Introduction to Law of Evidence

Introduction to the Law of Evidence (LoE)

• LoE comprises rules guiding the gathering, storing, presenting, and analysing of facts in legal proceedings
• LoE determines what evidence is allowed in court and its weight

Users of the Law of Evidence

• Law enforcement (e.g., SAPS officers, private investigators) utilize LoE
• Legal professionals (e.g., lawyers, judges, arbitrators) apply LoE
• Experts and scientists (e.g., forensic analysts) rely on LoE
• Journalists (who gather and verify information) use LoE

Key Concepts in Law of Evidence

• Some evidence requires additional proof (corroboration) for acceptance
• Confessions, for instance, often need supporting evidence

Definition and Purpose of Law of Evidence

• Controls how evidence is collected, stored, and presented
• Determines what evidence is admissible in court
• Guides the analysis and interpretation of evidence

TREGEA v GODART Definition

• LoE is considered a set of rules governing judicial investigations into questions of fact

Scope of the Law of Evidence

• Determines what facts can be presented in court
• Dictates how a legal issue can be proven
• Establishes who can present evidence and the manner of presentation

Law vs. Fact

• Law includes rules that can be predicted in advance, based on legal principles
• "It is illegal to exceed the speed limit" is an example of a law
• Facts are statements that can be tested or disproven and are based on real-life events and actions
• "Did the driver exceed the speed limit?" is an example of a fact
• Distinguishing law from fact can be complex

Law of Evidence in Context

• The main goal is to ensure justice and fair fact-finding
• The integrity of the process, including fair and impartial rules, matters

A Decolonial Perspective on the Law of Evidence

• South Africa's LoE was shaped by British colonial legal traditions
• British traditions are not the only legal system that deals with evidence

Pre-Colonial African Systems

• Before British rule, African societies had their own customary laws
• Xhosa customary law deemed the testimony of a bribed witness inadmissible

Blended Legal System in SA

• South Africa combines elements of traditional African courts with the formal legal system
• While state courts follow British-style legal procedures, many people still use traditional courts
• Traditional courts often rely on oral testimony and community-based justice

Key Colonial Features of SA Law of Evidence

• Party-driven court process where each side presents its case, and the judge remains neutral (cross-examination is used to test evidence)
• Separation between pleadings (court documents setting out claims and defences) and evidence, with evidence law focusing on presenting and proving facts
• Rational persuasion over ancient trials (historically involving ordeals, battles, or oaths), with the burden of proof usually on the party making the claim (dominus litis)

Jury System and Abolition in SA

• South Africa abolished jury trials in 1969 (Abolition of Juries Act 34 of 1969)
• Many people resolve disputes in traditional courts, which focus more on community-based resolutions rather than adversarial trials.

Changes to Decolonize the Law of Evidence

• Hearsay Evidence Reform (Law of Evidence Amendment Act 45 of 1988) was created because old British rules were too rigid
• South Africa adopted a more flexible approach better suited to local contexts
• Constitutional Interpretation (Section 39(2)) requires courts to develop and adapt legal rules to align with the Constitution
• Precedents can be overturned if they conflict with constitutional values
• Courts are not bound to follow outdated precedents that do not reflect South Africa’s evolving legal culture

Facts in Issue vs. Facts Relevant to Facts in Issue:

• Facta Probanda (Facts in Issue) are key facts that must be proven to win a legal case, forming the foundation of a claim or defence
• Facta Probanda example includes the prosecution must prove the accused committed the act, the act resulted in the victim's death, and the accused had the necessary intent in a murder trial
• Facta Probantia (Facts Relevant to Facta Probanda) are supporting facts that help prove the facta probanda
• Facta Probantia provide additional evidence to help the court infer the truth, and are not the main issue
• Facta Probantia example shows presence of the accused near the crime scene is not proof of the crime but is relevant in determining guilt in a murder trial

Evidence vs. Argument (on the Facts):

