive law originates from the Roman-Dutch Law.

The adjective law originates from the English Law.
→ The answer to a legal question may be different when the substantive law applies, as opposed to the adjective law

Question 37

Case law eg of diff between substantive law and adj law

Answer 37

TREGEA V GODART :

o QUESTION: Did the testator have the necessary mental faculties required to make a will?
▪ Plaintiff argues that Testator did not have the necessary mental faculties. Defendant argues that Testator did have the necessary mental faculties.

QUESTION WAS ONE OF SUBSTANTIVE LAW (ROMAN DUTCH LAW):
o Presumption finds application: presumed that a will, regular on the face of it, is valid.
o This will help the Defendant and place the burden of proof on the Plaintiff.

QUESTION OF LAW OF EVIDENCE (ADJECTIVE LAW):
o A rule of evidence applies that the burden of proof is on the Defendant. This will help the Plaintiff.

o SCA HELD: Substantive law dictates what must be proven and by whom, whilst the Law of Evidence dictates how that is to be done.
▪ The dispute about the mental faculties of the testator went to the substantive law. The onus was on the Plaintiff

Question 38

Schmidt &
Rademeyer criticize the tragea case

Answer 38

o Criticize this judgement: Substantive law sets out rights and duties of parties, determining facta probanda.
▪ The burden of proof does nothing of the sort – instead, it deals with the manner in which facts are proved

Question 39

Schwikkard &
Mosaka

Answer 39

o It is more accurate to refer to the burden of proof depending on (or varies) according to the common law as opposed to being determined by the common law.
o This concept belongs to the Law of Evidence (Adjective Law)

Question 40

when does IRREBUTTABLE PRESUMPTIONS apply?

Answer 40

when certain founding facts are proved → Once the founding facts are proved, the court may rely on the presumption (further facts).

Question 41

impact of something being Irrebuttable

Answer 41

Because it is irrebuttable, no party can adduce evidence to rebut the evidence.

Question 42

Irrebuttable presumption as substantive

Answer 42

On the face of it, the rules regarding an irrebuttable presumption appear to represent the Law of Evidence, but in reality, they represent rules of substantive law.

Question 43

what does Estoppel entail?

Answer 43

Where a false representation is made to another person who believes the representation and acts upon the false belief;
➔ the person making the false representation cannot rely on it being false - estopped from relying on the truth.

Question 44

Example of estoppel

Answer 44

A landlord who may exercise the right to cancel the lease falsely informs the tenant that the lease will not be cancelled. The tenant then spends money to improve the property.
➔ the landlord may be estopped from relying on the right to cancel the lease.

Question 45

Res judicata

Answer 45

Estoppel by judgement - a court had already pronounced on a dispute, thus the same issue (cause) between the same parties seeking the same relief may not be raised again.

Question 46

Exclusionary rule:

Answer 46

o Early authorities referred to Estoppel as a Rule of Evidence.

It is expressed as an exclusionary rule in the following terms:
▪ “The person who made the false representation may not adduce evidence at variance with the representation”. or
▪ “Evidence may not be led in contradiction of a judgement”.

Question 47

Correct approach
to it Estoppel

Answer 47

o Estoppel had even been expressed as an irrebuttable presumption: “The judgement of the court is presumed to be correct”.
➔ Correct approach: Estoppel is a Rule of the Substantive Law and not a Rule of Evidence.
Substantive law: o Estoppel is a defence couched in the substantive law and must be pleaded.
▪ Because of the rules of the Substantive Law, evidence that contradicts the existing judgement or the misrepresentation becomes irrelevant.
Inadmissible: o It is not inadmissible evidence because it is an exclusionary rule.

Question 48

Exceptions to parole evidence rule

Answer 48

(a) Where the written contract does not encapsulate all the contract terms (partial integration).

(b) A mere narration of an event which is not a jural act (a memorandum).

(c) Rule does not exclude evidence that clarifies true nature of transaction: Shows real transaction different from wat was portrayed in actual written document. Contract was drawn up as sale but, in reality, is pledge.

(d) Evidence to show that the contract is invalid cannot be excluded, owing to fraud, for example.
(e) When applying for rectification (asking court to adjust terms to reflect true intention of parties) - Extrinsic evidence is then admissible to show true intention of the contractual parties.

