Introduction to Law of Evidence

Introduction to Law of Evidence

• Members of the SAPS, private investigators, experts, scientists, journalists, and arbitrators need to understand the Law of Evidence, not just lawyers.
• Evidence includes how it should be collected, presented in court, its admissibility, the evaluation of its weight, and the overall pursuit of justice in fact-finding.
• Can be evaluated with regard to the Nature and Subject Matter of the Law of Evidence, The Role of the Law of Evidence today, decolonial analysis, and the 3 Fundamental Features of Coloniality in the South African Law of Evidence

What Law of Evidence Is

• Issue raised historically and ruled on by the Appellate Division in Tregea and Another v Godart and Another.
• It is a set of rules which has to do with judicial investigations into questions of fact.
• Often called "Lawyers' law" due to its specialization and importance for practicing attorneys.
• Rules of Evidence Includes: Gathering, Storing, Retrieving, Transmitting information, and putting this information to inferential use.
• Prescribes which facts may be presented in court, how to prove an issue, who may present a fact or prove an issue, and how this may be done.

Questions of Law vs Fact

• Questions of Law: A body of principles and rules capable of being predicated in advance; exceeding the speed limit is a criminal offense as a matter of law.
• Questions of Fact: Descriptive statements that can be falsified; adjudicative facts relate to activities or characteristics of the litigants, as in whether SAPS read the Miranda rights to the accused,.
• Difference: Questions of law directly discuss whether a rule was transgressed, while questions of fact deal with behaviors and not directly with the rule.
• A matter of law determines if a rule was broken, but a question of fact determines if the person broke the rule willingly or knowingly.

The Role of Law of Evidence Today

• Used by forensic experts with a focus on the fairness and integrity of the fact-finding process.

Case Law

• S v Sigcawu: Determination of the admissibility of the deceased’s dying declaration that identified Khanyiso ‘Kaizer’ Sigcawu as his killer.
• Nxomani v Minister of Police: Evaluation of fairness of the two-year detention of Nxomani based on unreasonable suspicion of involvement in a truck robbery.
• S v Moyeng: Assessment of the impact of destroying trial records on the wrongfulness of Hlabane Moyeng's conviction.

A Decolonial Perspective

• The Law of Evidence is known as the “child of the jury" and introduced by the British colonial government.
• Principles for evidence collection, storing, presentation, and fact evaluation are not unique to it and are found in different disciplines and jurisdictions.
• Xhosa customary law has exclusionary rule and testimony by bribed witnesses.
• South Africa has blended state and traditional courts where principles of evidence and proof are applied.

Influence of the Past

• Important for understanding the Laws of Evidence

The Three Fundamental Features of Coloniality

• James Fitsjames Stephen distilled the Law of Evidence into Relevance (admissibility), Presentation, and Proof (evaluation).
• Taking in the Context of common-law adversarialism where Evidence is tested in cross-examination
• The Procedural bifurcation between the Law of Evidence and Law of Pleadings
• Enlightenment Rationalism: Moved away from trials by ordeals, battle and compurgation and Foremost purpose is finding the truth and doing so fairly.

Relation to South African System

• A large part of South African litigation occurs in traditional courts, not state courts.
• The Adversarial system designed for jury trials was abolished in 1969.

Changes to Decolonize the Law of Evidence

• The Hearsay Evidence, per the Law of Evidence Amendment Act 45 of 1988, changed the strict English rules to better suit South Africa.
• Courts interpret the Law of Evidence Rules with S39(2) of the Constitution, requiring courts to develop common law rules that are consistent with it.
• Courts are not obligated to follow precedent if it conflicts with boni mores or the constitution.

Chapter 2 – Basic Concepts

• Briefly define main basic concepts in the law of evidence to later elaborate further

Chapter 2 Concepts

• Facts in Issue and Facts Relevant to the Facts in Issue
• Evidence and Argument
• Presentation of Evidence and Evidentiary Facts
• Evidence and Proof
• Conclusive Proof and Prima Facie Evidence
• Admissibility and Weight of Evidence
• Circumstantial and Direct Evidence
• Hearsay
• Relevance
• Privilege
• Formal and Informal Admissions
• Confessions
• Judicial Notice
• Presumptions

Facts in Issue and Facts Relevant to the Facts in Issue

• Divided into facta probanda (facts in issue) and facta probantia (facts relevant to the facts in issue).
• Facta Probanda: Essential criteria for the cause of action where a litigant must prove material facts to establish a case.
• Facta Probantia: Evidentiary facts which are subordinate and collateral to facta probanda and the relevance inferred for issues in dispute between the parties

Evidence and Argument

• Evidence: is the advancement of facts including oral testimony, real, documentary, expert evidence, etc.
• Arguments: process of organizing to advance one's case by explaining to the court why certain inferences should be drawn.