• Evidence refers to any information presented to the court to establish facts
• Evidence types include Oral testimony (witness statements), Documents (contracts, emails), Physical evidence (DNA, fingerprints), and Expert opinions (forensic analysis)
• Argument on the Facts includes when lawyers organize the evidence, apply it to the law, and persuade the court to accept a specific interpretation of the facts

Conclusive Proof vs. Prima Facie Proof

• Conclusive Proof occurs when the court fully accepts evidence as proof of a fact, and no further debate or contradiction is allowed
• A birth certificate conclusively proves a person’s date of birth
• Prima Facie Proof ("At First Glance") is evidence that, if uncontested, will be accepted as proof, unless the opposing party disputes it
• A signed contract presented in court is prima facie proof of an agreement unless one party proves forgery

Admissibility vs. Weight of Evidence

• Admissibility is the determination whether evidence can be presented in court which can be determined in a separate trial within a trial to ensure fairness
• Some evidence is excluded by law (e.g., illegally obtained confessions)
• Weight of Evidence is when the court decides how much importance to give admitted evidence.
• The court considers credibilityIs the witness reliable?, authenticityIs the document genuine?, and burden of proof which party must prove the fact?

Types of Evidence

• Direct evidence directly proves a fact without needing inference, described by a witness testifies, “I saw the accused shoot the victim.”
• Circumstantial (Indirect) Evidence requires the court to draw inferences from the facts, like when a person was seen running from a crime scene, and their fingerprints were found on the weapon, the court infers that they committed the crime

Formal vs. Informal Admissions

• Formal Admissions are made in official court documents (pleadings, pre-trial minutes) and are binding on the person making them
• Accused admits they were at the crime scene
• Informal Admissions are made outside court, can be explained away, and are not legally binding
• Suspect says they "may have been at the scene,” but later claims they were mistaken

Definition of Hearsay Evidence

• Evidence where the value depends on a person other than the one testifying
• Hearsay is inadmissible, except under specific legal exceptions
• If witness X testifies in court that Y left a note saying Z caused a car accident, is hearsay, because individual Y is not testifying

Legal Exception

• Courts may allow hearsay if the original speaker is unavailable, and it is reliable and necessary for justice
• Relevance of Evidence says Irrelevant evidence is inadmissible if it does not make a fact more or less likely
• If a case is about contract fraud, evidence about a party’s marital status is irrelevant

Privileged Information

• Some evidence cannot be forced into court because it is legally protected, by way of Public (State) Privilege and Private Privilege

Public (State) Privilege

• Protects police dockets, national security secrets, etc.

Private Privilege

• Spousal privilege says a spouse cannot be forced to testify against their partner
• Attorney-client privilege ensures a lawyer cannot be forced to reveal private discussions

Confessions

• A confession is a complete admission of guilt by an accused person
• It must be voluntary and not forced
• Example: A suspect says, “I killed him” during a police interrogation, and if made in court, can be accepted as a guilty plea

Judicial Notice

• Some facts do not need proof because they are common knowledge
• Courts automatically accept them as true:
  • The sun rises in the east -The COVID-19 pandemic began in 2019

Presumptions

• A presumption is when the law assumes something is true until proven otherwise, forming rebuttable and irrebuttable presumption

Rebuttable Presumption

• Can be challenged with evidence
• Example: A child aged 7–14 is presumed not legally responsible for their actions unless proven otherwise

Irrebuttable Presumption

• Cannot be challenged, even with evidence
• Example: A child under 7 cannot be held legally responsible for a crime

Law of Evidence Sources: Overview

• SA Law of Evidence is derived from common law, case law, the Constitution, legislation

Common Law and Case Law

• SA Law of Evidence was influenced by English Common Law
• English rulings since 1961, are persuasive, not binding
• Rulings from Anglo-American legal systems (Australia, Canada, USA) can be persuasive
• Stare decisis, or Precedent, means binding case law, so judges follow past decisions