(f) To prove the existence of a prior oral agreement or an oral continuing intention when moving for rectification

Question 49

diff between facta probanda and facta probatia

Answer 49

Facta probanda (facts in issue)

▪ Essential criteria for a cause of action to be sustained.
▪ It’s the material facts that a litigant must prove to establish a case.

o Facta probantia (facts relevant to facta probanda)
▪ Evidentiary facts which are subordinate and collateral to the facta probanda.
▪ If they are relevant to facta probanda can be deduced from the issues in dispute between the parties

Question 50

diff between evidence and argument

Answer 50

o Evidence is the advancement of facts.
o It includes oral testimony, real, documentary, and expert evidence etc.

oArgument n the facts

Puts the various pieces of evidence in an organized and intelligible order, apply it to the law to advance one’s case, and explain/argue why court should draw inferences which is suitable to case advanced by party

Question 51

diff between conclusive proof and prima facie proof

Answer 51

CONCLUSIVE PROOF
o Establishes adequate grounds that a fact may be found → court may make a factual finding.
o Proving a fact means that court is satisfied that the objective standard is met, as required by law.
▪ It does not mean that the court is convinced of the truth of the alleged fact.
o No real epistemological implication, more of an institutional distinction.
o Determined at the end, and there will be conclusive proof if the standard of proof has been met.
o Also considered in the absolution of the instance applications.

Prima facie proof
o Proof on the face of it, or legislation may submit that a document is prima facia proof of the content.
o Evidence of the prima facie evidence must be considered proved unless contrary evidence is forthcoming.
o Prima facie proof is used in interlocutory applications (interim interdict and decision to charge an accused).
o If prima facie evidence is not rebutted, a court may find that the evidence becomes conclusive.
o NOTE: The standard of Proof being met has nothing to do with the truth.

Question 52

Diff between admissibility and weight

Answer 52

ADMISSIBILITY
o Evidence must first be admissible and admitted before a weight can be attached to it.
o There may be exclusionary rules which prevent evidence from being admitted.
o Admissibility assessment of potential evidence is determined by a trial within a trial and the
assessment is often provision and of an interlocutory nature.

Weight
o Weight to be attached to the evidence (now admitted) is premised on the contents of the evidence, its
credibility and authenticity.
o The court may also have regard to the burden of proof when considering the weight to attach to evidence.

Question 53

diff between direct and indirect evidence

Answer 53

DIRECT EVIDENCE
o Direct evidence is evidence that requires no inference to be drawn by the court.
▪ Example: A saw a car driven by B knocking over a bicycle rider on a bike.

CIRCUMSTANTIAL/INDIRECT EVIDENCE
o Requires court to make some inferential reasoning.
▪ Example: A saw a vehicle driven by B rushing from the scene. Dust is settling next to the road. No other
vehicles in vicinity. A bike is lying next to the road with a tyre indentation on the bicycle wheel.
- Court can draw the inference that the car that left the scene bumped the bicycle rider.

Question 54

diff between formal and informal evidence

Answer 54

FORMAL ADMISSIONS
o A formal admission is binding on the person making the admission.
o Made for sole purpose of dispensing with need to present evidence to establish facta probanda.
o Usually made in formal court documents such as pleadings and pre-trial minutes.

INFORMAL ADMISSIONS
o Informal admissions don’t dispose of the question and may be explained by the person making the informal
admission.

Question 55

what’s hearsay evidence
provide its authority

Answer 55

HEARSAY
o S 3(4) of the Law of Evidence Amendment Act 45 of 1988 deals with hearsay evidence.

o Hearsay evidence is inadmissible unless it falls under one of the exceptions to the general rule against hearsay evidence.

o Hearsay evidence is where the probative value of the evidence depends on a person other than the person giving the evidence

Question 56

RELEVANCE

Answer 56

o If the evidence will make the facta probanda more or less likely, then it is relevant. Irrelevant evidence is inadmissible.

Question 57

PRIVILEGE Information

Answer 57

information that a party entitled to the privilege need not testify about in court.

o A holder of privileged information cannot be compelled by court to give evidence regarding that specific information.

▪ Public (State) privilege: Police dockets, State secret privilege, etc.

▪ Private Privilege: Spouse cannot be compelled to give evidence about another spouse, legal privilege with an attorney, etc

Question 58

CONFESSIONS

Answer 58

o Comprehensive out-of-court informal admission by an accused person, admitting to all the elements of the crime.

▪ Out-of-court: Not before Magistrate adjudicating criminal trial.
▪ Informal admission: can be explained away.
o It is an unequivocal acknowledgement of guilt.

o If the confession were to be made in court, the court would accept a plea of guilt

Question 59

JUDICIAL NOTICE

Answer 59

o The court accepts certain facts as proven without receiving evidence.
o These are facts of general knowledge or local knowledge.

Question 60

PRESUMPTIONS

Answer 60

o A provisional ex lege acceptance of a particular conclusion or state of affairs, based usually on an epistemic fact or circumstances.
o Presumptions can be rebuttable or irrebuttable.
o This is more a rule of substantive law than of evidence.
o A child under 7 is irrebuttable presumed to lack delictual accountability, whilst a child between 7 and puberty is rebuttable presumed to lack delictual accountability