Presentation of Evidence and Evidentiary Facts

• 'Evidence' is used interchangeably with Brute Facts (facts that have no explanation) and Evidentiary Facts (facts that can be explained)

Conclusive vs Prima Facie Proof

• Conclusive: Adequate grounds that a fact may be found, a finality to it with no real epistemological implication, more of an institutional distinction.
• Prima Facie: Proof on the face of it and legislation may submit that a document is prima facie proof of the content in interlocutory applications like interim interdicts.
• Creates a rebuttable presumption that, left unrebutted, will lead to a conclusive result however meeting The Standard of Proof has nothing to do with the truth.
• Conclusive proof is determined at the END of proceedings.

Admissibility and Weight of Evidence

• Admissibility includes relevance and exclusionary rules but is is interlocutory and provisional.
• Weight of Evidence is a final assessment where the content is evaluated for credibility and/or authenticity along with burdens of proof

Circumstantial and Direct Evidence

• Direct Evidence: Requires no inference. Example: John saw Mary driving a car and knocking over a bicycle rider.
• Circumstantial Evidence: Indirect and requires the court to make some inferential reasoning. Example: John saw Mary driving a car rushing from the scene while bike is lying on the ground drawing an inference she was driving the car that hit the bike.

Hearsay

• According to S3(4) of the Law of Evidence Amendment Act 45 of 1988, hearsay evidence is inadmissible unless it falls under an exception.
• Hearsay evidence has probative value dependent on a person other than the one giving it.
• Example: a Mary stating Julia saw Thomas damage her car when Julia actually saw the accident.

Relevance

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

Privilege

• Privileged information is information that a party need not testify about in court, with a distinction between state and private privilege.

Formal vs Informal Admissions

• Formal Admission: Binding on the person making the admission and for the purpose of dispensing with the need to present evidence to establish the facta probanda.
• Usually made in formal court documents such as pleadings and pretrial minutes.
• Informal Admission: It Doesn’t dispose of the question and may be explained by the person making it.

Confessions

• A comprehensive out-of-court informal admission by the accused of all the elements of the alleged crime and is an unequivocal acknowledgement of guilt.
• Can be explained away because it is out of court and informal or if made in court, the court would accept a plea of guilty.

Judicial Notice

• A court may accept certain facts as proved even though no evidence was led.
• According to Gold Reef City Mint (Pty) Limited v Bruni included facts of general or local knowledge

Presumptions

• A provisional ex lege acceptance of a particular conclusion or state of affairs, usually based on an epistemic fact or circumstances.
• Can be rebuttable or irrebuttable with Irrebuttable presumptions for a child younger than 7 as incapable of assuming delictual liability
• While Rebuttable presumptions apply to a child between 7 and puberty as lacking delictual liability.

The Post-Union Period

• Provisions in colonial statutes regarding evidence in criminal proceedings were consolidated into the Criminal Procedure and Evidence Act 31 of 1917.
• Later replaced by Criminal Procedure Act 56 of 1955, excluding English law where a matter was expressly dealt with in South African Legislation.

The Republic of South Africa: Law of Evidence after 30 May 1961

• Movement to create an independent South African Law of Evidence occurred in two ways:
• Local legislative amendments removed references to England.
• Local courts developed precedent with respect to criminal proceedings to clarify the meaning of the “30 May 1961" provision.
• SCA may depart from decisions before Pre-30 May 1961 if reflect English law incorrectly.
• Decisions of the Supreme Court of Judicature or the House of Lords, if they are not wrong, bind SCA.
• The SCA replaced the Privy Council in 1950, and decisions before 1950 are deemed to be SCA decisions.
• South African practice will be followed even if it differs from the English Evidentiary Rule.

Section 35 Analysis

• Section 35 provides the rights to: be informed of certain rights (S 35(1)), use passive defense rights, active defense rights and due Process rights
• Passive defence rights include: Right to be presumed innocent [s 35(3)(h)] and Right to remain silent [s 35(1)(a)].
• No one can be compelled to give self-incriminating evidence [s35(3)(j)].
• active defence rights include: Right to adduce and challenge evidence [s 35(3)(i)]
• Due process rights include right to a fair trial [s 35(3)].

The right to a fair trial

• The right to a fair trial has made a change to police docket privilege:
• There use to be a blanket police docket privilege meaning contents of dock could not be disclosed without the consent of the State
• After that the ruling of Shabalala v Attorney General Transvaal 1995, blanket privilege is overturned and those Accused have access if needed for access

Right to be informed of Right to Representation and Right to Remain Silent

• According to Matlou v S a court should not obtain evidence by unconstitutional means.
• S218(2) of the CPA still allows for the finding of the Act to be admissible, however SCA found it offended constitutional rights of accused and upheld appeal

Constitutional Bearing on Reverse Onus

• According to S v Zuma the following points are made
• S217(1)(b)(i)-(ii) of CPA includes and A confession before a magistrate has it written down or if it made it is be presumed its was freely made
• Held: S25(2)(c) gives an Interim constitution, which it to be assumed inccent