Constitution's Role

• The Constitution is supreme law all evidence rules must align
• Affecting legislation are sections:
  • Section 2, any conflicting law is invalid
  • Section 8(3), courts develop common law reflecting the Bill of Rights
  • Section 35, protects arrested, accused, and detained people

Important Cases

• "Protea Technology v Wainer (1997)" and "Hohne v Super Stone Mining (2017)"
  • Section 35 does not apply to civil cases, only relevant in criminal matters

Rights of the Accused Under Section 35

• Includes Passive and Active Defence Rights

Passive Defence Rights

• Presumption of innocence (S 35(3)(h)) deems a person innocent until proven guilty
• Right to remain silent (S 35(1)(a)) keeps an accused from being forced to testify
• Right against self-incrimination (S 35(3)(j)) keeps one from being forced to give evidence that proves their guilt

Active Defence Rights

• Guarantees ones right to adduce and challenge evidence (S 35(3)(i)) to bring and question evidence
• Guarantees ones Right to legal representation (S 35(1)(a)) to be informed of their right to a lawyer.

Impact of Constitution on Evidence in Respect to Police Docket Privilege

• Before the Constitution, the state could refuse to disclose police dockets exemplified in "R v Steyn 1954"
• After the Constitution, blanket police docket privilege was declared unconstitutional in "Shabalala v Attorney General Transvaal (1995)", letting the accused access the docket if needed for a fair trial

Evidence Obtained Unconstitutionally

• "Matlou v S (2010)" illustrates a accused pointed out a body after police assault
• Section 218(2) of CPA, allows certain evidence (e.g., pointing out objects) to be admitted, even if the confession itself is inadmissible, and demonstrates a key legal provision
• SCA ruling excluded the pointing out because it violated the accused’s constitutional rights.

Reverse Onus and Presumption of Innocence

• Before the Constitution, Section 217(1)(b)(i)-(ii) of the CPA, says a confession made before a magistrate was freely and voluntarily given unless the accused proved otherwise
• "S v Zuma (1995)" deemed the reverse onus unconstitutional because it violates the right to be presumed innocent.

Court Rules Guiding Evidence Presentation

• Rule 31 of Constitutional Court Rules governs how factual material is presented in Constitutional Court cases, allowing factual material that:
  • Undisputed/common cause
  • Official, scientific, or statistical in nature
• Rule 31 of Constitutional Court Rules does NOT apply to cases where courts determine specific events about specific events (adjudicative facts)

Inadmissibility of Controversial Evidence

• Courts ruled if evidence is controversial or disputed, it is inadmissible in Constitutional Court cases
• Notable rulings include in:
  • "Minister of Health v TAC (2002)"
  • "Prince v President, Law Society of the Cape of Good Hope (2002)"
  • "Lee v Minister of Correctional Services (2013)"

Excluding Unconstitutionally Obtained Evidence(Section 35(5))

• Section 35(5) of the Constitution says, that evidence obtained violating Bill of Rights must be excluded if admission would:
  • Render the trial unfair
  • Detrimental to the administration of justice

Key Cases

• "S v Tandwa (2008)" says the Constitution does not automatically exclude unconstitutionally obtained evidence and courts must assess whether admitting evidence would make the trial unfair
• "S v Mthembu (2008)" says that if evidence was obtained illegally, then all evidence that resulted from it, may also be excluded

Governing Legislation

• South Africa's Law of Evidence is regulated by several statutes, including:
  • "Civil Proceedings Evidence Act 25 of 1965"
  • "Law of Evidence Amendment Act 45 of 1988" -"Criminal Procedure Act 51 of 1977"
  • "Electronic Communications and Transactions Act 25 of 2002"
• When legislation is silent, if a statute does not address a specific rule of evidence, courts refer to English common law.

