South African Law of Evidence

• The South African legal system is not based on Roman-Dutch authority and our rules of evidence are found in local statues and, where these are silent on a topic or issue, the English law of evidence which was in force in South Africa on 30 May 1961.
• South Africa has a body of local case law on evidence, and these cases are binding if decided in accordance with applicable English common-law rules as of 30 May 1961.
• If a total lacuna is encountered, a South African court may look to English cases decided after 30 May 1961.
• South African law of evidence belongs to the Anglo-American “family.”
• The Constitution governs the validity of rules of evidence and is an important source of the evidenciary law.

Original and regional incorporation of english law: the pre-union period

• Before South Africa became a Union (before 1910), the English law of evidence was directly and indirectly incorporated into the different colonies.
• Legislation which set out English common-law rules and principles was passed, known as direct incorporation.
• Indirect incorporation means that the English law of evidence had to be followed for issues or topics without express local statutory provision.
• Colonial statutes directly and indirectly incorporated English law in Ordinance 72 of 1830 (Cape); Law 17 of 1859 (Natal); Ordinance 11 of 1902 (Orange Free State) and Proclamation 16 of 1902 (Transvaal).
• Local courts had to follow English statutes as they stood on the original date of incorporation, rather than subsequent English legislation.
• Amendments to the English common law brought can be applied about by English judicial precedents.
• Some statutes indirectly incorporated English law by referring to the law "in the Supreme Court of Judicature in England."

Criminal proceedings: the post-union period

• In criminal proceedings, early colonial legislation was superseded by and consolidated in the Criminal Procedure and Evidence Act 31 of 1917.
• This Act was later replaced by the Criminal Procedure Act 56 of 1955, which excluded English law where a matter relating to evidence was expressly dealt with in South African legislation.
• English law had to be followed where a matter was specifically covered by a reference to the law as applied “in the Supreme Court of Judicature in England”.
• Amendment Act 92 of 1963 removed all references to “the Supreme Court of Judicature in England" and replaced them with references to the law as it stood on the “thirtieth May 1961”.
• The reference to the law as it stood on 30 May 1961 "was a circuitous way of referring to the law of England" because of the perceived inappropriateness of direct.
• In 1977 the Criminal Procedure Act 56 of 1955 was replaced by the CPA.
• The CPA retained the references to the law as it stood on 30 May 1961.
• Examples of specific topics still covered by references to the law as it stood on 30 May 1961, including the impeachment of a witness (s 190(1) of the CPA); legal professional privilege (s 201 of the CPA); state privilege (s 202 of the CPA); privilege against self-incrimination (s 203 of the CPA); character of an accused (of the CPA); and the character of any female or male against whom an offence of an indecent nature is alleged to have been committed (s 227(1) as read with s 227(4) of the CPA).
• Sections 206 and 252 of the CPA contain wide residuary sections.

Civil proceedings: the post-union period

• In civil proceedings colonial provisions which introduced English evidentiary laws were consolidated when the CPEA came into operation in 1965.
• Section 42 of the CPEA gives a directive that in any civil case that is not provided for in the CPEA or any other South African leglislation, the law of evidence in that case must follow the law of evidence in civil cases on the 30th of May, 1961.

Interpretation of the 30 May 1961 provision

• The South African law of evidence remains “frozen" as at 30 May 1961.
• Common law that must be followed consists of English legislation that existed on the original dates of indirect incorporation, as well as English case law prior to 30 May 1961.
• All rules of evidence incompatible with constitutional provisions are not binding.
• Section 206 of the CPA says that “The law as to the competency, compellability or privilege of witnesses which was in force in criminal proceedings on the thirtieth day of May, 1961, shall apply in this Act or any other law.”

English decisions considered to be incorrect

• The Supreme Court of Appeal may deviate from an English decision if it concludes that the English decision does not correctly apply the English law.
• Appellate Division preferred an older Privy Council decision to a more recent decision of the House of Lords.
• South African appeals to the Privy Council were abolished in 1950.

South African rules of practice incompatible with english law

• Where an English evidentiary principle is obviously incompatible with South African law or a rule of practice (usus fori), such principle may be dismissed.

Rules inconsistent with constitutional provisions

• English decisions before 30 May 1961, which would have been binding without local statutory provisions, must be ignored if found incompatible with constitutional provisions.

Value of english cases decided after 30 May 1961

• English decisions after 30 May 1961 are not binding upon South African courts, but they do have considerable persuasive force.

Value of privy council decisions

• The Privy Council Appeals Act 16 of 1950 abolished appeals from the Appellate Division to the judicial committee of the Privy Council
• Post-1950 decisions of the Privy Council merely have persuasive force.
• Lower courts in South Africa are bound by the decision of the Appellate Division, followed by pre-1950 decisions of the Privy Council, followed by pre-30 May 1961 decisions of the English appeal courts and House of Lords.
• Supreme Court of Appeal may disregard a pre-1950 Privy Council decision if convinced that it was wrongly decided.

Further sources

• CPA, CPEA and the Law of Evidence Amendment Act 45 of 1988 are the main codes governing the law of evidence.

Constitutional provisions

• The South African legal system was constitutionalized on 27 April 1994, when the interim Constitution came into operation.
• Parliamentary sovereignty was replaced by a Constitution which is the supreme law.
• Statutory or common-law rules which conflict with the rights contained in the Bill of Rights must be declared unconstitutional unless it can be saved as a constitutionally permissible limitation.
• Common-law procedural and evidentiary rights of the criminally accused have hardened into constitutional rights, including being informed of certain rights; right to exercise a passive defense (remain silent), be presumed inocent, not incriminate themselves (active defense), have the right to adduce and challenge evidence, right to a fair trial which is what due process truly is.
• Constitutional provisions impact the admissibility of admissions and confessions.
• Constitutional provisions have been invoked to declare certain statutory presumptions and reverse onus clauses unconstitutional.
• Section 35(5) of the Constitution provides that evidence “obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice".
• Our evidentiary law must constantly be scrutinised with our Consitution's provisions in mind.
• It can be useful to consider Canadian and American cases as in both these countries their English common-law evidentiary laws were superimposed onto Consitutional provisions.

Overview of South African law of evidence, including its historical roots and the role of English law. Focus on the interplay between local statutes, case law, and English common-law rules as of May 30, 1961. Also covers the impact of the Constitution on the validity of rules of evidence.