History of Law of Evidence (Chapter 4)

• History of South Africa's LoE is shaped by colonial rule, particularly by Dutch and British influences

Cape of Good Hope Timeline

• 1652: Dutch occupied Cape, and Roman-Dutch Law applied
• 1806: British took control, Roman-Dutch Law remained
• 1830: Dissatisfaction with procedures and evidence led to adopting English Law of Evidence through Cape Evidence Ordinance 72 of 1830

Other Colonies TimeLine

• 1902: British took over Transvaal, and Orange Free State, enforcing their own evidence laws via Evidence Proclamation 16 of 1902 (Transvaal), and Evidence Proclamation 11 of 1902 (Orange Free State)
• The four British-controlled colonies merged to form the Union of South Africa, with evidence law consolidated into Criminal Procedure and Evidence Act 31 of 1917, later replaced by Criminal Procedure Act 56 of 1955
• English Law remained influential, filling any legal gaps if the 1917 Act was silent

Republic

• 31 May 1961: South Africa gained independence from Britain with English references in legislation were removed
• The law "as it stood on 30 May 1961" still applied, meaning British legal principles remained
• 1977: Criminal Procedure Act 51 of 1977 was introduced retaining the 1961 cut-off date

Development of Precedents SA Law Timeline

1. English decisions before 30 May 1961 remain binding unless they were incorrect
2. Decisions of the Supreme Court of Judicature (UK) and House of Lords (UK) are binding if they were not proven wrong 3. Pre-1950 decisions of the British Privy Council are treated as if they were made by the South African Supreme Court of Appeal (SCA) 4. South African legal practice differs from English law on a specific point, the South African practice is followed 5. English court decisions made after 30 May 1961 have persuasive value but are not binding

Civil Proceedings and Evidence Law

 - Civil Proceedings Evidence Act (CPEA) was enacted to standardize civil evidence rules across the Union
  - Section 42 of the CPEA states, if a civil evidence issue is not covered by any South African law, the rules from 30 May 1961 still apply

Substantive vs. Adjective Law

• Substantive law

  • Defines one's rights and duties
  • Concerned with the ends of justice
  • Laws dictating that a contract must be fulfilled

• Adjective (Procedural) law

• Regulates how substantive law is enforced

• Defines how means achieve substantive law ends

• Rules that govern how to present evidence in court

Importance of Legal Distinctions

• Substantive law comes from Roman-Dutch Law
• Procedural law, including the Law of Evidence, comes from English Law
• A case can be decided differently, according to whether substantive of procedural law the case.

Case Study: "Tregea V Godart (1939 AD 16)"

• Case that questioned whether a testator, had the mental capacity to make a valid will
• Plaintiff argued testator lacked mental capacity
• Defendant argued testator was mentally capable

Laws at Play

• Substantive Law (Roman-Dutch Law)

  • Legal presumption valid wills are legally valid
  • Favours defendants who maintain the law is valid

• Law of Evidence (Adjective Law)

  • Proves plaintiff must prove will should validity, meaning they are invalid
  • Favours plaintiffs to prove the will is invalid

Court Decision

• The substantive law rule prevailed (Plaintiff must've been made to prove with will wasn't valid)
• "Schmidt & Rademeyer" criticized the burden of proof, arguing that evidence does not equal substantive law

Irrebuttable Presumptions

• If founding fact is proven, the Court must accept with presumption
• They are not challenged by contrary evidence
• Child aged is under 7 aged and is presumed lacking accountability

Definition of Estoppel

• It prevents someone who has a party relied upon, from making a contridictory representation
• Landlords cannot contradict that a lease wont be cancelled, and so tenant spend and is then not cancelled

Categories of Estoppel

1. Estoppel- By Judgment (Res Judicata), not re-litigated legal desputes
2. Exclusionary Rule, prevents a person from introducing evidence that contridicts from previous judgement or promise
3. Modern Rule- Estoppel is substantive not adjective law

Parol Evidence overview

• The Parol Evidence Rule has origin in English Law
• Its purpose is to ensure a limitation on contractual certainty

Key Principals of Parol Evidence

• Integration- the written contrat is the only valid source of agreemment
• Interpretation- the text is the only reference unless ambiguity exists

Exceptions to Parol Evidence

• Additional evidence for Incomplete contracts
• Memorandums where external evidence can be used
• Extrinsic evidence to prove fraud
• External evidence can be used to correct the contract
• External evidence can be used to rectify previously agreed on oral agreements

Case Law of Evidence

• "Silostrat v Strydom (2021 ZASCA 93)", and prevents Courts from modifying external words of a contract
• "KPMG v Securefin (2009 SCA)", prevents contextual evidence admittted only when there is ambiguity - "City of Tshwane v Blair Atholl HOA (2019 SCA)", prevents prior engagements being used. - "University of Johannesburg v Auckland Park Theological Seminary (2021 CC)", suggests that courts use less contextual evidence, sparingly

Relevancy and Admisibility Overview

• English law has great influence on laws and is often criticised
• The reason is to exclude unfair types of evidence
• Some critis that this hinders justice from judges who have experience

Legal applications for Admissibility Rules

• Some Early legal applications require an early and accurate "Dispositive of Fact-finding"
• courts must be fair and accurate to rule whether evidence is admissable

Admissibility Determinations list

1. Section 174 of the CPA

• Prosecution has not presented enough evidence to acccuse someone

2. Section 342A of the CPA
   • Can use a stay on prosecution due to some sort of delay

- Rule 32 & Rule 23 of the Uniform Rules of Court

   - Civil ruling is the instance, where the case is dismissed because Plaintiff hasn't presented  
 sufficient Evidence

Truth

• Courts differentiate truth and relevancy, some of which is not worth truth depending admission and is inadmissible.
• All Evidence is not relevant and there are NO EXCEPTIONS TO THIS RULE, civil cases and Criminal case have a process of admissibility
  • • Example "S V Griffiths (2017)" where deceased was abused and the state couldn't prove his death
    • Courts desicision was that the statements was hearsay or irrelevent

Non Relevancy

• Relevant evidence is still inadmissible and suggest if it
  • Causes unfair prejudice, wastes time and is misleading

Example of Non Relevancy

-"S V Meyer" evidence CAN be excluded if Prejudice

The dog evidence

• Example is old case from "Tracker dog case (R V Trooped)" where "the dogs" trial was deemed a "contrivancy and trial not spontenous
• "Admissibility decisions are provisional as more emerge"

Trial within Trial in Adversarial Law

• "Admissibility" must be kept seperate and have a hearing in trial to determine if fair" E.G confessions

McDonald Coporation

• Admissibility is decided by LAW "so no merits should b heard
• "DPP V Viljoen (2005)" the desision must be seperate

Relevancy and Reason

1. Accused to challenge evidece
2. The judge has the right decide is admission can be made

Example:

"Dhlahmini", fact on if admission was made

Burden of Proof, Civil case (burden is on balance of probabilities if relevant) and Criminal case (state must have reasonable doubt)

Discretion of Judes: "Judges" discretion must be fair and based on principles

Examples of the disrection of court

• "Zuma case"
• Court allowed sexual history

"Mthembu"

• Evidence obtained and torture was deemed to have violated rights

REQUIRMENTS

1. Relevant to the issue
2. Material to legal issues
3. The jury should note be overhwlemed and have clear rules

Exclusive Rule

• Even If relevant it can be excluded in cases of:
  • Privlage and illegally obtained evidence

Cases "S V Aimes", "S V Ebrahim" -Balacing- The jury MUST weight the factos and be -Fair, relevant and highly prejudicail( this must be balanced, fairly done or too much)

"Matthews- A suspect had motive

• NOTE" the factors be prohative than prejudicial

"DVD" was to prejuicial to allow

Previous consisitent Statment

• Oral before testimony that a witness may give
• The statment must match

The rule

• Can NOT be used, it is the excluded in crimninal or civil cases

Example

A person on trial cant say what they old their dad

• WHY -NOT RELEVENT "just being true cant make more truth"
• Risk of fabrication if lied repeatedly
  • Waste jury time in not new and wasted time

Exception to this rule

• "To rebut and allegations of rECENT Fabrication", if other team claims made up it" -In a trial divorse if its made up evidence then a family member can testify

EXAMPLES

• SEXUAL assult: and first complant must be admitable must be
• Voluntar , in court, first opporntunity and sexual in nature
  • Must BUT The caution is abolisbhe in "sexual ofence act, SORMA"

IFDENITCATION, AND LEGAL POVISOIN

• Identidies before the trial it can be used

  • Legal, Procedure allow execption - Section 213 etc NOTE SPECIL RULES FOR SEXUAL

• OLD RULE suspect complaints

• NEw The Jure cannot be extra caurtious - Cant assume delayed

Section of SOME-A

 -58, ADmitted to civil case
   NOTE offence inclue rape

IMPACT OF (sexual ofance and matters)

1. Volunarty : 58 admisdible in all cases : Botton line: comon law and must be used (voluntary to be add

2. Complainat Must testify NOTE: "58" dont testify than is inadmissible

3. COMPLAIN At first opp -Courtes interpret in various way"s Bottom The Delays are NOT deemed to cause the case

4. Sexy Nature of OFence : includes any offence that has it

EVIDENCE VALUE

ThePCS value is no tproven- "the common law"

• But does NOT use as collaboralite NOTE: It remains limited to showing consistenty

indentitiication

• IN coommon laawe its weak "Dock "
• Soroma- Prioridentficationis addisible

civil proceedinggs Pcs can be used in civial case with set conditions

RES gESTAE

The spontaneous can be admissie, with out change in Sorumaa- they remaiin exepctions\NOTE : WItness are used for memory BUT cant have indeoendent weight

• IN COMMON LAW the arreste must be used show consistent, but not prove
• Soorma is unchage
• INCPA - the "conmsent" must is needed to be shown by wittiness

SFE

• THE similar "crime " must still be relevent : But should have 4 reasaonable
  1. Not be unfair
  2. Related to issues
  3. Not waste timing -Not just allegations
  4. Allow accused be charged

Examples for evidence is used

Proving identity the same thing

• PROVING IT AINT INCIDENT

Exmples

"Nduna" case is relvenat and not characte -""Delew Council" compairing electricitty -""hOlling to head- receving a warernt -""LUASher " where pigs got kilelded - ""Smauguso " where a acsued did smell smaugguso”"

Makeing sure The law that state MUST make past crines

But past creimse do a 1 intent was right 2, crime was the same 3. knoweldge waws done

The"Shortcoming must only used to show tendency not crimes"

• If only to shhow crime than"its admisible"" -""Example " theft "

• Must be Highly relevant in """Identifying style"-

1. patter

• 1 the case Example straffren - why waws this allowed

Depend on the resemblance The more unique it IS than it will be alllowed

MODifiyung MAKIng

-PARES is not ""Rigid""" but rather past ""crimes"" by the person EXAMPLE

• serel always leaves ""flll""

NeXS

Becaus its TOo rígídos the """""requirment""

• The ""Simailar"" is used

#1 :""Clear to present""

• 2 the endes must show general

Exmample a doctor was "" accused"""

• • No strikng similarty

What

Accidental I'mplousisbiialite

probalative and effect- admisible if useful than prejuiedca

""How is it so great ? The probalative

EX, The ""vboardmand""" head was charged

• -Thae similaeity WAS PAssicv

To testmon to make it "correb""

""THE ""KeY""Takeaway""- the C is"

REbbut the CONcidence, Expliane it with "Coiencedne""

• ""Smih "" and the three wives""","""His""" was """,,,,,,,three"""imprrable

"""""The the e"""""" """""